Delhi District Court
In The Case Of P. Satyanarayana Murthy vs . The Dist. Inspector Of on 25 May, 2016
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IN THE COURT OF MS.HEMANI MALHOTRA/SPECIAL JUDGE (PC
ACT)(ACB)/CENTRAL05/TIS HAZARI COURTS/DELHI
CC NO: 22/2013
FIR NO: 41/2008
PS Anti Corruption Branch
U/s 7/8/13 POC ACT and
Sections 186/309/332/353/384/506/120B IPC
C ase ID No.02401R0477462013
STATE
Versus
1. Jitender Chaturvedi
S/o Sh. S.L.Chaturvedi
R/o 60/12, Meetha Pur Extn.
Badarpur, New Delhi
2. Parveen @ Praveen Vats
S/o Sh. Phool Kumar
R/o C3/27, Sector 11,
Rohini, Delhi
3. Anil Kumar
S/o Sh. Jeet Pal Singh
R/o C10, Typed II, New Police Line
Kingsway Camp, New Delhi09
Date of institution : 16.09.2013
Date of receiving by this Court : 19.10.2015
Date of reservation of judgment : 11.05.2016
Date of pronouncement of judgment : 25.05.2016
J UDGMENT
1. Accused Jitender Chaturvedi, Praveen Vats and Anil Kumar have
been chargesheeted by PS ACB for committing offences
punishable u/ss 7/8/13 of the Prevention of Corruption Act
FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 1 of 33
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(hereinafter called the PC Act) and Sections
384/186/353/332/309/506/120B IPC for demanding and
accepting bribe from the complainant Subhash Chand on
17.12.2008 near the godown of complainant at Mehrauli Road,
Delhi.
FACTS OF THE CASE
2. Briefly stated facts of the case as per the chargesheet are that on
16.12.2008, complainant Subhash Chand S/o Sh. Jai Ram Singh
came to ACB Office and informed that SI Parveen Vats, Chowki
Incharge, Pul Prahalad Pur, Ct. Anil Kumar and reporter Jitender
Chaturvedi were demanding bribe from him. On such
information complainant was provided with Audio/Video
recorder from ACB. He then along with SI Binod Kumar, ACB
Branch recorded the conversation qua bribe and handed over the
recorder to SI Binod Kumar. On 17.12.2008, complainant Subhash
Chand approached ACB and got his statement recorded with ACB
in the presence of Panch Witness Subhash Rana.
3. In his statement before ACB, complainant Subhash Chand stated
that he is a scrap dealer and having his godown at J731, Lal Kuan,
Mahrauli Road and that for the last several days Chowki Incharge
Pul Prahalad Pur namely SI Parveen Kumar and Ct. Anil Kumar
were harassing him for money and were threatening him to get his
godown closed in case their demand for Rs.1 lac was not fulfilled.
On this, complainant contacted one reporter namely Jitender
Chaturvedi who was a frequent visitor to police chowki. The
reporter informed the complainant that he had settled the matter
of the complainant with the police officials for Rs.75,000/.
Accused Jitender Chaturvedi also told the complainant that he
FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 2 of 33
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had to pay a monthly amount of Rs.4,000/ to SI Praveen Kumar,
whereafter, they will not trouble him. Since he was against paying
bribe, the complainant reached the ACB on 16.12.2008 where he
was handed over one AudioVideo recorder. He then along with SI
Binod Kumar/ACB went to Chowki Pul Prahalad Pur where he
recorded the entire transaction of exchange of money amounting
to Rs.60,000/ from the hands of complainant to accused Jitender
Chaturvedi, Chowki Incharge Praveen Kumar and Ct. Anil.
Complainant also gave Rs.2,000/ to one Constable to win his
confidence. The bribe amount of Rs.60,000/ was in the
denomination of Rs.500/. Out of Rs.60,000/, Rs.10,000/ was
counted by accused Anil and Rs.50,000/ was counted by accused
Jitender Chaturvedi and Chowki Incharge Praveen. Complainant
further informed ACB that he had brought the remaining amount
of Rs.15,000/ which is to be paid to accused Praveen Kumar,
Chowki Incharge through accused Jitender Chaturvedi.
4. Thereafter, Insp. Hira Lal got the complaint signed by
complainant Subhash Chand and Panch Witness Subhash Rana.
He, too, also countersigned the complaint. Complainant Subhash
Chand then handed over 30 currency notes in the denomination
of Rs.500 amounting to Rs.15,000/ to Insp. Hira Lal who asked
Panch Witness Subhash Rana to note down the numbers of the GC
notes in the raid report. Thereafter, the GC notes were smeared
with Phenolphthalein Powder by Insp. Hira Lal who asked Panch
Witness to touch these notes with his right hand and then to dip
his right hand in a colourless liquid of Sodium Carbonate solution
which turned pink. He also explained the reaction of the
Phenolphthalein Powder to the complainant and Panch Witness.
He further instructed the complainant to remain close to Panch
Witness to enable the Panch Witness to hear the conversation
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between the complainant and accused Jitender Chaturvedi, to
observe the transaction of Rs.15,000/ and then to give a signal to
the raiding party by placing his right hand twice over his head,
after he was satisfied that bribe money had been demanded and
accepted. The Phenolphthalein Powder treated GC notes were
then handed over to the complainant Subhash Chand who kept
the same in his left side upper pocket of his shirt. After washing
hands, Insp. Hira Lal handed over phenolphthalein powder bottle
to Duty Officer and took raid box with him. At about 10.50 am, SI
Binod Kumar/ACB handed over two CDs (CD1 and CDII)
recorded by the complainant to Insp. Hira Lal containing audio
video recording of receiving bribe by accused SI Praveen Vats,
Const. Anil Kumar and Jitender Chaturvedi. The relevant portion
of the CDs were seen and the transcription of the relevant portion
was also read in presence of the complainant and Panch Witness.
Both the CDs were sealed separately with the seal of HL and were
seized. At about 11.40 am, Insp. Hira Lal along with Insp. Ranbir
Singh, other police officials, Panch Witness and the complainant
left the AC Branch in a private vehicle bearing registration No.
DL3CT0906. The complainant was instructed to call accused
Jitender Chaturvedi to fix the time and place of meeting. At about
1:05 pm, raiding team reached Mehrauli Road near the
complainant's godown No. J731, Lal Kuan and parked the vehicle
at a distance. The complainant and Panch Witness were again
briefed. At 1:15 pm, Insp. Hira Lal also briefed the staff and
directed them to take their positions. At about 1:55 pm, when the
complainant and the Panch Witness were sitting on a cot outside
the godown of the complainant, accused Jitender Chaturvedi
came there in a white Alto car which was driven by another
person. He called the complainant by giving signal and started
talking with the complainant. Panch Witness also started hearing
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the conversation of the complainant and the accused Jitender
Chaturvedi. At about 2:00 pm, Panch Witness gave predetermined
signal. On receiving the signal, Insp. Hira Lal along with members
of raiding party immediately reached there. Panch Witness told
Insp. Hira Lal that accused Jitender Chaturvedi had demanded
illegal gratification for SI Praveen Vats, Chowki Incharge Pul
Prahalad Pur and had received the same with his right hand from
complainant and had started counting the same. At this, Insp.
Hira Lal introduced himself to accused Jitender Chaturvedi and
overpowered him with the help of members of the raiding party.
Panch Witness Subhash Rana recovered the bribe money of Rs.
15,000/ in the denomination of Rs.500/ each from accused
Jitender Chaturvedi. The details of the currency notes recovered
from accused Jitender Chaturvedi were tallied with the details of
the currency notes already mentioned in the Raid Report. On
matching them, the recovered 30 GC notes in the denomination
of Rs.500/ were seized. Wash of both the hands of the accused
Jitender Chaturvedi were taken in colourless solution of Sodium
Carbonate which turned pink. The pink colour wash was then
transferred in two separate bottles. The sample of the wash were
also taken into two separate bottles. All the four bottles were
sealed with the seal of HL and marked as RHWI, RHWII, LHWI
and LHWII. Thereafter, Insp. Hira Lal made enquiries from Panch
Witness Subash Rana who narrated the incident of demand and
acceptance of already settled illegal gratification by accused
Jitender Chaturvedi for accused SI Praveen Vats, Chowki Incharge
Pul Prahalad Pur. After completion of proceedings, Insp. Ranbir
Singh was called at the spot who further investigated the case,
prepared site plan, recorded statements of witnesses and arrested
accused Jitender Chaturvedi. When Insp. Ranbir Singh/IO
returned to AC Branch, it was revealed that another team led by
FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 5 of 33
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Insp. Dharambir Singh had been sent for enquiry and to verify the
facts from SI Praveen Vats/Incharge PP Pul Prahalad Pur and
Const. Anil, PS Sangam Vihar.
5. It is further the case of the prosecution that when the team of
police officials comprising of Insp. Dharambir Singh, Insp. Nand
Kumar, SI Bal Kishan etc. reached PP Prahalad Pur, they informed
accused SI Praveen Vats/Incharge PP Pul Prahalad Pur of the
incident and asked him to accompany them to AC Branch. At this,
accused Praveen Vats started abusing and entered into a scuffle
with the police party of ACB and inflicted an injury to himself with
a poker. When ACB officials tried to restrain him, he gave a kick
blow to Insp. Nand Kumar and pushed him due to which
spectacles of Insp. Nand Kumar got broken. He also assaulted SI
Bal Kishan with the poker due to which he received injuries in his
left hand. During further investigation, Insp. Ranbir Singh
arrested accused Praveen Vats/SI and accused Anil Kumar/const.,
obtained their voice samples and completed other formalities.
The exhibits, voice samples of accused persons and recordings
were sent to FSL Rohini and results were obtained. Prosecution
Sanctions of accused persons were obtained from competent
authority. After completion of investigation, challan U/s 7/8/13
PC Act r/w Secs. 384/186/353/332/309/506/120B IPC was filed in
the court. Thereafter, cognizance was taken and accused persons
were summoned to face trial.
6. After hearing the accused persons on charge, the Learned
Predecessor of this Court framed charge for offences punishable
u/s 8 PC Act r/w Sec.120B IPC and Sec.120B IPC against the
accused Jitender Chaturvedi (private person); charge u/ss 7 &
13(1)(d) of the PC Act r/w Sec. 120B IPC and Secs.
FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 6 of 33
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120B/332/353/186 IPC against the accused Praveen Vats; charge
u/ss 7 & 13(1)(d) of the PC Act r/w Sec. 120B IPC and Sec. 120B
IPC against accused Anil Kumar. All the accused pleaded not
guilty and claimed trial.
PROSECUTION EVIDENCE
7. To prove its case, prosecution has examined as many as 40
witnesses.
Material witnesses:-
PW24/Subhash Chand, the Complainant in the present case.
PW30/Subhash Rana, the Panch Witness to the raid proceedings.
Medical witnesses:-
PW14/Dr. Kanhar, Sr. Orthopaedic Surgeon, Aruna Asaf Ali
Hospital who proved the MLC (Ex. PW14/A) of Insp. Nand Kumar
and opined the nature of injuries to be simple.
PW19/Dr. Rubi Kumar, CMO Aruna Asaf Ali Hospital who
medically examined accused Praveen Vats, SI Bal Kishan and Insp.
Nand Kumar and prepared their MLCs as Ex. PW19/A, Ex. P19/B
and Ex. PW14/A respectively.
PW26/Dr. Yogesh Tyagi, Forensic Medicines who gave his
opinion Ex. PW26/A on the MLC Ex. PW19/A of accused Praveen
Vats.
Formal witnesses:-
PW1/Const. Manoj who was the member of the raiding team and
had got the FIR (Ex. PW8/B) registered.
PW2/Bhupinder Singh, UDC, Directorate of Education/GNCT in
whose presence DD register of PP Pul Prahalad Pur/PS Sangam
Vihar was seized.
PW3/Arvind Kumar, LDC, Directorate of Training & Technical
Eduction in whose presence the specimen voice sample of
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accused Anil Kumar was taken on two small cassettes (A and A1)
in FSL Rohini.
PW4/Khyali Ram Gaur, Inspector (Food & Supply Deptt.)/ GNCT
in whose presence the specimen voice sample of accused Jitender
Chaturvedi was taken on one cassette (Ex.P3).
PW5/Noor Alam, STD Booth Owner who deposed that mobile
phone No. 9953052277 (alleged to have been used by accused
Praveen Vats) was not subscribed by him.
PW6/HC Krishna Dasan who took exhibits to FSL Rohini.
PW7/HC Deena Mani who witnessed the arrest and personal
search of accused Anil Kumar.
PW8/SI K.L. Meena, Duty Officer at PS ACB, who proved the FIR
(Ex. PW8/B).
PW9/SI Ashok Kumar who proved the biodatas of accused
Praveen Vats and Anil Kumar as Ex. PW9/A and B.
PW10/Const. Devender, Duty Constable at Aruna Asaf Ali
Hospital who handed over a parcel sealed with seal of CMO/AAA
to the IO vide memo Ex. PW10/A.
PW11/Const. Ram Swaroop who collected the exhibits from FSL
Rohini.
PW12/Jiban Pramanik, Craft Instructor/ITI who proved the
consent memo (Ex. PW12/A) of accused Praveen Vats agreeing to
give his voice sample.
PW13/Vijay Singh (Retd. Machine Operator) in whose presence
the voice sample of accused Praveen Vats was taken on a cassette
(Ex. P5) in FSL Rohini.
PW15/Dr. C.P. Singh, Asstt. Director (Physics), FSL Rohini proved
his report as Ex. PW15/A regarding the voice samples of accused
persons.
PW16/HC Ram Singh who delivered DD register from PP Pul
Prahalad Pur, PS Sangam Vihar to PS ACB.
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PW17/Surya Kant, Superintendent/District Magistrate(Central)/
Panch Witness who proved the observation memo as Ex. PW17/A
whereby ASI Satbir Singh/ PW18 had identified accused Anil
Kumar in the CD played on the Laptop of Insp. Ranbir Singh/IO.
PW18/SI Satbir Singh alleged witness to the CDs (audio & video)
played in PS ACB in the presence of PW17/Surya Kant who turned
hostile.
PW20/Const. Kuldeep Singh who collected the exhibits from
Malkhana Civil Lines and deposited the same in FSL Rohini.
PW21/HC Jai Prakash Bhardwaj, MHCM/PS Civil Lines who
deposed regarding the deposit of exhibits on various dates.
PW22/Sant Kumar, Insp. Food & Supply Deptt. the Panch
Witness who proved the observation memo as Ex. PW22/A
whereby SHO/PS Sangam Vihar identified the picture and voice of
accused Praveen Vats and accused Anil Kumar.
PW23/DCP Brahm Singh accorded sanction u/s 19 of POC Act
(Ex.PW23/A & B) in respect of accused Praveen Vats and Anil
Kumar.
PW25/HC Jitender, MHCM Civil Lines who deposited four sealed
bottles, GC notes, one sample seal, one cloth pullanda containing
specs and one sealed pullanda containing one Poker etc. in the
malkhana on 17.12.2008 and made entries in register No.19.
PW28/Israr Babu, Alternate Nodel Officer/ Vodafone who proved
CAF of Mobile Nos. 9953052277 and 9811083510 and CDR of
Mobile No. 9953052277.
PW29/HC Dharambir Singh who was posted at PP Pul Prahalad
Pur during relevant time.
PW32/R.K. Singh, Nodal Officer/Airtel who proved CAF and CDR
of Mobile Nos. 9910703696 & 9871390709 in respect of accused
Jitender Chaturvedi.
PW33/Const. Ram Kishan who was posted as DD writer at PP Pul
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Prahalad Pur/PS Sangam Vihar on 17.12.2008.
PW35/Sandeep Arora, DGM Idea Cellular who proved photocopy
of CAF of Mobile No. 9891368676.
PW36/A.S. Cheema/DIG (the then DCP/PS ACB) who proved
complaint u/s 195 Cr.P.C. dated 29.08.13 (Ex. PW36/A) against
accused Praveen Vats.
PW37/Insp. Satya Pal, the then SHO/PS Sangam Vihar who
identified the voice and picture of const. Anil and SI Praveen in
the CDs.
Witnesses of investigation:-
PW27/ Insp. Binod Kumar Singh who was one of the members of
the raiding party and the official of ACB who had handed over the
recording device to PW24/Complainant and prepared the
transcripts Ex. PW27/A.
PW31/SI Bal Kishan (Retd) who was one of the members of the
second raiding team which visited PP Pul Prahalad Pur on
17.12.2008.
PW34/ACP Hira Lal (Retd.) the then Inspector/PS ACB was the
First Investigating Officer (IO).
PW38/Insp. Ranbir Singh/the Second IO.
PW39/ACP Dharambir Singh, the then Insp./PS ACB who was a
member of the second raiding team which visited PP Pul Prahalad
Pur on 17.12.2008.
PW40/ACP K.P. Singh, the then Insp./PS ACB/the third IO.
8. After completion of prosecution evidence, statements of accused
Jitender Chaturvedi, Praveen Vats and Anil Kumar were recorded
u/s 313 Cr.P.C. wherein they denied the story of the prosecution
outrightly. Accused Praveen Vats denied having known the
complainant and coaccused Jitender Chaturvedi. He stated that
he did not demand any money from the complainant personally
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or through anybody. He denied having met the complainant or
coaccused Jitender Chaturvedi ever. He stated that on 17.12.2000,
he was posted as Incharge PPPul Prahalad Pur and on that day at
about 3:00 pm, when he was present in his office with Const. Ram
Singh. 34 persons in civil dress came to his room and introduced
themselves as officials from Vigilance, PHQ and told the purpose
of their visit as enquiry about illegal construction and role of
police officials therein. They asked him to call the beat staff and
PP staff. He instructed Munshi Const. Ram Kishan to call all the
officials and after arrival of all the officials, those Vigilance
officials asked for Const. Anil as he was not present there. On
enquiry, it was revealed that Const. Anil was absent and his
mobile phone was not reachable. He accordingly marked Const.
Anil as absent. Soon thereafter, those Vigilance officials forcibly
tried to take him away from there. He protested and asked them
whether any case was registered against him. In reply, they told
him that he was involved in a corruption case. He requested those
officials to serve him a notice u/s 160 Cr.P.C. or 41.1 but they
started dragging him forcibly and assaulted him. He called SHO,
PS Sangam Vihar and area ACP. He lodged DD No.14 in DD
register of PPPul Prahalad Pur and thereafter, he was taken by
them. He was taken to the hospital and from there he was lodged
in the lockup at PS Civil Lines at about 10:00/10:30 pm, where
Insp. Ranbir Singh was already present.
9. He further stated that he had nothing to do with mobile No.
9953052277 and this number was never used by him. He had
never obstructed or assaulted any public servant while
discharging their official duties. Rather, he was obstructed by
Insp. Nand Kumar, Insp. Dharambir Singh, SI Bal Kishan and
others while he was discharging his official duties. He had never
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caused any injuries to himself and injuries on his person were
caused by ACB officials. The poker had been planted upon him in
this case.
Accused Praveen Vats and Anil Kumar opted to lead
evidence in their defence. However, accused Jitender Chaturvedi
did not lead any evidence in his defence.
DEFENCE EVIDENCE
10. In their defence accused Praveen Vats and Anil Kumar examined
ASI Om Prakash as DW1 who proved the fact finding report of
departmental enquiry against accused Praveen Vats and Anil
Kumar as Ex. DW1/B, wherein both the accused were exonerated.
SI Uday Singh as DW2 who proved the copies of the RTI
applications filed by accused Anil Kumar as Ex. DW2/A to DW2/C
and replies thereof as Ex. DW2/D to DW2/F. They also examined
ASI Rajender Kumar as DW3 who proved the information (Ex.
DW3/B) supplied on the basis of application (Ex. DW3/A) moved
by accused Anil Kumar.
APPRECIATION OF EVIDENCE
11. The instant case involves two separate incidents. First, regarding
the demand and acceptance of illegal gratification by accused
Jitender Chaturvedi, Praveen Vats and Anil Kumar and second,
regarding the assault on SI Bal Kishan and Insp. Nand Kumar by
accused SI Praveen Vats in PP Pul Prahalad Pur of PS Sangam
Vihar. Hence, for the sake of convenience, I shall proceed to
evaluate the evidence of both the incidents separately.
FIRST INCIDENT
Initial Demand of Rs.75,000/, acceptance of Rs.60,000/ by all
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three accused persons on 16.12.2008 and acceptance of Rs.
15,000/ by accused Jitender Chaturvedi on behalf of accused
Praveen Vats on 17.12.2008
12. To bring home the guilt of the accused persons in respect of the
offences u/ss 7, 8 and 13(1)(d) r/w Sec. 120B IPC and Sec.120B
IPC, the prosecution is required to prove the following:
(i) Initial demand of Rs.75,000/ by accused Jitender Chaturvedi
on behalf of accused Praveen Vats and accused Anil Kumar.
(ii) Acceptance of bribe amount of Rs.60,000/ by accused
Jitender Chaturvedi, accused Praveen Vats and accused Anil
Kumar.
(iii) Acceptance and Recovery of tainted GC notes amounting to
Rs.15,000/ from the possession of accused Jitender Chaturvedi
on 17.12.2008.
13. To prove the aforesaid, the prosecution examined the
complainant Subhash Chand (PW24) and Panch Witness
Subhash Rana (PW30). Both the witnesses turned hostile and did
not support the case of the prosecution in any manner. PW24/
complainant Subhash Chand rather testified that it was police
officials of PS Badarpur namely Dharambir and Bhagwan Singh
who used to harass him and had demanded Rs.1 lakh from him so
as to not to implicate him in case of dealing in stolen goods. He
did not even once name the accused Praveen Vats and accused
Anil Kumar as the persons who used to harass him and demand
illegal gratification from him. He testified that due to the
harassment caused to him by Dharambir and Bhagwan Singh, he
had approached accused Jitender Chaturvedi who had previously
helped him in a similar matter. On his advise, he along with
accused Jitender Chaturvedi had gone to PS Anti Corruption
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Branch on 16.12.2008 where he had met Insp. Hira Lal (PW34) and
had given a written complaint Ex. PW24/A which was written by
accused Jitender Chaturvedi but signed by him. Insp. Hira Lal
(PW34) asked him to come on 17.12.2008 at 10:00 am. Next day
when he reached PS ACB, he was asked by Insp. Hira Lal (PW34) to
hand over Rs.15,000/ to be further handed over to Bhagwan
Singh and Dharambir towards bribe. Since he was not carrying
sufficient money, he handed over 10 currency notes in the
denomination of Rs.500/ amounting to Rs.5,000/ to Raiding
Officer/Insp. Hira Lal (PW34). Thereafter, Insp. Hira Lal applied
some powder on the currency notes and got them touched with
his hand, whereafter, his hands were washed in colourless water
type solution which turned pink. The pink water was transferred
to 23 bottles. He further testified that at about 1:30 pm, he along
with 45 other persons was taken towards his godown. He was
made to sit in the vehicle at a distance of about 200 meter from his
godown near Bharat Petrol pump whereas the raiding team left
towards Prahalad Pur. They returned about half an hour. On the
way back to PS ACB, they threatened accused Jitender Chaturvedi
that he will face consequences for getting a false raid conducted.
They returned to PS ACB at about 4:15 pm. At about 7:00 pm,
before leaving police station, he was asked to sign 810 blank
sheets. Accused Jitender Chaturvedi was detained at PS ACB. The
amount of Rs.5,000/ which was handed over by him was returned
to him.
14. Even in his crossexamination by learned Addl. PP for the State,
nothing favourable could be extracted from PW24/Complainant.
He denied having been handed over any audiovideo recorder by
SI Binod Kumar (PW27) on 16.12.2008 or that he recorded any
video or audio of the transaction of handing over Rs.60,000/ to
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the accused persons. He also refuted having read the contents of
the complaint Ex. PW24/A given by him on 17.12.2008 to Insp.
Hira Lal (PW34). He also categorically denied having participated
in any preraid, raid or postraid proceedings. In the nutshell, he
rubbished the case of the prosecution in its entirety.
15. Similarly, PW30/Panch Witness Subhash Rana, although
admitted to be on Panch Witness duty at PS ACB on 17.12.2008
and having witnessed the demonstration of the use of
phenolphthalein powder, refuted the entire version of prosecution
regarding the complicity of accused Jitender Chaturvedi having
been caught red handed by the raiding team in his presence.
Rather, he failed to identify accused Jitender Chaturvedi and
stated that he was told that some officials of PS Badarpur are
expected to demand bribe from the complainant.
16. In his crossexamination by the learned Addl.PP for the State,
Panch Witness Subhash Rana (PW30) categorically stated that he
was coerced to sign documents (complaint Ex. PW24/A, preraid
report Ex. PW24/C, seizure memo of GC notes Ex. PW24/E, seizure
memo of hand wash Ex. PW24/F, postraid proceedings Ex.
PW24/G, arrest memo Ex. PW24/H and personal search memo Ex.
PW24/J of accused Jitender Chaturvedi, arrest memo and
personal search memo of accused Praveen Vats Ex. PW24/I and
Ex. PW24/K respectively, seizure memo Ex. PW30/PB of broken
spectacles and seizure memo Ex PW30/PC of Poker) and he had
not gone through the contents thereof as he had been instructed
by his superior to cooperate with the officials of PS ACB.
Throughout his crossexamination, he kept on shifting stands by
admitting only those part of the incident which did not implicate
accused Jitender Chaturvedi. He even denied witnessing the
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alleged demand and acceptance of Rs.15,000/ by accused
Jitender Chaturvedi on behalf of accused Praveen Vats and rather
stated that he and complainant remained seated in the vehicle
while the members of the raiding team had left for the godown of
the complainant and returned after 25 minutes with accused
Jitender Chaturvedi.
17. It was very vehemently argued by learned Addl.PP for the State
that despite the fact the star witnesses i.e. complainant Subhash
Chand (PW24) and Panch Witness Subhash Rana (PW30) did not
support the case of the prosecution and turned hostile, the
acceptance of illegal gratification by accused Jitender Chaturvedi
on behalf of accused Praveen Vats has been successfully proved.
To support his contentions, learned Addl.PP for the State very
heavily relied upon the deposition of Insp. Hira Lal (PW34) who
was the member of raiding party and had apprehended accused
Jitender Chaturvedi with the phenolphthalein powder treated GC
notes amounting to Rs.15,000/. It was also argued by him that
since accused Jitender Chaturvedi was caught red handed with
the illegal gratification, presumption u/s 20 of the POC Act will
apply. There is no merit in this argument of learned Addl. PP for
the State as the prosecution to bring home the charges u/s 7/13 of
POC Act was bound to prove not only alleged
recovery/acceptance but also the demand of illegal gratification.
In the case of P. Satyanarayana Murthy Vs. The Dist. Inspector of
Police and Ors. in Criminal Appeal No. 31 of 2009 decided on
14.09.2015, it was held as under:
"In State of Kerala and another vs. C.P. Rao, this court,
reiterating its earlier dictum, visavis the same
offences, held that mere recovery by itself, would not
prove the charge against the accused and in absence of
any evidence to prove payment of bribe or to show that
the accused had voluntarily accepted the money
FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 16 of 33
-17-
knowing it to be bribe, conviction cannot be sustained.
In a recent enunciation by this Court to discern the
imperative prerequisites of Sections 7 and 13 of the
Act, it has been underlined in B. Jayraj in unequivocal
terms, that mere possession and recovery of currency
notes from an accused without proof of demand would
not establish an offence under Sections 7 as well as
13(1)(d)(i) & (ii) of the Act. It has been propounded that
in the absence of any proof of demand for illegal
gratification, the use of corrupt or illegal means or
abuse of position as a public servant to obtain any
valuable thing or pecuniary advantage cannot be held
to be proved. The proof of demand, thus, has been held
to be an indispensable essentiality and of permeating
mandate for an offence under Sections 7 and 13 of the
act. Qua Section 20 of the Act, which permits a
presumption as envisaged therein, it has been held that
while it is extendable only to an offence under Section
7 and not to those under Section 13(1)(d) (I) &(ii) of the
Act, it is contingent as well on the proof of acceptance
of illegal gratification for doing or forbearing to do any
official act. Such proof of acceptance of illegal
gratification, it was emphasized, could follow only if
there was proof of demand. Axiomatically, it was held
that in absence of proof of demand, such legal
presumption under Section 20 of the Act would also
not arise.
The proof of demand of illegal gratification, thus, is the
gravamen of the offence under Sections 7 and 13(1)(d)
(i) & (ii) of the Act and in absence thereof,
unmistakably the charge therefore, would fail. Mere
acceptance of any amount allegedly by way of illegal
gratification or recovery thereof, dehors the proof of
demand, ipso facto, would thus not be sufficient to
bring home the charge under these two sections of the
Act. As a corollary, failure of the prosecution to prove
the demand for illegal gratification would be fatal and
mere recovery of the amount from the person accused
of the offence under Sections 7 or 13 of the Act would
not entail his conviction thereunder."
18. Hence, even if any reliance is placed on the testimony of raiding
officer Insp. Hira Lal (PW34), it is of no consequence as he was
only a witness to the recovery of Rs.15,000/ and not to the
demand alleged to have been made by accused Jitender
Chaturvedi and acceptance of bribe by him on behalf of accused
Praveen Vats.
FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 17 of 33
-18-
Evidence qua audio-video recording
19. It was further argued by learned Addl. PP for the State that
assuming though not admitting that the testimony of PW34/Raid
Officer Insp. Hira Lal is of no consequence, the prosecution was
successful in bringing home the guilt of the accused persons
regarding offences u/ss 7/8/13 POC Act read with Sec.120B IPC
and Sec.120B IPC as the complainant had recorded the audio
video of the transaction of Rs.60,000/ involving the accused
persons and the recording in the shape of CDs (CDI and CDII)
have been proved. It was also contended by him that since the
voices in the CDs have been matched with the voice samples of
the complainant and accused persons as per the report (Ex.
PW15/A) of PW15/Dr. C.P. Singh, Asstt.Director(Physics), FSL
Rohini, the prosecution has proved its case beyond a shadow of
doubt. In contrast, it was urged by learned counsels for the
accused persons that the prosecution miserably failed to prove
the recordings and the transcripts in accordance with law and
thus, the audiovideo recording was inadmissible in law.
20. Admittedly, the original recording device and the original
recording were not produced before the Court. As per the case of
the prosecution, the original recording devise was handed over to
the complainant (PW24) on 16.12.2008 by SI Binod Kumar
(PW27) to record the conversation of the transaction of Rs.
60,000/ between the complainant and the accused persons
which was returned to SI Binod Kumar (PW27) after recording on
16.12.2008 itself. The recorded clipping was played in the official
Laptop at PS ACB while the data recorded in the recording device
was copied in the Laptop and then copied in two separate CDs
(CDI and CDII). It was also the case of the prosecution that the
FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 18 of 33
-19-
transcript (Ex. PW27/A) of the relevant portion was prepared by SI
Binod Kumar (PW27).
21. The law regarding the admissibility of electronic evidence has
been laid down in the case of Anwar P.V. Vs. P.K. Basheer reported
as (2014) 10 SCC 473 wherein it has been held by the Hon'ble
Supreme Court that to prove electronic evidence either the
original recordings have to be produced and in case original
recordings are not available then secondary evidence should be
supported by a certificate u/s 65B of Indian Evidence Act. The
observations of the Hon'ble Supreme Court in Anwar P.V. (supra)
were further clarified by the judgment of the Hon'ble Delhi High
Court in Kundan Singh Vs. State rendered in Crl.Appeal No.
711/2014 decided on 24.11.2015 as follows:
"46. Controversy has arisen whether a certificate under
subsection (4) to Section 65B must be issued
simultaneously with the production of the computer
output or a certificate under Section 65 B can be issued
and tendered when the computer output itself is
tendered to be admitted as evidence in the court or as
in the present case by the official when he was recalled
to give evidence. In Anwar P.V. (S) v. P.K Basheer, the
Supreme Court has held as under:
"15. It is further clarified that the person need only
to state in the certificate that the same is to the
best of his knowledge and belief. Most
importantly, such a certificate must accompany
the electronic record like computer printout,
Compact Disc (CD), Video Compact Disc (VCD),
pen drive, etc., pertaining to which a statement is
sought to be given in evidence, when the same is
produced in evidence. All these safeguards are
taken to ensure the source to be used as evidence.
Electronic records being more susceptible to
tampering, alteration, transposition, excision, etc.
without such safeguards, the whole trial based on
proof of electronic records can lead to travesty of
justice."
(emphasis supplied)
The expression used in the said paragraph is when the
electronic record is "produced in evidence". Earlier
FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 19 of 33
-20-
portion of the same sentence emphasises the certificate
must accompany the electronic record when the same
is "produced in evidence". To us, the aforesaid
paragraph doe not postulate or propound a ratio that
the computer output when reproduced as a paper print
out or on optical or magnetic media must be
simultaneously certified by an authorised person under
subsection (4) to Section 65B. This is not so stated in
Section 65B or subsection (4) thereof. ....................
..............................................................................................
..50. Anwar P.V (supra) partly overruled the earlier decision of the Supreme Court on the procedure to prove electronic record(s) in Navjot Sandhu (supra), holding that Section 65B is a specific provision relating to the admissibility of electronic record(s) and, therefore, production of a certificate under Section 65B(4) is mandatory. Anwar P.V (supra) does not state or hold that the said certificate cannot be produced in exercise of powers of the trial court under Section 311 Cr.P.C. or, at the appellate stage under Section 391 Cr.P.C. Evidence Act is a procedural law and in view of the pronouncement in Anwar P.V (supra) partly overruling Navjot Sandhu (supra), the prosecution may be entitled to invoke the aforementioned provisions, when justified and required. Of course, it is open to the court/presiding officer at that time to ascertain and verify whether the responsible officer could issue the said certificate and meet the requirements of Section 65B."
22. I am, therefore, of the considered view that to prove secondary evidence regarding an electronic record, the certificate u/s 65B of the Indian Evidence Act must accompany the electronic record when the same is produced in evidence. It is pertinent to mention here that neither the certificate u/s 65B of the Indian Evidence Act was filed at the time of filing of chargesheet/CDs nor when the CDs were produced in evidence which is a mandatory requirement to prove the secondary evidence. Hence, as rightly argued by learned counsels for the accused, the prosecution failed to prove the alleged recorded conversations regarding the alleged transaction of demand and acceptance of Rs.60,000/. Since the prosecution failed to prove the CDs, consequently, I am of the opinion that no importance can also be attached to the FSL report FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 20 of 33 -21- (Ex. PW15/A) which opined that the voices in the CDs matched with that of the accused persons and to the transcription of the conversation (Ex. PW27/A) which was allegedly prepared by SI Binod Kumar (PW27).
Admissibility of FSL report
23. It was also strenuously argued by learned Counsels for the accused persons that otherwise also, the FSL report (Ex. PW15/A) is inadmissible in evidence for want of notification u/s 79A of I.T. Act. To support their arguments, they cited Section 29A of IPC, Section 2(1)(t) and Section 79A of I.T. Act 2000 coupled with Section 45A of Indian Evidence Act. The same are reproduced here as under: "Section 29A of IPC "Electronic Record" - The words "Electronic Record"
shall have the meaning assigned to them in clause (t) of subsection (1) of Section 2 of the Information Technology Act, 2000".
Section 2(1)(t) of I.T. Act, 2000 "Electronic Record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche."
Section 45A of Indian Evidence Act "Opinion of Examiner of Electronic Evidence - When in a proceeding, the Court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000 (21 of 2000) is a relevant fact.
Explanation - For the purpose of this section, an Examiner of Electronic Evidence shall be an expert;
Section 79A of I.T. Act, 2000 "Central Government to notify Examiner of Electronic Evidence - The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the official Gazette, any FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 21 of 33 -22- Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence.
Explanation - For the purposes of this section, "electronic form evidence" means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines."
24. The above provisions on their very bare reading reflect that only if the Central Government notifies any department, body or agency of the Central Government or State Government as an examiner of electronic evidence, then only that agency would be competent to provide expert opinion on electronic form evidence. In the instant case, the CDs containing the audiovideo recordings, the cassettes containing voice samples of accused persons are all electronic record and the opinion of the examiner of such electronic record is a relevant fact. In this regard the prosecution had examined PW15 Dr. C.P. Singh, Asst. Director (Physics) FSL, Rohini who had proved his opinion Ex.PW15/A regarding the voices in the CD having matched with the voice samples of the accused persons. It is very significant to mention here that in his cross examination, he very categorically admitted that "FSL Rohini is not notified U/s 79A of IT Act and FSL Rohini has initiated the process for notification U/s 79 A of the IT Act"
meaning thereby that Central Government has not notified FSL Rohini as an examiner of Electronic Evidence. Since the Central Government has not authorised FSL Rohini to be a competent examiner of Electronic Evidence under the provision of Section 79A of the IT Act, therefore in my opinion, no importance can be attached to the opinion Ex.PW15/A given by PW15 Dr. C.P. Singh for this reason also.
FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 22 of 33 -23-
25. Moreover, it is the admitted case of the prosecution that the CD produced in the court, alleged to have been prepared by PW27/Insp. Binod Kumar from the original recording contained a folder namely 16th December. The said folder contained two separate files; one audio file namely 1216M005.WAV and one video file namely vid0000.3gp. Since the original recording device was not sent to FSL for an expert opinion to rule out the tampering, it was extremely vital that opinion ought to have been sought from the FSL regarding the correlation between audio recording and the lip movement in the video recording. This fact was also admitted by IO/Insp. Ranbir Singh (PW38) in his cross examination wherein he admitted that he did not seek any opinion from FSL in this regard. In addition to the aforesaid, PW15/Dr. C.P. Singh also very candidly admitted that he had examined the file from the angle of audio analysis only. It is also relevant to note that no voice sample of complainant was obtained to match with his voice alleged to be that of the complainant in the CDs. Furthermore, no register/ document was produced in the Court to show that any recording device was issued to Insp. Binod Kumar Singh (PW27) to enable the complainant Subhash Chand (PW24) to make the audiovideo recording of the alleged transaction of Rs.60,000/. It was very categorically admitted by PW39/Insp. Dharambir Singh that during the relevant time it was SI Karnail Singh who used to hand over the recording devices and that he had not recorded the statement of SI Karnail Singh in this regard. PW39 also showed his ignorance regarding the issue, if any record qua handing over and taking over of recording devices was being maintained in any form. I am therefore of the view that not only the electronic evidence produced by the prosecution cannot be read in evidence but even the authenticity of the alleged recording is doubtful.
FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 23 of 33 -24- Sanction
26. During the course of the arguments, it was also pointed out by learned counsel for accused Praveen Vats and Anil Kumar that the Sanction (Ex. PW23/A) accorded by Sanctioning Authority DCP Brahm Singh (PW23) was defective as the same was accorded without application of mind in a mechanical manner. To strengthen his arguments, he pointed out certain portions in Ex. PW23/A (Sanction order) which were verbatim reproduction of facts mentioned in Ex. PW23/DA which was a letter addressed to DCP Brahm Singh (PW23) from S. Dash, Addl. Commissioner of Police, Anti Corruption Branch. It was also argued that complete documents were not sent to sanctioning authority and the same is evident from the Sanction Order (Ex. PW23/A) which mentions that all statements u/s 161 Cr.P.C. were not placed before PW23 but only the statements of police officials who were the part of second team and had gone to apprehend accused Praveen Vats and Anil Kumar from PPPul Prahalad Pur/PS Sangam Vihar were placed before him. It was also contended had the sanctioning authority/PW23 gone through the statement of SI Bal Kishan, he would have realised that the second spot in the statement of SI Bal Kishan referred to Anti Corruption Branch, whereas as per the IO, the second spot was PPPul Prahalad Pur. For this reason itself, PW23 would not have accorded sanction. There is no teeth in the argument of learned counsel for accused Praveen Vats and accused Anil Kumar that sanction order is invalid as the same has been passed without application of mind. The sanction order (Ex. PW23/A) reveals that complete documents were sent to the sanctioning authority/PW23. The sanction order very categorically mentions that "whereas a report has been received from Sh.S. Dash, Addl. Commissioner of Police, Anti Corruption FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 24 of 33 -25- Branch/GNCT of Delhi included its enclosures (35 Pps plus one CD) with statements of Insp. Dharambir Singh, Insp. Nand Kumar, SI Bal Kishan (all AC Branch), Const. Ram Kishan, Const. Vijay Kumar (both PS Sangam Vihar), HC Dharambir Singh.......". The report of Sh. S. Dash, Addl. Commissioner of Police, Anti Corruption Branch (Ex. PW23/DA) reveals that the copies of all the relevant documents were sent with the report for reference and the copies of the relevant documents included copies of the statements recorded u/s 161 Cr.P.C. in FIR No.41/08 dated 17.12.2008. Further, the crossexamination of PW23/DCP Brahm Singh reveals that no suggestion was put to him that he had not received all the statements recorded u/s 161 Cr.P.C. So far as reproduction of facts mentioned in Ex. PW23/DA and Ex. PW23/A is concerned, the same would not tantamount to nonapplication of mind. With respect to the statement of SI Bal Kishan (Ex. PW31/PA) recorded u/s 161 Cr.P.C., that the 2nd spot was Anti Corruption Branch, it is of no consequence. PW23 DCP Braham Singh was required to accord sanction to prosecute accused Parveen Vats and Ct. Anil Kumar only qua the provisions of POC Act and not other provisions under the IPC and the material placed before him prima facie disclosed commission of offences under the POC Act.
27. Thus, in the light of my aforesaid discussion, I am of the opinion that the prosecution miserably failed to prove charge for offences punishable u/s 8 PC Act r/w Sec.120B IPC and Sec. 120B IPC against accused Jitender Chaturvedi (private person); charge u/ss 7 & 13(1)(d) PC Act r/w Sec. 120B IPC against accused Praveen Vats and charge u/ss 7 & 13(1)(d) PC Act r/w Sec. 120B IPC and Sec. 120B IPC against accused Anil Kumar.
FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 25 of 33 -26- SECOND INCIDENT Incident of accused Praveen Vats resisting and assaulting the second team at PPPul Prahalad Pur thereby committing offences punishable u/s 186/353/332 IPC Sanction
28. Qua the offence u/s 186 IPC alleged to have been committed by accused Praveen Vats, it was argued by learned counsel for accused Praveen Vats that the complaint u/s 195 Cr.P.C. (Ex. PW36/A) filed by Sh. A.S. Cheema (PW36) was defective and without any application of mind. Even though the alleged offence was allegedly committed by the accused Praveen Vats only, the fact that the complaint (Ex. PW36/A) was filed against all the three accused persons shows non application of mind. Even otherwise, PW36/A.S. Cheema was not competent to file the complaint as he was not the immediate superior of Insp. Nand Kumar. Because of the aforesaid reasons, the complaint (Ex. PW36/A) is not admissible in evidence. There is no merit in this argument. Ex. PW36/DA which is a letter addressed to the Dy.Commissioner of Police, Anti Corruption Branch, GNCT Delhi by Insp. K.P. Singh, AC Branch regarding complaint u/s 195 Cr.P.C. in case FIR No. 41/08, U/ss 7/8/13 POC Act read with Sections 186/353/332/309/384/506/120B IPC, PS AC Branch, GNCT of Delhi reflects that all the relevant documents along with their copies and list of witnesses were annexed therewith and the same was sent to PW36/A.S. Cheema, Dy. Commissioner of Police, Anti Corruption Branch to make a complaint against accused Praveen Vats. DCP/A.S. Cheema (PW36) was only to make a complaint against accused Praveen Vats for the offence committed u/s 186 IPC and therefore, even if he reproduced the contents of the forwarding letter (Ex. PW36/DA) in his complaint (Ex. PW36/A) FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 26 of 33 -27- after applying his mind regarding the offence u/s 186 IPC committed by accused Praveen Vats, it does not, in my opinion, indicate nonapplication of mind. The contention of the learned counsel for the accused Praveen Vats that PW36/A.S. Cheema was incompetent to file the complaint as he was not the immediate superior of Insp. Nand Kumar also is without force as Section 195(1) Cr.P.C. enunciates that "No court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of the IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Section 195(1) no where postulates that the complaint if not filed by the concerned public servant, then it can only be filed by his immediate superior. As per Section 195(1), the concerned public servant should be administratively subordinate to the complainant. Hence, the complaint filed by DCP/A.S. Cheema (PW36) squarely meets the requirement of section 195(1) Cr.P.C. So far as the argument of learned counsel for the accused that since the complaint was not directly filed before this court as stipulated under Section 195 Cr.P.C. the complaint (EX. PW36/A) cannot be considered as valid is concerned, the same deserves to be outrightly rejected. The bare perusal of the complaint ( Ex. PW36/A) shows that the same is addressed to the learned Predecessor of this Court and is only routed through the IO. It is not the case that no complaint addressed to the court was filed.
29. It was also argued by learned counsel for accused Praveen Vats that since accused Praveen Vats at the relevant time was discharging official duty, therefore, by virtue of Section 197 of Cr.P.C., sanction was to be obtained. Also that, in the absence of the mandatory requirement of sanction u/s 197 Cr.P.C., charge u/s FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 27 of 33 -28- 186 IPC against accused Praveen Vats must fail. This argument also deserves to be rejected as use of expression "Official Duty"
implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. In the case of Ramkubhai Valkubhai Dhakhda Vs. State of Gujarat reported as (2006) 1 GLR 613, the complainant who was the Chief Officer of Rajula Municipality had been directed by the accused who was the President of Rajula Municipality to sign a cheque as Chief Officer of Municipality. When complainant brought to the notice of the accused that being a Chief Officer he would sign the second cheque only when the first cheque is presented before the bank, the accused assaulted the complainant with a knife and caused hurt as well as administered threat to kill. In the judgment it was observed as under: "Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 28 of 33 -29- case."
In the aforesaid case (supra), it was thus held that, "Examining the allegations made as it is, it is apparently clear that the act alleged to assault the complainant with knife to cause hurt, abusing him and to threaten him for killing by no stretch of reasoning could be said to be an act falling in the range of the official duty of the President of Municipality."
30. Similarly, in the instant case, assuming that accused Praveen Vats was doing his official work when the second raiding team came to make enquiries and to take him to PS ACB, assaulting the members of the second raiding team cannot by any stretch of imagination, come within the definition of "acting in discharge of his official duty". Therefore, I am of the view that no sanction as mandated u/s 197 Cr.P.C. was required in the instant case and the complaint (Ex. PW36/A) thus filed against the accused Praveen Vats was sufficient to put the criminal law in motion for trial of this accused for the offences u/ss 186/332/353 IPC.
APPRECIATION OF EVIDENCE
31. Adverting to the evidence produced by the prosecution to prove that accused Praveen Vats had resisted his apprehension by the second team comprising of Insp. Nand Kumar, Insp. Dharambir Singh (PW39) and SI Bal Kishan (PW31) and had assaulted Insp. Nand Kumar and SI Bal Kishan (PW31), the prosecution examined the victim SI Bal Kishan (PW31) and ACP Dharambir Singh (PW39). PW31/SI Bal Kishan testified that on 17.12.2008, he was posted in PS ACB and at about 1:30 pm, he along with Insp. Dharambir (PW39), Insp. Nand Kumar (deceased) and Const. Krishan Kumar had left for raid from PS ACB. On their way to PP Pul Prahalad Pur, PS Sangam Vihar, they were informed by Insp. Nand Kumar (deceased) regarding the success of the raid FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 29 of 33 -30- conducted by Insp. Hira Lal (PW34). They arrived at PP Pul Prahalad Pur at about 2:45 pm and came to know that accused Praveen Vats was in his office. They went inside, introduced themselves and asked accused Praveen Vats to accompany them to PS ACB in reference to to the raid conducted by Insp. Hira Lal (PW34). However, accused Praveen Vats asked them to show the copy of the FIR and make an arrival entry in the DD register. When he was informed that he was to be taken only for enquiry, accused Praveen Vats/SI threatened that if he was taken forcibly, he will kill himself. Insp. Nand Kumar (deceased) held accused Praveen Vats by his hand and directed him outside the room. In the meantime, the accused picked up a poker from his table and tried to stab himself in the stomach. At this, he (SI Bal Kishan) immediately sprang towards the accused to hold the poker which caused a scratch in his left palm. The poker landed on the right thigh of the accused and during the scuffle, Insp. Nand Kumar (deceased) fell down and broke his spectacles. After this incident, SHO Sangam Vihar and ACP SubDivision arrived at PP Pul Prahalad Pur. Accused SI Praveen Vats wrote a DD entry in his own handwriting in the DD register. He handed over the poker to Insp. Dharambir Singh (PW39). Accused Praveen Vats was brought to PS ACB and was handed over to Insp. Ranbir Singh (PW38)/IO of the case. In his crossexamination by learned Addl.PP for the State, SI Bal Kishan (PW31) stated that he did not remember having informed the IO that accused Praveen Vats had threatened to kill himself or to kill the officials of PS ACB. He admitted that the accused Praveen Vats had stabbed himself voluntarily with a poker in his thigh. He categorically denied that the accused Praveen Vats had attacked the officials of PS ACB including him. He also refuted having stated to the IO that accused Praveen Vats/SI had physically assaulted during enquiry.
FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 30 of 33 -31-
32. The version of SI Bal Kishan (PW31) that accused Praveen Vats did not assault him and Insp. Nand Kumar was also supported by PW39/ACP Dharambir Singh. He testified that when Insp. Nand Kumar and SI Bal Kishan tried to apprehend accused Praveen Vats, a scuffle ensued between three of them. In the scuffle, accused stabbed himself on his thigh, Insp. Nand Kumar fell down on the ground due to which his spectacles broke and SI Bal Kishan (PW31) received poker injuries in the palm of one of his hands. The poker got bent in the scuffle. He took the poker from the hands of the accused and pacified him. In his crossexamination also by learned counsel for the accused Praveen Vats, he admitted that no intentional injuries were caused by accused Praveen Vats to any member of the raiding team and that the injuries were sustained by the members of the raiding team in a scuffle when they tried to snatch the poker. The spectacles of Insp. Nand Kumar broke when he slipped in the scuffle.
33. From the testimonies of PW31/SI Bal Kishan and PW39/ACP Dharambir Singh, it is evident that neither of them supported the story of the prosecution that the accused Praveen Vats had assaulted SI Bal Kishan (PW31) and Insp. Nand Kumar (deceased). It is also pertinent to mention here that even though Insp. Nand Kumar could not be examined due to his death, the prosecution also failed to examine Const. Krishan Kumar (part of the second team) who could have possibly shed light on this incident.
34. Thus, in my opinion, the prosecution has failed to prove the charges under Sections 332 and 353 IPC against the accused Praveen Vats that he had assaulted Insp. Nand Kumar and SI Bal Kishan and had used criminal force against them while they FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 31 of 33 -32- were discharging their public duties beyond reasonable doubt.
35. So far as the offence u/s 186 IPC is concerned, it is evident from the testimonies of SI Bal Kishan (PW31) and ACP Dharambir Singh (PW39) that neither the copy of the FIR was shown nor they made any arrival entry in the DD register of PP Pul Prahalad Pur, PS Sangam Vihar before taking any action. Rather, SI Bal Kishan (PW31) in his crossexamination testified that he did not remember having stated to the IO that accused Praveen Vats had threatened to kill himself or to kill officials of PS ACB. Both SI Bal Kishan (PW31) and ACP Dharambir Singh (PW39) testified that before leaving PP Pul Prahalad Pur, PS Sangam Vihar, accused SI Praveen Vats wrote a DD entry in his own handwriting in the DD register which was neither read nor seized by ACP Dharambir Singh. Accused Praveen Vats too in his statement u/s 313 Cr.P.C. had very specifically stated that when he requested the officials who had informed him that he was involved in a corruption case to serve him a notice u/s 150 Cr.P.C. or 41.1 Cr.P.C., they had started forcibly dragging him. He had then called SHO PS Sangam Vihar and area ACP and had lodged DD No.14 in DD register of PP Pul Prahalad Pur. The DD No.14 recorded in the roznamcha of PP Pul Prahalad Pur, PS Sangam Vihar which was seized by PW38/Insp. Ranbir Singh shows that accused Praveen Vats had soon after the second incident recorded DD No.14 at 3:50 pm wherein he had mentioned that he was being forcibly taken by the staff of Anti Corruption regarding some allegation of corruption and that when a crowd got collected, the crowd was also threatened and thereafter, he was assaulted by the staff of ACB. It is also pertinent to mention here that despite the allegations against accused Praveen Vats that he had caused obstruction and had assaulted SI Bal Kishan (PW31) and Insp.
FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 32 of 33 -33- Nand Kumar (deceased) in PP Pul Prahalad Pur, PS Sangam Vihar, no FIR was lodged against him in PS Sangam Vihar especially when it was the case of the prosecution that accused Praveen Vats had also called SHO PS Sangam Vihar to PP Pul Prahalad Pur at that time.
36. In view of the aforesaid, I am of the considered opinion that the prosecution also failed to prove the charge u/s 186 IPC against accused Praveen Vats beyond reasonable doubt.
CONCLUSION
37. Resultantly, accused Jitender Chaturvedi is acquitted for the offences punishable u/s 8 PC Act r/w Sec.120B IPC and Sec. 120B IPC. Accused Praveen Vats is acquitted for the offences punishable u/ss 7 & 13(1)(d) of the PC Act r/w Sec. 120B IPC and Secs.120B/332/353/186 IPC. Accused Anil Kumar is acquitted for the offences punishable u/ss 7 & 13(1)(d) of the PC Act r/w Sec. 120B IPC and Sec. 120B IPC.
File be consigned to Record Room.
Announced and signed in the open Court on 25th May, 2016 (HEMANI MALHOTRA) Special Judge(PC Act)(Central)05, Tis Hazari Courts, Delhi FIR No. 41/2008, PS ACB in case Jitender Chaturvedi & Ors. Page No. 33 of 33