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Delhi District Court

Cbi vs Parveen Kumar on 22 September, 2010

                                       1

                IN THE COURT OF V.K. MAHESHWARI
                 SPECIAL JUDGE: TIS HAZARI: DELHI
                       Corruption Case No. 73/04

CBI           Vs                      Parveen Kumar
                                      S/o Sh. Bansi Dhar, Sub-Inspector
                                      Delhi Police, R/o 70/C WP Block,
                                      Pitampura, New Delhi

Date of Institution                   19.07.2001

RC No.                                DA1-2000-A-0028/CBI/ACB/New
Delhi

Under Section                         U/s 7 & 13 (2) r/w 13 (1) (d) of PC
                                             Act,1988

Arguments concluded on                9.9.2010


Date of Order                         20.9.2010

JUDGMENT:

FACTS OF THE CASE Accused Parveen Kumar, SI Delhi Police has been sent for his trial for the offences punishable U/s U/s 7 & 13 (2) r/w 13 (1)

(d) of PC Act,1988 by CBI vide RC No. DA1-2000-A- 0028/CBI/ACB/New Delhi.

2 According to prosecution facts of this case in brief are that Sh. Inderjit Singh Mann, S/o Sh. Jagjit Singh Mann, R/o Village C C No.73/04 1/58 2 Hollambi Khurd, Delhi-82 has given his written complaint alleging therein that his blue line bus No. DL IP 4197 runs on route No. 137 from Hollambi Kalan to Railway Station. On 23.02.2000, an accident had taken place between his bus and a cyclist near Naya Bans Gaon for which an FIR No. 61/2000 was registered in PS Narela Industrial Area and Sh. Parveen Kumar was investigating officer of the case. On 01.06.2000, at about 6.00 PM, a constable came to the Hollombi Kalan Bus Terminal and directed the complainant to bring his bus to the Police Station. When the bus was brought to the police station, Sh. Parveen Kumar, SI had seized the same in connection with the said accident case. He also arrested the bus driver Sh. Amar Singh who was bailed out at about 10.00 PM on the same day. When the complainant requested Sh. Parveen Kumar to release his bus on superdari, Parveen Kumar demanded an amount of Rs.5,000/- as illegal gratification for releasing the bus. On repeated requests of the complainant Sh. Parveen Kumar insisted that he will not accept anything less than Rs.2,500/- to 3,000/- and that he should come with the amount by 2.6.2000 evening. The complainant could arrange only Rs.2,000/-, since he did not want to give bribe for this purpose, therefore, he lodged the complaint with SP CBI.

3 The case was entrusted to Inspector, B.K.Pradhan. A trap team consisting of Vivek Dhir, S.K. Lall all Inspectors and other sub ordinate staff was constituted under the leadership of Sh. B.K. C C No.73/04 2/58 3 Pradhan. Presence of two independent witnesses namely S/Shri Dalbir Singh and Sushil Malik, both Sr. Vigilance Inspector of Northern Railway was secured. In the presence of the said witnesses and the other members of the trap party, a sum of Rs.2,000/- consisting of two G.C. Notes of Rs. 500, nine G.C. notes of Rs.100 and two G.C. notes of Rs. 50 denomination were produced by the complainant, the same were treated with phenolphthalein powder and were given to the complainant who kept the same in his left side shirt pocket. Complainant was directed to hand over the said tainted money to the accused or any person under the directions of the accused only on the specific demand of bribe by the accused and not otherwise. Complainant was not allowed to keep any incriminating document/article on his person except an application signed by his father for release of the vehicle brought by him. This application was kept by the complainant in his left side pant pocket. Witness Sh. Dalbir Singh was asked to act as shadow witness and was directed to remain close to the complainant so that he could over hear the conversation that takes place between the accused and the complainant and to give a signal by scratching his head after completion of the transaction of bribe. A micro-cassette recorder with a blank micro cassette was arranged and was played to ensure that it did not contain any pre-recorded voice. Specimen voice of the witnesses was recorded on the blank micro cassette and signatures of the witnesses were taken on it. The micro cassette recorder was C C No.73/04 3/58 4 handed over to the complainant with directions to switch on the same on reaching the spot to start recording the conversation taking place between him and the accused. The handing over memo was prepared incorporating all the pre trap formalities. The trap party then left the office and reached the vicinity of the police station of Narela Industrial Area at about 8.30 PM.

4 The complainant, accompanied by shadow witness, was directed to proceed inside the Police Station premises to contact the accused and the remaining members of the trap party including the other independent witness took suitable positions outside the police station. The complainant and the shadow witness contacted the accused SI Praveen Kumar who was sitting in Duty Officer's room. Thereafter, the complainant and the shadow witness alongwith the accused came out of the Duty Officer's room and walked out of the Police Station building. While walking out the complainant talked about the case with the accused and also gave the application to the accused for release of the vehicle. All three had stopped at a place in between the Police Station and the main gate where the accused demanded the bribe amount of Rs. 5,000/-. The complainant tried to explain him that since the bus was lying idle, he was hard of money. Accused was adamant but on the persuasion of the complainant he agreed to accept Rs. 2,000/- and said "la do hi de" where upon the complainant took out the bribe amount from his left side shirt pocket C C No.73/04 4/58 5 with right hand and handed over the same to the accused Praveen Kumar who accepted the same with his left hand and kept the same in his left side pant pocket. Thereafter, the accused proceeded alone to the residential complex inside the Police Station leaving the complainant and the shadow witness behind stating that he would procure the order of the SHO for release of the vehicle. After the accused had left, the shadow witness gave the pre appointed signal.

5 On receipt of the signal from the shadow witness Inspector B.K. Pradhan, TLO alongwith the other independent witnesses and members of the trap team rushed inside the police station from the main entrance where complainant informed them that the accused, after accepting the tainted money, has gone inside residence of the SHO located inside the premises alongwith his application. The trap team, followed by the complainant and the witnesses, rushed to the residence of the SHO where the accused was standing in the room of the SHO holding the application alongwith one 500 rupee note in his right hand and the SHO Sh. Sohan Veer Singh was found taking his dinner, sitting on the cot. Accused S.I. Praveen Kumar was caught hold of his left and right wrists by Inspector C.K.Sharma and Inspector Vivek Dhir, Inspector Pradhan, after disclosing his identity and the identity of other members of the team, challenged the accused of having demanded and accepted bribe of Rs. 2,000/- from the complainant. The accused became perplexed C C No.73/04 5/58 6 and kept mum. The spot being the residential premises of the SHO, the IO conducted further proceedings at the office room of the SHO at the Police Station asking SHO also to join the proceedings after completing his dinner. After taking SI Praveen Kumar to the room of the SHO and after making enquiries from the complainant and the shadow witness who narrated the facts stated above, the IO directed the accused to hand over the application and the 500 rupee note, which was in his hand to independent witness Sh. Sushil Malik. The independent witness Sushil Malik under directions took the note of Rs. 500/- and application and also recovered the tainted G.C. Notes from the left side pant pocket of the accused amounting to rupees 1500/-. The G.C. Notes recovered from the pant pocket and one G.C. note of denomination of Rs.500/- which was in the hand of the accused alongwith the application were tallied and found to be same as mentioned in the Handing Over Memo.

6 The washes of the fingers of left hand, right hand of the accused, the wash of the application which was in the hand of the accused alongwith one currency note of Rs.500/- denomination as well wash of the inner lining of the left side pant pocket of the accused were taken separately in the colourless solution of sodium carbonate which turned pink in colour. The washes were separately sealed giving marking "LHW", "RHW", "Paper wash" and "LPPW" and the labels were signed by the witnesses. The pant of the accused C C No.73/04 6/58 7 was also taken into possession. The micro cassette recorder which was in possession of the complainant was played after rewinding. The conversation between the accused and the complainant recorded therein confirmed the demand and acceptance of the bribe by the accused Praveen Kumar. The voice of the accused in the cassette was also identified by the complainant and the shadow witness. The cassette was taken out from the micro cassette recorder and after putting it in its cover was sealed with the CBI seal and wrapped in a cloth and both the witnesses signed on the cloth wrapper. From the search of the office desk of the accused, the case file of FIR No. 61/2000 was recovered and the same was taken into possession. A rough site plan of the scene of occurrence was prepared and it was signed by the witnesses and a memo of the proceedings was drawn.

7 The washes were sent to CFSL for seeking expert opinion, vide report no. CFSL-2000/C-0337 dated 22.6.2000 of CFSL Expert has confirmed the presence of phenolphthalein and sodium carbonate in the above said washes. The complainant, both the independent witnesses and the members of the trap team, in their statements have corroborated the contents of the pre and post trap proceedings. A rough transcription of the audio cassette was prepared which confirms the demand and acceptance of bribe by the accused. The file of FIR No. 61/2000 of P.S. Narela confirms that the accused was investigating officer and the fact that the bus of the C C No.73/04 7/58 8 complainant was seized during the investigation of that case. The above facts confirms the motive for demand & acceptance of illegal gratification from the complainant.

CHARGE 8 Copies required U/S 207 Cr P C supplied to accused. After hearing both the parties, my Ld. Predecessor vide order dt. 5.2.2004 framed charge against accused for the offences punishable U/s 7 & U/s 13 (2) r/w 13 (1) ( d) of the Prevention of Corruption Act, 1988. Accused pleaded not guilty to the charge and claimed trial, hence this trial.

PROSECUTION EVIDENCE 9 Prosecution, in order to prove its case, has produced following witnesses:

10 PW1 Sh. K.S. Chhabra, Scientific Officer who has proved his report Ex.PW1/A. 11 PW2 Sh. Jagbir Singh, has proved CD file as Ex.PW2/A. 12 PW3 Sh. Sunil Garg, has proved sanction order as Ex. PW3/A. 13 PW4 Sh. Inderjeet Singh Mann, has proved complaint as Ex. PW-4/A , Sheet in which G.C. notes were noted down as Ex. PW-4/B, Handing Over Memo as Ex. PW-4/C, Personal Search Memo as Ex. PW-4/D, Recovery Memo as Ex. PW-4/E C C No.73/04 8/58 9 and a specimen seal on a paper as Ex.PW4/F. 14 PW5 Sh. Dalbir Singh, has also proved the documents already proved by PW4 as Ex.PW4/A, Ex.PW4/B, Ex.PW4/C, Ex.PW4/D, rough site plan as Ex.PW5/A, Ex.PW4/F, Ex.PW4/E, transcription as Ex.PW5/1, GC notes Ex.P1 to Ex.P13.

15 PW6 Sh. Sushil Malik, has proved the documents already proved by PW4 as Ex.PW4/A, Ex.PW4/C, Ex.PW4/B, bottle mark RHW Ex.P27A, bottle mark LHW Ex.P28, left side pant pocket Ex.P34, bottle mark paper wash Ex.P29, bottle mark LPP Ex.P26, LHW, RHW, LPPW and PW as Ex.P30 to Ex.P33 respectively, micro cassette EX/P25, cloth wrapper Ex.P27, GC note Ex. P1 to P13.

16 PW7 Sh. B.K.Pradhan, has also proved handwriting at Point B on the complaint as Ex.PW4/A, FIR Ex.PW7/A, identified his signatures as Ex.PW5/A, Ex.PW4/E, Ex.PW4/D, signatures on the intimation of arrest as Ex.PW7/B. 17 PW8 Sh. D.K.Singh, has proved documents as he prepared transcription as Ex.PW5/1.

18 PW9 Sh. Sohan Bir Singh, has not proved any document.

DEFENCE OF ACCUSED AND DEFENCE EVIDENCE 19 Statement of accused U/s 313 Cr PC was recorded wherein he has denied all the allegations made against him and evidence produced by the prosecution. He has further stated that bus was released on 01.06.2000 the entry C C No.73/04 9/58 10 of which has already been mentioned in Malkhana register. Superdaginama of regd. owner Jagdish Singh Mann was also accepted by him at the time of releasing the bus. Sunil Garg Addl D C P was not competent to grant sanction for his prosecution.

20 In his defence, accused has examined following witnesses: 21 DW1H C Sahab Singh has proved copy of entryNo.438A of Malkhana Register No.19 Ex. DW1/A and report of ACP, PG Cell Ex DW1/B. 22 DW2 Pankaj Sharma Senior Vigilance Inspector has proved photocopy of Chapter III of Manual Ex.DW 2/A and Original Indian Railway Vigilance Manual 1996 Ex.DW 2/B. 23 DW3 Sh. Amar Singh has proved the documents already proved by other witnesses.

24 DW4 Sh. Satish Kumar has proved copy of NOC slip EX DW4/A. 25 DW5 H C Parmod Kumar has proved appointment letter of Parveen Kumar Ex DW5/A. 26 Inadvertently H C Rakeshbala has been examined again as DW5. She has proved photo copy of D D No.8 B dt. 28.2.2001 Ex DW5/A and also proved the document already proved by other witness. 27 DW6 H C Surinder Singh has proved the photocopy of receipt Ex.DW 6/A. 28 Inadvertently H C ParvinderKumar has been examined again as DW6. He has proved photocopy of Register A containing relevant entries Nos. 8, 9, & 10 dt. 1.6.2000 Ex DW6/A, relevant entries Nos. 23, 41, & 48 dt. 1.6.2000 Ex DW6/B and relevant entry No. 11 dt. 2.6.2000 Ex.DW6/C. 29 DW7 Sh. P D Sharma ACP has proved RTI application dt. 24.11.2009 of Parveen Kumar Ex.DW 7/A and reply dt. 18.12.2009 Ex DW7/B. 30 DW8 H C Asha has proved the document already proved by other witnesses.

C C No.73/04 10/58 11

31 DW9 HC Mukesh kumar has proved DDNo.5B and 4A Ex DW9/A and Ex. DW9/B. PROSECUTION ARGUMENTS 32 Sh Brajesh Shukla Ld. Sr. PP for CBI argued that prosecution has proved its case that accused Parveen Kumar was working as Sub Inspector in Delhi Police and was posted at P S Narela, Industrial Area in the month of May June 2000 It is argued that he had demanded illegal gratification of Rs. 5,000/- from complainant Inderjeet Singh Mann for releasing his bus No. DL 1P A 4197 on superdari and accepted Rs.2,000/- from him in the evening of 2.6.2000 which were also recovered from his conscious possession. It is argued by Ld. Sr. PP that accused has manipulated the documents of case regd. Vide FIR No. 61/2000 P S Narela Industrial Area and put forward his concocted defence that he had released the bus in question on 1.6.2000. It is argued by Ld Prosecutor that complainant Inderjeet Singh Mann and independent witnesses Dalbir Singh and Sushil Malik have fully supported and corroborated the case of prosecution. They have proved demand of illegal gratification made by accused, acceptance of the illegal gratification of Rs. 2,000/- by accused and recovery of the same from the accused. There is nothing on the record to disbelieve their statement. Prosecution has proved sanction for the prosecution of accused Ex PW 3/A accorded by Sh. Sunil Garg, the then Addl. DCP who was competent to remove the accused being an SI in Delhi C C No.73/04 11/58 12 Police from his post. Prosecution has also produced all other relevant witnesses and also proved relevant documents. Accused may be convicted.

DEFENCE ARGUMENTS 33 Ld. Defence counsel filed detailed written submissions running in about 71 pages and have also addressed oral arguments elobrating the written submissions. As the written submissions are on the judicial file hence I am not reproducing the same, in detail, in this judgment.

34 In short, according to accused, his prosecution in this case, is bad because sanction for his prosecution in this case, has been accorded by the then Addl. Dy. Commissioner while he was appointed by Dy. Commissioner of Police. Addl. Dy. Commissioner of police is subordinate in rank and grade to the Dy. Commissioner of police. In determining as to who can be considered competent to remove a Government servant the requirements of article 311 of the Constitution must be given due consideration. Section 19 of the P C Act must be interpreted in the light of requirement of article 311 . According to article 311 of constitution of India no public servant can be removed from his post by an authority lower in rank/grade to his appointing authority, hence the sanction accorded in this case is void, therefore, his prosecution is also illegal. It is also argued that sanction Ex PW 3/A has been accorded without due application of mind, in a mechanical manner C C No.73/04 12/58 13 and without considering the relevant record on the basis of draft sanction order received from CBI. Thus sanction is bad on this count also.

35 According to accused bus in question was released by him on 1.6.2000 itself, thus there was no motive for demand of illegal gratification by accused for releasing of bus in question on 2.6.2000, therefore entire prosecution story is concocted. In the trial of POC Act, if it is found that no officials function ever existed for which the allegations are made upon a public servant of having demanded bribe or doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person than the entire prosecution case and thre charge sheet under section 7 of POC Act must fail on this ground alone.

36 As far as charge under section 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988 are concerned, it is submitted that the same can never survive in isolation without S.7 of the POC Act. Where the charge under section 7 of POC Act fails the charge under section 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988 also fails.

37 According to accused the so called two independent witnesses who had joined the trap team were actually not the independent witnesses. They were the witnesses of the choice of CBI. They were interested witnesses. They were from vigilance C C No.73/04 13/58 14 department of Railway who were keeping liasion with CBI. 38 Complainant is a man of doubtful character who had filed false affidavits in STA. He got trapped accused in this case in connivance and conspiracy with CBI just to bury criminal case registered against his driver vide FIR No. 61/2000 P S Narela Industrial Area and to go on plying his diesel bus inspite of prohibition of plying of such vehicles.

39 It is argued that micro cassette recorder was given to complainant who had carried the same on the spot which is clear from the statement of complainant himself and other prosecution witnesses but the recorded conversation was not sent for examination to an expert thus adverse inference must be drawn against the prosecution and accused may be acquitted on this ground alone. 40 It is argued by Ld Defence counsel that accused has to prove his defence by mere preponderance of probability only. Burden of proof on the accused to prove his defence is not as strict as that on prosecution to prove its case beyond reasonable doubt. PUBLIC SERVANT AND SANCTION.

41 U/s 7 of P C Act, 1988 prosecution has to prove that :

(i) The accused was a public servant or expected to be a public servant at the time when the offence was committed.

(ii) The accused accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person.

(iii) For himself or for any other person.

(iv) Such gratification was not a remuneration to which the accused was legally entitled.

C C No.73/04 14/58 15

(v) The accused accepted such gratification as a motive or reward for,

(a) doing or forbearing to do an official act, or

(b) doing or forbearing to show favour or disfavour to someone in the exercise of his official functions, or ( c) rendering or attempting to render any service or disservice to some one with the Central or any State Government or Parliament or the Legislature of any State, of with any local authority, Corporation or Government company referred to in Sec. 2 clause ( c) or with any public servant, whether named or otherwise.

42 It is an undisputed fact that at the time of raid accused was working as Sub Inspector in Delhi Police and was posted at PS Narela Industrial Area thus there is no dispute that he was a public servant. Even during the course of argument Ld Defence counsel has not disputed this fact.

43 PW3 Sh Sushil Garg, the then Addl DCP has stated that he had granted sanction for the prosecution of S I Parveen Kumar in connection with accepting of bribe of Rs.2000/- on 2.6.2000. Sanction order Ex PW3/A bears his signatures . He was competent to remove an officer of the rank of SI in Delhi Police . He was competent to grant sanction . He had gone through the file, and applied his mind before according the sanction vide order Ex PW3/A. 44 This witness has been cross examined at length . In his cross examination he has stated that CBI had not asked for the sanction of prosecution of SHO Inspector Sohanbir Singh; He had gone through all the documents while granting sanction; No direction C C No.73/04 15/58 16 was given to him not to mention the S.P report in his sanction. 45 He has denied that sanction for the prosecution of accused was asked from the then DCP Sandeep Goel who had denied the same before according sanction Ex PW3/A. He has also denied the suggestion that it had come to the notice of everybody that bus was released on 1.6.2000.

46 He has admitted that Sh Sandeep Goel was the then DCP and he was Addl DCP. He has also admitted that ACR of Add DCP used to be written by DCP. He has stated in his cross examination he was not concerned with Malkhana of PS Narela hence he cannot tell whether bus No DL-1P-A-4197 was released to its owner Jagjit Singh on 1.6.2000. He has also admitted that advice of CVC was also taken.

47 Section 12 of Delhi Police Act 1978 deals with the appointment of subordinate rank including "Sub Inspector" in Delhi Police. It state as follows:

Section 12 Appointment of Subordinate rank--Subject to such general or special orders in writing as the Administrator may make in this behalf--

a) Inspectors of Police may be appointed by the Additional Commissioner of Police; and

b) Sub-Inspectors of Police and other officers of subordinate rank may be appointed by the Deputy Commissioners or Police, Additional Deputy Commissioners of Police, Principal of the Police Training College or of the Police Training School, or any other officer of equivalent rank.

48 From the section 12 of the DP Act it is clear that both, C C No.73/04 16/58 17 DCP and Addl. DCP are appointing authority of a Sub-Inspector in Delhi Police. DW 7 in his cross-examination with regard to powers of removal of a Sub-Inspector of Delhi Police from his service has stated that powers of Addl DCP and DCP are same. In this regard relevant portion of his cross-examination is as under: "A Sub Inspector can be removed from the services by the Addl DCP with regard to awarding punishment to S I powers of Addl DCP and DCP are same."

49 Thus from the above discussion it is clear that in the case in hand powers of appointing authority of accused i e DCP and powers of the authority who has granted sanction for the prosecution of the accused in this case i e Addl DCP are the same, with regard to removal of accused who is Sub-Inspector in Delhi Police. 50 Prevention of Corruption Act is a social legislation enacted with the object to curb illegal activities of public servants, in these circumstances according to the law of interpretation of Statute, its provision should be interpreted so as to achieve its object. Our Hon'ble Supreme Court in Ram Singh Vs. State of MP (2000) 5 Supreme Court Cases-88 has held as follows:

"Prevention of Corruption Act, 1988 - Nature and interpretation of -Held is a social legislation to curb illegal activities of public servant and should be liberally construed so as to advance its object and not liberally in favour of the accused - interpretation of Statutes -Particular statutes or provisions - Penal statute - Social Legislation - Interpretation of".

C C No.73/04 17/58 18

51 Ld. Defence Counsel in support of his arguments has placed reliance on following authorities on this point:

i) Ashok Rangshahi Vs. State of M.P. - 1996(2) CRIMES

ii) Abid Mohammad Khan Vs. State of M.B. - AIR 1956 MB 259

iii)Gopalbhai Mohanbhai Nagoda Vs. State of Gujarat - IV (1993) CCR 3288 (DB)

iv)Mohanlal Keshavlal Vs. The State - AIR 1956 Bombay 504:

v) Sobhag Mal Vs. The State - AIR 1954 Rajasthan 207

vi)Parmeshwar DayalVs. The State - AIR 1963 Rajasthan 126

vii)Omkar Chand Parashar Vs. The State - 1994(3) C C Cases 38 (Delhi HC)

viii)Mahesh Prasad Vs. State of Uttar Pradesh - 1954 Supreme Court Reports 965

ix)Kamta Charan Srivastva Vs. Post Master General Bihar - AIR 1955 PATNA 381 (V 42 C 96 Aug.)

52 There is no dispute with the proposition of law laid down in these authorities, however ratio of law laid down in an authority is to be applied according to the peculiar facts and circumstances of a particular case. In the case in hand, as discussed above, it is established that power of appointing authority of accused i.e. DCP C C No.73/04 18/58 19 and powers of sanctioning authority i.e. Additional DCP with regard to removal of accused are same, hence the ratio of law laid down in these authorities is not applicable to the facts and circumstances of our case.

53 I have carefully gone though the sanction order Ex. PW3/A, all the relevant facts of this case are mentioned in it, which shows that sanctioning authority had applied his mind to the facts and circumstances of this case before according the sanction for the prosecution of accused in this case.

54 Hon'ble Supreme Court in this regard in Shivraj Singh Vs. Delhi Administration HC 1419 in this regard has held as follows:

'Prevention of Corruption Act (2 of 1947), S.6 and S.5(2) - Penal Code (45 of 1860), S.161 - Prosecution of Police Officer for offence under - Sanction - Order of sanction by D.I.G. ''after fully and carefully examining the material before him in regard to the aforesaid allegations'' - Order on face of it showing which were facts constituting offence charged - Order of sanction held fulfilled the requirements of S.6.''

55 In this regard, Hon'ble Supreme Court in C.S. Krishnamurthy Vs. State of Kerala - AIR 2005 SC 2790 has held as follows:

''Prevention of Corruption Act (2 of 1947), S.6 - Sanction for prosecution - validity - Accused public servant alleged to have possessed assets disproportionate to his known sources of income - Sanction order speaking for itself that incumbent has to account for the assets - In such case plea that particular material was not properly placed before sanctioning authority for according sanction and sanctioning authority has not kapplied its mind becomes C C No.73/04 19/58 20 unsustainable - Sanctioning authority had come in witness box and deposed about his application of mind - Facts mentioned in sanction order were eloquent for constituting prima-facie offence under S.5(2) r/w S.5(1)(e) of Act."

56 In this regard, Hon'ble Supreme Court in Superintendent of police (CBI) Vs. Deepak Chaudhary - 1995 SCC (Crl.) 1095 has held as follows:

''We find force in the contention. The grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima-facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refused to grant sanction. The grant of sanction, therefore, being administrative act the need to prove an opportunity of hearing to the accused before according sanction does not arise. The High Court, therefore, was clearly in error in holding that the order of sanction is vitiated by violation of the principles of natural justice.''

57 In this regard, A full bench of Hon'ble Supreme Court in Indu Bhushan Chatterjee Vs. State of WB - AIR 1958 SC 148 has held as follows:

''That the sanction granted under S.6 was perfectly valid. The statement of the sanctioning authority did not prove that he merely put his signature on the readymade sanction presented by the police without applying his mind to the facts of the case. It was not for him to judge the truth of the allegations made against the accused by calling for the records of the connected claim cases or other records in connection with the matter from his office. The papers which were placed before him apparently gave him the necessary in the ends of C C No.73/04 20/58 21 justice to accord his sanction.''

58 In view of above discussion, this court is of opinion that Sh. Sunil Garg, the then Additional DCP was competent to grant sanction of the prosecution of accused in this case and he had granted sanction for the prosecution of accused Ex. PW3/A after his due application of mind considering all the relevant record and facts of this case.

DEMAND ACCEPTANCE AND RECOVERY OF BRIBE AMOUNT.

59 Complainant Inderjeet Singh Mann in his complaint dated 2.6.2000 Ex. PW4/A has specifically written that when he had asked Parveen Kumar to release his vehicle on superdari, he had demanded Rs. 5,000/- and stated that he will not release the vehicle till Rs. 5,000/- will be paid to him. Complainant has further written in his complaint that on his repeated request Parveen Kumar had reduced his demand to Rs. 2,500/3,000/- for releasing the vehicle. 60 In this regard, relevant portion of PW4 Complainant Inderjeet Singh Mann, is as under:

"I asked SO Parveen Kumar to released the driver on bail and bus on superdari. SI Parveen Kumar however put us off on one pretext or the other. I came out the IO's room where I met one constable who was being address as Rana. Rana informed me that the vehicle could be released just then but I shall have to stay Rs.5,000/-. I went back to the room of SI Parveen Kumar told me that the work can be done if the amount of atleast Rs.2,500/- or Rs.3,000/- is paid by 2.6.2000..............' C C No.73/04 21/58 22 ........"I told SI Parveen Kumar that I was suffering loss of money. While we were talking, we came outside the building of the police station, but inside the compound of the police station. I told SI Parveen Kumar that I have been able to arrange Rs.2,000/-. SI Parveen Kumar told me that SHO would not sign the release order without taking money. I again told SI Parveen Kumar that I had just Rs.2,000/-. Thereupon, SI Parveen Kumar agreed to accept Rs.2,000/- and told ''LAA DO HI DE DO.'' I took out the money from the pocket of my shirt and handed over the same to SI Parveen Kumar, which he accepted with his left hand and kept the same in the left side pant pocket. I also handed over the application signed by my father to SI Parveen Kumar. SI Parveen Kumar asked me to wait and he proceeded towards the residence of the SHO Sohanvir, which is in the compound of same building. Witness Dalbir Singh gave signal to the CBI party. The CBI party immediately rushed to the spot. I informed the CBI Inspector about acceptance of the tainted money by SI Parveen Kumar. I also informed that SI Parveen Kumar had proceeded towards the residence of the SHO. The entire CBI party including independent witnesses rushed towards the residence of SHO and I also followed. The two CBI Inspectors had caught hold of SI Parveen Kumar from the left and right had wrists. The Inspector of the CBI inquired from SI Parveen Kumar, if he had accepted bribe. The accused kept silent. At that time one currency note of Rs.500/- and the application aforesaid was in the right hand of the accused. The SHO was found sitting on the cot. The CBI party informed the SHO that SI Parveen Kumar had accepted the bribe. The SHO asked the CBI party to take Parveen Kumar to his room in the police station..........' ......."Witness Sushil Malik was asked to take the search of the left side pocket of pant of SI Parveen Kumar. On search Rs.1,500/- were recovered. Its numbers were tallied with the Annexure Ex. PW4/B and which were found to be the same.

C C No.73/04 22/58 23

Wash of the application which was handed over to the accused was also separately taken in a similar manner and the colourless solution of Sodium carbonate had turned pink. The said solution was also transferred in a clean land neat bottle and was closed, sealed land labelled as Paper Wash. The witnesses also signed the said label.........' 'At the time of apprehension of accused, the application was recovered from the hands of accused alongwith Rs.500/-."............

61 In this regard, relevant portion of PW5 Sh. Dalbir Singh, Asstt. Marketing Manager is as under:

........ "I observed Parveen Kumar present in the court today coming out of the duty officer's room alongwith complainant. Enroute from the duty officer's room to out of the P S building, I heard the talks between the complainant and accused Parveen Kumar. Accused was insisting for payment of Rs. 5,000/- however, the complainant was persuading him to agree for Rs. 2000/- and thereafter accused agreed to accept Rs. 2000/- by saying "La Do Hi De". Complainant took out the money from his left side shirt pocket with his right hand and extended the same towards accused Parveen Kumar who accepted the same with his left hand and kept the same in his left side pant pocket. He took the application for release of impounded vehicle in his hand and proceeded to the residential complex for obtaining the orders of SHO. I flashed the signal to the CBI team. The CBI team alongwith Sushil Malik rushed inside the PS and by that time accused Parveen Kumar had already had gone to the SHO's residence. We all rushed to the residence of SHO accused was apprehended with his wrists by the CBI Officers. They disclosed their identity. He was challenged whether he had demanded and accepted the bribe from complainant Inderjeet Singh but he kept mum. At the time SHO was also present in his house but I do not remember his name. The rest of the proceedings were done in the office of SHO in PS building and SHO was requested to join the proceedings after completing his C C No.73/04 23/58 24 dinner as he was taking the dinner at that time..........

............Sh. Sushil Malik was directed to recover the tainted money from the left side pocket of the accused. He took the search of accused and recovered Rs. 15,00/- from left side pant pocket of the accused. Vol. Rs. 500/- were already recovered from the hand of accused alongwith the accused when he was apprehended. I had tallied the number of all the currency notes, alongwith Mr. Malik".......

62 Relevant portion of PW 6 Sh. Sushil Malik in this regard is as under:

........... "In the meantime Dalbir Singh gave the pre-appointed signal to us. I alongwith other CBI team members entered inside the Police Station premises and met complainant and shadow witness both of whom informed that the person against whom the complaint was made has accepted the money and that he has gone in the front side complex with the application carried by the complainant to the spot and money. All of us proceeded inside the said complex where the said person in police uniform had gone. After reaching inside the said complex we saw that the person in police uniform was standing near another person who was taking his food. The person in police uniform was having a 500 hundred rupee note alongwith an application in his right hand. The person in police uniform was thereafter apprehended by CBI team by both the hands above the wrists. It was learnt that the person who was taking food was SHO but I do not remember his name now. CBI team gave its introduction to both the persons and told the person in police uniform that he has demanded and accepted bribe from the complainant. On this the person in police uniform kept mum. The identity of person in police uniform who was apprehended by CBI was found to be SI Parveen Kumar who is present in court today"........

............. "Complainant had informed the CBI team in presence of all that after contacting the accused inside the PS when he, shadow C C No.73/04 24/58 25 witness and the accused came out he talked with the accused regarding release of his bus and requested the accused to reduce the amount of bribe from Rs. 5,000/- to Rs. 2,000/- as he had only Rs. 2,000/- with him. Complainant further told that thereafter accused demanded and accepted an amount of Rs. 2,000/- from him. He also told that the accused had received the bribe amount with his left hand and kept the same in his left side pant pocket and thereafter proceeded inside the complex from where he was apprehended by the CBI team"......

........ "On the direction of CBI team I received the application and one 500 hundred rupee note from the accused which he was holding in his right hand. Subsequently, on direction of CBI I searched left side pant pocket of the accused and recovered an amount of Rs. 15,00/- from there. Thereafter the distinctive numbers of the GC notes recovered i e the amount totaling Rs. 2,000/- were tallied with the numbers noted on the annexure to the Handing Over Memo Ex PW4/B by myself and Dalbir in presence of all. On doing so it was found that all the numbers were tallying".......

63 In this regard PW7 B K Pradhan, TLO of the case has stated as follows:

"The complainant informed that the person in police uniform was SI Parveen Kumar and he had demanded and accepted the bribe amount and had taken the application of the complainant to SHO for necessary orders. Accordingly all of us including complainant and shadow witness rushed towards the house of SHO where the accused had gone. On entering the house we saw SI Parveen Kumar standing alongwith application and one GC notes of Rs.500/- in his right hand in front of a person who was sitting on a cot and having his dinner. The said person was later identified as SHO, Sohanvir Singh. At the instance of the complainant Inspector C K Sharma and Vivek Dhri caught C C No.73/04 25/58 26 hold of the left and right hand wrist of the accused.".......

...... "Sh. Sushil Malik was directed to recover the tainted GC notes from the left side pant pocket of accused SI Parveen Kumar. Sushil Malik took out GC notes from the left side pant pocket of accused and informed that they were Rs.1500/- in all. As the accused was holding Rs.500/- in his hand during the trap, it was suspected that the said Rs.500/- was also part of the bribe amount. The annexure to the handing over memo was handed over to Sh. Dalbir Singh and Suhsil Malik who tallied the number of GC notes recovered from the pocket of accused as well as from the right hand of accused. After comparison they informed that the said note of Rs.500/- and Rs.1500/- recovered from the pocket were all tallying with the numbers mentioned in the annexure to the handing over memo. Witnesses also tick the number of GC notes in the annexure to the handing over memo in token of their having compared with the recovered GC notes."

64 PW4, 5 and 6 and 7 have deposed that when the Inspector of CBI challenged SI Parveen Kumar that he had accepted the bribe, he kept mum. In this regard relevant portion of PW4 is as under:

"The Inspector of CBI enquired from SI Parveen Kumar, he had accepted bribe. The accused kept silent. At that time one currency note of Rs.500/- and the application aforesaid was in the the right hand of the accused."

65 In this regard, relevant portion of PW5 Dalbir Singh is as under:

"We all rushed to the residence of SHO. Accused was apprehended with his wrist by the CBI Officers. They disclosed their identity. He was challenged whether he had demanded and accepted the bribe from the complainant Inderjeet Singh. But he kept mum."

66 Both these witnesses have been cross-examined at C C No.73/04 26/58 27 length on behalf of accused. However, not even a single suggestion has been given to both the witnesses challenging their above testimony. PW6 Sh. Sushil Malik in this regard has deposed as follows:

"CBI team gave its introduction to both the persons and told the person in uniform that he has demanded and accepted bribe from the complainant. On this the person in police uniform kept mum."

In cross-examination of this witness, Ld. Defence counsel has given following suggestion:

"It is incorrect to suggest that when accused was challenged by the CBI, he had told that he had not accepted any bribe and bus of the complainant already released by him on 01.06.2000 and this fact can be confirmed from the case file and malkhana register."

PW6 has denied this suggestion.

67 In this regard PW7 B K Pradhan TLO of this case has stated as follows:

"After disclosing my identity and the identity of other trap team members challenged the accused of being demanded and accepted the bribe of Rs.2,000/- from complainant Inderjeet Singh. On this the accused became perplexed and kept mum."

68 In the prosecution for offence of bribery the conduct of accuse is relevant U/S 8 of Evidence Act. When the accused was challenged regarding acceptance of bribe amount he kept mum and had not given any explanation.

69 Hon'ble Supreme Court in Parkash Chand Vs Delhi Admn AIR 1979 SC 400 in para No.8 has observed as follows:

C C No.73/04 27/58 28

" It was contended by the Ld. Counsel for the appellant that the evidence relating to the conduct of the accused when challenged by the Inspector was inadmissible as it was hit by section 162 Criminal Procedure Code. He relied on a decision of the Andhra Pradesh Hingh Court in D.V. Narisimhan V.State,(AIR 1969 Andhra

271). We do not agree with the submissions of Sh. Anthony. There is a clear distinction between the conduct of a person against whom an offence is alleged which is admissible under section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in the course of an investigation which is hit by sec. 162 Criminal Procedure code.

What is excluded by sec. 162 Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person ( not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstances, simpliciter,that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence where found hidden, would be admissible as conduct, u/s 8 of the evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act(vide Himachal Pradesh Administration Vs. Om Prakash AIR 1972 SC 975)" 70 In view of the above discussion, the conduct of the accused at the time of his apprehension by raid officer also proves that he had demanded and accepted the bribe amount from the complainant.

71 PW4,5,6 and PW7 all have stated that after apprehending the accused, wash of his left and right hand and inner lining of pant pocket, and the application recovered from the hand of C C No.73/04 28/58 29 accused, was taken in the solution of Sodium Carbonate, which has turned pink and preserved in separate bottles. IO has stated that these bottles were sent to CFSL for chemical examination. PW1 Sh. K.S. Chhabra, Senior Scientific Officer, CFSL had chemically analysed these washes. He had stated that on chemical analysis all these exhibits gave positive tests for phenolphthalein and Sodium carbonate. He has proved his report Ex. PW1/A. 72 It proves the presence of phenolphthalein powder on both the hands of accused as well as on the inner linings of his pant pocket and on the application.

73 The importance of phenolphthalein test was underline by the Hon'ble Supreme Court in Som Parkash Vs State of Delhi AIR 1974 Supreme Court 989, where in para 10 it is held as under:

" ............... of course, the oral evidence of PWs 1and 4 by itself, if believed as rightly believed by the High Court , proves the passing of the money to the accused and its production by him when challenged by P.W 7 . The fact is indisputable that the hands, the handkerchief and the inner lining of the trouser pocket of the accused turned violet when dipped in soda ash solution. From this the State counsel argues that on no hypothesis except that the notes emerged from the accused's Pocket or possession can the triple colour change be accounted for . The evidence furnished by inorganic chemistry often outwits the technology of corrupt officials, provided no alternative reasonable possibility is made out. The appellant offers a plausible theory. PW 1 kept the notes with him and his hands thus carried the powder. He gave a bottle of cake to the accused and the bottle thus transmitted particles of C C No.73/04 29/58 30 phenolphthalein to the latter's hands. He ( the accused ) wiped his face with the handkerchief and put it into his trouser pocket thus contaminating the lining with the guilty substance. Moreover, the inner lining was dipped by PW 7 with his hands which had the powder . Thus, all the three items stand explained, according to him. These recondite possibilities and likely freaks have been rejected by both the courts and we are hardly persuaded into hostility to that finding. It is put meet that science- oriented detection of crime is made a massive programme of police work, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency then swearing by traditional oral evidence only thereby discouraging the liberal use of scientific research to prove guilt."

74 In Raghbir Singh Vs State of Punjab (1976) 1 SCC 145 while discarding the oral and documentary evidence laid on behalf of the prosecution is not such as to inspire confidence in the mind of the Court, the Supreme Court observed in para No.11 as follows:-

" We may take this opportunity of pointing out that it would be desirable if in cases of this kind where a trap is laid for a public servant, the marked current notes, which are used for tte purpose of trap, are treated with phenolphthalein power so that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence which is something of a dubious character for the purpose of deciding the fate of the public servant."

75 From the above discussion, it is proved that accused had voluntarily and consciously accepted the bribed money from C C No.73/04 30/58 31 Nawab Khan which was demanded by him and the same was recovered from his conscious possession.

76 When it is proved that there was voluntary and conscious acceptance of the money by the accused, there is no further burden cast on the prosecution to prove by direct evidence the demand or motive, in view of Section 20 of PC Act, 1988. It has been held so by our Hon'ble Supreme Court in B. Noha Vs. state of Kerala, 2006 IV AD 465.

77 Our Hon'ble Supreme Court in State of Andhra Pradesh Vs. R Jeevaratnam, 2004 (2) JCC 1161 has held as follows in this regard:

"Prevention of Corruption Act, 1988 - Sec. 20 (1)

-Presumption under - Respondent caught red-handed with the marked money in a briefcase carried by him - Presumption that he accepted illegal gratification arose".

78 Our Hon'ble Supreme Court in Madhukar Bhaskarrao Josi Vs. State of Maharashtra (2000 (8) SCC 571) has held as follows in this regard:

"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said 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. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premises that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any C C No.73/04 31/58 32 valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it".

79 This decision was followed by Hon'ble Supreme Court in M. Narsinga Rao Vs. State of A.P. (2001 (1) SCCC 691). wherein it has been held that " There is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from PW-1. It was held in the decision in State of A P Vs. Kommaraju Gopala Krishna Murthy (2000 (9) SCC 752), that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused."

LEGAL        AND      FACTUAL           ANALYSIS     OF    DEFENCE
ARGUMENTS.
80     Whether shadow witness and recovery witness are not
independent witnesses?
81            Ld. Defence Counsel argued that PW5 Dalbir Singh and

PW6 Sushil Malik who have been included in trap team as independent witnesses are actually not independent witnesses. Both these witnesses were having liasion with CBI. They are hand in gloves with the CBI, hence their evidence is not reliable.

82 I have carefully gone through the statements of both these C C No.73/04 32/58 33 witnesses. I have also considered cross examination of both these witnesses in this regard. Relevant portion of PW5 in this regard is as under:

"On the day of raid I was working as Senior Vigilance Inspector in Northern Railway HQ office. I had joined as Sr. Vigilance Inspector in the month of October 1996 and worked there till September 2001. In the capacity of Senior Vigilance Inspector, there is practice of joint checks by both the departments i.e. Railway and CBI. But this was the only case where I had associated as a member of raiding party. In addition to this I was also a associate member in one of the raid which was connected with dealing of railway official. I have not participated in any search operation of CBI. The Railway Vigilance official go on deputation to CBI in the capacity of Inspector as well as RSO (Railway Section Officer). As far as I remember, three people namely Sh. Sanjay Dubey, Sh. Anil Kumar Minocha and Sh. Mukesh Kumar have worked in CBI in the capacity of Inspector. Sh. Sanjay Dubey and Sh. Mukesh have worked with me as Vigilance Inspector in Railway. Sh. Anil Kumar Minocha had not worked with me as Vigilance Inspector. During my tenure as Vigilance Inspector I have been conducting decoy checks on Railway Official which involve similar practice as in the present case."

83 Relevant portion of PW 6 in this regard is as under:

"I had been working in the Vigilance Department of Railway since the year 2000. It is correct that being in Vigilance Department if Railway I used to conduct raids by using decoy. I am not aware whether anyone from our department has joined CBI on deputation. Perhaps some person had joined CBI on deputation from our department. I know Sh. Sanjay Dubey, Sh. Anil Kumar Minocha and Sh. Mukesh Kumar they were all from our Vigilance Department. Sh. Sanjay Dubey and Sh. Mukesh Kumar had joined CBI on deputation after I left the Vigilance Department however I cannot say anything about Sh. Minocha.

C C No.73/04 33/58 34

We are having Northern Railway Vigilance Manual which we follow. Wherever I had worked I followed the Manual. I am not aware whether there is a provision in para 828 of Manual that person working in Vigilance Department will keep a liaison with CBI. So far I know the Vigilance Manual are confidential and no public person can obtain the same. I do not know whether there is any direction in the Manual what to say and what not to say in the Court. I am not aware whether it has been specifically mentioned in the Manual that report of CBI shall not be shown to the Court. I am not aware whether it is mentioned in the manual at page 93 that if CBI official will not cooperated by us then disciplinary action will be taken. I do not know whether Delhi Police Special Establishment Act is a part and parcel of our Vigilance Manual. As a general principal if a witness resile from the actual / factual position written in his statement then disciplinary action will be taken. It is incorrect to suggest that I am intentionally deposing falsely with regard to above. It is incorrect to suggest that I am not an independent witness but a witness of choice."

84 Ld. Defence counsel argued that PW6 has admitted that in case he will not depose according to the choice of CBI he will face departmental action. From the above quoted portion of his cross examination, it is clear that this submission of Ld. Defence Counsel is factually wrong. This witness has specifically stated that he was not aware about provision in para No.28 of Northern Railway Vigilance Manual. He has specifically stated that he does not know whether there was any direction in the manual as to what has to be stated in the court in evidence. He has also stated that he is not aware what has mentioned at page No.93 of the Manual. He has also stated that he does not know whether DPSE Act is a part and C C No.73/04 34/58 35 parcel of Railway Vigilance Manual. He has specifically stated that as a general principle if a witness resiles from actual and factual position written in his statement than disciplinary action will be taken. He has denied that he is not an independent witness. 85 From his above quoted cross examination it is clear that he was not under any apprehension of departmental action as every one has to depose actual and factual position. If some person from Railway Vigilance Department had joined CBI on deputation that does not mean that both these independent witnesses are under any pressure of CBI. If a public servant because of his official exigencies have to meet CBI officers that does not mean that such public servant is not an independent witness. 86 Hon'ble Supreme Court in state of UP Vs. Zakaullah, AIR 1998 Supreme Court 1474, with regard to persons having acquaintance with the police held that they are independent witnesses. It is observed as follows, by Hon'ble Supreme Court in this regard:

"Evidence Act ( 1 of 1872) S.3 - Independent witness

-Case involving police raid or search Acquaintance of independent witness with police or fact that he helped police action- Would not by itself discredit evidence of said independent witness."

87 Both these witnesses are senior Vigilance Inspector in the Vigilance Department of Indian Railways. Hon'ble Supreme Court has observed that higher officer even of police deserves better C C No.73/04 35/58 36 credence . In this regard in Som Parkash Vs State of Delhi AIR 1974 SC 989 has held as follows:

" The demanding degree of proof traditionally required in a criminal case and the devaluation suffered by a witness who is naturally involved in the fruits of his investigation efforts, suggest the legitimate search for corroboration from an independent or unfaltering source- human or circumstantial - to make judicial certitude doubly sure. Not that this approach casts any prerogative reflection on the police officer's integrity, but that the hazard of holding a man guilty on interested, even if honest , evidence may impair confidence in the system of justice. Today , trust begets trust and the higher officers of the Indian Police, especially in the Special Police Establishment deserve better credence."

88 Independent witnesses Dalbir Singh and Sushil Malik are Government servant who were working as Senior Vigilance Inspector in Vigilance Department in Northern Railway . Dalbir Singh is the shadow witness and Sushil Malik is the recovery witness in this case. Both these witnesses have fully supported the case of prosecution and nothing such has come out in their lengthy cross examination conduced by Ld Defence counsel to disbelieve their statement. They were directed by their senior officers to join the investigation of CBI in this case, hence they cannot be termed as witnesses of the choice of CBI. They had not joined investigation of CBI in any other case except the present one. They were neither knowing the complainant nor the accused prior to this case. They have no affinity with the complainant and no enmity with the accused. In these circumstances, no motive can be imputed to them C C No.73/04 36/58 37 to depose falsely against accused. Even otherwise, nothing such has come in their cross examination to disbelieve their evidence. 89 According to accused he has been falsely implicated in this case by CBI at the instance of complainant Inderjit Singh Mann. It is argued by Ld Defence counsel that bus of the complainant was released on 1.6.2000 hence there was no occasion for the accused to demand bribe on 2.6.2000. Both the independent witnesses, complainant and other witnesses have denied it . CBI is the Prime Investigating Agency of this country. Inderjit Singh Mann, complainant in this case is an ordinary citizen who was facing difficulty even in getting release his vehicle on superdari. Even he was unable to influence a SI of Delhi Police or SHO P S Narela to get his bus released on superdari than how can it be assumed that he had influenced the CBI to falsely implicate the accused in this case. In any manner he is not such a personality so as to influence a prime investigating agency like CBI. There is no reason to believe that CBI would falsely implicate the accused at the instance of complainant . Independent witnesses. TLO and IO are public servants unknown to accused and complainant, there is no reason why they will depose falsely against accused. There is no reason why the TLO and other trap team members who were also public servants will falsely implicate a public servant in this case. No enmity/ill will has been alleged against the TLO and IO or against independent witnesses even by the accused, therefore they are having no motive to falsely C C No.73/04 37/58 38 implicate the accused in this case.

WHETHER BUS WAS RELASED ON 1.6.2000 90 Main thrust of the argument of Ld. Defence counsel is that bus in question was released on superdari on 1.6.2000 thus there was no occasion for accused to demand bribe from the complainant for releasing the bus on 2.6.2000, therefore the entire story of prosecution is false and concocted. In this regard Ld Defence counsel mainly placed reliance on the statement of PW 9 the then SHO PS Narela Industrial Area and DW1 H C Sahab Singh, DW 3 Sh Amar Singh and Ex DW1/A. 91 I have gone through the statement of DW3. Relevant portion of his examination in chief is as under:

" In the year 2000 I used to drive vehicle. I used to drive vehicle off and on, bus No was DL IP A-4197 which belongs to Jagjit Singh. On 23.2.2000 that bus had met with an accident. On 1.6.2000 owner had asked me to take that bus to the PS Narela. Police had arrested me and taken the bus in its possession. I had also handed over key of the bus to the police which was also taken over by the police. Accused Parveen Kumar was the IO of that case who had seized the bus and arrested me also . When I was arrested my signatures were also taken on the papers. I identify my signatures on Ex . PW4/H-3 and on Ex PW 5/DB at point A. Jagjit Singh had furnished my bail therefore I was released on bail. Thereafter we had gone to Malkhana Jagjit Singh had written that he had received the vehicle in fit condition and executed a receipt of the same. I was given the key of the vehicle by Jagjit Singh. I came to my house with that vehicle on 1.6.2000. Encircled portion of Ex DW1/A was written in front of me by owner of bus Jagjit Singh on 1.6.200. No money was demanded by any police official in my C C No.73/04 38/58 39 presence neither owner told me any such thing."

92 In his cross examination he has stated as follows:

" My license is still impounded in this case and is on judicial file. Till date I have not taken any new Driving license. I had been issued a seizure memo of the license. I was arrested at about 6/7.00 pm on 1.6.2000. Vehicle was released at about 9/10 pm again said after one or two hours. I am not sure about the timing when the bus was released. It had taken about 30 to 40 minutes in preparing the document thereafter I was released on bail after about ½ hours. After my release bus was released. It is correct that word Fit condition is not mentioned in encircled portion A in Ex DW1/A. It is incorrect to suggest that I do not know that the bus was not released on 1.6.2000. On the next day I came to know that IO of the case Parveen was trap. When I was arrested Jagjit and Parveen was with me in the P.S. It is incorrect to suggest that accused Parveen had demanded illegal gratification for releasing the bus. It is incorrect to suggest that I am deposing falsely as I have been won over by the accused."

93 I have also carefully perused Ex DW1/A vide which according to the accused this bus was allegedly released to registered owner Jagjit Singh on 1.6.2000 vide entry at Sl 438/A . There is an endorsement against this entry in Hindi as follows:

94 Underneath the above endorsement there appears to be signatures of Jagjit Singh with date 1.6.2000. This entire entry C C No.73/04 39/58 40 appears to be doubtful and forged because above this entry there is entry 438/436, there is no entry No.437. A cross has been marked over this entry in column No.4. According to the endorsement this bus was released vide order of SHO but SHO has denied of passing any order of releasing the bus.

95 The then SHO Sombir Singh has appeared in the witness box as PW9 . His entire statement is as under :

"On June, 2000 I was posted as Inspector/ SHO PS Narela, Industrial area. On 1.6.2000 SI Parveen Kumar seized bus no. DL 1 PA 4197 in FIR No.61/2000 U/s 279/337 IPC P S Narela Industrial Area. He had arrested driver Amar Singh of the offending vehicle and released him on bail as the offence was bailable. On 2.6.09 at about 9/9.15 PM when I was in my quarter and I was taking dinner with my wife. SI Parveen had come to me asking me to pass an order to release the bus. I had refused him to do so and asked whether it was a time to release the bus. I further directed him to call the owner of the bus in the next morning at about 9 A M. Thereafter at my quarter about 5-6 persons had come and told me that they are from CBI. They had apprehended SI Parveen Kumar. They had also directed me to get my office room opened for doing written proceedings against accused therein. I had given two times for releasing the vehicles it was from 5 to 6 PM and in the morning it was 9A M to 11 AM. As far as I remember when the accused Parveen Kumar had come to my quarter that vehicle was in police custody and was not released to the owner on superdari. Now I do not remember the date when this vehicle was released as it is about 8/9 years old matter. As the accused Parveen had come to me for having order of release of vehicle hence I am of the opinion till that time that vehicle was not released. Accused was investigating this case. I have seen case file C C No.73/04 40/58 41 of that case which is on the judicial file now. I identify his signatures and handwriting. The witness has identified the signatures and handwriting of accused Parveen Kumar at Point C on Ex PW9/A1, A2, A4, A6, A7, A8,A9,A10 and A11. Witness has seen carbon copy of FIR No.61/2000relating to accident which is in handwriting of Jagir Singh ASI. Witness has identified the signatures of Parveen Kumar on Ex PW9/A-4 at point C. Licence is Ex PW9/A12 and RC is Ex PW9/A-13. Memos Ex PW4/H1 to H-3 shown to the witness. He identified the signatures of accused at points C. Witness has seen Ex PW4/H-4 and he identified the signatures of accused Parveen Kumar at point C. Witness has identified the signatures of accused Parveen Kumar on Ex PW4/H-5 at point C."

96 In his cross examination he has stated as follows:

"on the last date i.e. 19.1.2009 when I came in this court for my deposition I had myself refresh memory from the police file, none from the CBI had tutored me. I had asked for the police file from the person who was available in the Court from CBI. I was remembering some facts as it was about nine years old case.

We used to release the impounded vehicle either to regd. Owner or to rightful owner also. As per mark PW3/D-2 this vehicle has been shown to be released on 1.6.2000 to one Jagjit Singh. Now I do not remember whether this vehicle was released on the same day when the police bail of accused pertaining to FIR 61/2000 U/s 279/337 IPC of P S Narela Indl. Area was accepted by the IO. It is incorrect to suggest that on the last date I had wrongly deposed in my examination in chief that bus was released after the arrest of accused.

Parveen accused in this case on 2.6.2000 had told me that he was being falsely involved in this case by CBI Official. I had informed my DCP on telephone with regard to the situation. I was asked by the CBI Officer "Aap Ko Bhee Dekh Laingai". I already allowed my office room fro the proceeding to be conducted by the CBI. It is incorrect to suggest that accused had not approached me on 2.6.2000 asking me to release the bus. It is incorrect to C C No.73/04 41/58 42 suggest that I had deposed incriminating evidence against accused under the pressure of CBI.

I had also informed my DCP with regard to threat given to me by CBI on telephone however I had not given any written complaint to my DCP or any other Senior Officer. My department had also given me a show cause notice at the instance of CBI which I had replied. After my reply show cause was filed/closed."

97 Ld. Defence Counsel argued that PW9 has deposed under the pressure of CBI as CBI had threatened him. He has argued that in his cross examination after seeing the file he had deposed that bus was released on the same day i.e. 1.6.2000. 98 I have carefully gone through the statement of PW9. In his cross examination he has stated that when the raid was conducted he was asked by CBI officer " Aap ko bhi dekh leinge". He has also stated that he had informed his DCP about it on the telephone. He has stated that he had not given any complaint to his DCP or any senior officer in writing. Had there been any threat to him, being a senior police officer holding the post of SHO, he would have given in writing this fact to his senior officer. The raid in question was conducted on 2.6.2000 while he has appeared in the witness box on 19.1.2009 and 18.5.2009. He has been retired from the post of ACP. When he has appeared in this court he was no longer a public servant as he has been retired. In his cross examination he has specifically denied the suggestion given to him by Ld. Defence Counsel that he has deposed incriminating evidence against the accused under the pressure of CBI. He has also stated as per Marked PW3/D-2 this C C No.73/04 42/58 43 vehicle has been shown to be released on 1.6.2000. He has Consciously used the word " shown to be released on 1.6.2000"

which means actually the vehicle was only shown to be released on 1.6.2000. It means that actually the vehicle was not released on 1.6.2000. In view of above discussion this Court is of opinion that when this witness had appeared in this Court to deposed in this court, he was not under pressure of CBI.

99 From the above quoted statement of PW 9 SHO Sohanbir it is proved beyond reasonable doubt that he had not passed any order of releasing of bus. A Man may tell lie but not the circumstances, TLO has seized the entire file pertaining to FIR 61/2000 PS Narela Industrial Area in which the bus in question was seized. All other documents are available on this file,which are Ex PW 2/A, Ex PW 9/A-1 to Ex PW 9/A-11, Ex PW 4/H-1 to Ex PW 4/H-5, Ex PW 5/DA, & Ex PW 5/DB, Ex PW 4/DX1 to Ex PW 4/DX-6, Ex PW 4/DD & Ex PW 4/DE. But there is no order of releasing the bus by the SHO.

100 Ld Defence counsel has also given a suggestion to PW 4 in his cross examination suggesting that bus was released by the accused on 1.6.2000 after seeking orders from SHO, which is as under :

" It is wrong to suggest that bus had been released by the accused on 1.6.2000 after seeking orders from SHO on superdarinama Ex PW4/H-5 executed by my father"

C C No.73/04 43/58 44

101 This again proves that according to accused he had released the bus on superdari on 1.6.2000 as per orders of SHO, which is false according to the Statement of SHO himself and also duly corroborated by the circumstances, as no such order is available on the file.

102 I have also perused the superdarinama Ex PW4/H-5. A bare perusal of this document demolish the castle of defence built by accused in the air. This document does not bear any date. Had this superdarinama was accepted on 1.6.2000 it must have the date of 1.6.2000. Even accused has not put date as 1.6.2000 under his signature on it. This superdarinama cannot be accepted because of the fact that superdari amount has not been mentioned in it inspite of having three columns of the amount of superdari, in sum of which, the vehicle in question was released on superdari. Thus, this document is incomplete, meaningless and vague on the basis of which bus in question can not be released on superdari at all. This document does not bear any endorsement with regard to its acceptance (i e acceptance of superdarinama ) 103 Jagjit Singh has furnished the bail bond of his driver Amar Singh ( DW3) Ex PW4/DX-5. A comparison of signature of Jagjit Singh on this document with the signature of Jagjit Singh on Ex DW1/A against entry No.438/A reflects that signatures of Jagjit Singh on this entry does not tally with the signatures on Ex PW4/DX-5.

C C No.73/04 44/58 45

104 DW 3 has deposed that Jagjit Singh had received the vehicle from Malkhana and key of the vehicle was given to him by Jagjit Singh . He came to his house with that vehicle on 1.6.2000. In his cross examination he has stated that he was arrested about 6/7.00 pm on 1.6.2000, vehicle was released at about 9/10 pm. Again said that after one or two hour of his arrest And thereafter said that he is not sure about the time when the bus was released. It is wroth important to mention here that as per Arrest Memo Ex PW 5/DB, accused was arrested on 1.6.2000 at 8.45 PM. It also bears signature of Jagjit Singh against column No.8 Even these signatures does not tally with the signature of Jagjit Singh on Ex DW1/A against entry No.4438/A. 105 It is proved beyond reasonable doubts that SHO had not passed any order of releasing of bus therefore there was no occasion of taking of bus by DW3. Thus, version of DW3, in this regard, is false, hence cannot be relied upon. 106 PW9 the then SHO Sohanbir Singh in his examination in chief has specifically stated as quoted above that on 2.6. at about 9/9-15 pm when he was taking his dinner SI Parveen had come to him and asked him to pass an order to release the bus but he has refused to do so and further asked him " Whether it was time to release the bus " He has specifically stated for releasing the vehicle C C No.73/04 45/58 46 had had fixed two times i e from 5 pm to 6 pm and in the morning it was 9.00 am to 11.00 am. The relevant portion of his statement is as under :

" I had given two times for releasing the vehicle. It was from 5 A M to 6 Pm and in the morning it was 9 A M to 11 AM."

107 PW4 in his cross examination has specifically stated in this regard as follows:

"I had visited PS Narela. It is incorrect to suggest that I cannot read English. It is incorrect to suggest that on 1.6.2000 my bus stood released on superdarinama, executed by my father for which an application for release of the bus was also made by my father on 1.6.2000.

It is incorrect to suggest that since accused had discharged his duty honestly by bringing my bus in the PS through a constable I was annoyed. It is incorrect to suggest that my father had promised in writing to bring the bus in PS on 30.5.2000 alongwith the driver, yet he did not bring either the bus or the driver on the said day or that accused had compelled my father to undertake the bus and the driver on 1.6.2000 and this fact had also furiated me. It is incorrect to suggest that accused had neither demanded any money from me nor accepted any money or that my entire allegations against him are based on falsehood.

For the purpose of release of vehicle from PS an application is taken by the police official at that time no superdarinama was required. I can identify the handwriting of my father. I have seen Ex PW 4/H-5. The same bears the signature of my father at point A and this is a superdarinama. It contains correct particulars of my vehicle and my father. I know Amar singh who was my driver and I can identify his handwriting. I have seen Ex PW 4/D, signature at point A, it contains correct particulars of Amar Singh. This document alongwith Ex PW 4/H-5 were made on 1.6.2000. Ex PW 4/D vol. All the documents were prepared by the accused while we, my C C No.73/04 46/58 47 father, Amar Singh were sitting with him at P S Narela."

108 PW4 in his cross examination dt. 2.6.2008, in this regard, has stated as follows:

"On 1.6.2000 the accused had taken in possession photo copy of insurance policy, original RC and DL of the driver. I have seen two photo copy of the Insurance Policy of my bus. which was seized by the accused which is Ex PW4/DX1 and Ex PW4/DX-2. The accused had also seized two photo copy of the bus permit Ex PW4/DX-3 and Ex PW4/DX-4. On 1.6.2000 my father had visited P S Narela with bus, bus driver Amar Singh and myself. Accused had arrested bus driver Amar Singh and my father Sh. Jagjit Singh stood surety for him. Amar Singh and my father executed bail bonds and surety bonds respectively. ExPW4/DX-5 is the surety bond and bail bond executed on1.6.2000. Alongwith the bail bond photo copy of ration card was also furnished which is Ex PW/4'DX-6. I have seen Ex PW4/H-4, the portion encircled A in this document was written by me on 1.6.2000. It would be wrong to say that this document was prepared on 30.5.2000 by accused. It is correct that below the portion encircled A signatures of my father are available with date 30.5.2000, however this date is antedated at the instance of accused as he had asked my father to put date 30.5.2000 on 1.6.2000. It is wrong to suggest that the encircled portion A and the date underneath the signatures of my father itself reflects that it is written on 30.5.2000 and not on 1.6.2000 or that I am stating so falsely. CBI officials had not got from me any documents signed antedated. CBI had not enquired from me about this file. I had been shown by the CBI the documents seized by accused in case FIR No. 61/2000 P |S Narela Industrial Area, however, they had not interrogated me in this regard. I have seen Ex PW4/H-1 to ExPW4/H-3, Ex PW4/H-5, Ex PW5/DA, Ex PW5/DB, Ex PW5/DE, Ex PW5/DD,, they reflect date correctly. Document Ex PW5/DX1 to Ex PW5/DX6 were prepared/seized on 1.6.2000. It is wrong to suggest that Ex PW4/H-5 correctly records that my bus was released on superdari on 1.6.2000."

C C No.73/04 47/58 48

109 Ld Defence counsel has argued that it is a criminal case. It is well settled preposition of law that in a criminal case, accused has to prove his defence by mere preponderance of probability only. Burden of proof on accused to prove his defence is not as strict as that on prosecution to prove its case beyond reasonable doubt. Ld Defence counsel has cited several authorities in support of this argument in his written submissions . I am not reproducing those authorities here on account of brevity and because of the fact that there is no dispute with this proposition of law. It is correct that an accused has to prove his defence by mere preponderance of probability only. At the same time defence evidence should be reliable, plausible truthful having at least a ring of truth . Defence evidence should not be false or imaginative. From the above discussion it is clear that version given DW3 Amar Singh is totally false against the record available on the judicial file. Ex DW1/A is also false, fabricated and manipulated thus it cannot be relied upon. 110 Hon'ble Supreme Court in State of Rajasthan Vs Teja Ram AIR 1999 SC 1776 has held as follows:

" C. Criminal Trial- Benefit of doubt- Effort of criminal court should not be to prowl for imaginative doubts- Unless the doubt is of a reasonable dimension which a judicial conscientious mind entertains with some objectivity no benefit can be claimed by the accused."

111 In view of above discussion, and considering the facts of C C No.73/04 48/58 49 the case and evidence on the file from every angle, this Court is of opinion that bus in question was not released on superdari on 1.6.2000, accused has manipulated the papers made by him on 1.6.2000 when the complainant, his father Jagjit Singh and his driver had appeared in the police station.

WHETHER COMPLAINANT IS UNRELIABLE ?.

112 Ld Defence counsel argued that complainant is a man of low moral fiber. He has given false affidavit for getting the bus transfer. He has taken different stand at different places, hence his statement may not be relied upon. I have gone through the entire statement of complainant and shadow witness and recovery witness and TLO. Statement of complainant fully corroborates with the circumstances of this case which is clear from the foregoing discussion. Statement of complainant has also been corroborated by the statement of PW5 Dalbir Singh, PW6 Sunil Malik and PW7 B K Pardhan in material particulars.

113 Even if it is correct that complainant had given false affidavit in STA still his evidence cannot be disbelieved on this ground alone in this case. With regard to statement of a witness even given in court now it well settled proposition of law that even evidence of a hostile witness cannot be rejected merely on the ground that he has been declare hostile . The portion of evidence of hostile witness which is found correct and reliable can be relied upon . In this regard, Hon'ble Supreme Court in Keshoram Bora Vs The C C No.73/04 49/58 50 State of Assam cited in AIR 1978 SUPREME COURT 1096 has held as follows:

" It is now well settled that the principle falsus in una falsus in omnibus does not apply to criminal trials and it is the duty of the Court to disengage the truth from falsehood, to sift the grain from the chaff instead of taking an easy course of rejecting the prosecution case in its entirety merely on the basis of a few infirmities.

114 Hon'ble Supreme Court in Krishna Mochi Vs State of Bihar (2002) 6 Supreme Court Cases 81 in this regard has held has follows:

" Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accrued notwithstanding the fact that evidence has been found to deficient to prove the guilt of other accused person."

115 The statement given by the complainant in this case is reliable, thus there is no merit in this argument that complainant is not a trust worthy witness.

WHETHER THERE ARE MATERIAL CONTRADICTIONS IN THE PROSECUTION EVIDENCE ?

116 Ld Defence counsel argued that there are several C C No.73/04 50/58 51 material contradictions in the evidence of the prosecution hence the same cannot be relied upon. It is correct that there are some contradictions in the statement of various witnesses but these contradictions are of minor nature. In this case raid was organized on 2.6.2000. Examination in chief of complainant was recorded on 29.1.2007, his cross examination was concluded on 2.6.2008. Statement of PW5 Dalbir Singh was concluded on 13.6.2008. Statement of PW6 Sushil Malik was concluded on 19.9.2009 . Statement of PW7 B K Pardhan was concluded on 10.12.2008. When a witness will depose after such a long period, i e more than seven years from the date of incident, such contradiction are bound to appear. In such circumstances, Court cannot expect a parrot like repetition of the version by a witness.

117 In a case U/S 7 of P C Act prosecution has to prove demand of illegal gratification by the accused, acceptance of bribe amount by the accused and its recovery from the conscious possession of accused. There is no substantive contradiction on these points in the statement of PW 4, PW5, PW6 and PW 7.

118 The law regarding contradiction was considered by the Hon'ble Supreme Court in case of Bharuda Broginbhai Harjibhai V/S State of Gujrat AIR 1983 SC 753 where in it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Their Lordships have enumerated following reasons for C C No.73/04 51/58 52 arriving of this conclusion:

i) " By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.\

ii) Ordinarily, it is so happen that a witness is over taken by events the witness could not have anticipated the occurrence which so often has an element of surprise.

Thus mental faculties, therefore, cannot be expected to be attuned to absorb the details.

iii) The powers of observance differ from person to person, but one may noticed another may not. An object or movement might emboss image on one person's mind, whereas it might go unnoticed on the part of another.

iv)By and large people cannot accurately recall a conversation and reproduced the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

v) In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimate by guess work as spare of moment, at the time of interrogation and one cannot expect people make very precise or reliable estimate in such matter. Again it depends upon the time sense of individuals which varies from person to person.

vi) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession of in a short time span. A witness is liable to get confuse or mixed up when interrogated later on.

vii) A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing C C No.73/04 52/58 53 cross examination made by counsel and out of nervousness mixed up facts, get confused regarding sequence of events., or fill up details of imagination at the spur of moment. The sub conscious mind of the witness sometime so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and an honest account of the occurrence witnessed by him perhaps it is a sort of physiological movement".

119 In view of the law discussed above it cannot be said that the contradiction pointed out by Ld. Counsel for accused are very vital contradictions. These are contradiction which are likely to occur with the passage of time. The Hon'ble Supreme Court in case State of UP V/S M.K. Anthony, AIR 1985 SC 48 has laid down the principle for appreciating the evidence of a witness as under:

" While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether, it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render if unworthy of belief. Minor discrepancies of trivial matter, not touching the core of the case, hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of C C No.73/04 53/58 54 evidence as a whole."

" Their Lordships further observed:

" Unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations of infirmities in the manner of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross examination is an unequal dual between the rustic and refined lawyer."

WHETHER ADVERSE INFERENCE CAN BE DRAWN AGAINST PROSECUTION FOR NOT SENDING MICRO CASSETTE TO THE EXPERT?

120 Ld Defence counsel argued that in this case, micro cassette recorder was given to complainant but the recorded conversation was not sent for examination to the expert thus adverse inference must be drawn against the prosecution and accused may be acquitted on this ground alone . In this regard he has placed reliance on Subash Chand Chauhan Vs CBI 2005 (2) RCR (Crl )- 152.

121 In this regard complainant Inderjit Singh Mann has stated as follows:

" It is wrong to suggest that cassette despite being manipulated document reflects innocence of accused and I am falsely C C No.73/04 54/58 55 not identifying words being audible from it. When the CBI officials intercepted accused the digital recorder was on. Thereafter I switched it off. The digital recorder was even switch off when CBI officials disclosed their identity to the accused. It was given instructions by CBI officials to switch on the digital recorder after reaching the P.S. Since I could not understand their instructions therefore, I did not switch it on as per instructions. I do not remember whether any instructions were given to me to switch off the digital recorder. I switched on and switched off the recorder according to my will as I could not understand the instructions properly in this regard. It might have remained switched on approximately for about 10 minutes."

122 I have carefully gone through the authority relied upon by Ld Defence counsel Subhash Chand Vs CBI . Hon'ble High has dealt with this proposition on para No.25 of it which is as follows:

" I am further surprised that the Learned Additional Sessions Judge relied upon the alleged tape recorded conversation on the testimony of PW3 and on voice identification by PW3. Admittedly the prosecution did not take specimen voice sample of accused or PW3 and the alleged tape recorded conversation was never sent for analysis or voice spectrography. No reliance could be placed on the alleged tape recorded conversation. It remained unproved evidence and hence inadmissible. I may not that in para 56 of its judgment, the Learned Additional Sessions Judge has expressed reservation regarding the manner which the seal of the cassette was broken without approval from the Court."

123 It is clear from the above quoted paragraph that in this case seal of cassette was also broken without the approval of the Court . It is also clear that Hon'ble High Court has not acquitted accused on this ground alone. In our case complainant has given a C C No.73/04 55/58 56 reasonable explanation. In these circumstance, ratio of law laid down in this authority is not applicable to the facts and circumstance of the case in hand. As there was no proper recording, hence the cassette was not sent to the expert. In these circumstances, no adverse inference can be drawn against the prosecution. There is enough evidence against accused on the file, from the above discussion it is also clear that this court has not taken in consideration the cassette in question against accused so far. There is no merit in this argument of Ld Defence counsel.

124 Hon'ble Supreme Court in State of Punjab Vs. Pohla Singh, 2003 (3) CCC 75 has held as follows:

"Appreciation of evidence - The prosecution is not supposed to meet every hypothetical question raised by the defence -If crime is to be punished in a glosseme way niceities must yield to realistic appraisal."

125 In case U/S 13 (1) (d) of P C Act 1988 prosecution has to prove that :

That accused should be a public servant.

i) That he should used some corrupt or illegal means or otherwise abused his position as a public servant,

ii) That the accused should have thereby obtained a valuable thing or pecuniary advantage.

iii) Such benefit for himself or for any other person.

126 A five Judges Bench of Hon'ble Supreme Court in C C No.73/04 56/58 57 Dhaneshwar Narain Saxena Vs The Delhi Administration 1962(1) Crl L J 203 ( Vol.64 C.N. 76) has held as follows:

Misconduct by public servant need not be in connection with his own official duty.

" It is not necessary that the public servant in question, while misconducting himself, should have done so in the discharge of his duty. It would be anomalous to say that a public servant has misconduct himself in the discharge of his duty. "Duty" and "misconduct" go ill together. If a person has misconducted himself as a public servant, it would not ordinarily be in the discharge of his duty, but the reverse of it. It is not necessary to constitute the offence under cl (d) of the section that the public servant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It is equally wrong to say that if a public servant were to take money from a third person, by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant, without there being any question of his misconducting himself in the discharge of his own duty, he has not committed an offence under S. S(10) (d) . It is also erroneous to hold that the essence of an offence under S. 5(2) , read with S. 5(1)

(d), is that the public servant should do something in the discharge of his own duty and thereby obtain a valuable thing or pecuniary advantage."

127 In view of above discussion it is well proved from the evidence produced by the prosecution that accused, who was working as Sub Inspector in Delhi Police and was posted P S Narela Industrial Area as a public servant, had demanded Rs. 5,000/- as illegal gratification and accepted Rs.2,000/- for releasing the bus on superdari which was also recovered from his possession thus accused C C No.73/04 57/58 58 has abused his official position. In these circumstances this court is of opinion that prosecution has proved its case beyond reasonable doubts against accused, hence accused is convicted for the offences punishable U/s 7 & U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988.

announced in open court on              ( V. K. Maheshwari)
this 20th day of September, 2010      SPECIAL JUDGE: DELHI




C C No.73/04                                                     58/58
                                       59

    IN THE COURT OF V .K .MAHESHWARI SPECIAL
            JUDGE: (P C Act)-03 CBI) DELHI


Case No. 73/04
RC No.DA1-2000-A-0028/CBI/ACB/New Delhi
CBI Vs. Parveen Kumar

CBI          Vs                  Parveen Kumar
                                 S/o Sh. Bansi Dhar, Sub-Inspector
                                 Delhi Police, R/o 70/C WP Block,
                                 Pitampura, New Delhi

ORDER ON SENTENCE:
             Vide my separate      judgment dated 20.9.2010 accused

was convicted for the offence punishable U/s 7 & U/s 13 (2) r/w 13 1 (d) of P C Act, 1988.

Arguments on sentence heard. It is argued on behalf of convict that he is a young man. He is not a previous convict. He is having no criminal case except the present one. He is facing agony of this trial for the last 10 years. He is the sole bread earner of his family. He is having two school going children. He is having old aged ailing parents who are dependent upon him. He has not delayed the trial. It is argued that in these circumstances, lenient view may be taken against him and minimum prescribed sentence may be awarded .

It is argued by Sh Brajesh Shukla Ld Senior PP for CBI C C No.73/04 59/58 60 that convict was working as Sub Inspector in PS Narela Industrial Area . He had demanded Rs. 5,000/- as illegal gratification and accepted Rs.2,000/- for releasing the bus on superdari which was also recovered from his possession. Convict was caught red handed. Duty of the police officer is to maintain law and order and to uphold the dignity of State. Every police officer is expected to maintain high standard of integrity to uphold the majesty of law. No leniency be shown towards him in sentencing as it would be undesirable and would also be against public interest. He has argued that convict is involved in a serious corruption case inspite of being a public servant. Keeping in view, the deterrent theory of punishment he should be dealt with heavy hand in giving severe punishment and heavy fine may also be imposed on him, so that it may set an example to the society. It is further argued by Ld Senior prosecutor Sh Brajesh Shukla that convict has manipulated public record, hence the relevant criminal proceedings may also be initiated against him.

I have carefully considered all the arguments raised in this Court by Ld Senior Prosecutor and Ld Defence counsel. It is sad but a bitter reality that corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public servant and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, C C No.73/04 60/58 61 truthfully, honestly and devotes himself assiduously to the performance of the duties of his post.

Hon'ble Supreme Court in State of Karnataka Vs Puttaraja AIR 2004 Supreme Court 433, in this regard has held as follows:

" Leniency is not only undesirable but also against public interest. Such types of offences are to be dealt with severity and with iron hands. Showing leniency in such matters would be really a case of misplaced sympathy".

Hon'ble Supreme Court in Joseph James @ Jose Vs State of Kerala 2010 (1) KLJ 794, in this regard has held as follows:

" There is no warrant for the view that offences committed during the course of traps are less grave and call only for lenient or nominal sentences, The appellant / accused is a police officer who was expected to maintain high standard of integrity and uphold the dignity of law. It was such a person who demanded and accepted bribe for showing an official favour, does not deserved any leniency".

Hon'ble High Court Delhi in Kawaljeet Singh Vs State 139 (2007) DLT -280, in this regard has held as follows:

" Conviction and sentence for accepting bribe- Accused C C No.73/04 61/58 62 an ahlmad in Court demanded money for issuing refund vouchers- Bribe money shared with tout divided equally by both the accused, recovered by the raiding party from the accused persons-- Vague defence not substantiated by evidence-- A non-public servant can also be convicted for abetting - Conviction affirmed--Held ,that no leniency can be shown to such person for corruption"

Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Ram Singh 2000 Crl. L.J. 1401 while dealing with the case of a Sub- Inspector, Excise & District Excise Officer, involved in a case under Section 13(1) (e) of the Act, inter-alia observed as follows:-

" Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to maliganise the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio- economic-political system in an otherwise healthy, wealthy, effective and vibrating society."

C C No.73/04 62/58 63

So the aforesaid sentiments expressed by the Apex court clearly shows that acts of corruption by " Public servants " deserve to be dealt with an iron hand and such public servants do not deserve any leniency. Corruption is a basic nucleus, which now- a -days seems to shake with the root of 'Bur ex Agency', in my view a police officer, who appears to embrace the foul means for establishing the false authority by obtaining illegal gratification, deserves no sympathy and a public servant, in no circumstances, can be allowed to become public master in disguise .

In this case, convict has also manipulated the public record so as to suit his defence .

After considering all the arguments raised before me, Convict is sentenced to undergo Four years RI along with a fine of Rs.10,000/- (Rs. Ten Thousand) I D Three months S I U/S 7 and to undergo Four years RI along with a fine of Rs.10,000/-(Rs. Ten Thousand) I D three months S I U/S 13 (2) R/w Section 13(1) (d) of P C Act 1988. Both the sentences will run concurrently. Benefit of Section 428 Cr P C be also given to accused.

A copy of judgment and this order on sentence be given to convict free of cost. File be consigned to RR.

ANNOUNCED IN OPEN COURT (V K MAHESHWARI) TODAY ON 22 SEPT. 2010 nd SPECIAL JUDGE: DELHI C C No.73/04 63/58