Delhi District Court
Cbi vs . Rajinder Singh Rana Etc. on 18 July, 2016
IN THE COURT OF MS. ANJU BAJAJ CHANDNA,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
Reg. No. 9/16 (Old CC No. 48/12)
RC No. 10A/2011/ACIII/ND
U/S 120B IPC & Section 7, 12 & 13(2) r/w Section 13 (1)(d) of PC
Act, 1988
CBI vs. Rajinder Singh Rana etc.
CNR No.: DLND010000422012
Central Bureau of Investigation
vs
1. Rajinder Singh Rana (A1)
S/o Sh. Ratan Singh,
R/o H. No. 130, Vaishali, Maurya Enclave,
Pitampura, New Delhi.
2. Raju Dhanapal Raj (A2)
S/o Sh. Raju
R/o 21Rakkiappa Street, Mylapore, Chennai4
3. Milan Kumar Dey (A3)
S/o Late Sh Bhaskar Dey
R/o Circular Road, behind Apsara Hotel,
Lalpur, Ranchi.
4. Yash Pal Singh (A4)
S/o Late Sh Kishan Singh
R/o 6/680, Civil Lines, Bullandshahr
Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 1 of 107
Date of FIR : 29/06/2012
Date of filing of chargesheet : 02/07/2012
Date of cognizance : 15/05/2013.
Date of framing of charge : 13/07/2015.
Arguments concluded on : 09/07/2016.
Date of Judgment : 18/07/2016.
Appearances
For prosecution : Sh P.K Dogra, Ld. Senior Public Prosecutor for CBI.
For accused : Sh. R.M. Tuffail and Sh. Harsh K. Sharma, Ld.
Counsels for A1, A2 & A4.
Sh. B.M. Tripathi, Ld. Senior Counsel with Sh.
Aditya Chaudhary, Ld. Counsel for A3.
JUDGMENT
1. The Central Bureau of Investigation (CBI) has registered the present RC on the basis of preliminary enquiry against Rajinder Singh Rana (A1), Member, Bar Council of India, New Delhi; Raju Dhanapal Raj (A2), Vice Chairman, Bar Council of India, New Delhi; Milan Kumar Dey (A3), Member, Bar Council of India, New Delhi; Yash Pal Singh (A4), Associate Professor, NREC College, Khurja and Prashaant Garg, Chairman of School of Law Studies, Bulandshahr, for Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 2 of 107 the offences u/s 120B IPC and u/s 7, 12, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988.
2. The matter pertains to granting of approval by Bar Council of India (BCI) to the School of Law Studies, Khurja Road, Bulandshahr, U.P. The Chairman of the college namely Prashaant Garg intended to start five years B.A., LLB course for the college and required to obtain recognition from BCI as per prescribed rules under Bar Council of India Legal Education Rules 2008. The college had already taken no objection from the state government and also affiliation from Chaudhary Charan Singh (CCS) University, Merrut. In August 2010, the application was submitted to BCI for grant of approval for establishment of law college having five years LLB course.
3. According to the procedure, the file of the concerned Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 3 of 107 college is placed before Secretary BCI who after scrutinizing, places the same before Head of the Legal Education Committee (LEC) for further scrutiny. Thereafter, inspection fee is deposited in the accounts department which issues the receipt and also letter of acknowledgment is sent to the college concerned. The name of the college is included in the pending list / register and inspection committee is constituted for inspection of the college. The inspection is conducted by at least two members of Bar Council of India. As per the Rule20 of Legal Education Rules2008, PartIV of the Bar Council of India Rules, Secretary issues notice to the Principal of Law College informing the names of inspection team members and also the date of inspection. It is the duty of the inspection team members to examine the documents, to visit the institution to assess the infrastructure, curriculum, teachinglearning process, library and other standards of Legal Education. The committee then submits its report in the prescribed format together with all relevant documents and same is placed before Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 4 of 107 Legal Education Committee (LEC) for its consideration.
4. It is further the case of the prosecution that Chairman of School of Law Studies, Bulandshahr, vide letter dated 12/08/2010 requested Secretary of Bar Council of India for granting permission of new Law College for the year 201011. The request was processed. Sh. R. Dhanapal Raj (A2) ViceChairman of BCI constituted the inspection team consisting of himself, Rajinder Singh Rana (A1) and Dr. Gopal Narain Mishra for inspecting the college on 28 & 29.10.2010. The notice was accordingly issued to the Principal of Law College, to Chairman Sh. Prashaant Garg and also to the Registrar of CCS University, Merrut. On 26/10/2010, Officiating Secretary, BCI informed through telegram that inspection has been fixed for 29th and 30th October 2010. The investigation has further revealed that Vice Chairman Raju Dhanapal Raj (A2) and BCI Member Dr. Gopal Narain Mishra were not available for inspection and in their absence Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 5 of 107 inspection was done by Rajinder Singh Rana (A1) and Sh Milan Kumar Dey (A3). The substitution of team members could be done on verbal instructions as per the practice. On 29/10/2010, the inspection team visited the college in question and the visit was also videographed. It is also the case of prosecution that Rajinder Singh Rana (A1), Raju Dhanapal Raj (A2) and Milan Kumar Dey (A3) had mutual discussions regarding demand of bribe from the Chairman of Law College, Prashaant Garg and they agreed at Rs 3 lacs for submitting the factual report. Accordingly, Sh Prashaant Garg paid Rs 2.5 lacs to Rajinder Singh Rana (A1) at his residence on 03/11/2010 and remaining Rs 50,000/ on 08/11/2010. The bribe amount was to be distributed among Rajinder Singh Rana (A1), Raju Dhanapal Raj (A
2) and Milan Kumar Dey (A3).
5. It is also the case of prosecution that Yash Pal Singh (A4), Assistant Professor, NREC College, Khurja intervened and spoke with Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 6 of 107 Rajinder Singh Rana (A1) and he acted as middleman with the result that Sh Prashaant Garg agreed to pay Rs 3 lacs for submitting the factual report with respect to his college. The prosecution has concluded that there has been demand and acceptance of bribe amount for granting necessary approval to the college by the accused persons, who were public servants being office bearer and members of BCI.
6. Sh. Prashaant Garg paid Rs. 2.5 Lacs to Rajinder Singh Rana (A1) at his residence in Pitampura in the morning of 03.11.2010. During this visit, Rajinder Singh Rana telephoned Milan Kumar Dey from his mobile in presence of Prashaant Garg and Prashaant Garg confirmed to Milan Kumar Dey that he has delivered Rs. 2.5 Lacs to Rajinder Singh Rana and will deliver remaining Rs. 50,000/ in 23 days. Thereafter, remaining Rs. 50,000/ were paid on 08/11/2010.
7. During investigation, 28 telephonic conversations recorded Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 7 of 107 by CBI Special Unit, New Delhi, in respect of following numbers were obtained which show demand, negotiations and delivery of the bribe amount: Sr. Mobile No. Name of subscriber No. 1 9312222807 Sh. Rajender S. Rana, Chamber No. 295, Western (Reliance) Wing, Tis Hazari Court, New Delhi. 2 9431350118 Sh. Milan Kumar Dey, Late Bhaskar Dey, Circular (BSNL) Road, Behind Apsara Hotel, PO Lalpur, Ranchi, Jharkhand.
3 9334700484 Sh. Milan Dey, Behind Apsara Hotel, Circular (Reliance) Road, Lalpur Ranchi, Jharkhand. 4 6512562564 Sh. Milan Kumar Dey, Advocate, Ranchi High (BSNL) Court, Ranchi, Jharkhand R/o Behind Apsara Hotel, Circular Road, Lalpur Ranchi, Jharkhand.
8. During the course of investigation, Sh Prashaant Garg, Chairman of Law College was granted pardon on 21/03/2012 and prior to this, his statement was recorded u/s 164 Cr.P.C on 29/02/2012. According to prosecution, Sh Prashaant Garg has made full disclosure of facts and circumstances of the case, which is incriminating in nature against the accused persons and prime facie establishes their Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 8 of 107 involvement in demanding and accepting bribe / illegal gratification. It is also alleged that the voices of accused persons have also been duly identified during the course of investigation and also supported with the expert opinion regarding voices of Rajinder Singh Rana (A1) and Raju Dhanapal Raj (A2). On completion of investigation, the charge sheet u/s 173 Cr. PC has been submitted.
9. After submission of the chargesheet in the court on 02/07/2012, the court took cognizance against the accused persons vide order dated 15/05/2013. After compliance to section 207 Cr. PC, the charge was framed on 13/07/2015 u/s 120B IPC r/w Section 7, 13(1)(d) r/w Section 13(2) of P.C Act, 1988 against all the four accused and also for offences u/s Section 7, 13(1)(d) r/w Section 13(2) of P.C Act, 1988 against accused Rajinder Singh Rana (A1) and Milan Kumar Dey (A3) and for offence u/s Section 12 of P.C Act, 1988 against accused Yashpal Singh (A4). All accused pleaded not guilty Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 9 of 107 to the charges and claimed trial.
10. In order to substantiate its case, prosecution has examined as many as 24 witnesses. The sum and substance of prosecution evidence is as follows: PW 1 Dr. A. Kannan, Sub Divisional Engineer (MarketingPublic Grievances) in the office of Deputy General Manager (Marketing) Consumer Mobility BSNL, has brought the record with respect to mobile phone number 9444402288 in the name of R. Dhanapal Raj and proved the call details record (CDR) as Ex. PW 1/C (colly) along with certificate u/s 65A and B Ex. PW 1/B, Customer Application Form (CAF), photo ID Proof and address proof and cash receipt Ex. PW 1/D (colly).
Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 10 of 107 PW 2 Mahesh Chand Kashyap, the then Inspector as well as Dy. SP in Special Unit, CBI, New Delhi, has been the System Administrator with respect to the telephonic surveillance of telephones of Rajinder Singh Rana and Milan Kumar Dey in compliance of orders of Union Home Secretary of India. After the registration of the present case, PW 2 segregated 28 relevant calls and burnt the same into a CD and handed over the same to IO along with certificate u/s 65B Indian Evidence Act. The witness proved seizure memo Ex. PW 2/A, certificate u/s 65B Indian Evidence Act Ex. PW 2/B, AnnexureA attached with certificate containing details of intercepted calls Ex. PW 2/D (colly), call information report Ex. PW Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 11 of 107 2/E (colly). The witness also deposed about the surveillance orders Ex. PW 2/F, Ex. PW 2/G, Ex. PW 2/H, Ex. PW 2/J, mark PW 2/K and Ex. PW 2/L. PW 3 Prashaant Garg, has been the Chairman of School of Law Studies, Bulandshahr. He has been named as accused in FIR but during the investigation he turned approver and was granted pardon vide order dated 21/03/2012. PW 3 has given detailed facts in his testimony about applying in the office of Bar Council of India for approval of Law College vide letter and application form Ex. PW 3/A and Ex. PW 3/B. The witness also deposed about arrival of A1 Rajinder Singh Rana and A3 Milan Kumar Dey to Bulandshahr and Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 12 of 107 their having conducted the inspection of college on 29.10.2010. PW 3 has deposed in detail with respect to demand of bribe raised by accused Rajinder Singh Rana and Milan Kumar Dey during their stay at Bulandshahr in Classic Hotel for giving favourable report and later for having finally settled at Rs. 3 lacs for giving the factual report, on the basis of infrastructure available in the college. The witness has deposed about the role played by each accused in the transaction and also about the delivery of Rs. 2.5 lacs at the residence of Rajinder Singh Rana on 03.11.2010 and remaining amount of Rs. 50,000/ on 08.11.2010. The specimen voice of PW 3 has also been recorded during the investigation. The videography of the inspection was done on 29/10/2010 by local photographer and Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 13 of 107 video cassette was handed over by the witness to the IO and has been identified as Ex. P1. (Video Cassette could not be played during the trial). The voice sample CD is proved as Ex. P2, wherein the witness has identified his voice as well as voice of independent witness. PW 3 has also supported the factum of recording of his statement u/s 164 Cr. PC and identified the same as Ex. PW 3/D. PW 3 also admitted having used mobile phone no.
9627666666 and identified CAF as Ex. P3/1, photograph on affidavit Ex. PW 3/F and the application dated 26.06.2010 and 15.06.2010 Ex. PW 3/J and Ex. PW 3/K. According to PW 3, the inspection of his college was done on 29.10.2010. The CD Ex. PW 5/Y prepared in consequence to the surveillance orders was played in the court and Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 14 of 107 the witness was called upon to identify the voices. PW 3 identified his own voice in the audio files bearing nos. 1018152101520101102 183242.wav, 1018152102920101103 080632.wav, 1018152102120101103 083148.wav, 1018152100420101108 083921.wav, 1018152103020101108123141.wav, 1018152101820101125173927.wav and also deposed that the particular calls were made to A1 Rajinder Singh Rana and he was talking to Milan Kumar Dey in one of the audio file but he was not able to identify the voices of accused Rajinder Singh Rana and Milan Kumar Dey. The witness has identified the conversations in the particular calls (date wise) and also deposed about the purpose of said calls.
Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 15 of 107 PW 4 Jogi Ram Sharma, Additional Secretary, Bar Council of India, deposed that he was working as Officiating Secretary, BCI during the year 2010 till April 2012. The witness has given details of the procedure for seeking approval to run Law College / Course from BCI. The witness also identified the file pertaining to School of Law Studies, Bulandshahr Ex. PW 4/B (colly) and the file of NREC College, Khurja Ex. PW 4/A. The witness also proved the record maintained in accounts department with respect to the TA/DA bills of Milan Kumar Dey Ex. PW 4/E. The witness further proved his letters Ex. PW 4/F, Ex. PW 4/G and Ex. PW 4/H, Mark Ex. PW 4/J bearing his signatures. The witness has not been able to Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 16 of 107 identify the voices contained in CD Ex. PW 5/Y. The witness has been crossexamined by ld. senior prosecutor and was confronted with his statement u/s 161 Cr. PC mark P4/X. The witness was cross examined at length on behalf of defence during which he stated that accused Rajinder Singh Rana was lifted from BCI office in the evening of 20.12.2010 in his presence. He called the police since the identity of the persons was not known to him. After about ½ hour Mr. Sharma came and had shown his identity card as CBI officer and informed that accused Rajinder Singh Rana has been arrested. The witness was thereafter cross examined by defence and then again by senior prosecutor with the permission of the Court. Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 17 of 107 PW 5 N. Senthil Kumar, Assistant Secretary BCI, deposed that he was posted as office superintendent BCI from 2008 to 2013. The witness has stated about the file of NREC College, Khurja and School of Law Studies, Bulandshahr about the inspection team members. The witness has no knowledge as to by which members of BCI the inspection was conducted at both the above said law colleges. Audio file bearing no. 101815210 2220101027144012.wav in CD Ex. PW 5/Y is played, wherein he identified his voice but not in a definite manner. He further could not identify other voices nor he could recall with whom he was conversing in the call. The remaining audio files were also played but the witness could not identify any of the voices contained therein. The witness Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 18 of 107 was also crossexamined by senior prosecutor during which specimen voice CD was played but the witness could not identify his voice in a definite manner. The witness has been crossexamined thereafter by senior prosecutor as well as by ld. defence counsel.
PW 6 Mool Chand, LDC in CPWD, is a witness to the recording of specimen voice of Prashaant Garg and Saurabh Kumar Sharma. The witness correctly identified the voice of Prashaant Garg contained in CD Ex. P2 and that of Sh. Saurabh Kumar Sharma in CD Ex. PW 2A.
PW 7 Keshav Dev Sharma, Principal of NREC College, Khurja, has proved the record of his Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 19 of 107 college regarding inspection by BCI members on 29.10.2010. According to this witness, inspection was conducted by Rajinder Singh Rana and Milan Kumar Dey in his presence. The witness identified relevant photographs Ex. PW 7/J to Ex. PW 7/M. PW 7 had inspected the School of Law Studies, Bulandshahr on behalf of CCS University along with accused Professor Yashpal Singh and also proved the relevant photographs. The witness was called upon to identify the voice of accused Yashpal Singh in CD Ex. PW 5/Y but the witness has not been able to identify the voice of Yashpal Singh or any other voices contained therein. This witness has been crossexamined by senior prosecutor and defence counsel.
Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 20 of 107 PW 8 Lokesh Kumar, Junior Assistant in EBR Department of NDMC, deposed that he is a witness to the recording of specimen voice of Gopal Narain Mishra and one South Indian person, whose name he could not recollect. The witness correctly identified the voice of N. Senthil Kumar contained in CD Ex. PW 5/X and that of Gopal Narain Mishra contained in CD Ex. PW 8/C. PW 9 Sanjay Kumar, Sub Divisional Engineer in BSNL, Ranchi, has brought the CDRs and CAF of mobile phone number 9431350118 in the name of Milan Kumar Dey. He proved the true copy of CAF as Ex. PW 9/A (colly), CDRs as Ex. PW 2/B (colly) and certificates u/s 65A and 65B of I.T. Act as Ex. PW 9/C. Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 21 of 107 PW 10 Gopal Narain Misra, then Member of BCI elected from UP Bar Council, deposed that vide letter Ex. PW 4/B he was deputed to inspect the School of Law Studies, Bulandshahr and vide letter Ex. PW 4/A to inspect the NREC College, College Road, Khurja. The witness could not attend the aforesaid inspections and has no knowledge whether the same were conducted or not. The CD Ex. PW 5/Y was played in the court and witness was called upon to identify the voice in audio file bearing no. 1018152101520101028134202.wav, wherein the witness has identified his own voice and deposed that other voice is probably of Mr. Dey, but he is not sure. The specimen voice of this witness was recorded. The remaining 27 audio files Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 22 of 107 were played but witness could not identify the voices contained therein. The witness has deposed about taking of his voice sample during the investigation and identified his voice in CD Ex. PW 8/C. The witness has been crossexamined by senior prosecutor and defence counsel.
PW 11 Ms. B.F. Deepathavana Ranjan, Divisional Engineer BSNL, Trivandrum, Kerala, has brought original CAF along with requisite documents pertaining to mobile phone number 9444402288 in the name of R. Dhanapal Raj and proved the same as Ex. PW 11/A. PW 12 Arif Ali brought the record pertaining to Hotel Classic, Delhi Road, Bulandshahr, UP, to Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 23 of 107 prove that two rooms were booked by Sh. Prashaant Garg in the name of School of Law Studies, Bulandshahr vide invoice no. 1007 dated 29.10.2010 for stay of his guests. He proved the relevant documents as Ex. PW 12/B to Ex. PW 12/D. PW 13 Ashok Kumar Sharma, AGM (Planning) BSNL, UP has brought and proved CDR Ex. PW 13/B and CAF Ex. PW 13/C of mobile phone no.
9412227850 in the name of Yashpal Singh.
PW 14 Captain Ritesh Kumar Bajaj, then Nodal Officer Vodafone, UP has proved the certificate u/s 65 B Ex. PW 14/B, CDR Ex. PW 14/C of mobile phone no. 9627666666 in the name of Prashaant Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 24 of 107 Garg.
PW 15 Rajeev Sharda, Deputy Manager of Reliance Communication has brought the records pertaining to mobile phone numbers 9312222807 in the name of Rajinder Singh Rana and 9334700484 in the name of Milan Kumar Dey and proved their CDRs as Ex. PW 15/B (colly), certificate u/s 65 B Indian Evidence Act of above said numbers Ex. PW 15/C, CAFs Ex. PW 15/E and Ex. PW 15/F. PW 16 Hussain M. Zaidi, Nodal Officer IDEA Cellullar Limited, UP has proved the CDR Ex. PW 16/D and certificate u/s 65B Ex. PW 16/E in respect of mobile phone number 8958703386 in Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 25 of 107 the name of Yashpal Singh.
PW 17 Deepak Kumar Tanwar, Senior Scientific Officer, CFSL, Delhi has been the expert witness and has conducted voice examination of recorded conversations contained in questioned and specimen CDs. The witness received six parcels i.e. QA1, SV3, SI, SII, SIII and SIV. The parcel QA1 was found contained 28 recordings and on examining the conversations with the specimen voices of the CDs, the witness has given his detailed report Ex. PW 17/A. The witness has also identified the CDs/parcels examined by him. PW 18 Ashok Kumar Parija, has been the Chairman of Bar Council of India (BCI) during Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 26 of 107 year 2011. The witness deposed about the letter dated 16/12/2011 issued by him in respect of the communication received from CBI Ex. PW 18/A. PW 19 Saurabh Kumar Sharma, has been the Registrar of School of Business Management and Technology and School of Law Studies, Bulandshahr, UP in year 2010. He was directed to coordinate with inspection team of BCI for their scheduled visit. The voice sample was recorded of this witness Ex. P2. He identified his voice. The CD Ex. PW 5/Y was also played and two audio files i.e. 1018152102220101027110506.wav and 1018152102120101028121024.wav were played wherein witness identified his voice but could not identify the voice of other persons although Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 27 of 107 confirmed that he was talking to Mr. Dey in the conversation. The witness could not recall as to by which BCI members inspection was conducted. The witness has been crossexamined by senior prosecutor and was confronted with his statement recorded u/s 161 Cr. PC.
PW 20 Girraj Sharma, Inspector CBI, was entrusted with the investigation of this case. He has given details of the investigation conducted by him during which specimen voices of accused and witnesses were recorded, documents seized from service providers relating to the mobile phones involved in the case, seized CD of recorded conversations from Sh. M.C. Kashyap, etc and seizure of relevant documents from the office of Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 28 of 107 BCI as well as from School of Law Studies, Bulandshahr, UP.
PW 21 Sunil Kumar, Principal Staff Officer from Ministry of Home Affairs, New Delhi, has proved the Orders Ex. PW 2/A, Ex. PW 2/J and Ex. PW 2/L issued under the signatures of Sh. Gopal K. Pillai the then Secretary to the Government of India, Ministry of Home Affairs, New Delhi, signed in his presence. He has also proved Orders Ex. PW 20/D (Ex. PW 21/A), Ex. PW 2/F, Ex. PW 2/G signed by Sh. U.K. Bansal the then Special Secretary (IS) Government of India, Ministry of Home Affairs.
PW 22 Gopal Assistant in FCI, New Delhi, Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 29 of 107 deposed that he is a witness to the recording of specimen voice of Rajinder Singh Rana. The witness correctly identified the voice of Rajinder Singh Rana in CD Ex. PW 17/S. PW 23 Binod Kumar AAO, DJB, Delhi deposed that he is a witness to the recording of specimen voice of R. Dhanapal Raj. The witness correctly identified the voice of R. Dhanapal Raj contained in CD Ex. PW 17/K. PW 24 Ms. Bhawna Kalia, Ld. MM01, Saket Courts, New Delhi, recorded the statement of Prashaant Garg on 29/09/2012 u/s 164 Cr. PC. She proved the relevant proceedings as Ex. PW 24/A and Ex. PW 24/B. Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 30 of 107
11. All above witnesses have been crossexamined at length on behalf of defence.
12. The statements of accused persons u/s 313 Cr. PC were recorded by putting entire incriminating evidence in question and answer form, to which all accused pleaded innocence and false implication.
13. A1 Rajinder Singh Rana admitted that he has been the Member of BCI since 22/02/2010 and was using mobile phone no. 9312222807 during August 2010 to November 2010. The recorded conversations in Ex. PW 5/Y are stated to be false and fabricated evidence. Accused has categorically denied the factum of raising demand of Rs. 12 lakhs for giving favourable report to college of Prashaant Garg or having accepted Rs. 3 lakhs from Prashaant Garg Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 31 of 107 for giving factual report. He has denied the contents of statement recorded u/s 164 Cr. PC Ex. PW 3/D and also stated that he does not know Prashaant Garg. Prashaant Garg never visited his house nor any conversation with him took place. The inspection in the School of Law Studies, Bulandshahr on 29/10/2010 has also been denied. The accused has also denied that his voice sample was recorded on 22/12/2010. With respect to the expert report Ex. PW 17/A, accused stated that PW 17 is not an expert witness and report is perfunctory, biased and scientifically incorrect. According to A1, his voice sample was never recorded. No inspection was conducted by him and therefore no signatures are appearing on accession register/library register, which has to be mandatorily signed at the time of inspection. The charge sheet is stated to be false. A1 Rajinder Singh Rana claims innocence on the ground that case is result of animosity with Gopal Subramaniyam, the then Chairman BCI on the issue of shifting and demolition of building of BCI as he (accused) stalled the process of Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 32 of 107 shifting and demolition of building of BCI regarding which a civil suit is also pending. In order to take revenge, false cases have been slapped against accused and witnesses have deposed falsely under the influence of CBI.
14. According to A2 Raju Dhannapal Raj, he has been the member/Vice Chairman of BCI and was using mobile phone number 9444402288 during August 2010 to November 2010. The recorded conversations in Ex PW5/Y are stated to be false and fabricated evidence. He has denied the contents of statement u/s 164 Cr.P.C. The accused has also denied that his sample voice was recorded on 22/12/2010. With respect to the expert report Ex PW17/A accused stated that PW17 is not an expert witness and his report is perfunctory, biased and scientifically incorrect. According to A2, his voice sample was never recorded. No inspection was conducted by him and therefore, no signatures are appearing on accession register/library Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 33 of 107 register, which has to be mandatorily signed at the time of inspection. The chargesheet is stated to be false. A2 also claims innocence on the ground that case is result of animosity with Gopal Subramaniyam, the then Chairman BCI on the issue of shifting and demolition of building of BCI as he (accused) along with others stalled the process of shifting and demolition of building of BCI regarding which a civil suit is also pending. In order to take revenge, false cases have been slapped against accused and witnesses have deposed falsely under the influence of CBI.
15. According to A3 Milan Kumar Dey, he has been the member of BCI and was using telephone numbers 06512562564, 9334700484 and 9431350118 during August 2010 to November 2010. The recorded conversations in Ex PW5/Y are stated to be false and fabricated evidence. He has denied the contents of statement u/s 164 Cr.P.C. According to A3, he was never member of inspecting team of Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 34 of 107 School of Law Studies, Bulandshahr and no such inspection took place ever. According to A3, he had no conversation or received telephone from PW10 Gopal Narain. The accused stated that he was never called upon or summoned to give his voice sample. With respect to the expert report Ex PW17/A accused stated that PW17 is not an expert witness and his report is perfunctory, biased and scientifically incorrect. No inspection was conducted by him and therefore no signatures are appearing on accession register/library register, which has to be mandatorily signed at the time of inspection. The chargesheet is stated to be false. A3 claims innocence on the ground that case is result of animosity with Gopal Subramaniyam, the then Chairman BCI on the issue of shifting and demolition of building of BCI as he (accused) along with others stalled the process of shifting and demolition of building of BCI regarding which a civil suit is also pending. In order to take revenge, false cases have been slapped against accused and witnesses have deposed falsely under the Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 35 of 107 influence of CBI.
16. According to A4 Yashpal Singh, he was using mobile phone number 9412227850. The recorded conversations in Ex PW5/Y are stated to be false and fabricated evidence. He has denied the contents of statement u/s 164 Cr.P.C. With respect to the expert report Ex PW17/A accused stated that PW17 is not an expert witness and his report is perfunctory, biased and scientifically incorrect. The charge sheet is stated to be false. According to A4 he was never summoned or called upon to tender his voice sample. A4 claims innocence on the ground that officials of CBI wanted to make him a forced and a planted witness against the rest of accused persons to which he refused, therefore, he has been implicated in the present case.
17. All the accused persons have preferred not to lead defence evidence.
Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 36 of 107
18. Arguing on behalf of prosecution, ld. senior PP Sh. P.K. Dogra, submitted that case has been registered against the accused persons under different provisions of Prevention of Corruption Act, 1988, on the basis of source information. The prosecution has been able to produce consistent and cogent evidence and successfully brought home the guilt of accused persons. The accused Rajinder Singh Rana, Milan Kumar Dey and R. Dhanapal Raj are public servants within the definition of Section 2 (c) of Prevention of Corruption Act, 1988 as they were discharging public duty being the members of Bar Council of India. The sanction with respect to accused Rajinder Singh Rana was sought through letter Ex PW18/A but the same was responded by PW 18 Ashok Kumr Parija, the then Chairman, in the manner that he was not competent to grant or decline the same. The sanction with respect to other accused persons was not required since they ceased to be members of Bar Council of India at Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 37 of 107 the time of submission of chargesheet. Accused Yashpal Singh, Professor of law at NREC College, Khurja, is a private person and has been chargesheeted for the offences of conspiracy and abetment, since he assisted in negotiations and payment of bribe amount of Rs. 3 lakhs.
19. Referring to the testimony of PW3 Prashaant Garg (approver), senior prosecutor submitted that witness has divulged all details relating to the facts and events of the case and has complied with the conditions of tender of pardon of true and complete disclosure. There is no reason to discard clear and consistent testimony of Prashaant Garg. Even sole testimony of approver is sufficient for recording conviction u/s 133 of Indian Evidence Act. Otherwise also, the statement of PW3 stands corroborated with recorded conversations of intercepted calls. The telephones / mobiles of accused Rajinder Singh Rana and Milan Kumar Dey were kept on surveillance in Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 38 of 107 pursuance to the orders of Union Home Ministry. The service providers have also brought their respective records corroborating the existence of intercepted calls on the telephones of the accused. The recordings were done at special unit, CBI, New Delhi and PW2 M.C. Kashyap has given the details of electronic evidence so created through surveillance and has also tendered in evidence his certificate u/s 65 B of Evidence Act. The sanctity and integrity of CD containing recorded conversations is proved with the testimony of PW2. The specimen voices of accused Rajinder Singh Rana and R. Dhanpal Raj were taken and their identification has been done by the witnesses and also matched through expert report Ex PW 17/A. The voice of accused Milan Kumar Dey has been identified by PW10 Gopal Narain Mishra. The accused obtained bribe to give factual report about the college of Prashaant Garg. Relying upon the judgments of A. Devendran vs State of Tamil Nadu, CA No. 987 of 1997, SC; Yusufalli Esmail Nagree vs State of Maharashtra, AIR 1968 SC 147; R.M Malkani vs State of Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 39 of 107 Maharashtra, (1973) 1 SCC 471; Ram Singh & Ors. vs. Col. Ram Singh, 1985 (Supp) SCC 611; Anvar P.V vs P.K Basheer & Ors., (2014) 10 SCC 473; Kundan Singh vs State, decided on 24/11/2015, Delhi High Court; Rajinder Singh Rana & ors. Vs CBI, Writ Petition (Crl) No. 1922/2010 Delhi High Court; Habibulla Khan vs State of Orissa & Anr., AIR 1995 SC 1123 and Abhay Singh Chautala vs CBI, CA No. 1257 of 2011 SC, ld. Senior PP concluded that prosecution has been able to successfully establish its case beyond reasonable doubt.
20. On the other hand, ld. defence counsels Sh. Harsh K. Sharma and Sh. R.M. Tuffail for Rajinder Singh Rana (A1), R. Dhanapal Raj (A2) and Yashpal Singh (A4) have made extensive submissions. Firstly, it is argued that for want of sanction, present proceedings are liable to be dropped against accused Rajinder Singh Rana. According to the testimony of PW18, there is sanctioning Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 40 of 107 authority for removal of members of Bar Council of India and same is the concerned State Bar Council. Referring to Section 3 to 7 of Advocates Act, 1961, it is submitted that CBI has made no efforts to obtain sanction from the concerned State Bar Council and therefore the cognizance should not have been taken against accused Rajinder Singh Rana and the case of prosecution stands vitiated on this count. Secondly, it is submitted that evidence of the approver Prashaant Garg (PW3) cannot be taken into consideration being not trustworthy and reliable. PW3 admitted in his testimony during crossexamination that in April/May 2011, he had informed CBI that no money was demanded from him nor paid by him. It is further evident from the testimony of PW3 that he gave consent to get his statement recorded u/s 164 Cr.P.C, on the initiation of CBI, making it clear that he confessed under pressure and duress and not voluntarily, therefore, same is hit by section 163 Cr.P.C. The evidence produced in the form of recorded conversations is not the reliable piece of evidence. The Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 41 of 107 identification of voices contained in CD has not been done by the witnesses and therefore, requirements of admissibility of taperecorded conversations are not fulfilled. It is further clear from the testimony of PW2 M.C. Kashyap that he selected relevant calls and burnt the same into a CD from main computer system. The selection process itself involves human intervention and therefore possibility of tampering and editing cannot be ruled out. There has been difference in timings of origin of calls as reflected in the CDRs and in the record prepared by PW2 and for this discrepancy benefit should be given to the accused persons. Accordingly, the accuracy of tape recorded conversations come under serious doubt and therefore no reliance can be placed on the same for any purpose. The prosecution has also failed to bring any concrete evidence showing that inspection of the school of law studies, Bulandshahr was done by accused Rajinder Singh Rana and Milan Kumar Dey and due to the absence of this crucial evidence, the case of the prosecution is bound to fail. Ld. counsel has relied upon, Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 42 of 107 Nanjappa vs State of Karnataka, 2015 (6) LRC 37 (SC); Nilesh Dinkar Paradkar vs State of Maharashtra, 2011 [3] JCC 1972;Bar Council of Delhi vs The Bar Council of India, New Delhi1 & Anr., AIR 1975 Delhi 200 and State of Rajasthan vs Kartar Singh, 1970 (2)SCC 61, in support of arguments.
21. Arguing on behalf of accused Milan Kumar Dey (A3), ld. senior advocate Sh. B.M. Tripathi, submitted that sanction with respect to A3 has not been sought by CBI at any point of time despite the fact that accused was member of Bar Council of Jharkhand continuously since March 2006 and also remained member of Bar Council of India from March 2006 to 21/06/2012. The procedure for removal of member Bar Council is provided under rule 22 of Bar Council of India Rules and the same has not been followed in the present case. Relying upon the judgment of Nanjappa (supra), it is contended that case of prosecution falls apart for want of sanction. It is Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 43 of 107 further contended that there are contradictions and improvements in the evidence of Prashaant Garg (approver) about important and crucial facts and therefore, no reliance can be placed on his testimony. The factum of inspection of school of law studies, Bulandshahr has also not been proved by the prosecution as the alleged letter informing about the change of panel members has not been produced in evidence nor the video cassette of the videography was displayed during the trial. The prosecution has failed to bring on record the best possible evidence and therefore presumption u/s 114 (g) is bound to arise. No oral evidence is also on record to the effect that inspection was carried out by accused Milan Kumar Dey and even TA/DA bills submitted by Milan Kumar Dey to accounts department of BCI shows that inspection of NREC college, Khurja, only was done by him. Despite admission by PW3 that letter was received about the change in constitution of inspecting members of BCI, the letter has not been placed on record. The statement of Prashaant Garg recorded u/s 164 Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 44 of 107 Cr.P.C is not his voluntary confession and statutory requirements were not observed in this case. The approver's evidence has been falsified and therefore the charged offences are not established. With respect to the electronic evidence, it is submitted that intercepted calls are not substantive evidence and moreover, certificate tendered by PW2 u/s 65B Evidence Act, does not satisfy mandatory requirements. The voice recognition has also not been done by witnesses of prosecution and therefore, CD Ex PW5/Y is to be kept out of consideration. Ld. Counsel relied upon following judgments: Nanjappa vs State of Karnataka, 2015 SCC Online SC 649; VipulBhai M. Chaudhary vs Gujarat Cooperative Milk Marketing Federation Limited and others, (2015) 8 SCC 1; Pratap Chandra Mehta vs State Bar Council of Madhya Pradesh and others, (2011) 9 SCC 573; Sarwan Singh & Anr vs State of Punjab, 1957 SCR 953; Ashok Kumar Aggarwal vs Central Bureau of Investigation and others, (2013) 15 SCC 222; Bhiva Doulu Patil vs State of Maharashtra, (1963) 3 SCR 830; Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 45 of 107 Rampal Pithwa Rahidas and Others vs State of Maharashtra, 1994 Supp (2) SCC 73; Tomaso Bruno and another vs State of Uttar Pradesh, (2015) 7 SCC 178; Shivappa vs State of Karnataka, (1995) 2 SCC 76; Tulsi Singh vs State of Punjab, (1996) 6 SCC 63; State of Kerala and Another vs C.P. Rao, (2011) 6SCC 450; R.P.S. Yadav vs CBI, (2015) 11 SCC 642; Anvar P.V. Vs P.K. Basheer and others, (2014) 10 SCC 473 and Jagdeo Singh @ Jagga vs State, 2015 SCC Online Del 7229, in support of his arguments.
22. I have also gone through written submissions filed by ld. defence counsels on behalf of accused persons. WHETHER ACCUSED ARE PUBLIC SERVANTS:
23. The first point of consideration before this court is whether accused Rajinder Singh Rana, Milan Kumar Dey and R. Dhanapal Raj are public servants u/s 2 (c) of Prevention of Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 46 of 107 Corruption Act, 1988.
24. The definition so provided is wide and comprehensive and brings within its ambit, any person who holds an office by virtue of which he is authorized or required to perform any public duty. The Supreme Court observed in Manish Trivedi vs State of Rajasthan, (2014) 14 SCC 420 that: "........
19.The present Act envisages widening of the scope of the definition of the expression 'public servant'. It was brought in force to purify public administration. The legislature has used a comprehensive definition of 'public servant' to achieve the purpose of punishing and curbing corruption among public servants. Hence, it would be inappropriate to limit the contents of the definition clause by a construction which would be against the spirit of the statute. Bearing in mind this principle, when we consider the case of the appellant, we have no doubt that he is a public servant within the meaning of Section 2(c) of the Act. Subsection
(viii) of Section 2(c) of the present Act makes any person, who holds an office by virtue of which he is authorized or required to perform any public duty, to be a public servant. The word 'office' is of indefinite connotation and, in the present context, it would mean a position or place to which certain duties are attached and has an existence which is independent of the persons who fill it. Councillors and members of the Board are positions which exist under the Rajasthan Municipalities Act. It is independent of the Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 47 of 107 person who fills it. They perform various duties which are in the field of public duty. From the conspectus of what we have observed above, it is evident that appellant is a public servant within Section 2(c)(viii) of the Prevention of Corruption Act, 1988.
.........."
25. The present case pertains to grant of approval with respect to law college which is meant for imparting legal education which would directly affect the interest of the public at large. According to section 7 of Advocates Act 1961 - (1) The functions of the Bar Council of India shall be :
(h) to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils.
26. Keeping in view the definition, principle, legal position and concept of section 2 (viii) of P.C Act, 1988 and the nature of functions to be discharged by the accused persons, it is clear that A1 to A3 were required to perform public duty in the course of their official functions as inspecting members of BCI and therefore, fall within the category of public servants.
Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 48 of 107 SANCTION:
27. Coming to the question of sanction, the same is mandatory u/s 19 of Prevention of Corruption Act, 1988. It is evident that on behalf of CBI letter dated 01/04/2011 was written to the then Chairman, BCI seeking sanction to prosecute Rajinder Singh Rana but was responded in the following manner: "The council is of the view that in the absence of any provision in the Advocates Act, 1961 or any law declared by a Court of competent jurisdiction designating the Chairman or the Bar Council of India as the authority competent to grant sanction for prosecution of a member for an offence under the Prevention of Corruption Act, 1988, the Council is not competent to either grant or refuse sanction till such time as the Parliament amends the Advocates Act, 1961 and makes a suitable provision for sanction for prosecution of a Member".
28. In the course of arguments, ld. defence counsels submitted that concerned State Bar Council has been the removing authority and competent to remove the members of BCI and this fact has been admitted by PW18 in his crossexamination. The CBI has not Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 49 of 107 made any efforts to invoke the discretion and powers of State Bar Council towards the grant of sanction. On considering the rival contentions on this issue, I am of the opinion that sanction would not come in the way of prosecution of accused Rajinder Singh Rana. In the letter Ex PW18/A, there is no mention about any such authority under Advocates Act and the statement made by PW18 Ashok Kumar Parija, the then Chairman, during cross examination to the effect that State Bar Council is the appropriate disciplinary authority, is nothing but an improvement and after thought. There is no justification as to why this fact was not mentioned in the letter Ex. PW 18/A. Also no evidence is brought on record by the defence showing that State Bar Council is the appropriate sanctioning authority and competent to grant sanction and even no such precedent has been shown or cited. In the absence of removing authority, cognizance was rightly taken on the basis of letter Ex PW18/A. (reference P.V. Narsimha Rao vs State, Supreme Court of India, decided on 17/04/1997). According to rule Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 50 of 107 22 of BCI, no confidence motion against the Chairman or office bearers of BCI can be maintained but this is altogether a different subject and not connected to sanction issue and therefore this argument is not acceptable. The sanction qua accused Milan Kumar Dey and R. Dhanapal Raj was not required since they ceased to be the members of BCI at the time of submission of chargesheet. CONCEPT OF CHARGED OFFENCES:
29. The accused persons have been charged for the offences u/s 120B IPC (Criminal Conspiracy), u/s 7 of Prevention of Corruption Act (Public Servant taking illegal gratification), u/s 13 (1)
(d) of Prevention of Corruption Act (Criminal Misconduct) and u/s 12 of Prevention of Corruption Act (Abetment of the offence u/s 7 of Prevention of Corruption Act).
30. To constitute a conspiracy, meeting of minds of two or Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 51 of 107 more 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.
Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 52 of 107
31. Under section 7 of Prevention of Corruption Act, 1988, public servant is said to commit offence if he accepts or obtains or agrees to accept illegal gratification as a motive or reward for doing or forbearing to do any official act in the exercise of his official functions.
32. According to settled legal position, demand of illegal gratification is sine qua non to constitute the offence under 7 of the Act. Mere recovery of currency notes itself does not constitute the offence, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe.
33. It is not necessary that the act for which the bribe is given, be actually performed. A representation by a public servant that he has done or he will do an act, impliedly includes a representation Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 53 of 107 that it was or is within his power to do that act.
34. Once the premise is established, the inference to be drawn is that the said gratification was accepted as motive or reward for doing or forbearing to do any official act.
35. The ingredients of Section 13 (1) (d) Prevention of Corruption Act, 1988 are as follows:
(1) That the accused should have been a public servant;
(2) That he should have used corrupt or illegal means or otherwise abused his position as public servant;
(3) That he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.
36. On merits, the prosecution mainly relies upon the testimony of approver Prashaant Garg (PW 3) being the bribe giver as he has personally paid the bribe amount to accused Rajinder Singh Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 54 of 107 Rana (A1).
APPROVER'S EVIDENCE:
37. The word 'Accomplice' is not defined in the Evidence Act, however, the primary meaning of word 'accomplice' is any party to the crime and signifies a guilty associate in crime. The law in this regard is contained in Section 133 and Section 114(b) of Indian Evidence Act.
Section 133 of Indian Evidence Act provides as under: Accomplice: an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
Section 114(b) of Indian Evidence Act provides as under: That an accomplice is unworthy of credit, unless he is corroborated in material particulars.
38. Section 114 (b) in a way cautions the court to bear in Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 55 of 107 mind the presumption that an accomplice is not worthy of credit unless he is corroborated in material particulars. Section 133 of the Act, however, declares that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an accomplice. The provision u/s 133 is rule of law and provision contained u/s 114
(b) is rule of prudence.
39. Regarding Section 133 and 114 (b) of Evidence Act, the courts in India have held that while it is not illegal to act upon uncorroborated testimony of the accomplice, the rule of prudence so universally followed is that it is unsafe to act on the evidence of accomplice unless corroborated in material aspects. The reasons for requiring corroboration is that an accomplice is likely to swear falsely in order to shift the guilt from himself and that he is an immoral person being a participator in the crime who may not have any regard Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 56 of 107 to the sanctity of oath and in the case of an approver, on his own admission, he is a criminal who gives evidence under a promise of pardon and supports the prosecution with the hope of getting his own freedom.
40. Thus, the combined effect of Sections 133 and 114 (b) of the Evidence Act is that
(a) an accomplice is competent to give evidence;
(b) though the conviction of an accused on the sole testimony of an accomplice cannot be held to be illegal, yet the Courts, as a matter of practice, will not accept the evidence of such a witness without corroboration in material particulars qua each of the accused.
(c) ordinarily an approver's statement has to be corroborated in material particulars. Certain clinching features of involvement disclosed directly to an accused by an approver must be tested qua each accused from independent credible evidence and on being satisfied the evidence of an approver can be accepted.
(d) The extent of corroboration that is required before the acceptance of the evidence of the approver would depend upon the facts and circumstances of the case.
Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 57 of 107
(e) Whether the evidence of the approver will be accepted or not will have to be determined by applying the usual tests, such as the probability of the truth of what he has deposed, to the circumstances in which he has come to give evidence, whether he has made a full and complete disclosure, whether his evidence is merely self exculpatory and so on.
(f) The reliability test, does not mean that the evidence of the approver has to be considered in watertight compartments, it must be considered as a whole, along with the other evidence led by way of corroboration.
(g) Such corroboration may come from direct or circumstantial evidence.
41. Coming to the present case, PW3 Prashaant Garg is an accomplice and has been granted pardon during the investigation subject to his making full and true disclosure of the facts and circumstances of the case within his knowledge and the persons relating to the offence. Prashaant Garg, Chairman of school of law studies, Bulandshahr, allegedly paid a bribe of Rs 3 lakhs personally to accused Rajinder Singh Rana in order to get factual report about the inspection of his college. He (PW 3) has given his testimony during Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 58 of 107 the trial and prior to this got recorded his confession before Magistrate u/s 164 Cr. PC. On examining both the statements, I find that PW 3 has given details of facts and events indicating that he had participated in the crime. Firstly, he deposed about the demand of Rs. 12,00,000/ raised by accused Rajinder Singh Rana and accused Milan Kumar Dey on 28/10/2010 during their stay at Classic Hotel for giving favourable report. PW 3 also deposed about having offered money in closed envelopes to accused Rajinder Singh Rana and Milan Kumar Dey on the day of inspection in the college i.e. on 29/10/2010, which was refused by them reiterating their demand. Prashaant Garg was reluctant to pay such amount but wanted to obtain factual report, regarding which he consulted accused Yashpal Singh. Prashaant Garg sought meeting with R.S. Rana and was called for 03/11/2010. PW 3 clearly accepted that he delivered an amount of Rs. 2,50,000/ to accused Rajinder Singh Rana at his residence on 03/11/2010 and balance amount of Rs. 50,000/ on 08/11/2010, since on 03/11/2010 Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 59 of 107 during conversation with Milan Kumar Dey on telephone through mobile of Rajinder Singh Rana, he accepted to pay further amount of Rs. 50,000/. The witness identified his voice in questioned CD Ex PW5/Y and also deposed about the particular calls made by him to accused Rajinder Singh Rana. The witness also proved his statement recorded under Section 164 Cr.P.C Ex PW3/D. In the course of deposition, PW3 stated that he discussed the matter with accused Yashpal Singh and told him about his maximum capacity to pay Rs. 2.5 lakhs to Rs. 3 lakhs. Accused Yashpal Singh was known to accused Rajinder Singh Rana and after some days Yashpal Singh informed PW3 Prashaant Garg that he should go to Mr. Rana with said amount for getting the factual report. Accordingly, Prashaant Garg went to the house of accused Rajinder Singh Rana with Rs. 2,50,000/ on 03/11/2010. During cross examination, PW3 denied that no inspection had taken place in his college on 29/10/2010 or that there has not been any kind of contact between him and accused Rajinder Singh Rana and Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 60 of 107 Milan Kumar Dey. He also denied the suggestion that matter was not discussed by him with accused Yashpal Singh. PW3 denied having falsely implicated accused persons due to grudge as he was compelled to withdraw law course of his college in July 2011. PW3 categorically denied the suggestions that at no stage demand of bribe was raised or that he never visited the house of accused Rajinder Singh Rana.
42. I have also examined the statement recorded by Magistrate u/s 164 Cr.P.C Ex PW3/D. The statement given by PW3 is consistent to his testimony recorded in the court and no contradictions, improvements or infirmities are noted. True and complete disclosure of facts has been made by PW3 in his confession recorded before the Magistrate, which is important piece of evidence and is legally admissible. It is evident and even reiterated by Prashaant Garg in his testimony that he gave statement u/s 164 Cr. PC voluntarily on his own.
Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 61 of 107
43. On analyzing the deposition of PW 3, it is clear that his evidence is not exculpatory in nature, although, it suggests that he offered and paid bribe under pressure and persuation. The evidence of PW 3 cannot be termed as unreliable for any reason, same being specific, cogent and satisfies the test of credibility and consistency.
44. During lengthy crossexamination, defence has failed to impeach the confidence of PW 3 and no strong motive could be attributed to him for false implication of accused persons. The suggestion given to PW 3 about grudge on account of having withdrawn law course, is not plausible as PW 3 withdrew his application in July 2011, after he came to know about arrest of accused Rajinder Singh Rana by CBI for corruption, whereas present case was registered against the accused persons on the basis of source information.
Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 62 of 107
45. It has been held in the case of Ravinder Singh vs State of Haryana, (1975) 3 SCC 742 that: An approver is a most unworthy friend, if at all, and he having bargained for his immunity, must prove his worthiness for credibility in Court. This test is fulfilled, firstly if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. Secondly, once that hurdle is crossed, the story given by the approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt.
46. The statement of Prashaant Garg contains incriminating facts against the accused as well as against himself fulfilling the ingredients of charged offences and specifying the role of accused persons. Keeping in view the above ratio of law with respect to the evidence of PW 3 in this case, I hold that testimony of PW 3 cannot be kept out of consideration for any reasons particularly when PW3 has accepted his own involvement in the entire sequence of events. Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 63 of 107
47. The question now arises as to what should be the scope and nature of corroboration required in such kind of cases. In the cases of bribery, the rule requiring corroboration applies with very little force particularly when an accomplice is not willing participant in the offence but a victim of that offence. The accomplice who has been constrained to pay bribe cannot be treated precisely on the same footing as an ordinary accomplice.
48. It has been held by Hon'ble Supreme Court in the case of M.O. Shamsudhin vs State of Kerala (1995) 3 SCC 351 as follows:
"...................
12. Now confining ourselves to the case of bribery it is generally accepted that the person offering a bribe to a public officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such a case should not be subjected to the same rigorous test which are generally applied to a case of an approver. Though bribe givers are generally treated to be in the nature of accomplices but among them there are various types and gradation. In cases under the Prevention of Corruption Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case wherever the complaint is filed there must be a person who has to give money to the Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 64 of 107 accused which in fact is the bribe money which is demanded and without such a giving the trap cannot succeed. When there is such a demand by the public servant from person who is unwilling and if to do public good approaches the authorities and lodges complaint then in order that the trap succeeds he has to give the money. There could be another type of bribe giver who is always willing to give money in order to get his work done and having got the work done he may send a complaint. Here he is a particeps criminis in respect of the crime committed and thus is an accomplice. Thus there are grades and grades of accomplices and therefore a distinction could as well be drawn between cases where a person offers a bribe to achieve his own purpose and where one is forced to offer bribe under a threat of loss or harm that is to say under coercion. A person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. Where such witnesses fall under the category of "accomplices" by reason of their being bribe givers, in the first instance the court has to consider the degree of complicity and then look for corroboration if necessary as a rule of prudence. The extent and nature of corroboration that may be needed in a case may vary having regard to the facts and circumstances. ..........."
49. PW3 was the only person present with accused Rajinder Singh Rana when the alleged bribe amount was paid at his residence. In these circumstances, it is not possible to get number of witnesses to speak about the incident of receiving illegal gratification by accused Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 65 of 107 Rajinder Singh Rana. However, the record of Classic Hotel brought by PW 12 Arif Ali substantiates that rooms were booked on behalf of school of law studies, Bulandshahr on 28/10/2010. It is evident that accused Rajinder Singh Rana and Milan Kumar Dey met Prashaant Garg in the hotel and raised demand of illegal gratification. The defence of accused Rajinder Singh Rana that he never met Prashaant Garg is demolished.
50. It is established through the direct evidence of PW 3 that accused Rajinder Singh Rana and Milan Kumar Dey in conspiracy and complicity with each other demanded and accepted the bribe of Rs. 3,00,000/ to give factual report about the school of law studies.
51. So far as the role of accused Yashpal Singh is concerned, there is clear statement of PW 3 Prashaant Garg that he being known to accused Rajinder Singh Rana talked to him about the demand of Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 66 of 107 bribe and the report and only on his indication, PW 3 agreed to pay Rs. 3,00,000/ in lieu of factual report about the inspection of his college. In this way, A4 Yashpal Singh has abetted the commission of offences under Prevention of Corruption Act, 1988, by facilitating the negotiations.
ELECTRONIC EVIDENCE (RECORDED CONVERSATIONS THROUGH TELEPHONIC SURVEILLANCE):
52. The other evidence pressed into force by the prosecution is the evidence regarding recorded conversations through the surveillance of telephones of accused Rajinder Singh Rana and Milan Kumar Dey.
53. The law of admissibility of tape recorded conversations is established through the judgments of Hon'ble Supreme Court. In R.M Malkani vs State of Maharashtra, (1973) 1 SCC 471, Supreme Court Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 67 of 107 laid down the essential conditions which, if fulfilled or satisfied, would make a taperecorded statement admissible, and observed:
"Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. The contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act".
54. In the case of Ram Singh vs. Col. Ram Singh, AIR 1986 SC 3, it was held that:
"A tape recorded statement is admissible in evidence subject to the following conditions:
(1) The voice of the speaker must be identified by the maker of the record or other persons recognising his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
(2) The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Possibility of tampering with or erasure of any part of the tape recorded statement must be totally excluded.Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 68 of 107
(4) The tape recorded statement must be relevant.
(5) The recorded cassette must be sealed and must be kept in safe of official custody.
(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances."
55. It is the case of the prosecution that telephone/mobiles of accused Rajinder Singh Rana and Milan Kumar Dey were kept on surveillance through the orders of Home Ministry Ex. PW 2/F to Ex. PW 2/L. The maker of this record is PW 2 M.C. Kashyap, who has been the System Administrator and controlling the entire system in compliance to the orders. He segregated 28 relevant calls of this case and burnt the same into a CD and handed over the same to IO (in sealed condition) along with certificate u/s 65B of Indian Evidence Act, 1872. The evidence produced before the court is CD Ex. PW 5/Y containing recorded conversations of intercepted calls. According to the prosecution, the same are incriminating in nature and lends credibility to the case of prosecution and further corroboration to the Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 69 of 107 testimony of Prashaant Garg (approver).
56. Due to the advancement of means of communication, use of telephones and mobile phones has become inevitable. The investigating and enforcement agencies use computer and software technology for effective results. The CD Ex. PW 5/Y is an electronic record. Section 65 B Indian Evidence Act, deals with the admissibility of electronic record and the purpose of this provision is to sanctify secondary evidence in electronic form, generated by a computer. It was held in Anvar P.V (supra), that electronic records are more susceptible to tampering, alteration, transposition, excision, etc., so without safeguards taken to ensure the source and authenticity, the whole trial based on proof of electronic records can lead to travesty of justice. Also was held that Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements u/s 65B of Evidence Act are not complied with. Following are the four Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 70 of 107 specified conditions under Section 65B (2) of the Evidence Act:
(i) the electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) the information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) during the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) the information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
57. It was also held in aforesaid precedent that u/s 65B (4) of Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 71 of 107 following conditions are satisfied:
(a) there must be a certificate which identifies the electronic record containing the statement;
(b) the certificate must describe the manner in which the electronic record was produced;
(c) the certificate must furnish the particulars of the device involved in the production of that record;
(d) the certificate must deal with the applicable conditions mentioned under Section 65B (2) of the Evidence Act; and
(e) the certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
58. PW 2 Dy. SP M.C. Kashyap testified that the telephonic surveillance after taking approval of Union Home Secretary, under Section 5(2) of Indian Telegraph Act, 1885, was done through computer based system which automatically recorded intercepted calls of the telephone numbers under surveillance. He worked as System Administrator and controlled and monitored the process of recording and preservation of data. On the request of seniors, he segregated 28 Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 72 of 107 relevant calls pertaining to this case and handed over the same to IO through seizure memo dated 11/10/2011 Ex. PW 2/A. He also handed over certificate u/s 65B Evidence Act Ex. PW 2/B, along with AnnexureA containing details of 28 intercepted calls Ex. PW 2/D and call information report Ex. PW 2/E (colly). The witness identified CD Ex. PW 5/Y bearing his signatures. Before segregating calls relevant to this case, the witness was given brief facts of the case and copy of FIR. In the course of deposition, PW 2 also stated about surveillance orders Ex. PW 2/F to Ex. PW2/L. During extensive crossexamination, witness answered all the questions properly about the procedure and functioning of the computer and voice recording system and about the exercise through which CD was prepared. It is clarified that calls were recorded automatically without human intervention. The CD was prepared by accessing the data through computer system connected through LAN. The witness explained during crossexamination that difference in timings of calls reflected at the end of service provider in Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 73 of 107 CDRs and in the record of Special Unit, CBI, has been due to different time settings at the end of service provider and in the system maintained at CBI. The witness completely ruled out any kind of editing or tempering with recorded conversations and clearly stated that the software used in the process had no editing facility. The system was password protected and remained under his control during the relevant period.
59. On examination of certificate u/s 65B, Ex. PW 2/B, I find that same satisfies the parameters of the judgment of P.V. Anwar (Supra). It is clearly mentioned that special voice logging software was used for recording intercepted telephonic communications and the witness has been having lawful control over the system. The CD contains true reproduction of recorded call files.
60. PW 2 is an official witness Dy. SP, CBI and public Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 74 of 107 servant himself. On analyzing his deposition, I find that he has properly followed the procedure required for admissibility of electronic evidence. He has successfully stood through the test of cross examination and ruled out any possibility of editing, tampering or alteration of the recorded voices or conversations. Otherwise also, no motive could be attributed to PW 2 for creating false evidence against the accused. So far as the admissibility of CD Ex. PW 5/Y is concerned in view of P.V. Anwar (Supra), I am of the opinion that there is no scope to doubt the veracity of the electronic record. The argument of ld. defence counsel that segregation of calls itself is human intervention has no justification as output from the computer is generated only through the command given by the person controlling the system. The process of selection of relevant calls involves giving of command by the person controlling the system and this cannot be termed as human intervention. The expert PW 17 Deepak Kumar Tanwar has also given report Ex. PW 17/A on examination of CD Ex. Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 75 of 107 PW 5/Y, authenticating the same, opining that no form of tampering is noted. Thus, integrity and authenticity of electronic evidence Ex PW5/Y is clearly established.
IDENTIFICATION OF VOICES:
61. Coming to the issue of identification of voices, it is obviously an important issue and where the witnesses are unable to identify the voice, strict proof is required to determine whether or not it is the voice of alleged speaker.
62. Each person has a distinctive voice with characteristic features. The technology is in position to say whether two voice recordings are of the same person or two different individuals. With the development of science and technology, the voice sample can be analyzed or measured on the basis of time, frequency, and intensity of the speech sound waves so as to compare and identify the voice of the Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 76 of 107 person who must have spoken or participated in recorded telephonic conversation. Voice sample is 'identification data' which can be used for the purposes of recognition of questioned voices.
63. In the case of Ritesh Sinha vs State of Uttar Pradesh and Another,(2013) Cr.L.J 1301 (decided by Hon'ble Justice Aftab Alam and Hon'ble Justice Ranjana P. Desai), the question before Hon'ble Supreme Court was as to whether a magistrate can direct an accused to give his voice samples. On careful examination of the judgment, I find that fundamentally both the judges agree that taking of voice samples of accused by police during investigation is not violative of Constitution of India. Both the judges agreed that voice sample is like finger print impression, signatures or specimen handwriting of an accused. While Hon'ble Justice Ranjana Prakash Desai observed that voice print identification of voice involves measurement of frequency and intensity of sound waves which fell in Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 77 of 107 the ambit of inclusive definition of 'measurement' appearing in the Identification of Prisoners Act, 1920, the Hon'ble Justice Aftab Alam differed and held that it is a not a measurement. Thus, the entire issue was referred to Bench of three judges.
64. However it is specifically mentioned by Hon'ble Justice Ranjana Prakash Desai that voice prints are like finger prints in that each person has a distinct voice, with characteristic features dictated by vocal cavities and articulators. There is no dissenting note on this aspect by Hon'ble Justice Aftab Alam.
65. Even if it is presumed that voice sample does not fall within the definition of 'measurement' under Identification of Prisoners Act, the comparison of the questioned voice with the voice sample by an expert would be admissible in evidence u/s 9 of Indian Evidence Act, which makes all the facts to be relevant which fix the Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 78 of 107 identity of a person.
66. It is evident that accused Rajinder Singh Rana (A1) and R. Dhanapal Raj (A2) got recorded their voice samples and this fact has been proved by prosecution beyond reasonable doubt by examining PW22 Gopal and PW23 Binod Kumar. None of the accused had taken a defence that they were compelled to give voice samples and it is clear that voice samples were voluntarily got recorded by accused named above.
67. Firstly, coming to the voice of accused Rajinder Singh Rana contained in different conversations/audio files of Ex PW5/Y, I am of the opinion that there is sufficient and proper connecting evidence leaving no scope of doubt about the identification of his voice. The specimen voice of accused Rajinder Singh Rana was recorded during the investigation in (CD SV1) Ex. PW 17/S and the Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 79 of 107 same was sent for expert opinion. The expert witness PW17 Deepak Kumar Tanwar conducted spectographic examination and opined that voice in questioned CD matched with the specimen voice of Rajinder Singh Rana.
68. On examining the credentials of PW17, I find that he is an expert in the field of voice identification and used scientific and advanced method to compare the voice in question. The witness has confidently answered all questions put across during his cross examination and there is no scope to disbelieve the expertise and report of PW17. The witness (PW17) has been cross examined on the point of voice testing and voice comparison and it is clear that electronic devices with latest software technology were used for the purposes of examination. The witness denied the suggestions that he has given favourable report to the CBI or that his report is perfunctory or scientifically incorrect. There is no reason to doubt the credibility of Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 80 of 107 the expert witness, who has done his job appropriately and elaborated the procedure adopted by him during the auditory examination. The report is specific, clear, comprehensive and supported with reasons. The scientific examination by the expert of the questioned recorded conversations has further added credibility to the case of prosecution.
69. Although, accused Rajinder Singh Rana has denied in his statement u/s 313 Cr.P.C having given specimen voice during investigation but no such stand was taken during the cross examination of official witness i.e., PW22 Gopal. The witness was not suggested that sample voice was not so recorded in CD Ex. 17/S. It is clearly evident that specimen voice of accused Rajinder Singh Rana was recorded in connected RC No. 02A/2010/CBI/ACIII/New Delhi and used in the present case with the permission of the court. (reference order dated 01/10/2012).
Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 81 of 107
70. It is also evident from the surveillance orders Ex PW2/H, Ex. PW 2/J and Ex PW2/L and from the deposition of PW2 that the mobile phone number 9312222807 of accused Rajinder Singh Rana was kept under surveillance from 27/07/2010 till January 2011 and calls were intercepted and recorded. It is admitted by accused Rajinder Singh Rana in his statement u/s 313 Cr. PC that mobile phone number 9312222807 belongs to him and he was using the same. This fact is also corroborated with the record produced by the service provider i.e. CAF Ex PW15/E. In these circumstances, it is ruled out that the voice recorded through intercepted calls existing on the mobile number 9312222807 was of any other person except accused Rajinder Singh Rana. The CDRs have also confirmed the existence of intercepted calls and the telephone numbers with whom calls were made, received and connected.
71. It is also important to note that PW3 Prashaant Garg has Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 82 of 107 identified each call made by him to accused Rajinder Singh Rana and has recognized his own voice therein. It is true that PW3 has not categorically identified the voice of Rajinder Singh Rana but he made it clear that through the particular calls he was talking to Rajinder Singh Rana. Also, accused Rajinder Singh Rana has not taken specific stand during cross examination of PW 3 or during his own statement u/s 313 Cr.P.C that CD Ex PW5/Y does not contain his voice. In view of above discussion, I conclude that identification of voice of A1 Rajinder Singh Rana in CD Ex. PW 5/Y is sufficiently established.
72. The sample voice of accused R. Dhanapal Raj was also recorded in CD SVIII Ex. PW 17/K during the investigation as proved with the testimony of PW23 Binod Kumar. No suggestion has been given to this witness in rebuttal that no such recording was done. Accused R. Dhanapal Raj has denied in his statement u/s 313 Cr.P.C about the recording of voice sample but the same is not believable and Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 83 of 107 appears to be an afterthought only. The voice of accused R. Dhanapal Raj has been matched to the conversations recorded in questioned CD, through voice spectographic examination. Also A2 is the registered consumer of mobile phone no. 9444402288 admittedly, so calls connected between Rajinder Singh Rana (A1) and R. Dhanapal Raj (A2) and between Milan Kumar Dey (A3) and R. Dhanapal Raj (A
2) on their registered mobiles have no possibility to contain voice of any other person. The existence of calls also substantiated by record of service providers through Ex. PW 1/C (CDR) and Ex. PW 1/D (colly) (CAF).
73. Coming to accused Milan Kumar Dey, it is the stand of prosecution that he refused to give his voice sample during the investigation and therefore adverse inference must be drawn against him. PW 20 Investigating Officer, Inspector Girraj Sharma, has testified that accused Milan Kumar Dey refused to give his voice Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 84 of 107 sample, although, no memo was prepared in this regard. No suggestion was given in rebuttal on behalf of accused Milan Kumar Dey to PW 20 that he was willing to give his voice sample or that no such refusal was done by him. Moreover, the voice of accused Milan Kumar Dey has been identified by PW10 Gopal Narain Mishra in his conversation with accused Milan Kumar Dey in call dated 28/10/2010 (call number 6, as per AnnexureA Ex. PW 2/D) (file number 10181521015 20101028134202.wav, recorded at 13:42:02) and no specific suggestion during cross examination of this witness (PW 10) is given that the conversation does not contain the recorded voice of accused Milan Kumar Dey. The name of Milan Kumar Dey has also been mentioned by speakers in the questioned conversations ruling out any possibility that they were talking to any other person except Milan Kumar Dey.
74. It is also confirmed by PW3 Prashaant Garg in his Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 85 of 107 testimony, on hearing the particular call dated 03/11/2010 (call number
21) (file number 1018152102120101103083148.wav, recorded at 08:31:48) that he was talking to accused Milan Kumar Dey when he visited the house of Rajinder Singh Rana on 03/11/2010. It is true that specifically Prashaant Garg has not identified the voice of accused Milan Kumar Dey but it cannot be expected of him as he was not usually conversing or talking to accused Milan Kumar Dey. The voice recognition of accused Milan Kumar Dey is further established through the fact that his telephone numbers 9431350118, 9334700484 and 6512562564 were put on surveillance vide orders Ex. PW 2/F, Ex. PW 2/G and Ex. PW 20/D and calls were intercepted and recorded. The possibility of any other voice in the intercepted calls is ruled out. Also accused Milan Kumar Dey has never taken any stand during cross examination of prosecution witnesses or during his statement recorded u/s 313 Cr.P.C that Ex PW5/Y does not contain his voice. Accordingly, there is sufficient evidence on record that the intercepted Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 86 of 107 conversations contain the voice of accused Milan Kumar Dey.
75. The voice of accused Dr. Yashpal Singh has not been identified by any of the witnesses but it is clear from the internal evidence of conversations as speakers are mentioning the names of each other that there has been calls between Rajinder Singh Rana and Yashpal Singh. Dr. Yashpal Singh has admitted his mobile no. 9412227850 (in statement u/s 313 Cr. PC) and it is also evident that he is registered consumer of the same. In this situation, the conversations between mobile of Rajinder Singh Rana and mobile of Yashpal Singh, recorded in computer and call details produced by service provider are sufficient material to connect to the voice of Yashpal Singh.
76. To be more careful, the questioned CD and specimen CDs have been played by me in my chamber in the computer system at the final stage. The conversations appearing in Ex. PW 5/Y are continuous Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 87 of 107 and uninterrupted and they are matching with the specimen voices as well as with the voices identified by the witnesses in particular calls. The dialogues are naturally and mutually spoken in the conversations ruling out any possibility of editing and tampering. The voices are clearly audible and there is no disturbance or any other sound.
77. In view of above discussion, I conclude that Ex. PW 5/Y fulfills all parameters of admissibility in terms of judgment R.M Malkani (supra) and Ram Singh & Ors (supra).
NATURE OF CONVERSATIONS:
78. Having concluded about the admissibility and authenticity of CD Ex. PW 5/Y and about identification of voices of accused contained therein, the next point of consideration is the nature of conversations and their impact on the case. The conversations have been heard during the trial on several occasions and also at the final Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 88 of 107 stage.
79. I have also gone through the transcripts prepared by IO Ex PW 20/X (colly) and matched the same randomly with the contents of the conversations. The transcripts are substantially correct and no material discrepancies are noted therein.
80. On examining the nature of conversations, I find that same are incriminating in nature and clearly brings about the conspiracy and complicity amongst all accused to obtain bribe from Prashaant Garg. The testimony of Prashaant Garg has been completely corroborated through the recorded conversations even in minute details. The factum of inspection of school of law studies, Bulandshahr by Rajinder Singh Rana and Milan Kumar Dey is also proved convincingly through the recordings. The defence taken by accused that they did not conduct any inspection of School of Law Studies, Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 89 of 107 Bulandshahr, is completely demolished. It is rather clear that accused have taken false pleas in their statements.
CALLS BETWEEN RAJINDER SINGH RANA AND MILAN KUMAR DEY.
81. The conversations of intercepted calls between Rajinder Singh Rana and Milan Kumar Dey reveal clearly that they both inspected school of law studies, Bulandshahr and raised demand of illegal gratification for giving favourable report. It is also clear that later both accused mutually discussed about the amount of bribe for giving favourable report and amount for giving factual report without taking any responsibility for approval of the college by legal education committee, BCI.
82. As per conversation in call dated 01/11/2010 (call number 9 as per AnnexureA Ex. PW 2/D) (file number 10181521002 Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 90 of 107 20101101084850.wav, recorded at 08:48:50), Milan Kumar Dey insisted to give report only on payment of demanded amount but then gave his no objection to accept Rs. 3 lakhs for factual report.
83. As per conversation in call dated 01/11/2010 (call number 12, as per AnnexureA Ex. PW 2/D) (file number 10181521002 20101101091706.wav, recorded at 09:17:06), Milan Kumar Dey insisted for six as final amount of bribe but thereafter in conversations of next calls dated 01/11/2010 (call number 13, as per AnnexureA Ex. PW 2/D) (file number 1018152102520101101092346.wav, recorded at 09:23:46) and call dated 01/11/2010 (call number 14, as per AnnexureA Ex. PW 2/D) (file number 1018152101420101101 125403.wav, recorded at 12:54:03) agreed for taking three without having any responsibility.
84. The acceptance of Rs 2.5 lakhs is clearly coming out in Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 91 of 107 conversation dated 03/11/2010 (call number 20, as per AnnexureA Ex. PW 2/D) (file number 1018152103120101103082231.wav, recorded at 08:22:31) and call dated 03/11/2010 (call number 21, as per AnnexureA Ex. PW 2/D) (file number 1018152102120101103 083148.wav, recorded at 08:31:48) and also payment of balance in few days.
85. It is further evident from the conversation dated 08/11/2010 (call number 25, as per AnnexureA Ex. PW 2/D) (file number 1018152100420101108083921.wav, recorded at 08:39:21) and call dated 08/11/2010 (call number 27, as per AnnexureA Ex. PW 2/D) (file number 1018152103020101108123141.wav, recorded at 12:31:41) that Prashaant Garg came and met Rajinder Singh Rana for payment of balance amount.
Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 92 of 107 CALLS BETWEEN RAJINDER SINGH RANA AND R. DHANAPAL RAJ.
86. In the conversation between Rajinder Singh Rana and R. Dhanapal Raj call dated 01/11/2010 (call number 10) (file number 10 18152101820101101085704.wav, recorded at 08:57:04), they both discussed about the inspection of college at Bulandshahr, initial demand of Rs 10 lakhs and then for Rs. 3 lakhs for giving report without taking responsibility of approval. Accused R. Dhanapal Raj insisted for minimum amount of Rs 10 lakhs. Accused Rajinder Singh Rana also mentioned about getting one each in case factual report is given without taking any responsibility, therefore, making it clear that amount was to be distributed equally between Rajinder Singh Rana, Milan Kumar Dey and R. Dhanapal Raj. In this conversation, A2 R. Dhanapal Raj agreed finally to the proposal of Rajinder Singh Rana (A1) for taking Rs. 3 lakhs without any accountability. Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 93 of 107 CALLS BETWEEN R. DHANAPAL RAJ AND MILAN KUMAR DEY.
87. In the conversation between accused R. Dhanapal Raj and Milan Kumar Dey call dated 31/10/2010 (call number 8) (file number 1018152101120101031200104.wav, recorded at 20:01:04) there has been discussion about inspection of Bulandshahr college, presenting of packets and demand of Rs 10 lakhs reduced to eight and then to six, wherein accused Milan Kumar Dey refused to accept the packets. Accused R. Dhanapal Raj insisted not to come down in demand by saying "don't come down to 5 or 4 or 3".
88. Above conversations display clear complicity between Rajinder Singh Rana, R. Dhanapal Raj and Milan Kumar Dey for obtaining bribe from Prashaant Garg for giving factual report about school of law studies, Bulandshahr.
Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 94 of 107 CALLS BETWEEN RAJINDER SINGH RANA AND YASHPAL SINGH.
89. The role and involvement of accused Dr. Yashpal Singh is also established categorically from the recorded conversations call dated 02/11/2010 (call number 16, as per AnnexureA Ex. PW 2/D) (file number 1018152100420101102102932.wav, recorded at 10:29:32), call dated 02/11/2010 (call number 17, as per AnnexureA Ex. PW 2/D) (file number 1018152101820101102182214.wav, recorded at 18:22:14), call dated 03/11/2010 (call number 23, as per AnnexureA Ex. PW 2/D) (file number 1018152101720101103 152524.wav, recorded at 15:25:24) and call dated 07/11/2010 (call number 24, as per AnnexureA Ex. PW 2/D) (file number 10181521 02920101107185709.wav, recorded at 18:57:09) and it is clear that he has been negotiating with accused Rajinder Singh Rana about the bribe to be paid by Prashaant Garg. The recorded conversations of intercepted calls between Rajinder Singh Rana and Yashpal Singh Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 95 of 107 clearly demonstrate that Yashpal Singh has been facilitating the negotiations and finally got settled at Rs. 3 lakhs. Accused Yashpal Singh even called accused Rajinder Singh Rana on 02/11/2010 and 07/11/2010 to give prior information about visit of Prashaant Garg on 03/11/2010 and 08/11/2010 for payment of the bribe amount. Even on 03/11/2010 (call number 23, as per AnnexureA Ex. PW 2/D) (file number 1018152101720101103152524.wav, recorded at 15:25:24), accused Yashpal Singh called Rajinder Singh Rana to confirm whether payment has been made by Prashaant Garg. Accused Rajinder Singh Rana also named Dr./Professor Yashpal Singh in conversations with other accused as the person coming to negotiate on behalf of Bulandshahr college.
90. It is evident on examining the contents of recorded conversations that accused Rajinder Singh Rana, Milan Kumar Dey and R. Dhanapal Raj in conspiracy with each other demanded bribe Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 96 of 107 from PW3 Prashaant Garg and obtained the same for the purposes of giving factual report about his college. Accused Yashpal Singh abetted through constant negotiating with Rajinder Singh Rana. This piece of evidence Ex. PW 5/Y (recorded conversations) absolutely incriminate all accused persons for the charged offences beyond reasonable doubt. DEFENCE OF ACCUSED.
91. Coming to the defence of accused, it is pleaded by accused Rajinder Singh Rana, Milan Kumar Dey and R. Dhanapal Raj that present case is the outcome of animosity with Gopal Subramaniyam, the then Chairman BCI on the issue of shifting and demolition of building of BCI as they stalled the process of shifting and demolition of building of BCI regarding which a civil suit is also pending.
92. However, no evidence is brought to substantiate the Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 97 of 107 defence pleas. The defence also seems to be not plausible and reliable as CBI is an autonomous body and not functioning under the control of any individual. There have been surveillance orders issued by top officers of Home Ministry and the same has been done on the basis of concrete source information. The material evidence has been collected through the telephonic surveillance of accused persons and in this situation no question of false implication arises. In the face of strong prosecution evidence, accused have no substantial defence, there is nothing on record to indicate that accused are innocent or falsely implicated.
93. The conversations clearly demonstrate that A1 to A3 have been seeking bribe from other colleges also and the present one is not an isolated incident. The accused (A1 to A3) are senior advocates and have been office bearers of Bar Council of India, which is top governing body of Advocates and A4 is professor of law. It is Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 98 of 107 unfortunate that persons responsible for upholding law indulged into corrupt activities and violated the rule of law. It is clear that accused have been seeking bribe from new and old law colleges as a matter of right. The demand in such form is nothing but extortion and also amounts to professional misconduct.
CONCLUSION:
94. The approver's evidence is reliable and can be the basis of conviction u/s 133 Evidence Act. Moreover, electronic evidence of recorded conversations not only corroborated the approver's testimony but also in itself prove the offences strongly.
95. In the ultimate analysis, I hold that prosecution has been able to prove its case beyond reasonable doubt against all the accused persons for the charged offences. I accordingly, hold the accused persons guilty and convict them for the following offences: Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 99 of 107
I convict accused Rajinder Singh Rana (A1) and accused Milan Kumar Dey (A3) u/s 120B IPC r/w Section 7, 13(1)(d) r/w Section 13(2) of P.C Act, 1988 and also u/s 7 and 13(1)(d) r/w Section 13(2) of P.C Act, 1988.
I convict accused R. Dhanapal Raj (A2) u/s 120B IPC r/w Section 7, 13(1)(d) r/w Section 13(2) of P.C Act, 1988.
I convict accused Yashpal Singh (A4) u/s 120B IPC r/w Section 7, 13(1)(d) r/w Section 13(2) of P.C Act, 1988 and u/s Section 12 of P.C Act, 1988.
96. Let all four accused be heard on sentence. (Anju Bajaj Chandna) Announced in open court Special Judge (PCAct)(CBI)6, today i.e., 18/07/2016 Patiala House Court, New Delhi Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 100 of 107 IN THE COURT OF MS. ANJU BAJAJ CHANDNA, SPECIAL JUDGE (PC ACT) (CBI)6, PATIALA HOUSE COURT, NEW DELHI Reg. No. 9/16 (Old CC No. 48/12) RC No. 10A/2011/ACIII/ND U/S 120B IPC & Section 7, 12 & 13(2) r/w Section 13 (1)(d) of PC Act, 1988 CBI vs. Rajinder Singh Rana etc. CNR No.: DLND010000422012 Central Bureau of Investigation vs
1. Rajinder Singh Rana (A1) S/o Sh. Ratan Singh, R/o H. No. 130, Vaishali, Maurya Enclave, Pitampura, New Delhi.
2. Raju Dhanapal Raj (A2) S/o Sh. Raju R/o 21Rakkiappa Street, Mylapore, Chennai4
3. Milan Kumar Dey (A3) S/o Late Sh Bhaskar Dey R/o Circular Road, behind Apsara Hotel, Lalpur, Ranchi.
4. Yash Pal Singh (A4) S/o Late Sh Kishan Singh R/o 6/680, Civil Lines, Bullandshahr Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 101 of 107 ORDER ON SENTENCE Present: Sh P.K. Dogra, Ld. Senior Public Prosecutor for CBI.
Sh. Harsh K. Sharma, Ld. Counsel for A1, A2 & A4. Sh. Aditya Chaudhary, Ld. Counsel for A3.
I have heard Ld. Senior PP for CBI Sh. P.K. Dogra and Ld. Counsels Sh. Sh. Harsh K. Sharma and Sh. Aditya Chaudhary for convicts on the point of sentence.
It has been submitted on behalf of convict no. 1 Rajinder Singh Rana that he is 62 years of age and cancer patient. He lost his only son during the course of trial of this case. He is the only beard winner of his family consisting of his wife, who is dependent on him and there is no other person to look after her. He is not a previous convict, although, he is facing trial in three other cases and otherwise, he has unblemished record in his entire career as a legal professional.
It is submitted on behalf of convict no. 2 R. Dhanapal Raj that he is 64 years of age, practicing lawyer for last 35 years. There is no blemish in his entire profession but for these set of cases which include three more case under trial. He is also an acute diabetic patient and the only bread winner of his family consisting of his wife, who is dependent on him. It is further submitted that his son has left him Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 102 of 107 because of this case only and has started living separately.
It is submitted on behalf of convict no. 3 Milan Kumar Dey that he is 52 years of age, suffering from hyper tension and diabetes. He is the only bread winner of his family consisting of his wife, who is dependent on him and a son who is 21 years of age and studying at Pune. Convict Milan Kumar Dey is designated Senior Advocate from Jharkhand. It is further submitted that he is not a previous convict and also no other case is pending against him.
It is stated on behalf of convict no. 4 Yashpal Singh that he is 64 years of age and retired as a professor. It is further stated that this case is only blemish on his entire career. He is not a previous convict and no other case is pending against him. Also, he is the only bread winner of his family consisting of his wife, who is dependent on him. His son has also left him because of this case and moved into his separated life.
All the convicts have prayed for taking a lenient view. On the other hand, it has been submitted by Ld. Senior PP that strong message is required to be sent to the society in corruption cases in view of steep rise of corrupt activities. Corruption is a serious threat to stability of society and must be dealt with strictly and maximum sentence be awarded to the convicts.
Convicts A1 to A3 are senior advocates and were office Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 103 of 107 bearers of Bar Council of India (BCI) and convict A4 is professor of law. They stand convicted for criminal conspiracy and for obtaining illegal gratification and also for having misused their position to gain pecuniary benefit.
Bar Council of India (BCI) is top governing body of advocates and one of its primary function is to set standards of professional conduct and regulate discipline among the practicing lawyers. Also it is the important task of BCI is to check and ensure quality of legal education imparted by universities.
Convicts were handed over important task of ensuring good standards of legal education for future generation but they preferred to keep aside ethical principles for monetary gains. Instead of upholding spirit and integrity of law, convicts indulged in rampant corrupt activities to enrich themselves. They completely failed to observe their professional responsibilities and diminished the image of this profession, once considered to be noble profession. The convicts have been responsible officers of justice delivery system but in total disregard to the sanctity of law, they commercialized their solemn duties. The situation raises range of questions about role, conduct and accountability of such governing institutions and their office bearers towards the society.
Corruption is a serious menace and is deep rooted. Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 104 of 107 Stringent sentencing policy is required to curtail corruption among public servants. The legislature too has recently enhanced minimum punishment u/s 7 and 13(1)(d) r/w 13 (2) of P.C. Act, 1988 by way of amendment in the year 2014; (although, enhanced punishment is not applicable in this case as it pertains to the period prior to the amendment (year 2014)).
Keeping in view the facts and circumstances of the case, position and status of the convicts, nature and character of the offences, it is difficult to accept the prayer of leniency in sentencing. Strong message is required to be sent to the society so that it has deterrent effect.
Accordingly, in view of seriousness of the offences, I sentence the convicts as under: Rajinder Singh Rana (Convict no. 1) Sr. Offence punishable Sentence of Fine (Rs.) Sentence in No. u/s Rigorous default of Imprisonment. fine 1 120B IPC r/w Section 5 Years 1,00,000/ 6 months 7, 13(1)(d) r/w Section 13(2) of P.C Act, 1988 2 7 of P.C Act, 1988 4 Years 1,00,000/ 6 months 3 13(1)(d) r/w Section 5 Years 1,00,000/ 6 months 13(2) of P.C Act, 1988 All the sentences shall run concurrently.
Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 105 of 107 R. Dhanapal Raj (Convict no. 2) Sr. Offence punishable Sentence of Fine (Rs.) Sentence in No. u/s Rigorous default of Imprisonment. fine 1 120B IPC r/w Section 5 Years 1,00,000/ 6 months 7, 13(1)(d) r/w Section 13(2) of P.C Act, 1988 Milan Kumar Dey (Convict no. 3) Sr. Offence punishable Sentence of Fine (Rs.) Sentence in No. u/s Rigorous default of Imprisonment. fine 1 120B IPC r/w 5 Years 1,00,000/ 6 months Section 7, 13(1)(d) r/w Section 13(2) of P.C Act, 1988 2 7 of P.C Act, 1988 4 Years 1,00,000/ 6 months 3 13(1)(d) r/w Section 5 Years 1,00,000/ 6 months 13(2) of P.C Act, 1988 All the sentences shall run concurrently.
Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 106 of 107 Yashpal Singh (Convict no. 4) Sr. Offence punishable Sentence of Fine (Rs.) Sentence in No. u/s Rigorous default of Imprisonment. fine 1 120B IPC r/w 5 Years 1,00,000/ 6 months Section 7, 13(1)(d) r/w Section 13(2) of P.C Act, 1988 2 Section 12 of P.C 4 Years 1,00,000/ 6 months Act, 1988 All the sentences shall run concurrently.
Benefit of section 428 Cr. PC, if any, be given to the convicts.
Fine is payable separately under each offence by convicts. Copy of the judgment and order on sentence given to the convicts free of cost.
File be consigned to Record Room.
(Anju Bajaj Chandna) Announced in open court Special Judge (PCAct)(CBI)6, today i.e., 18/07/2016 Patiala House Court,New Delhi Reg. No. 9/16 CBI vs. Rajinder Singh Rana etc Page 107 of 107