Indian Kanoon - Search engine for Indian Law

Delhi District Court

State vs . Rakesh Kumar & Ors. Cnr No. Dlct11 ... on 10 October, 2019

In the court of Special Judge (PC Act) (CBI)­17, Room no.402, 4th Floor,
                Rouse Avenue District Court, New Delhi

State Vs. Rakesh Kumar & Ors.              CNR No. DLCT11 :000327­2019
I.D. No. 76/2019                           C.C. No.            :01/26.3.2019
FIR No. RC­1(S)/2006/SIU­1                 date of institution : 27.12.2007
Branch : CBI/SCR­I/New Delhi               decision reserved on: 20.09.2019
U/ss : 120­B r/w section 420,468,          date of decision    : 10.10.2019
       471 IPC and 13(2) r/w
       sec.13(1)(d) of the Prevention
       of Corruption Act, 1988

In the matter of ­

State
(through/Investigated by Central Bureau
of Investigation, New Delhi)
                                                             ...State

                   Versus

1. Rakesh Kumar s/o Om Prakash Gupta
r/o C­II/42, Safdarjung Development Area,
New Delhi.

2. Shiv Kumar Sharma s/o Mast Ram Sharma
r/o 61­I, Sarabha Nagar, Ludhiana,Punjab

3. Balwinder Bawa/Balwinder Kaur
w/o Sh. Jasbir Singh
r/o H.No. 5256/6H, Gali No.20, Dhaba Road,
near Shri Harkishan Public School,
New Shimla Puri, Ludhiana, Punjab

4. Gurbhej Singh s/o Sh. Balwinder Singh
r/o Village and Post Office Budha Theh,
Tehsil & District Amritsar, Punjab
                                                              ...Accused

[C.C. No.01/2019        State Vs. Rakesh Kumar & 3 Ors.            Page 1 of156 ]
                             JUDGMENT

1.1 (Brief introduction to case of parties)­ Succinctly, prosecution case is that in the year 2005 (a) Hargulab Singh (since approver), (b) accused Rakesh Kumar (a public servant), Director General, ICCR, (c) accused Shiv Kumar, (d) accused Gurbhej Singh and (e) accused Balvinder Bawa hatched criminal conspiracy, consequent thereto a Bhangra group by name 'Mehak Punjab Di' of Leader of Hargulab Singh was applied, it was annexed with four photographs, visiting card, entry identity card pass of Jallandhar Doordarshan, then further supplemented with forged, created, fake photographs, staged VCDs, album, news­clippings, commendation certificates (purported to have been issued by many religious & social/cultural organisations) and then it was got empaneled with ICCR, New Delhi, by bribing & other considerations to accused/public servant by Hargulab Singh through other accused Shiv Kumar Sharma. Then, 15 persons under that group 'Mehak Punjab Di' were sent on official passports and expenses of ICCR to Berlin, Germany for performance as artists that too creating hurriedly deemed to be requirement there. 9 persons out of them had defected in Germany, which was already planned by accused persons & agreed amount was also paid to Rakesh Kumar through Shiv Kumar but remaining 6 persons came back India.

Those defected 9 persons were ­(i) Hargulab Singh, (non­artist, leader, later he came back India, since approver). (ii) Randeep Singh, special­able person (non­artist, he is son of Hargulab Singh) (iii) Satnam Singh (non­artist, his actual name is Sukhdeep Singh alias [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 2 of156 ] Saba, he is son of accused Balvinder Bawa; his application form was filled in the name of Satnam Singh but of his actual photograph), (iv) Gurmeet Kaur alias Sonam Gill (she is wife of Sukhdeep Singh and daughter­in­law of Balwinder Kaur),(v) Satnam Singh alias Pappi (non­ artist), he is relative of Balwinder Bawa (vi) Amanpreet Singh (non­ artist) (vii) Jagdeep Singh (non­artist), (viii) Prabhjot Singh (non­artist) [the last three were inducted in group by accused Shiv Kumar Sharma] and (ix) Aman Jeet Singh, [a relative of accused Gurbhej Singh, he was inducted in group at instance of accused Gurbhej Singh & Shiv Kumar Sharma], they had paid amount through Shiv Kumar to Rakesh Kumar to facilitate them in the board and then defection.

The other six members in the group visited Berlin, Germany and came back India are­ (I) Shiv Kumar (since accused), as Manager/non­artist (inducted at instance accused Rakesh Kumar), (II) Sukhvinder Singh/non­artist, technician/PW57 (inducted by PW12 Ms Kehkansha Tyagi) (III) Pawan Kumar/Artist/PW3 (IV) Mandeep Singh/Artist (V) Jaspreet Singh Nokewal/Artist and (VI) Raji/Artist/PW55. Since the group Mehak Punjab Di was registered with ICCR but its registration was got done on the basis of forged and created fake document vis a vis the group of 15 members were sent to Berlin, Germany, out of which 9 persons had defected (but one of them PW4 Hargulab Singh came/sent back India later­on). However, it had cheated/caused wrongful losses of Rs.6,79,973/­ (i.e.Rs.5,00,940/­ air­ fares + Rs.1,50,937/­ dearness allowances + Rs.28,096/­ of hotel accommodation & other miscellaneous expenses) to Government exchequer. Since accused Rakesh Kumar was public servant [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 3 of156 ] appropriate permission was taken to register and investigate the case. The appropriate sanction u/s 19 of the Prevention of Corruption Act, 1988 to prosecute him was also accorded by President of India.

1.2 On the other side, the accused Rakesh Kumar's case is that he is innocent, he followed the established conventional official norms, the selection process was within the domain of experts vis a vis he has no role or influence decision for empanelment of Mehak Punjab Di; the allegations of criminal misconduct or paying the amount are false and fabricated. He has no role of defection of 9 persons. There has been official Plan of Action, accordingly it was acted upon. Accused Shiv Kumar took ground of plea of alibi, particularly that on alleged dates of filing of application on 27.4.2005 or filling in up of applications for formal passport on 5.9.2005, he was in his office in the Punjab Agriculture University, Ludhiana, being a government servant (Draftsman), he is not involved in any wrong. CBI officer has forcibly entered into his house, he was brought in custody and his articles were removed from his house without process of law. Accused Gurbhej Singh's case is that neither there is any admissible evidence against him nor his presence at office of ICCR or Zimindara Dhaba at any point of time to cull out any allegations against him and he never remained associated with any group. Similarly, Balvinder Bawa's case is that neither her presence is established at any place to make out case of conspiracy or getting the commendation certificates or newspaper bulletin or photographs nor any incriminating were recovered from her residence as CBI never visited her at residence. Their common stand is that it is all brain child of Hargulab Singh to implicate the accused persons, particularly he [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 4 of156 ] wanted to rid of allegations against him and to save himself under route and the shield of approver, he bargained immunity to implicate accused persons.

1.3 This introduction is given to reflect at glance case of each parties since there is voluminous multi­folder documentary records, each document/folder having many layers of evidence.

2.1 (Matrix of case as set out in police reports) - There is main charge­sheet followed by supplementary charge­sheet. The supplementary police report is accompanying handwriting expert opinion. The main police report was against five accused, out of them Hargulab Singh became State witness by way of tender of pardon. The investigation has been kept open by the investigating agency in respect of eight persons, who defected from Berlin, Germany and they are yet to be investigated. The facts discovered in investigation have been set out in the police reports.

2.2 Rakesh Kumar, member Indian Foreign Services, was posted on deputation as Director General, Indian Council for Cultural Relations (ICCR), I.P. Estate, Azad Bhawan, New Delhi from Ministry of External Affairs, New Delhi from 19.08.2003 to 12.09.2005. In order to promote Indian culture abroad, the cultural groups/artists of divergent cultural fields get them empaneled with ICCR. Then empaneled groups/artists are sent abroad as per plan of action for ICCR to promote Indian culture.

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 5 of156 ] In the year 2005, Hargulab Singh learned that Shiv Kumar, a draftsman of Punjab Agricultural University, Ludhiana, could manage to send people abroad but for a monetary consideration. Hargulab Singh is a farmer in Village Ladhian Khurd, District Ludhiana, Punjab and he was searching opportunity to send his handicapped son Randeep Singh abroad. Then Hargulab Singh contacted Shiv Kumar Sharma (through Constable Gurbhej Singh of Punjab Armed Police, since he is confidant of Shiv Kumar Sharma). Shiv Kumar Sharma conspired with Hargulab Singh to send Randeep Singh abroad through Rakesh Kumar, DG, ICCR, since Shiv Kumar Sharma had closed proximity. To achieve it, Shiv Kumar Sharma confident to Hargulab Singh to form a Bhangra Group for this purposes, who in turn conspired with Balwinder Bawa @ Bawa, a local Punjabi Singer, she also agreed to provide the artists and other logistic support for the formation of Bhangra group.

2.3 Therefore in March 2005, Hargulab Singh alongwith Shiv Kumar Sharma and Constable Gurbhej Singh visited office of ICCR, New Delhi. Shiv Kumar Sharma had introduced Hargulab Singh as his friend to Rakesh Kumar, Director General, ICCR. It was discussed about empanelmengt of a Bhangra group in the name of Hargulab Singh. Hargulab Singh informed Rakesh Kumar, on inquiry, that he does not know Bhangra nor he had any dance group. Rakesh Kumar forwarded Hargulab Singh to Kehkashan Tyagi, Programme Officer, ICCR, for ascertaining the formalities of empanelment. Hargulab Singh had photographs in album but photographs were not depicting Hargulab Singh nor of his performance, he was advised by Ms Kehkashan Tyagi that the group cannot be empaneled. Then, Rakesh [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 6 of156 ] Kumar asked Hargulab Singh to bring certificates and photographs in the name of group, so that it could be empaneled. While moving back to Ludhiana, Shiv Kumar Sharma talked Hargulab Singh that a group will be empaneled in his name but amount of Rs. 1 lakh is to be paid to Rakesh Kumar. Hargulab Singh handed over Rs.1 lakh to Shiv Kumar Sharma at Ludhiana in order to get empaneled his group with ICCR.

2.4 It was 27.04.2005, they [Shiv Kumar Sharma , Const. Gurbhej Singh and Hargulab Singh] came in the office of Rakesh Kumar, where Shiv Kumar Sharma gave that Rs. 1 lakh to Rakesh Kumar during presence of Hargulab Singh for the empanelment of the group. Hargulab Singh was not having any Bhangra dance group. However, he furnished an application on 27.04.2005 under his signature for empanelment of a Punjabi folk dance group "Mehak Punjab Di", duly supported by 4 photographs of dance group, a visiting card of "Mehak Punjab Di" and entry card of Doordarshan Kendra, Jallandhar. It was in pursuance all understandings and the amount paid. This application form was filled in by Shri Sunil Bhalla, Programme Officer, ICCR, since he was asked so but the particulars were filled in as per information given by Hargulab Singh. Since it was advised by Rakesh Kumar, therefore, accused Hargulab Singh alongwith Balwinder Bawa @ Bawa got prepared photo album of performance "Mehak Punjab Di" recorded at two marriage palaces at Rahon Road, Ludhiana, two press release of Punjabi weekly 'Manpreet Bulletin' of ante dates 8.5.2003 and 26.8.2004, and commendation certificates of many social and religious organisations [namely 31st National Games, Punjab 2001; Mela Pauna Hari Da 11­15th April 2005; Samaj Sudhar Committee Mukerian; Shahid [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 7 of156 ] Dilbagh Singh Yadgari Sabhachar Mela]. In addition, VCDs were also got prepared. The said record of photograph­album, VCDs, copies of certificates, press clipping were furnished in the office of ICCR in support of application after about one month from 27.4.2005 of application for empanelment. However, such record of certificates, photos, press clippings, VCDs were discovered to be created and forged.

2.5 Shiv Kumar Sharma and Hargulab Singh had been regularly visiting Rakesh Kumar for empanelment of "Mehak Punjab Di". In their visit in May 2005, Rakesh Kumar suggested Shiv Kumar that at the maximum, there could be three persons who can defect from the group to the foreign country. They could be Amanjeet Singh, brother­in­law of Const. Gurbhej Singh , Randeep Singh s/o Hargulab Singh and Satnam Singh @ Puppi, a relative of Balwinder Bawa @ Bawa. Shiv Kumar Sharma, Hargulab Singh and Balwinder Bawa @ Bawa also initiated training of Bhangra/dance for the members of group at Punjabi Bhawan, Ludhiana, under the guidance of Coach Tehal Singh Kheeva, a Bhangra artist of Ludhiana. Shiv Kumar Sharma had also viewed training sessions to monitor the progress of the training. Shiv Kumar Sharma asked Hargulab Singh to collect the air fare from the genuine artists for visiting abroad and Rs.7.5 lakhs each from those persons, who intend to defect from Germany. Shiv Kumar Sharma conceded to request of Hargulab Singh to reduce this amount to Rs. 5 lakh for his son Randeep Singh, since Hargulab Singh had already incurred expenditure for the formation of this group. Moreover, Balwinder Bawa @ Bawa also started exploring the persons to take them to Germany [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 8 of156 ] and she contacted Jaswant Singh Cheema, Ajeet Singh, Jaspal Singh r/o Talwandi Kuka and Amarjit Singh r/o Amritsar. She also collected Rs. 7.5 lakhs from Jaspal Singh, Rs. 85,000/­ from Amarjit Singh r/o Amritsar for sending their children namely Satnam Singh @ Puppi and Satnam Singh @ Kaka abroad. She also collected Rs. 4 lakhs from Jaswant Singh Cheema and Rs.50,000/­ from Ajeet Singh @ Jeeta Pawar for sending them abroad. She also collected Rs. 1.25 lakhs from the artists Mandeep Singh, Gagandeep Singh and Jaspreet Singh Nokewal for sending them with the dance group. She handed over Rs. 7.5 lakhs to Shiv Kumar Sharma for Satnam Singh @ Puppi and Rs. 5 lakhs for her son Sukhdeep Singh @ Saba @ Satnam Singh. Hargulab Singh also paid Rs.5 Lakhs to Shiv Kumar Sharma in two installments of Rs. 2.5 lakhs each for sending his son Randeep Singh abroad. Ct. Gurbhej Singh also paid Rs. 5 lakhs to Shiv Kumar Sharma for his relative/brother­in­law Amanjit Singh. It was end of July 2005, when Hargulab Singh and Shiv Kumar Sharma met Rakesh Kumar in his office at ICCR, New Delhi to expedite empanelment of Group and for sending it abroad. Rakesh Kumar assured them that the group will be sent abroad before his repatriation from ICCR.

2.6 On 24.08.2005 Sh. M.S. Grover prepared the Expert Sub­ Committee minutes for seeking approval of President, ICCR, however, the said note was replaced by another note of 25.08.2005 by Sh. R.M. Aggarwal under the instructions of Rakesh Kumar and in the note of 25.08.2005, there was no forwarding of the note for approval by President, ICCR but it was finally for approval by Rakesh Kumar, DG. Even the name of Ms. Kanak Chaturvedi of Hindustani Light Music and [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 9 of156 ] another name of Ms. Kalpana Naik of Oddisa Dance were approved despite their rejection by the experts. Moreover, in order to avail the hospitality of accused Hargulab Singh, accused Shiv Kumar and Rakesh Kumar visited Ludhiana on the pretext of viewing the performance of Mehak Punjab Di, Ms. Kehkashan Tyagi had also reached Ludhiana to view the performance of Mehak Punjab Di. Hargulab Singh had made arrangement in Zimindara Dhaba for the performance of group of Mehak Punjab Di and also extended hospitality to Rakesh Kumar and Kehkashan Tyagi. Kehkashan Tyagi was got boarded in Hotel Maharaja. Hargulab Singh had shopping to Kehkashan Tyagi. The official letter dated 31.08.2005 of empanelment of Mehak Punjab Di was personally delivered by Kehkashan Tyagi to Hargulab Singh, which was subsequently recovered from the house of Hargulab Singh. [The official letter of empanelment of Mehak Punjab Di was officially posted on 09.09.2005, it was received back to ICCR office on 19.09.2005].

2.7 It was evening of 01.09.2005, Rakesh Kumar, Shiv Kumar Sharma and Kehkashan Tyagi reached the venue Zimidara Dhaba/hotel to view the performance of the group Mehak Punjab Di. The performance of the group was not found satisfactory for want of proper stage, costumes and Bhangra dress. It was decided to watch the performance of the group on next day/2.9.2005. While coming back from Zimidara Dhaba/Hotel, accused Rakesh Kumar through Shiv Kumar Sharma asked Hargulab Singh to arrange two girls from the group for their night stay with Rakesh Kumar. Then Hargulab Singh and Balwinder Bawa @ Bawa sent two artists 'A' & "N' ( name with­held, [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 10 of156 ] they are PW9 and PW10) with Rakesh Kumar and Shiv Kumar Sharma at Hotel Classic Retreat, Ludhiana. Shiv Kumar Sharma tried to seek sexual favour from 'N' in the room of Hotel Classic Retreat, Ludhiana but he did not succeed on resistance of the girl. However, Rakesh Kumar had sexual favour from 'A' in Hotel Classic Retreat, Ludhiana, to make favour selection of the group for abroad. On the morning of 02.09.2005, Ct. Gurbhej Singh picked up those two girls from Hotel Classic Retreat and brought to Hargulab Singh and Balwinder Bawa at Sherpur Chowk. On 02.09.2005, there was performance of the group "Mehak Punjab Di", it was reviewed by Rakesh Kumar, Shiv Kumar Sharma, Kehkashan Tyagi and others. Kehkashan Tyagi was asked by Rakesh Kumar that only those persons would go abroad with the group, whose names would be given by Shiv Kumar Sharma. In the evening, Shiv Kumar Sharma called Hargulab Singh at his residence and informed him that the group had been selected and will be sent out to Germany soon. Hargulab Singh was also asked by Shiv Kumar Sharma to arrange and pay the balance payment. Since Balwinder Bawa's name was in the list given by Shiv Kumar Sharma, then on 03.09.2005, Balwinder Bawa and Hargulab Singh went the gas agency of Shiv Kumar Sharma to convince him to include name of Balwinder Bawa in the group visiting abroad. When Shiv Kumar Sharma did not agree, then Balwinder Bawa threatened to produce those two artists girls before the police of their sexually exploitation by Rakesh Kumar. Shiv Kumar Sharma talked to Rakesh Kumar on telephone, Rakesh Kumar directed him to include names of son and daughter­in­law of Balwinder Bawa in the group, instead of Balwinder Bawa but amount of [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 11 of156 ] Rs. 7.5 lakhs was to be paid for leaving them abroad. Shiv Kumar Sharma had also inducted three more non­artists persons ­ namely Prabhjot Singh, Amanpreet Singh and Jagdeep Singh ­ in the group. On 04.09.2005, Shiv Kumar Sharma called Hargulab Singh and others near the gate of Punjab Agricultural University, Ludhiana, for the balance payment and to collect application forms for issuance of official passports. Hargulab Singh gave the balance of Rs. 2.5 lakhs to Shiv Kumar Sharma for sending his son Randeep Singh. Sukhchain Singh (brother­in­law of Hargulab Singh) paid Rs. 30,000/­ to Hargulab Singh , who, in turn, gave it the same to Shiv Kumar Sharma for air tickets. The details of money received by Shiv Kumar Sharma from those persons find mentioned in his slip pad recovered later­on during search. On 04.09.2005 itself, the ordinary passports and partially filled applications of the members of the dance group were given to Shiv Kumar Sharma at the Chowk, Ludhiana, for issuance of official passports. As per instructions of Shiv Kumar Sharma, Hargulab Singh wrote name "Satnam Singh" in the application of Sukhdeep Singh @ Saba for issuance of official passport. Shiv Kumar Sharma then affixed the photograph of Sukhdeep Singh on the said application. Shiv Kumar Sharma also showed a briefcase (to Hargulab Singh and Balwinder Bawa) that he was going to pay Rs. 25 lakhs to Rakesh Kumar.

2.8 On 05.09.2005, Shiv Kumar Sharma took Rs. 25 lakhs for making payment to Rakesh Kumar. The applications for issue of official passports were filled in by Shiv Kumar Sharma and Ms Kehkashan Tyagi in the dining room of Rakesh Kumar. Shiv Kumar Sharma made telephone calls to Hargulab Singh and Balwinder Bawa from the office [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 12 of156 ] telephone of Rakesh Kumar to seek/confirm details of identification marks of group members. On 7/8­09­2005, Ct. Gurbhej Singh collected photographs and VCDs of the performance done on 02.09.2005 at Zimidara Dhaba/hotel and delivered it to Mrs. Kehkashan Tyagi in her office at ICCR New Delhi for publicity purposes.

However, the few persons, who had paid the money but were not in the list to sent abroad are Sukhchain Singh, Gaganeep Singh, Satnam Singh @ Kaka S/o Amarjit Singh, Jaswant Singh Cheema and Ajeet Singh @ Jeeta Pawar. The final composition of the 15 selected members of the dance group are ­ (A) 5 members­ Amanjeet Singh [brother­in­law of Gurbhej Singh], Amanpreet Singh, Jagdeep Singh, Prabhjot Singh. (known of Shiv Kumar Sharma) and Shiv Kumar/Manager; (B) 2 members ­ Hargulab Singh and his son Randeep Singh; (C)3 members ­ Sukhdeep Singh @ Saba @ Satnam Singh, Gurmeet Bawa @ Sonam Gill and Satnam Singh @ Puppi, [the son, daughter­in­law and relative respectively of Balwinder Bawa]; (D) 1 member ­ Sukhwinder Singh/Technician [from Delhi included in the group by Kehkashan Tyagi] and (E) 4 members ­ Pawan Kumar, Ms Raji, Mandeep Singh and Jaspreet Singh Nokewal [all four professional Bhangra artists].

2.9 On the eve of visit of Chief of Air Staff, India, to Germany, a dinner was to be hosted by the Indian Embassy, Berlin on 14.09.2005. The German side had already invited and it was decided to hold a brief cultural program during this function. Mr. Rajshree Ramesh, an Indian Bharat Natyam dancer, residing in Berlin was engaged to give a [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 13 of156 ] performance of about 20 minutes. However, Rakesh Kumar , created a false requirement for the performance of "Mahak Punjab Di" in Germany on 14th and 15th September 2005 by prevailing upon the officials of Indian Embassy at Berlin, Germany namely Shri Sudhanshu Pandey, Director, Tagore Centre, Berlin and Shri Amit Dasgupta, the then Charge d' Affairs of Indian Embassy, Berlin. As per Plan of Action of ICCR for the year 2005­06 and correspondence with Indian Embassy, Berlin, it has been established that there was no requirement of such group in Berlin, in September 2005. However, Rakesh Kumar for the purpose to facilitate defect of group members, for a monetary consideration and other favour, directed to send a 15 member group of incompetent, inexperienced and untrained Punjabi fold dancers to Germany on Government sponsorship before his transfer from ICCR. Sukhdeep Singh @ Saba was allowed to obtain official passport in the name of Satnam Singh and was allowed to travel with the group on his fake passport by way of impersonation. All the necessary requirement and formalities inclusive of administrative arrangements of official passport, political clearance, visa and flight booking etc. for 15 members of the group was done in hurry from 05.09.2005 and all the circumstances are showing that Rakesh Kumar intentionally shown official favour in favour of the group which was led by Hargulab Singh. The letter dated 05.09.2005 by Rakesh Kumar in this regard is reflecting the intentions and deliberations of accused Rakesh Kumar. Moreover, there is also undue favour shown in favour of Shiv Kumar Sharma by sending him as a group manager, particularly Shiv Kumar Sharma was neither a performer nor official of ICCR, he was accommodated in a [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 14 of156 ] hotel at Berlin for which he was not entitled for. On 11.09.2005 Kehkashan Tyagi included Sukhwinder Singh as technician in the group. It was 12.09.2005 when Rakesh Kumar relinquished the charge of DG, ICCR on his transfer to Ministry of External Affairs, however, on reaching Berlin, Hargulab Singh's son Randeep went away from the airport itself with Palvinder Singh (brother of Hargulab Singh). Thence other 8 members of group had also defected from Berlin, Germany and remaining came India.

3.1 (Charge) - All present four accused namely Rakesh Kumar, Shiv Kumar Sharma, and Ms. Balwinder Bawa @ Bawa, Gurbhej Singh have been charged u/s 120B IPC r/w sections 420, 468 and 471 IPC for allegations that accused no. 1 Rakesh Kumar, being a public servant, while working as Director General of Indian Council of Cultural Relations(ICCR), accused no. 2 Shiv Kumar Sharma, while working as draftsman with Punjab Agricultural University, accused no. 3 Smt. Balwinder Bawa @ Bawa, a local singer and accused no. 4 Gurbhej Singh, Constable while working with Punjab Armed Police alongwith Hargulab Singh (who had turned "approver") on or about March, 2005 onward had entered into a criminal conspiracy by having agreed to do an illegal act of "human trafficking" for sending Amarjeet Singh, Amanpreet Singh, Jagdeep Singh, Prabjot Singh, Randeep Singh, Sukheep Singh @ Saba @ Satnam Singh, Gurmeet Bawa @ Sonam Gill, Satnam Singh @ Puppi (who could not be arrested till date) that too on "government expenses".

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 15 of156 ] It was also alleged that in order to achieve this objective of criminal conspiracy, accused no. 2 Shiv Kumar Sharma using his association with accused no. 1 Rakesh Kumar had agreed to act as conduit between him, a public servant and other co­accused and in furtherance of same, accused no. 2, Shiv Kumar Sharma, accused no. 3 Balwinder Bawa and accused no. 4 Gubej Singh had included other eight co­accused persons (who could not be arrested) in a fake cultural group namely "Mehak Punjab Di" knowing and having reasons to believe that none of them is a genuine artist, against illegal monetary consideration and with a sole motive to facilitate their defection in Germany, a foreign land.

It further alleged that in order to achieve the objective of said criminal conspiracy, accused no. 1 Rakesh Kumar and accused no. 2 Shiv Kumar Sharma, instigated and abetted co­accused Balwinder Bawa @ Bawa to forge and fabricate supporting documents i.e. commendation certificates of various religious and cultural organisations, advertisement in newspaper bulletin, photo album and VCDs, showing fake performances of the so­called bhangra group, which she did, alongwith Hargulab Singh (approver). Thereafter, accused no. 2 Shiv Kumar Sharma and accused no. 4 Gurbhej Singh then used these forged documents fraudulently and dishonestly as genuine and accused no.1 Rakesh Kumar in furtherance of the criminal conspiracy, aided and abetted his other co­accused persons, criminally misconducted himself by abusing his official position for obtaining pecuniary advantage for himself and his other­accused in the form of money and sexual favour from the girls provided to him by co­accused [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 16 of156 ] Balwinder Bawa, had got the group namely "Mehak Punjab Di"

empaneled with ICCR.

Further, in order to achieve the object of the conspiracy hatched amongst all the accused, they had cheated the Government of India, causing wrongful loss to the government by sending such persons, who were not genuine artists to Germany at Government expenses, knowing and having reasons to believe that eight members of this group would defect and would not return, which they did.

3.2 Accused no.1 Rakesh Kumar was also charged under sections 13(2) r/w section 13(1) (d) of Prevention of Corruption Act,1988 and Section 420 IPC for the allegations that he being an officer of Indian Foreign Services and a public servant, with Ministry of External Affairs, Government of India while working as Director General, Indian Council of Cultural Relations (ICCR) on deputation during the period March, 2003 till 12.09.2005, by corrupt or illegal means or by otherwise abusing his official position as a public servant obtained himself pecuniary advantage in the form of Rs.1 lakh on 27.04.2005 and other unspecified amount for himself and for his co­accused Shiv Kumar Sharma and had also obtained "sexual gratification" from the girls provided by co­ accused Balwinder Bawa and he in turn facilitated the empanelment of group viz. Mehak Punjab Di with ICCR on the basis of forged documents, knowing that the group consists of a number of persons who are not genuine artists. He while abusing his official position as public servant facilitated to send the members of this group to Germany on 12.09.2005 by creating false requirement, knowing that a number of [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 17 of156 ] members of the said group were not genuine artists and would defect after reaching Germany, which they did.

Secondly, it was alleged against accused no. 1 that during the aforesaid period, accused no. 1 while being posted as Director General ICCR, and having got a fake group in the name of Mehak Punjab Di, consisting of number of non­artists empaneled with ICCR, facilitated the visit of the members of this group to Germany on "government expenses" knowing that members of this group are being sent to defect after reaching Germany and are not going there to promote Indian culture as per the objectives of ICCR, thereby caused "wrongful loss" to the Government of India to the tune of Rs.5,00,940/­ towards air fare, Rs.1,50,957/­ towards DA and a sum of Rs.28,096/­ towards hotel accommodation.

3.3 Accused no. 2 Shiv Kumar Sharma was also charged u/s 471 IPC and u/s 420 IPC for the allegations that he during the period between March 2005 till 12.09.2005, in furtherance of the criminal conspiracy alongwith other co­accused persons had incorporated himself with other co­accused persons (who have not been arrested till date), and formed a fake cultural group by name of "Mehak Punjab Di"

and for the purposes of getting this group empaneled with ICCR, he had used fake and forged commendation certificates of various religious and social organizations, VCDs, press clippings and photo albums by annexing them with the application for empanelmengt, knowing or having reasons to believe the same to be forged documents, and have dishonestly and fraudulently used them as genuine.

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 18 of156 ] Further, it was alleged against him that during the aforesaid period knowing that he was neither an artist nor an official working with ICCR had included himself alongwith other non­artists i.e. co­accused (who have not been arrested till date), got a fake group consisting of non­artists in the name of Mehak Punjab Di empaneled with ICCR and facilitated the visit of the members of this group including himself, to Germany on "government expenses" knowing that members of this group are being sent to defect after reaching Germany and are not going there to promote Indian culture as per the objections of ICCR, thereby caused wrongful loss to Government to the tune of Rs.5,00,940/­ towards air fare, Rs.1,50,957/­ towards DA and a sum of Rs.28,096/­ towards hotel accommodation.

3.4. Accused no. 3 Ms. Balwinder Bawa @ Bawa was also charged u/s 468 IPC for the allegations that she on or about May, 2005 alongwith one Hargulab Singh (who turned approver) had forged an advertisement in "Manpreet Bulletin", a Punjabi weekly, various commendation certificates of social and religious organizations in favour of the group namely "Mehak Punjab Di" and prepared two VCDs showing fake performance of the bhangra group "Mehak Punjab Di" and photo albums, intending that these documents so forged shall be used for the purposes of cheating.

3.5. Accused no. 4 Gurbhej Singh was also charged under section 471 IPC for the allegations that he alongwith his co­accused after having formed a fake cultural group by the name of "Mehak Punjab Di"

and for the purposes of getting this group empaneled with ICCR, he had [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 19 of156 ] used fake and forged commendation certificates of various religious and social organisations, VCDs, press clippings and photo albums, by annexing them with the application for empanelment, knowing or having reasons to believe the same to be forged documents and have dishonestly and fraudulently used them as genuine.

4 (Prosecution Evidence) - In order to prove the charges, the prosecution got examined 74 witnesses their names, particulars and purposes of their examination are briefly classified as follows (besides brief reference of aim of cross examination on behalf accused persons):­

(i) PW­4 Sh. Hargulab Singh, Farmer (since approver) - Hargulab Singh was named as accused in the police report, however, he was tendered pardon, he become approver. He had also given his statement u/s 164 Cr.P.C (Ex. PW­4/S). He narrates as to how he came into contact with accused Gurbhej Singh and then to accused Shiv Kumar Sharma, which led him to accused Rakesh Kumar. He had keen desire to send his son Randeep Singh, specially­able person, abroad and when he came into contact with Shiv Kumar Sharma in Jan/Feb 2005, he was told that about status and position of Rakesh Kumar, then to achieve the result, a Bhangra Group advised was to be formed. Initially.

On scrutiny it was stated that record/performance of Mehak Punjab Di is not there, but while coming back Ludhiana, accused Shiv Kumar Sharma assured it will be registered, he has to pay Rs.1 lakh, which he paid. On 27.4.2005, Rs.1 lakh was given by accused Shiv Kumar to Rakesh Kumar in office of ICCR Delhi, when formal application for registration of Mehak Punjab Di was filed with a few records, which was an idea floated by them. The accused Shiv Kumar Sharma and Rakesh Kumar were also helping hands in officials way and also otherwise to form that Bhangra group of Mehak Punjab Di. It was advised to have photographs, VCDs, commendation certificates and published news items, then he alongwith Balwinder Bawa got staged two programmes for performance, which were covered by photographs and video, [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 20 of156 ] however, initially photographs were without banner of Mehak Punjab Di then as advised, again performance was recorded by putting banner of Mahak Punjab Di behind the stage, the said albums, VCDs, still photographs were made, later it were furnished to ICCR. PW54 Ajeet Singh alias Jeeta Pawar, singer/artist (an aspirant to go abroad) who had also performed with Balwinder Bawa, was approached by both Hargulab Singh and accused Balwinder Bawa, his earned certificates and its photos were taken on pretext to be required for formalities, besides amount of Rs.50,000/­ in the presence of PW56 Jaswant Singh Cheema. PW 56 was also convinced for sending him to England, he paid amount in installments. Both were also joined in the programme as well as in training sessions given by PW38 Tehal Singh Kheeva. Hargulab Singh, PW56 and accused Balwinder Bawa had also gone to the office of Manpreet Bulletin for edition of news item of Mehak Punjab Di to be used for empanelment. PW4 alongwith Balwinder Bawa got prepared printed commendation certificates by using photographs of certificates, which were filled in by him (PW4) and also by PW56 on request of PW4. Album, photographs, VCDs, two newspaper bulletin were prepared of that show that there is a Bhangra group by name Mehak Punjab Di, which had performed on various occasions, it was also published in two Manpreet Bulletin.

He also gives lengthy details as to how actions were initiated after filing of formal application with ICCR for registration of group Mehak Punjab Di, then in order to succeed in registration, Shiv Kumar, Balwinder Bawa, PW­4 and some witnesses proceeded to acquire certificates and news item, which were got printed from the process vis a vis an album of photographs besides VCDs were prepared. He narrates about the places visited by them and how those certificates were got printed to show that Mehak Punjab Di is actually a Bhangra Group performed at various occasions, whereas the photographs, albums, VCDs, certificates and news bulletin were just creations for the purposes of getting registration of Mehak Punjab Di (viz Ex. PW­4/E1 to Ex. PW­4/E39, Ex. PW­4/M, Ex. PW­4/I1 & Ex. PW­4/I2, Ex. PW­ 4/F1 to Ex. PW­4/F6 and Ex. PW­4/G & Ex. PW­4/H). PW­4 narrates that consideration/amount was paid to Rakesh Kumar through Shiv Kumar Sharma for a Bhangra group to be registered with the ICCR, New Delhi. In connivance of Rakesh Kumar the Experts Sub­Committee was formulated and with the aid, advise and confidence of Rakesh [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 21 of156 ] Kumar, Shiv Kumar Sharma, Balwinder Bawa & PW4 the said Bhangra Group Mehak Punjab Di was got registered. PW4 was leader of Mehak Punjab Di, whereas neither he knew Bhangra nor his son.

After registration of Mehak Punjab Di, a Bhangra group under the leadership of PW­4, he/PW4 organised a performance at Zimindara Hotel, Ludhiana on 01.09.2005 and 02.09.2005, which was inspected by accused Rakesh Kumar as well as other officer PW­12 Ms. Kehkashan Tyagi vis a vis the letter dated 31.08.2005 (Ex. PW­4/R) of empanelment of Mehak Punjab Di was also delivered to him personally by PW­12 Ms. Kehkashan Tyagi at Zimindara Hotel, where rooms were also booked by PW­4, where he has been keeping booking from time to time. He extended hospitality to all of them, besides shopping to PW12, payment for room in separate hotel for Rakesh Kumar & Shiv Kumar. Balwinder Bawa was also present there besides other artists came for performance. PW­4 also deposed as to the circumstances that accused Rakesh Kumar had asked for two girls, he also narrates in respect of PW­9 and PW­10 as deposed by them (as detailed hereinafter in sub­paragraph (xxxix & xL). There was also instructions that the persons to be named by accused Shiv Kumar will be sent abroad and there was threat by Balwinder Bawa that in case her name was not included, then she will produce the said two girls before the police, thence names of her son and daughter­in­law were included in the list of persons to be sent abroad but subject to payment of Rs.7.5 lakhs per person to defected, otherwise air fare.

His further narration comes about persons to be sent to Germany as well as amount to be collected, Shiv Kumar Sharma was conduit for all such channel and some artists were to be included, for which Balwinder also starts searching. Then how application forms were filled in, inclusive of impersonating the name of Balwinder Bawa's son 'Sukhdeep Singh alias Saba' as Satnam Singh in the application forms, the applications forms were with Shiv Kumar Sharma too, he also filled in the forms . PW­4 deposed that he has narrated all the incidents correctly in his knowledge. In addition, amounts were also paid in respect of persons to be defected from India after taking them in Berlin, Germany under the garb of group of artists vis a vis Shiv Kumar Sharma also included in that group, his three persons also defected after visiting Berlin, Germany, since PW­4 alongwith his son Randeep [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 22 of156 ] Singh had also gone there, his son Randeep Singh defected from Berlin immediately reaching there. PW4 and his son had not participated in the performances. PW4's brother was living in Germany, PW4 also defected but due to sickness of father of PW­4, he came back India lateron & joined the investigation. He also gives details as to how names of the persons were included in the group by Balwinder Bawa, Gurbhej Singh and persons included by Shiv Kumar, which came to knowledge of PW4 at later point of time when defected persons met him in Gurudwara in Germany and disclosed it vis a vis for each person to be defected from Berlin amount was paid of Rs.7.5 lakh person except PW4 paid Rs.5 lakh, since he had invested money for registration of Group Mehak Punjab Di and amount collected by Balwinder Bawa was also handed over to Shiv Kumar Sharma, who had also shown collected amounts in the brief case to be delivered to Rakesh Kumar Sharma. PW4 had handed over original record/commendation certificate to Balwinder Bawa, when departure was made from Delhi and its copies (Mark­Z1 to Z9) were furnished in support of application for empanelment.

[The testimony of PW­4 has been challenged on all counts that he is an approver, and the testimony of PW­4 is contradictory and non­ convincing, it is not getting corroboration from other evidence. On the one side, he is brain behind all episode but he is implicating others at the instance of CBI in order to get rid of himself from the trail of circumstances against him and to self­serve his own cause, he falsely named accused persons.].

(ii) PW­2 Sh. Raj Kumar, Real Estate Agent - to establish that about antecedents of PW­2 vis a vis as to how he came into contact with Shiv Kumar, whom PW­2 dealt friendly as well as in commercial transaction in buying the plots for Shiv Kumar, his friends, relatives and for others. Accused Shiv Kumar had relation with several IPS officers namely Sarabjeet Singh, Mr. Siddiqui and many more and by using such contacts, accused Shiv Kumar Sharma got several persons employed in Punjab Police, even his three nephews as well as son of an acquaintance of PW­2, even PW­2 had paid Rs. 2 lakh for getting employment for son of his friend in Punjab Police. Moreover, accused Gurbhej Singh also deputed as gunman cum driver for Shiv Kumar because of his relations with senior police officers, Shiv Kumar had also [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 23 of156 ] bought benami property in the name of Gurbhej Singh through PW­2. PW­2 further narrates that he knew the accused Rakesh Kumar since he used to attend parties and functions hosted by Shiv Kumar, even PW­2 knew about booking of hotel for Rakesh Kumar as well as his visits at Maharaja Hotel and Zimindara Dhaba, Ludhina, where accused Rakesh Kumar used to be provided girls to stay with him by Shiv Kumar as well as by Balwinder Bawa. In this way, many facts are narrated by PW­2 to show that not only knew Shiv Kumar but he is one of the well acquainted person vis a vis he knows about the inter­se relations of Rakesh Kumar, Shiv Kumar, Gurbhej Singh and PW­2 had also lent Rs. 1 lakh to Gurbhej Singh to be given to Shiv Kumar for sending Gurbhej Singh's brother­in­law abroad. He was told about sending of persons abroad under the disguise of Bhangra Group by using contact with Rakesh Kumar as well as Rs. 7.5 lakhs was charged per person to send abroad, he also knew fact of 14/15 persons had left India under that occasion. Gurbhej Singh had also visited Delhi to see off his brother­in­law Amandeep Singh in that group, Shiv Kumar also told him that many more persons namely Satnam Singh, Prabhjot Singh, Pawan Kumar, Jagdish Singh, Raji, Amandeep Singh, Hargulab Singh and many more had also gone abroad in that group, and these facts were disclosed to PW­2 because of sweet relations. In addition, PW­2 knows about the writings of accused Shiv Kumar, he was put to certain diaries/writings as well as application forms for issuance of official passports written by Shiv Kumar particularly, application for Shiv Kumar Sharma himself, Satnam Singh, Pawan Kumar, Amandeep Singh, Jagdeep Singh, Prabhjot Singh, Satnam Singh, Raji, Amarjeet Singh (viz. Ex. PW­2/E, Ex. PW­2/F, Ex. PW­2/G, Ex. PW­2/H, Ex. PW­2/I, Ex. PW­2/J, Ex. PW­2/K, Ex. PW­2/L & Ex {W12/S). Lastly, he also knew that when Rakesh Kumar visited Zimindara Dhaba to view the performance,Rakesh Kumar had stayed in the hotel where he was supplied with two girls by Balwinder Bawa & Hargul, and lateron accused Gurbhej had picked up those girls there.

[PW­2 has been cross­examined thoroughly, in nutshell, there are number of FIRs registered against PW­2 in various police stations in Punjab, particularly FIR No. 300/06, PS­Division No.5, Ludhiana on the complaint of Shiv Kumar's nephew Rajat Sharma, FIR no. 25/2007 PS Hobowal on the complaint of Shiv Kumar, FIR No. 244/11, PS­Division No.5 on the complaint of Shiv Kumar, another complaint u/s [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 24 of156 ] 107/151Cr.P.C on the complaint of Nabi Khan, godown keeper of Gas Agency of family of Shiv Kumar and one complaint by PW­2 against Shiv Kumar and so on to demonstrate that PW­2 is not reliable witness vis a vis his entire statement is hearsay, without his relevancy to link to case and he is an illiterate person but he was asked to identify the writings of Shiv Kumar Sharma, he deposed at the instance of CBI].

(iii) PW­7 Sh. Pawan Kumar Verma, DG, ICCR - to establish that he joined as Director General, ICCR, New Delhi in September 2005 as a successor of accused Rakesh Kumar and then PW­7 came to know defection of members of cultural group Mehak Punjab Di, which was sent to Germany through ICCR. Further, he had received fax message and when he started making an inquiry and also exchanged correspondence with the Embassy of Federal Republic of Germany by way of official communication and e­mails (namely record of fax Ex. PW­7/A, letter Ex. PW­7/B, message and official noting Ex. PW­7/C, e­ mails Ex. PW­7/D & Ex. PW­7/E). In addition, Director General ICCR was required to seek appropriate permission while leaving the station, whereas the accused Rakesh Kumar had not taken such permission vis a vis there was no official record of payment of train tickets to Rakesh Kumar in respect of his visit Delhi­Ludhiana­Delhi. [He was cross­ examined in detail with regard to the record produced that e­mail was even not received on his official e­mail or the personal e­mail can not be relied upon or use as official document vis a vis the officer at the rank of DG was not required prior permission to proceed out of station for official purposes and so on].

(iv) PW­24 Sh. Sunil Kumar Singh, Assistant Programme Officer, ICCR, New Delhi - for establishing that in the year 2004­05, he was working as Assistant Programme Officer AVR Section, ICCR, Azad Bhawan, Delhi and in the phase of his duties he used to receive formal application forms from aspirants for empanelment, the application received is to be entered in the Register and specific number is given on such received application, accordingly specific number 'Folk/Punjab/129/4' Mehak Punjab Di was assigned on application (Ex. PW­4/A) by PW­24 in his writing at Point­X, the application was accompanied with a visiting card (Ex.PW­4/C, Hargulab Singh, Mehak Punjab Di), participants identity card­Doordarshan Kendra Jalandhar (Ex. PW­4/D, in the name/signature of Hargulab Singh) and four [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 25 of156 ] photographs (Ex. PW­4/B1 to Ex. PW­4/B4). The application alongwith its annexure were handed over to Sunil Bhalla (PW­59). He was told by Sunil Bhalla that those applications which used to be received from DG office are required to be identified by putting a star (*) mark against its entry in the final list of applications prepared, accordingly he put the star (*) against the name of 'Mehak Punjab Di' in the final list of applicants (Ex. PW­24/A). After about 1 ½ months of receipt of application, Sunil Bhalla (PW­59) handed over two VCDs [Ex. PW­4/I­1 and Ex. PW­4/I­2, a slip was pasted on the cover of VCDs for identification] and album (Ex. PW­4/M), as the same are to be considered by the Expert Committee for emapnelment of artists. Then he explains the hierarchy of officers with regard to taking the decision about formation of committee, since there were 400 applications from different applicants for empanelment during 2005 and Sunil Bhalla, Programme Officer had prepared a note for constitution of Committee, it was put up before Deputy DG/PW­73 M.S. Grover for putting it before Director General and after approval by Director General, then it was to be approved by President, ICCR. Appropriate noting were prepared by Sh. Sunil Bhalla for formation of the Expert Committee, the Expert Committee meeting took place in August 2005 in the office of ICCR and PW­24 prepared 6 folders (Ex. PW­24/B1 to Ex. PW­24/B6) for each member of Expert Sub­Committee, each folder contain a similar set of papers for every member of panel, it contained complete detail of applicant of his name, group, date of birth, individual, style of field, name of institute/group and in the column 'remark', each member has to record his observation and each member of the committee has to sign at the bottom of the list in their folder. The name of Mehak Punjab Di was at serial no.40* of the list, a star (*) was put on its name at the instance of Sunil Bhalla. The Committee members were experts namely Ustad Jawad Ali Khan (PW­

44), Mr. Swapan Mukherjee (PW­45), Sh. Dadi Dorab Padamji (PW­46), Sh. Yog Sunder Desai (PW­47), Sh. Prem Matiyani (Ex. PW­49), Professor Kamlakar Sontake, Secretary Sangeet Naatak Academy. He further explains his role in completion of all those formalities and the minutes of committee used to be prepared by Sunil Bhalla, PW­24 had seen all the list of selected candidates/applicants against whom tick mark was assigned and those against whose name cross (x) mark was put up, those were rejected by the panel, then it was put up before PW­ 73 M.S. Grover, DDG followed by its presentation before Rakesh Kumar, Director General who finally approved the list and generally [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 26 of156 ] selected applicants used to be approved by the President, ICCR vis a vis in the present case it was not done so by Director General Rakesh Kumar. There was practice from the year 1998 till 2004 that approval of empanelment group was accorded by President, ICCR or by Vice­ President, ICCR [as per record Ex. PW­12/Z4]. Further, the letter of empanelment was prepared at the instance of PW­12 Ms. Kehkashan Tyagi, it was sent by post (vide entry Ex. PW­24/F in the register) but it was received back un­served (Ex.PW­24/E) for which matter/noting (ExPW­24/B) was put up before Deputy DG (P) for intimation, under the signature of Sunil Bhalla. Another letter (Ex. PW­4/R) was personally delivered to Hargulab Singh by hand.

[PW­24 has been cross­examined in detail in respect of his deposition with regard to hierarchy of officers, their duties inclusive of the duties of PW­24 as well as the matter dealt by him to cull out that there is no set procedure or regulations with regard to constitution of Expert Committee or about the hierarchy when President/Vice President, ICCR is not available, what course of action is to be carried but functioning of Institute cannot be stopped or he was not completely aware of decision making process vis a vis the asterisk mark (*) against the name of Mehak Punjab Di was own decision of Sunil Bhall or of PW­24, that too without any instruction from Rakesh Kumar].

(v) PW­59 Sh. Sunil Bhalla, Programme Officer In AVR Section, ICCR, New Delhi - to prove that during 2004­05 he was posted as Programme Officer in AVR (Audio Visual Reference) Section in ICCR, Azad Bhawan and the other section was of OCD (Outgoing Cultural Delegation) as well as the hierarchy that at the top, there is President, Vice­President ICCR and then Director General, there are Deputy Director General Programme and Deputy Director General Administration besides Director and other officers namely Senior Program Officer, Program Officer, Assistant Program Officer. Program Officer is Head of various sections besides other ministerial staff including LDC etc. The application for empanelment are dealt by AVR Section. During 2004­ 2005 Rakesh Kumar was Director General of ICCR, Sh. M.S. Grover/PW­73 was Dy. Director General and Sh. Pradeep Kumar was another Dy. Director General, Mr. Madhu Mohata was Director, both Deputy Director General and Director were the officials from Ministry of External Affairs and the staff was reporting to Director, ICCR. The AVR [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 27 of156 ] Section was having two parts, one was responsible for video­recording of all programmes and other part used to deal with the application by various artists for empanelment, PW­59 was in AVR Section to deal with the applications. The main function of ICCR was to promote the Indian Culture abroad and to expose the Indian public to foreign culture of various countries by organising functions in India. The artists used to be empaneled with ICCR in various categories of dance, music, folk, Karnatic music theater etc. The artist could apply individually or in groups. The PW­59 further details as to how applications are dealt.

The OCD Section was being dealt and looked after by PW­12 Smt. Kehkashan Tyagi, Programme Officer in the year 2004­05 under the supervision of Dy. DG (P)/Director General. But in the year 2005 there was no advisory empanelment Committee or Expert Sub­Committee, since it had expired in 2004. In April 2005 Rakesh Kumar instructed PW­73 M.S. Grover that meeting of Expert Sub­Committee is to be convened and on such instruction, PW­59 put up a note to the effect that there is no advisory empanelment/Expert Sub­Committee in existence and on oral instruction of DG through M.S. Grover, an Expert Committee was to be convened.

Rakesh Kumar, Director General had called PW­73 and asked him that one group under the name Mehak Punjab Di is to be empaneld for which he sent Hargulab Singh to Kehkashan Tyagi and the application will be given to PW­59. Under such instructions, an application form was given to Hargulab Singh but he does not know English and the application was filled in (as per particulars advised by Hargulab Singh) by PW­59 for Folk category Bhangra and Gidda, he had signed the application, the application was supported with four photographs, visiting card and a document (which are Ex. PW­4/B1 to Ex. PW­4/B3). PW­59 further explains that he never fills in the applications but it was done so on the instructions of Director General and Ms. Tyagi . He also deposed about the two VCDs, one album containing photographs of Mehak Punjab Di and press clippings of Punjabi New bulletin (Ex. PW­4/I­1 & Ex. PW­4/I­2, Ex. PW­4/M) later­ on supplemented in support of application. In his further deposition, he further talks about the register in which entry of applicant Mehak Punjab Di (Ex. PW­59/A) was made and about the noting dated 08.07.2005 which was put up before Deputy DG for approval of DG and President, [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 28 of156 ] ICCR, however, Rakesh Kumar, Deputy General had not put up those noting (Ex.PW­59/B) before President, ICCR. Then PW­59 followed immediate oral instructions of PW­73 M.S. Grover and proposed for an Expert meeting in the month of August 2005 and noting dated 13.07.2005 (Ex.PW­59/C) was prepared, as per procedure estimate in expenditure for Expert Sub Committee to be held from 02.08.2005 to 24.08.2005 was approved by Rakesh Kumar, DG (Ex. PW­59/C read with Ex. PW­11/G). It was Rakesh Kumar DG who amended the list of Sub Committee by his own writing.

Rakesh Kumar, DG asked PW­59 that group Mehak Punjab Di should be empaneled, he had deputed PW­12 Kehkashan Tyagi to sit in the said meeting, name of Mehak Punjab Di was at serial no.40 and asterisk (*) mark was put on the serial no. 40*. He explains the procedure of Expert Sub­Committee that each member was given a folder, the meeting was chaired by PW­73 M.S. Grover; Ms. Kehkashan Tyagi was also present besides other staff of Sunil Kumar Singh, an Assistant and PW­59 and after the meetings were over, the folders were handed over to PW­73 Mr. Grover, two of the experts were not present on 03.08.2005, their signatures were obtained subsequently. He/PW59 had also watched the VCDs of Mehak Punjab Di at the time it was played before Expert Committee and he views that in the VCDs, it was appearing marriage stage of some party rather than other artistic performance.

[He was cross­examined to challenge his testimony as well as that he is not aware of many material aspects or he could not account for actual putting of asterisk mark against the name of various applicants or it was decision of PW­73 to assign the mark themselves without any instructions from accused Rakesh Kumar vis a vis the role of PW­59 was limited to the extent of secretarial assistance to the Experts and nothing more and other accused had no role to influence Rakesh Kumar].

(vi) PW­72 Sh. Sudhanshu Pandey, Director, Tagore Centre, Berlin, Germany - to prove that in September 2005 he was Director Tagore Center, Berlin, Germany and he was representative of ICCR in Germany, he used to get various literary and cultural programmes on behalf of ICCR with object of promoting the culture of India. ICCR is a autonomous body functioning under the Ministry of External Affairs, [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 29 of156 ] ICCR conducts its many offices in various countries, literary and cultural programes. In September 2005 a 15 member Bhangra Group was nominated by ICCR to perform in Berlin, the group was not initially in the schedule of annual plan to come and perform, however, on 1/2.09.05, Kehkashan Tyagi, Programe Officer (Outgoing Cultural Group) ICCR contacted on telephone to PW­72 and told him about 15 members of Bhangra group being sent to Berlin on 12.09.2005 and also asked to fix their performance wherever possible. Since the period was too short only for two events, one was in Embassy of India, coinciding with the visit of the then Air Force Chief of India and another was organized in the Museum of Indian Arts in Dhalem, Berlin. The group Manager was Shiv Kumar Sharma arrived on 12.09.2005, he was put up in a separate hotel and the group was put up in Old Cultural Center as per the sanction received from ICCR. The group had performed on 14 & 15 September at scheduled places. On 15.09.2005 in the night at about 01:30am [i.e 16th morning], he received a call from Mr. Sharma that four group members are missing from the place of stay. Immediately, Embassy was informed. Police was also informed. Again at 10:30am of 16.09.2005, he got another call from one of the members of the group staying in Old Cultural Center, that one group member is also missing but the flight was already booked for afternoon of 16.09.2005, the group member present were to leave for Airport, the police authorities and Embassy were informed. The group leader Hargulab Singh and his son Randeep Singh, who were staying at their relative's place in Berlin, did not report at Airport. Therefore, out of 15 persons, 6 members of the group could left for India. The detailed report (Ex. PW­72/A) was furnished. Moreover, call was also received from Shiv Kumar Sharma that he would help the authorities to trace out the missing persons in Berlin. He had also received a call from Balwinder Bawa @ Bawa on 16.12.2005 alleging that Shiv Kumar Sharma had collected Rs. 7­8 lakhs from each of the member of the group who had run away, PW­72 had asked to furnish her statement in writing vis a vis she also informed that her son and daughter­in­law have also absconded but she is in touch with them. Appropriate communications (Ex.PW­72/B) were carried by him with the authorities. PW­72 confirms about self contained note dated 22.12.2005 (Ex.PW­72/D) which was sent to CBI by letter (Ex.PW­72/C), e­mail/correspondence (Ex.PW­ 72/E). Lastly generally, when a group is sent abroad, it is headed by a leader, no separate Manager is to accompany the group but only in [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 30 of156 ] extra ordinary circumstances, a group Manager is sent alongwith the group and a Manager is to be an employee of ICCR. There was no such extraordinary circumstances to send Shiv Kumar Sharma as Group Manager. There was performance of group on 14.9.2005 & 15.09.2005, however, PW­72 had not counted the members during performance, but Hargulab Singh and Randeep Singh had not performed on both the days. Shiv Kumar Sharma was not associated in any manner with the group performance or with group coordination. [He was cross­examined in detail vis a vis it was Shiv Kumar Sharma who had first informed the escape of persons or as per annual plan 2005 (Ex. PW­72/DX) there is recommendation of folk dances in September and October 2005, Bhangra falls in the category of a folk dance. Further, neither Balwinder Bawa ever since called PW­72 nor there is any information or communication in writing to this effect].

(vii) PW­11 Sh. Ravi Mohan Aggarwal, Dy. Director General, ICCR - to prove that he was transferred to Head Quarter, Ministry of External Affairs and joined ICCR on 19.08.2005 as Deputy Director General being successor of Sh. M.S. Grover (PW­72) and he deposed that certain noting were put up before him, from time to time by Programming Officer which were dealt by him viz. Noting dated 25.8.2005 (Ex. PW­11/A) with list of selection of group/artists for empanelment was put up before the Director General, financial sanction for sending the delegation, by approving as proposed by noting prepared by Kehkashan Tyagi (Ex. PW­11/B, for Rs.30,881/­), another note prepared by Mohd. Umar (PW­16) in respect of other related expenditure on this delegation going to Berlin for 15 members of Punjabi Folk Dance under the leadership of Hargulab Singh vide noting Ex. PW­11/C duly endorsed 'may be approved' at Point­A, noting for additional expenditure of Rs. 30,000/­ forwarded by Programme Officer Ms. Kehkashan Tyagi were approved by PW­11 (Ex. PW­11/D), noting towards settlement of bills in respect of this delegation for air travel and medical insurance of delegate (Ex. PW­11/E) which was forwarded to the then Director General Sh. Pawan Kumar Verma. The letter for political clearance approval (Ex.PW­11/F), noting towards the estimated expenditure on the delegation (Ex. PW­11/G) were dealt by PW­11. Similarly, he deposed about other documents/noting and correspondence dealt by him, from time to time (Ex. PW­11/H to Ex. PW­11/Y6 and Ex. PW­11/D6) inclusive of the facts about settlement of [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 31 of156 ] bill regarding travel from Delhi to Ludhiana of Sh. Rakesh Kumar, the settlement of expenditure for hiring car for Expert Committee and so on particularly letter dated 31.08.2005 (Ex. PW­4/R) addressed to Hargulab Singh was prepared by Kehkashan Tyagi, as Director General had already approved selection of Hargulab Singh. He had also handed over certain documents to CBI for which memos were prepared. [PW­11 was cross­examined about the annual plans of ICCR as well as the plan of action for year 2005­2006 (Ex. PW­11/DX, particularly at Point A to A on page­3), there is mentioning of festival of Folk Dances in Germany and PW­11 also defined that Bhangra is a Folk Dance. He also deposed that standard procedure was followed for sending delegation to Berlin as per practice of ICCR for sending the delegation abroad.]

(viii) PW­12 Mrs. Kehkashan Tyagi, Library Assistant, ICCR - to establish that she was Programme Officer in ICCR, Azad Bhawan and she was in OCD Division, when Sh. Rakesh Kumar was Director General, particularly in the year 2005. She was not dealing with the Empanelment Section. She deposed about the hierarchy of officers in the Administration as well as a separate section known as AVR to prepare the list of artists for empanelment. She also narrates as to how process is initiated from the moment applications for empanelment of artists/group are received and the further phases of process, its scrutiny and then constitution of Experts Sub­Committee, the role of such Sub­ Committee and then after finalisation of members of the group. A Planning Committee is formed by the governing bodies and the President, this Planning Committee considers all the work so received and the proposal which are considered and accepted by the Planning Committee are forwarded to Finance Committee and the Finance Committee after considering the approval, give the financial approval and then it goes to the governing body and the President, they finally approve the same. The next course to be adopted to send them abroad, in that phase the procedure for official passport, visa, political clearance etc. are materialised. She also narrates about the other officers and officials in the department. In the Plan of Action of 2005­2006 (Ex. PW­ 11/DX) there was no specific requirement of sending Bhangra group in September 2005 to any country.

In March 2005, Hargulab Singh came at ICCR, Delhi, he was directed to see PW­12 and she described him the procedure to be [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 32 of156 ] followed for empanelment/registration. He came her on referring of accused Rakesh Kumar, she directed Hargulab Singh to the concerned official Sh. Sunil Bhalla (APO, PW­59). He wants to get empaneled for performance of his group, he had brought and shown certain photographs; whereas there was specific requirement of photographs showing performance and DVDs. Accordingly, he was made aware and to see the concerned officer of the Section. He came again in April 2005 by showing relevant records, he was re­directed to Sunil Bhalla. The Director General had directed PW­12 to give feedback.

There was Advisory Empanelment Committee (Ex. PW­12/A is the names of its members) and there was also certain letters received to include in the Expert Committee, the Expert Sub Committee was constituted and it lasted for 10 days, the decision of ICCR was final and thereafter the file was put up before Deputy DG, ICCR. PW­12 deposed about certain documents, which were also part of statement of PW­11 and in addition, she deposed about fax message of Indian Council for Cultural Relation, list of group members, certain circulars of ICCR, fax message to Germany, forwarding letter for passport, list of detail of 14 members of the group under the leader of Hargulab Singh (total 15 members), application forms for passport of Mandeep Singh, Amanpreet Singh, Gurmeet Kaur as well as certificates in their names besides certificates in the name of Amanjeet Singh, Jadgeep Singh, Prabhjot Singh, Randeep Singh, Raji, which were issued by her under her signature, by virtue of those certificates the ordinary passports were kept in safe custody (the documents dealt by PW­12 are Ex. PW­12/A to Ex. PW­12/Z5, besides other documents referred in the statement of PW­11. [PW12 was not initially not supporting the case of prosecution, thus it was permitted to cross examine her on behalf of State. She was confronted to her statements dated 3.4.2006/ 6.10. 2006 Ex.PW12/Z­5, she came out with certain facts & documents]. [She was also cross examined on behalf of accused to challenge her veracity, her conduct and deposition to suggest her testimony is not reliable].

(ix) PW­73 Sh. M.S. Grover, DDG (Programmes), ICCR, New Delhi - to prove that he was posted as DDG Programmes, ICCR till 09.09.2005 and his duties were to look after Indian Cultural Center abroad, distinguish visitor programmes, process/request for deputation of cultural troops abroad for consideration of competent authority and also [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 33 of156 ] to consider application form for emapnelment of artists, as per rules and regulations laid down in this regard. For the purposed of empanelment of artists, there is a procedure and also emapnelment Advisory Committee, which would select members of Experts Sub Committee and for approval of competent authority, the competent authority was President, ICCR. The President of ICCR is nominated by President of India. Director General, ICCR reports to President of ICCR. There was no empanelment Expert Committee in August 2005 since its previous tenure expired before August 2004 and that is why there was no selection of artists between August 2004 to August 2005. However, Rakesh Kumar, Director General asked for empanelment of new artists before August 2005, whereas he was advised that there was no such need for empanelment as long waiting list of some cases over 10 years nor there was any Expert Sub Committee in existence to consider the empanelment but he insisted that there is a tremendous pressure from the then President, ICCR, the Minister of External Affairs and some artists, thus the empanelment process should take place. He insisted that formation of new Expert Sub­Committee would take long time, let the previous Sub Committee (whose terms had expired) be extended to consider the empanelment process. Accordingly, a proposal was put up before Director General for seeking approval of competent authority/President of ICCR, PW­73 did not seek any approval but Rakesh Kumar, Director General told that him President, ICCR had approved it and accordingly tenure of previous Sub Committee was extended. There were 6 members in the Expert Sub­Committee, the names of two experts namely Mr. Bansi Kaul and Mr. U. Banerjee were replaced with Professor Kamlakar Sontake and Mr. Swapan Mukherjee as suggested by Rakesh Kumar, accordingly noting was prepared for approval of President, ICCR, DG Rakesh Kumar told PW­73 that it has been approved by President, ICCR although PW­73 had not seen that approval.

The Experts Sub Committee held a meeting in August 2005, the performances of artists/group were viewed and PW­73 relied upon the advices/remarks of experts, since PW­73 was not an expert. The minutes of Sub Committee were signed by the experts and the same were submitted by PW­73 with his note dated 24.08.2005 under his signature (Ex. PW­73/A, its copy is also Ex. PW­45/A) before Sh. Rakesh Kumar, DG, ICCR for necessary approval by President ICCR, it [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 34 of156 ] was last official act of PW­73 in ICCR and then he was succeeded by Sh. R.M. Aggarwal (PW­11), who had already joined and resumed the responsibility of Deputy DG, Programme. PW­73 was confronted with noting dated 25.08.2005 under the signature of Sh. R.M. Aggarwal, to the same effect (Ex. PW­11/A) and he/PW73 surprised that there was already original minutes drawn (for approval by President) under his signature by noting dated 24.08.2005 (Ex. PW­73/A) then what was the occasion for writing entirely new note dated 25.08.2005 (Ex. PW­11/A), particularly in the noting Ex. PW­73/A he has written in narrative in the substance that the minutes are being forwarded for approval of President of ICCR as President was the competent authority by convention to approve the minutes but the noting Ex. PW­11/A by his successor Sh. R.M. Aggarwal does not mention for approval of President, ICCR but adopted a shortcut procedure by putting the file before Rakesh Kumar, Director General, who finally approved the minutes.

[PW­73 has been cross­examined about the rule or regulations followed for empanelment as well as whether there is such procedure or convention that the minutes of Expert Empanelment Committee to be put up before President, ICCR for approval, besides that PW­73 was not shown any file which may reflect approval by President of ICCR in respect of minutes of Empanelment Committee. He was also confronted that there was no President, ICCR from 18.05.2005 to 01.09.2005 vis a vis the empanelment advisory committee file remained in his/PW73's custody from 02.08.2005 to 24.08.2005 and in his reply to questionnaire (Ex. PW­73/DX) to CBI, that file was either with Sunil Bhalla, Raj Kumar or Sh. R.M. Aggarwal and lastly PW­73 had not given any advice to Rakesh Kumar in writing or otherwise.] ... ...

(x) PW­44 Ustad Jawaad Ali Khan, Classical Vocalist - to prove that he belongs to Patiala Gharana Classical Vocalist and he has been in profession of singing Hindi classical Khayal, Thumri etc. and a regular artist in All India Radio and Doordarshan. He was invited in judging of suitability of various vocal artists and aspirant for empanelment in ICCR, he was one of the members in Committee of experts. The VCDs of the artists were played on projector, which was judged by the experts panel and by him on the basis of its presentation, 'sur' and 'taal', which he recorded in the list and then final list (Ex. PW­11/T) was prepared, [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 35 of156 ] which was also signed by him at Point­A (on each page of nos. 41 to

50). Further, to prove that PW­12 Ms. Kehkashan Tyagi called him in the office after one and two days by telephone, he met accused Rakesh Kumar/Director General and on his request he listen the CD of a lady artist and found her voice alright, then on page no. 42 he signed at Point­X and on the instruction of DG Rakesh Kumar wrote 'approved' against the name of Ms. Kanak Chaturvedi, whose name was 'not approved' earlier. At the time of making signature at Point­X, other experts were not present as they did not turn up despite their wait but he was assured of their arrival and thence PW­44 signed at Point­X for 'approval' of name of Kanak Chaturvedi. Further, the name of 'Swapan Mukherjee & Party' was also approved for another empaneled artist (serial no.1 on page 8 of Ex. PW­44/A8) in that Experts sub­ committee meeting. [PW­44 was cross­examined from the point of view that being an expert an independent opinion was formed on the basis of performance viewed vis a vis the appropriate remark of 'approval' were based on that performance, there was no instructions or insistence by DG Rakesh Kumar at any point of time with regard to empanelment of the 'artists'].

(xi) PW­45 Sh. Swapan Mukherjee, Lecturer in Kalyani University - to prove that he is a folk singer belonging to Bengal and had certain cultural programme at his credit. When he came to know that ICCR has an Expert Committee of Artists, he applied to be an expert in that Committee in the year 2005 and he was appointed an expert in the Experts Sub­committee, which he attended on 2.8.2005 & 3.08.2005 to judge the artists/folk singers from the Eastern India. Further, to prove that an officer M.S. Grover, DDG (PW­73) briefed the members of Experts Committee as well as the procedure for selecting the artists and accordingly CD of each artist was viewed. He recorded his remarks in the folder (Ex. PW­24/D5) against each entry and some entries were carrying asterisk (*) mark, some senior officers of ICCR had instructed to give approval against whose name mark asterisk (*) was given. He had recorded remarks 'approved' against the name of Mehak Punjab Di (at serial no. 40*) and similarly he had also signed at Point­A in the final list (Ex. PW­45/A, part of record Ex PW11/T). He also deposed that he was not conversant with the languages of all performances and that is why he made recommendations keeping in view the comments of other experts in the Committee. [He was cross­examined and PW­45 [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 36 of156 ] explained that it was not every case in which 'approved' or 'not approved' was on the basis of assessment of PW­45 and he reiterated that he was not conversant with the language and the remarks of other experts were considered by him to assign the 'approved' or 'not approved'].

(xii) PW­46 Sh. Dadi Dorab Padamji, Puppetry - to prove that he is an artist (Puppetry) and he operates a theater under the name 'Ishara Puppet Theater Trust'. He is an AwarDi of Sangeet Naatak Academy and had also gone to Spain on its project. ICCR had also sent three puppet groups under the same project and during exhibition of that project, he had occasion to meet DG Rakesh Kumar and his colleague Ms Kehkashan Tyagi(ie.PW­12). Moreover, ICCR had invited him in the year 2004­05 to be one of Experts for empanelment of artists from various fields including puppetry. The other experts in the Committee were Mr. Sonatake, Mr. Mukherjee, Mr. Grover. In the folder provided, some names were noticed carrying dots/asterisk (*) mark and he was told by Mr. Grover by asking from Ms. Kehkashan Tyagi that those names carrying dots/asterisk marks are to be given 'special consideration'. The VCDs were viewed by him, however, he had given remarks of 'approval' in respect of Puppet groups, since he was expert in that field and for the remaining applicants, the columns of remark were left blank by him, it includes remark column of serial no. 40* Mehak Punjab Di which was also 'left blank'. However, he signed the final list (Ex. PW­45/A read with Ex. PW­11/T) at Point­B, carrying name of group 'Mehak Punjab Di' at serial no. 40* of 'approved', but he explains that he had not seen its VCDs nor approved it but he signed it because he was a member of Experts Sub­Committee and it is usual procedure that all members of committee were to sign final list even if they had not seen the performance of all the artists. He signed the list at his residence, since he had attended the Expert Committee for 1 ½ day [There was no cross­examination of this witness].

(xiii) PW­47 Sh. Yog Sunder Desai, Expert of Folk dance artists ­to prove that he operates a dance group in the name and style of M/s Indian Revival Group, he worked as expert for selection of artists of folk dance categories of various schools and cultural organisations, it is not empaneled with ICCR. He was one of the experts in the Expert Sub Committee, who viewed VCDs of aspirants for empanelment and [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 37 of156 ] remarks were recorded by him in the folder provided (Ex. PW­24/B2) and he had signed it; the name of Mehak Punjab Di is at serial no. 40* (in Ex. PW­24/A at Point­A being original, its copy is in folder Ex. PW­ 24/B2). The performance of Mehak Punjab Di was viewed in the VCD played, it was found 'not up to the mark' and the group was not approved for empanelment but later it was assigned remarks 'OK' (at Point­Q176 in Ex. PW­24/A) on the request of DG Rakesh Kumar, since he told that the group was very well known to him and a near person, that is why 'OK proficient' was written by PW47 vis a vis he does not know as to who had erased the original remarks in pencil 'not upto the mark'. Further, he signed the final list (Ex. PW­45/A read with Ex. PW­ 11/T) at Point­C, but he could not identify accused in court because of old age. On court query, PW­47 explained that he has no reason to concede to the request of Rakesh Kumar by replying 'aisee hi' ('just like that'). [He was cross­examined from the view that approval of Mehak Punjab Di group was never changed by him and it was initially found 'OK proficient' vis a vis PW­47 is not real Yog Sunder Desai because real Yog Sunder Desai had died in the year 2009, as obituary had appeared in several newspapers, which he had denied].

(xiv) PW­49 Sh. Prem Matiyani, Director, Song & Drama Division, Soochna Bhawan, Delhi - to prove that in the year 2005 he was posted as Director - Song & Drama Division, Soochna Bhawan, Lodhi Road, Delhi. In August 2005 he was invited as an expert of Sub­Committee formed by ICCR for empanelment of artists and groups in the category of folk dance, songs and drama. He was provided with a folder for remarks. VCDs of group/artists were played before the members of committee. He was also Director of applicant Group of Song & Drama Division of aspirant at serial no.10 in list Ex. PW­49/A. The other list of the group (Ex. PW­49/B), Mehak Punjab Di is at serial no. 40*. Further, to prove that he had given remarks 'not upto the mark' initially against the name of Mehak Punjab Di but later­on he wrote the remarks 'proficient'. {PW­49 had resiled from his statement to CBI and he was cross­examined on behalf of State, he denied that at the first instance he had found performance of Mehak Punjab Di 'not upto the mark' but he reaffirmed that it were his initial remarks 'proficient' were endorsed by him as it was tick (√) marked}.

               ...           ...


[C.C. No.01/2019         State Vs. Rakesh Kumar & 3 Ors.        Page 38 of156 ]

(xv) PW­37 Sh. Arjun Chand, Banquet and Restaurant Captain, Hotel Zimindara - to prove that in the year 2003 he had joined and start working as Banquet and Restaurant Captain at Hotel Zimindara, the Zimindara Dhaba is also adjacent to Hotel Zimindara, both are owned by the same owner. Further to prove the record of entries made in the register from 19.04.2005 to 05.12.2005 for establishing that approver/PW­4 Hargulab and accused Balwinder Bawa were frequent and regular visitors there vis a vis the room was booked on various dates (entries at Point­X, Point­Y, Point­Z, Point­Z1 to Point­Z7 of register Ex. PW­37/A). The room was also booked by Hargulab on 30.08.2005, 31.08.2005, 01.09.2005 and 02.09.2005 (having entries at Point Z4 to Z7) vis a vis there was function organised at Zimindara Hotel on 01.09.2005 and arrangement of lunch at Banquet hall on 02.09.2005 since Bhangra dance was organised, for which charges were paid by Hargulab Singh; the person stayed and checked out on 03.09.2005. PW­37 says he was present throughout the Bhangra programme of which still photography and video­graph coverage was done, the still photographs are Ex. PW­4/E1 to Ex. PW­4/E39, in which photograph of Balwinder @ Bawa is at Point­X in a photograph [Ex. PW­4/E7 (D­124/7)] and also photograph of Hargulab Singh [at Mark­X in photograph Ex. PW­4/E25 (D­124/25)] as participants in the performance. The record of register of hotel was seized by memo Ex. PW­37/D. [This witness was cross­examined for establishing that the record of register is neither proper nor in sequence but in random vis a vis the same is not original/regular register but got prepared by CBI].

(xvi) PW­33 Sh. Surender Kumar, videoer, Ludhiana - to prove that from 2003 to 2007 he was employed as a videographer with Lilly Studio, Kocchar Market, Model Town, Ludhiana, it belongs to Mr. Gyan Chand Singla. He was asked by his employer in September 2005 to cover the function at the basement of Zimindara Dhaba, where he alongwith Rahul Singla (son of Mr. Gyan Chand Singla) covered the event by way of still photography and video, it was through Mr. Praveen Kumar, Drummer (Dholwala). Further, PW­33 had covered the event by videoy and Rahul Singla covered it by still photography of Bhangra function, for which photographs as well as CDs were prepared; Rahul Singla had developed the photographs from the computer of his studio and the same were handed over to CBI, by making signature by PW33 overleaf of each photograph (Ex. PW­4/E1 to Ex. PW­4/E39). In addition, CD of [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 39 of156 ] the function was also handed over to the CBI vide memo Ex. PW­33/A. The CD was also signed by him. [PW­33 was cross­examined to challenge his testimony that neither Gyan Chand Singla was engaged by anyone or the envelope was printed by name M/s Vaahu Photo Colour Lab vis a vis he had not taken any photographs on behalf of Lilly Studio].

(xvii) PW­35 Sh. Parveen Kumar, Business, M/s Parveen Musical Group (Punjabi Dhol) - to prove that he operates a shop under the name M/s Parveen Musical Group (Punjabi Dhol) at Kochar Market, Ludhiana and he works for Bhangra Group for Punjabi Dhol (Drummer) besides coaching of Punjabi Dhol to the persons interested. Moreover, he also teaches playing of drum (Dhol) to students in school and colleges. In the year 2005­2006 Hargulab Singh and Harbhajan Kohli visited him for musical function for Punjabi Dhol and for Bhangra, the said Hargulab Singh and Harbhajan Kohli had brought eight to ten persons with them for Bhangra, the said persons practiced with Punjabi Dhol with PW­35 at Punjab Bhawan, Ludhiana for a period of eight to ten days, Harbhajan Kohli used to sing and operate Tumbi.

Moreover, on 01.09.2005 he also performed at Zimindara Dhaba, which was witnessed by one Lady from Delhi, the performance was not liked by her. Thus on 02.09.2005, he alongwith other members in the group had given another performance at Zimindara Dhaba, which was liked by her. Hargulab had also engaged someone for videoy from Lilly Studio of Kocchar Market, to cover the event of performance and Lilly Studio is in the neighborhood of PW­35. The videos and photographs were handed over to the group. PW­35 had VCDs (Ex.PW­9/B1 and Ex. PW­9/B2) from Lilly Studio and handed over the same to CBI vide memo Ex. PW­35/A, both the CDs were also signed by PW­35. [PW­35 was not cross­examined on behalf of any of the accused].

(xviii) PW­25 Sh. Vipin Kumar - to prove that in the year 2005­06 he was a student and in par­time he used to play dance in dance groups. He knew Pawan Kumar (i.e PW3), who also used to dance in his own group and Pawan Kumar used to join/engage PW­25 in dance groups. In September 2005 on the call of Pawan Kumar for dance performance at Zimindara Hotel, Sanewal, PW­5 gave dance performance in the basement, he was given Rs. 350/­ for performance at the said Zimindara Hotel which lasted for 1½ hours. [He was not cross­ [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 40 of156 ] examined on behalf of any of the accused].

... ...

(xix) PW­48 Sh. Robin Kumar, Director of M/s Interline Travel Pvt. Ltd Delhi - to establish that he was Director of M/s Interline Travel Pvt. Ltd, Ansal Chamber­II, Bhikaji Cama Place, New Delhi, it is on the panel of ICCR since 1995 for booking of air tickets primarily and sometime for train tickets. In the year 2002, Ms. Kehkashan Tyagi, Programming Officer OCD (PW­12) used to occasionally contact for getting ticket booked and he had also met her for 2­3 times for official purposes. Similarly, on 29.08.2005, he received a telephonic call from PW­12 and she requisitioned train ticket for Ludhiana from New Delhi for 01.09.2005 and return by Shatabdi Train to Delhi for 02.09.2005, she also apprised that she is going to Ludhiana with DG, ICCR. Accordingly, PW­48 booked train ticket to and fro through Manan Travels, the tickets were received from Manan Travels on 30.08.2005 and the same were sent to Ms. Kehkashan Tyagi alongwith the invoice (invoice dated 30.08.2005 Ex. PW­8/A for Rs. 1150/­, Delhi­Ludhiana­Delhi) [the witness has not been cross­examined on behalf of any of the accused].

(xx) PW­8 Sh. Tapan Kumar Das, Programme Officer (Accounts), ICCR, New Delhi - to prove that he was working as a Programme Officer (Accounts) during 2005­06 in ICCR and there were three travel agents [M/s Carlsons, M/s Air Travel Bureau and M/s Interline Pvt. Ltd.] on panel of ICCR through whom they used to arrange trains, bus or air tickets for the officers of ICCR or for members of any group sponsored by ICCR. A bill (Ex. PW­8/A) in respect of Ms. Kehkashan Tyagi for Delhi­Ludhiana­Delhi was raised by M/s Interline Pvt. Ltd., it was sanctioned and after grant of sanction certificate, the department had released the payment (Ex. PW­8/B and Ex. PW­8/C). Similarly, another bill dated 31.08.2005 (Ex. PW­6/A for Rs. 2170/­, for Shatabdi Train Delhi­Ludhiana­Delhi Ec. Class) was pertaining to Rakesh Kumar, which was also mentioned in register in outgoing cultural division of ICCR (register Ex. PW­8/B, page no. 73). Further, PW­12 Ms. Kehkashan Tyagi had sent a fax message to PW­72 Sudhanshu Pandey under her signature for necessary arrangement for the group (Ex.PW­8/E). Further, to prove that fax message (Ex. PW­8/F) of cash account was received by ICCR from Berlin with respect to payment [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 41 of156 ] made by Embassy in the Berlin towards DA to the members of the group sponsored by ICCR.

(xxi) PW­6 Sh. Sandeep Nanda, Earlier Assistant Manager (Accounts),Air Travel Bureau Ltd., Delhi - to prove that during 2005­ 2006 he was working as Assistant Manager (Accounts) with Air Travel Bureau Ltd., Delhi, who was providing the services of air tickets and train tickets to its customers. ICCR, Ministry of External Affair and other government departments were in its panel in the year 2005­2006, it used to provide requisite tickets and payments used to be tendered by way of cheques. The tickets were got arranged on request of ICCR, for which bill (Ex. PW­6/A) was raised and payment was tendered against receipt (Ex. PW­6/A). [PW­6 was cross­examined to confront the witness that it was not known whom the amount was tendered in cash vis a vis the name of passenger was not mentioned in the copy of ticket part of receipt Ex. PW­6/A].

(xxii) PW­51 Sh. S. Nangia, Admn. Officer (PA­1), Ministry of External Affairs, New Delhi - to prove that in the year 2006 he was posted as Admn. Officer (PA­1), Ministry of External Affairs, New Delhi, when Rakesh Kumar was posted as Additional/Special Secretary in Ministry of External Affairs. Rakesh Kumar was sent on deputation to ICCR in the year 2005 as Director General. ICCR is a body under administrative control of Ministry of External Affairs. In the year 2006 the said Rakesh Kumar had written a letter dated 31.01.2006 (Ex. PW­11/R) informing the Ministry that he had undertaken an official journey from New Delhi to Ludhiana on 01.09.2005 to 02.09.2005 vis a vis waiver of production of original train tickets for the purposes of settlement of TA claim and original were misplaced, he was granted waiver by official order dated 09.06.2006 (Ex. PW­11/S). TA bill was submitted and an amount of Rs. 1570/­ was allowed vide cheque no. 23543 dated 24.02.2006 by note (Ex. PW­51/A), an amount of Rs. 170/­ was reimbursed for daily allowance for one day and not for reimbursement of the ticket. The ticket was not provided by Ministry of External Affairs since Rakesh Kumar was on deputation to ICCR. PW­51 opines that Rakesh Kumar was required to take approval from any person before leaving headquarter for proceeding on official tour but vis a vis he was not sure whether DG of ICCR was required to take permission of ICCR, the post of President of ICCR was superior to the post of Director General [he [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 42 of156 ] was cross­examined that the travel expenditure of an employee of MEA on deputation with ICCR would be debited in the accounts of MEA, the salary was debited in the account of ICCR. He was also cross­ examined with regard to waiver on production of original tickets etc.] (xxiii) PW­68 Sh. Ashok Das, DDG (Programmes), ICCR, New Delhi - to prove that in the year 2006 when he was posted as DDG (Programmes), ICCR, New Delhi and holding the charge of Vigilance Officer, certain information was sought and consequent to such requisitions, he wrote letter dated 11.12.2006 (Ex. PW­68/A) with regard to prior or post approval for visit to Ludhiana of Rakesh Kumar and PW­ 68 apprised that there was no reference of purchase of any train ticket to Ludhiana and back. In addition, certain other records/documents were also forwarded/provided to CBI vide letter dated 01.05.2007 (Ex. PW­68/B). PW­68 is also of the opinion that all government servants have to seeks permission before leaving station and also Rakesh Kumar, Director General ICCR should have sought permission of President, ICCR before leaving station for Ludhiana and as per record he had sought such permission when he had gone to other occasions.

... ...

(xxiv) PW­15 Sh. Mahender Kumar Sehgal, Assistant Programme Officer, ICCR, New Delhi ­ to prove that during 2003­2005 he was working as Assistant Programme Officer, ICCR, New Delhi, at that time Ms. Kehkashan Tyagi (PW­12) was Programme Officer in ICCR and accused Rakesh Kumar was Director General, Mr. M.S. Grover was Deputy Director General.. Further, his duties were included of junior managerial work as instructed by Section Incharge. OCD Section of ICCR used to deal with outgoing cultural delegation and there is a separate section AVR which deals with empanelment of various cultural group. Further he has been got examined with regard to relevant documents and episodes in respect of empanelment of cultural group as well as the role performed by various persons, the plan of action for the year 2005­2006 (Ex. PW­11/DX) pertains to festival of folk dance in Germany, it was prepared by Ms. Kehkashan Tyagi, the then Sectional Head. Cultural Group Mehak Punjab Di was empaneled in August 2005. It was evening of 31.08.2005 when Kehkashan Tyagi visited the Section looking after empanelment to collect letter of empanelment in favour of Mehak Punjab Di but till then, officials had gone and she asked PW­15 [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 43 of156 ] to take out print of 'letter of empanelment' from the computer installed in that Section. By following her instruction, PW­15 took out print of said letter and handed it over to her. Further to prove certificate/bill for train fair (Ex. PW­8/C) which was counter signed by PW­15 at Point­C as well as by Ms. Kehkashan Tyagi at Point­B and finally by Deputy Director General (Sh. R.M. Aggarwal) at Point­D. On 01.09.2005 Ms. Kehkashan Tyagi had visited Ludhiana alongwith Rakesh Kumar to see the performance of Mehak Punjab Di and on 05.09.2005, while coming back from Ludhiana, PW­15 was asked to fill up the official passport form for the members of Mehak Punjab Di, when Kehkashan Tyagi, Rakesh Kumar and Shiv Kumar were present. Further, to establish writing/signature on various documents/forms/letters (Ex. PW­4/A, Ex. PW­2/T, Ex. PW­12/M, Ex. PW­2/F, Ex. PW­12/K, Ex. PW­12/K1, Ex. PW­12/N, Ex. PW­12/O, Ex. PW­12/P, Ex. PW­2/G, Ex. PW­2/H, Ex. PW­2/i, Ex. PW­2/J, Ex. PW­ 2/K, Ex. PW­2/L, Ex. PW­4/L, Ex. PW­12/B, Ex. PW­12/R, Ex. PW­12/S, Ex. PW­12/T, Ex. PW­12/U, Ex. PW­12/W, Ex. PW­12/X, Ex. PW­ 12/X1, Ex. PW­12/Y, Ex. PW­14/A, Ex. PW­15/A) by the officers (particularly Naresh Chandra & Kehkashan Tyagi) in the ICCR department as well as by others. Lastly, the passports of Hargulab and others, approval of quotation of least quoted rates of M/s Karlsons Megamlift and financial sanction of total estimate expenditure. The passport of all the members were sent to Germany embassy for endorsement of visa, which PW­15 took it personally and collected passports with visa note on them, which he had handed over to Ms. Kehkashan Tyagi as well as to identify the record of political clearance for sending 15 members cultural group from India to Berlin. On 16.09.2005 he was informed by Ms. Kehkashan Tyagi that few members of the group Mehak Punjab Di had defected in Germany and remaining six are coming back to India, thus on her direction on 17.09.2005, PW­15 went ot Airport to receive the six persons of group Mehak Punjab Di, who returned India from Germany, they were brought back to office of ICCR, from whom official passport of those six members and the utilised tickets were taken and handed over to Ms. Kehkashan Tyagi. [PW­15 was cross­examined with regard to administrative aspects and area of his working as well as that in the plan of action for the year 2005­2006, there is item of festival of Folk Dance in Germany].

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 44 of156 ] (xxv) PW­16 Sh. Mohd. Umar, Assistant Programme Officer (OCD), ICCR, New Delhi - to prove that he was working as Assistant Programme Officer in ICCR and in the year 2005, he was in OCD Section, where Ms Kehkashan Tyagi was Programme Officer, M.S. Grover was Deputy DG and Rakesh Kumar was Director General as well as PW­15 Mahender Kumar Sehgal was also posted as Assistant Programme Officer in OCD Section. The references for empanelment of artists used to be received from AVR Section. He gives details as to how requirement of any cultural group in particular country is initiated or considered as well as the process to be followed for preparing plan of action for a particular year, which is to be finalized by the Programme Committee. He also narrates about the coordination with Indian Embassy, daily allowances for the members to be sent abroad, the scale of Rs. 7000/­ per performance for leader of group and Rs. 1500/­ per performance for other members vis a vis when cultural group are sent abroad, sponsorship of ICCR, if any of the member wants to give a private performance, it could be with permission of ICCR. There was item of festival of Folk dances in Germany in the plan of action (Ex. PW­ 11/DX, page no.3) and expenditure for sending the cultural group to be incurred by ICCR. The proposed budget (Ex. PW­16/A) for group Mehak Punjab Di was Rs. 8,79,320/­ to be incurred was prepared by PW­16, the proposed budget was on the direction of Ms. Kehkashan Tyagi, Programme Oficer, it was approved by accused Rakesh Kumar. PW­16 was obeying the direction of Programme Officer Ms. Kehkashan Tyagi during the absence of other Assistant/PW­15, he is acquainted with the writing of PW­15, which he identifies on the note sheets Ex. PW­16/B. [He was cross­examined on behalf of accused Rakesh that while sending the cultural group abroad nominated for performance, seniority of the group is not to be looked into, even a single group may be nominated/sponsored by ICCR for giving performance in a single country].

(xxvi) PW­17 Sh. Soji Benjamin (LDC), ICCR, New Delhi - to prove that in the year 2005, he was LDC, after his promotion from peon, and Ms. Kehkashan Tyagi was posted as Programme Officer with ICCR. In September 2005, Ms. Kehkashan Tyagi called PW­17 as certain photographs of group Mehak Punjab Di were required to be scanned to be sent to Indian Embassy in Berlin and on her instructions, he scanned the photographs of members of group Mehak Punjab Di and sent the [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 45 of156 ] same to Indian Embassy, Berlin, she was using her personal e­mail ID. Moreover, PW­17 also typed letter (Ex. PW­17/A) for seeking political clearance of group Mehak Punjab Di, which was signed by Rakesh Kumar and political clearance was received by letter addressed to Rakesh Kumar (Ex. PW­17/B).

(xxvii) PW­14 Sh. Naresh Chandra, LDC, ICCR - to prove that in the year 2005 he was also posted as LDC in Outgoing Cultural Delegation of ICCR, when Mahender Sehgal/PW­15, Mohd. Umar/PW­16 and Soji Benjami, PW­17 were also posted and Sh. Rakesh Kumar was Director General. PW­14 narrates about his duties, which includes typing work and preparation of official passports, PW­17 Soji Benjamin also used to do same kind of work. PW­15 Mahender Kumar Sehgal had handed over application forms to PW­14 for preparation of official passports, PW­14 carried that assignment and it was for issuance of official passports for visit of group Mehak Punjab Di abroad for that duration and he also filled the necessary certificate, which were handed over to Kehkashan Tyagi who signed the same. PW­14 further narrates about the preparation of officials passport or surrender certificate in his writing (viz Ex. PW­12/O, Ex. PW­12/P, Ex. PW­12/S, Ex. PW­12/T, Ex. PW­ 12/L, Ex. PW­12/W, Ex. PW­12/X, Ex. PW­12/X1, Ex. PW­2/G, Ex. PW­ 12/G, Ex. PW­4/K, Ex. PW­12/L, Ex. PW­2/I, Ex. PW­12/U, Ex. PW­5/J,. Ex. PW­12/B, Ex. PW­12/Y, Ex. PW­2/H, Ex. PW­12/R, Ex. PW­2/E, Ex. PW­12/M, Ex. PW­2/F, Ex. PW­12/N, Ex. PW­2/K) at the specified points as well as the writings of others. Similarly, he deposed about other documents in respect of members of group Mehak Punjab Di, which were in his cognizance. [He was cross­examined about the area of his duty as well as the sending of members abroad for cultural performance and other related things never used to remain in his custody or possession and also about specific noting at Point­X on Ex. PW­11/C in respect of budget estimate, which PW­40 was not aware about].

(xxviii) PW­28 Sh. Biraja Prasad, Under Secretary, Europe West Division, Ministry of External Affairs­ to prove that during 2005­2007 he was posted as Under Secretary, Europe West Division in Ministry of External Affairs and he was working as Desk Officer for Germany and France, his responsibility was to see the overall relations between India and two countries. He further deposed about the role of his department [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 46 of156 ] as well as that when any department has to send any official delegation abroad, then the department forwards the request for political clearance from political angle through Ministry of External Affairs for that respective country where the delegation is proposed to visit. By letter dated 5.9.2005 (Ex. PW­14/A) Sh. Rakesh Kumar, DG ICCR, was sent in respect of grant of political clearance from political angel for visiting Germany was communicated, qua the delegation list which was received with the letter (Ex. PW­15/A). [He was cross examined from different angels but precisely due procedure for political clearance was followed in case of group Mehak Punjab Di and there was no objection from the Indian Embassy in Germany].

(xxix) PW­41 Mohd. Khaliq, Asst. Private Secretary to DG, ICCR­ to establish that in the year 2005 he was Assistant Private Secretary to Rakesh Kumar, DG, ICCR. Shiv Kumar Sharma was friend of Rakesh Kumar, he used to visit office frequently and he used to visit to Rakesh Kumar in the office. The application for empanelment with ICCR of artist/groups used to be received in DG's office by post as well as by hand, PW­41 was dealing with the correspondence and used to forward it to the concerned section. If some person or group knew Sh. Rakesh Kumar, he himself used to take application there and then it was marked to concerned section. Mr. Sunil Bhalla was also looking after the work of empanelment in the year 2003. After empanelment of artist/group, then it was the job of Ms. Kahkasha Tyagi, Programming Officer to send them abroad, however, the financial power of sending the group was with DG, ICCR and President, ICCR. The office telephone number of Rakesh Kumar (as DG, ICCR) was 233370471 and 233378103, his mobile phone number was 9810575625 and residence number was 6863030. He was connecting the phone numbers instructed by Sh. Rakesh Kumar from time to time. He further deposed about the empanelment of groups and artists that it was on the recommendation of Experts Sub­committee, which used to be forwarded by Dy. DG (Program) before DG and then before President, ICCR. On 1.9.2005 Dr. Karan Singh had joined as President of ICCR, he was welcomed by the staff of ICCR. On 1.9.2005 accused Rakesh Kumar asked PW­41 that he is going to Ludhiana for official work by train, PW­41 arranged official vehicle for station and it was instructed that PW­41 will be informed of arrival and for vehicle at railway station, PW­41 also learned that Ms. Kehkasha Tyagi had also left for Ludhiana [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 47 of156 ] on that day. PW­41 was left with instruction that in case anybody calls Rakesh Kumar inclusive of calls of his wife, then PW­41 should not tell them about Rakesh Kumar is in Ludhiana but to simply say as if that PW­41 does not know about Rakesh Kumar. Further, on 02.09.2005, Sh. Rakesh Kumar called PW­41 on mobile phone by advising of his return and also asked whether there was any call by his wife, although PW­41 had received 2/3 calls from Rakesh Kumar from Ludhiana, in one of the calls he asked to confirm whether PW­41 had bought toys from Sadar Bazar asked for. Rakesh Kumar had gone to Ludhiana to see the performance of groups and artists already screened by the members, there was no need for Director General to see the performance.

Later on a fax message was received from Indian Embassy, Berlin about defection of 9 members of group Mehak Punjab Di but at that time Rakesh Kumar was already relieved and in his place, Mr. Pawan Kumar Verma (i.e. PW7) had taken over charge of DG, ICCR. PW­41 was also asked to identify about signature of officers namely Rakesh Kumar, Kehkashan Tyagi (Ex. PW­12/I, Ex. PW­12/G, Ex. PW­ 12/H, Ex. PW­11/F, Ex. PW­15/A, Ex. PW­41/A) vis a vis PW­41 had no personal knowledge how the empanelment of Mehak Punjab Di was cleared by Expert Sub­ Committee or by Rakesh Kumar. [PW­41 was cross­examined about the hierarchy in the office of ICCR as well as there was no illegality about the about empanelment groups/artists and there was no President, ICCR posted at the time when application of Mehak Punjab Di was received for empanelment and approval by the expert committee or Shiv Kumar was not having friendly relations with Rakesh Kumar].

(xxx) PW­42 Sh. Ramesh Narula, Assistant Programmer Officer, ICCR ­ to establish that he was posted as Asstt. Program Officer in ICCR, he used to report to Sh. Rakesh Kumar, DG. PW­42 and PW­41 used to assist Rakesh Kumar in his personal engagement/meetings etc. Shiv Kumar used to frequently visit office to see Rakesh Kumar as well as Rakesh Kumar was also frequently talking on telephone, PW­42 used to connect the official phone. PW­42 also deposed about the phone numbers in the office of Rakesh Kumar, joining of Dr. Karan Singh as President, ICCR in September 2005 besides there was a meeting of Expert Sub­Committee in August 2005 for empanelment of [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 48 of156 ] groups/artists in which Sh. M.S. Grover, Dy. Director General was Chairman of the said Committee. He further deposed about the minutes of meeting to be put up before DG, ICCR and thereafter, President, ICCR, which was also applicable in the meeting held in August 2005. PW­42 further narrates about minutes of 24.08.2005 by Sh. M.S. Grover, Deputy DG in respect of minutes of Expert Committee meeting held between 02.08.2005 to 24.08.2005 for empanelment of artists in different forms for seeking approval of President, ICCR and also about copy of note dated 25.08.2005 by Sh. R.M. Aggarwal put up before DG Rakesh Kumar, who approved the same and directed for issuance of letter to the empaneled artists (Ex. PW­24/C and Ex. PW­11/T) and when he was asked about both the minutes, he explained that perhaps Mr. M.S. Grover was transferred from ICCR in August 2005 {Ld. Predecessor had recorded demeanor of this witness that he smiled after answer while contacting looking/contacting to accused Rakesh Kumar} by further supplementing that minutes of Experts Sub Committee held in August 2005 should have been placed before President, ICCR by DG Rakesh Kumar but he did not do so nor he had any power to approve the meetings without forwarding it to the President, ICCR. {PW­41 was cross­examined on behalf of State on all aspects either with regard to scope of duties of PW­42 or noting dated 24.08.2005. He was also cross­examined with regard to out station official tour or permission to leave headquarter could be without the permission of President, ICCR or Foreign Secretary. He was also cross­examined in respect of other internal affairs in ICCR or certain procedures to be followed} [He was also cross­examined on behalf of accused persons to challenge his testimony about the hierarchy as well as the tenure of President of ICCR had expired in May 2005 and thence Dr. Karan Singh took over as President, ICCR on 01.09.2005 and there was no President w.e.f 21.08.2005 to 31.08.2005, he had not seen personally any minutes of the meeting of Experts Sub­committee having sent to President or Vice President of ICCR or it was received back after approval. His testimony has also been challenged during his cross­ examination on other aspects].

(xxxi) PW­43 Sh. Balbir Singh Negi, UDC in Dispatch Section, ICCR - to prove that he was posted as UDC in Dispatch Section of ICCR, Azad Bhawan, where two dispatch registers used to be maintained, one of [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 49 of156 ] them was for posting outgoing dak which are to be dispatched outside Delhi and other was for local outgoing Dak, however, each letter is dispatched by number, which was to be recorded on the envelope. A letter having no. 2508/2005­registered (Ex. PW­43/A) was sent by post, containing letter dated 31.08.2005 (Ex. PW­24/E, empanelment of Mehak Punjab Di Group addressed to Sh. Hargulab Singh under the signature of Sh. R.M. Aggarwal) was received back undelivered, for which endorsement at Point­X for AVR Section is mentioned; the said no. 2408/05 on the envelope was written by PW­43. [There was no cross­examination of this witness by any of the accused]. ...

...

(xxxii) PW­5 Sh. Debnath Shaw, Joint Secretary (CNV) & CVO, Ministry of External Affairs - to prove that sanction order dated 10.12.2007 (Ex. PW­5/K, u/s 19 of the Prevention of Corruption Act, 1988) to prosecute accused Rakesh Kumar. In the year 2007 he was posted as Joint Secretary (CNV) & CVO, Ministry of External Affairs, during his that tenure a file was put up before him, it comprised of FIR registered alongwith record of investigation carried by CBI, including the statement of witnesses recorded by them during investigation. He had gone through the file and applied his independent mind and after filing material sufficient on record for proceedings against Rakesh Kumar, Director General and after making certain observation, the file was placed before Disciplinary Authority, Minister of External Affairs and then Minister of External Affairs applied his mind and issued directions to prosecute accused Rakesh Kumar. On that basis, PW­5 passed the sanction order u/s 19 of the Prevention of Corruption Act,1988 to prosecute Rakesh Kumar. He further explains that all such material was also placed before the then Minister of External Affairs, it was also considered before passing the sanction order. [He was cross­examined on various expects particularly entire material was not brought and put up before him and also the disciplinary authority but a draft sanction order prepared by CBI and just noting sheets (Ex. PW­5/DX and Ex. PW­5/DY) were prepared vis a vis there was no specific sanction accorded by the Disciplinary Authority nor sanction order Ex. PW­5/A bears the signature of the then Minister for External Affairs].

(xxxiii) PW­13 Sh. Satya Singh Bhatt, Peon, ICCR - to prove that he was LDC in ICCR in the year 2006, his initial appointment was of peon [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 50 of156 ] in the year 1985. He was posted in the Maintenance Section of ICCR, Azad Bhawan. Sh. Rakesh Kumar was Director General in ICCR, the telephone numbers installed in office room were having connection no. 23378103 & 23370471, a fax machine was also installed in his office zone which was connected with the telephone line no. 23378647. Mr. M.S. Grover (i.e.PW73) was having telephone number 23379249, the telephone installed in DDG Administration was 23370228, the telephone installed on the table of Ms. Kehkashan Tyagi (i.e.PW12) was 23379226 and telephone installed at the table of Sh. Sunil Bhalla (ie. PW59), Programming Officer was 23370249. PW­13 had handed over ICCR telephone list to CBI (Ex. PW­13/A, four sheets showing the room numbers with telephone numbers with extension and fax by designation wise). [There was no cross­examination of this witness by any of the accused].

(xxxiv) PW­27 Sh. Sant Lal, Chief Accounts Officer (Coordination), New Delhi - to prove that he was Chief Accounts Officer from October 2004­ January 2007 in Central Area, MTNL, CGO Complex, Lodhi Road, New Delhi, the nature of duties were including maintenance of call detail record in respect of telephones installed in Central Delhi area, which was being maintained in his office having territorial jurisdiction over Central Delhi are, Kidwai Bhawan, Delhi. The telephone numbers being with digits '233' used to fall under Central Delhi area for which record was maintained in his office. He wrote letter dated 17.12.2005 (Ex. PW­ 27/A) to ABO, Central in respect of call detail record pertaining to telephone nos. 23378103, 233370471, 23379249, 23370228, 23379226, 23370249, 23378783, 23378647, 23379509 for the period August 2005 to September 2005 and their respective call detail (Ex. PW­27/B to Ex. PW­27/J) were also furnished, after getting it generated from Yogender Kumar, Account Officer Coordination. [There was no cross­examination of this witness by any of the accused].

(xxxv) PW­69 Sh. S.N. Srinivasan, Sr. Programme Director, ICCR, New Delhi - to prove that he was Sr. Programme Director, ICCR, IP Estate, New Delhi from 2006­2007 and he was in­charge of outgoing delegations and empanelment of artists/groups for the said purpose. He produced register (Ex PW­69/A) pertaining to details of outstation visit by DG Rakesh Kumar from the year 2003. He also produced files pertaining to empanelment of artists/groups which were opined by [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 51 of156 ] members of the Experts Sub­Committee in respect of empanelment of artists/groups (Ex. PW­24/B1 to Ex. PW­24/B6). Moreover, a register is also maintained by empanelment section in respect of details of CDs, if any, sent by artists/groups, the relevant entry in respect of Mehak Punjab Di was also entered in the register (its extract is Ex. PW­69/A) [He was cross­examined that the register was not being maintained properly because the certain pages were left blank or who authored those entries and so on].

... ...

(xxxvi) PW­3 Sh. Pawan Kumar, Professional Dancer - to prove that he is a professional dancer/artist although, he has no alliance to any particular artists group. He may join any group as and when gets contracts for dance performances, he performs in India and abroad. He also knows Ms. Sonam Gill (i.e. Gurmeet Kaur i.e. daughter­in­law of Balwinder Bawa), since she performed twice or thrice with him. In 2005 the said Sonam Gill contacted him on phone and asked him to arrange another boy artist and a girl artist and also asked PW­3 to come to Zimindara Dhaba for dance performance, thus PW­3 alongwith Mr.Vipin and Ms. Sonia reached there, where he saw 6­7 boys and 4­5 girls already present for Punjabi folk dance performance besides Balwinder Bawa. In addition, Rakesh Kumar, Shiv Kumar Sharma and Hargulab Singh were also present at Zimindara Dhaba to see the performance besides one Ms. Tyagi. They had given performance. PW­3 was paid Rs. 700/­, which he shared with Ms. Vipin. The other artist Sonia was paid Rs. 1000/­ for her performance.

Further, after one and two days, Sonam Gill called PW­3 at her house, since her mother­in­law accused Balwinder @ Bawa wanted to talk him. He went there and accused Balwinder @ Bawa asked him whether he is interested for going abroad with a group for giving performance on government sponsored trip but he will not get any remuneration, he will receive commendation certificate. However, PW­3 requested that he will go only when he is paid Rs. 10,000/­ and he also spoken to Sonia at the request of Balwinder @ Bawa but Sonia was already preoccupied in another assignment abroad. Then another dance artist Raji (i.e.PW55) was spoken by PW­3; Raji and her mother had shown willingness. Then PW­3 alongwith Raji and her mother went to accused Balwinder @ Bawa, Rs. 10,000/­ was asked as [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 52 of156 ] remuneration to join Raji in the dance performance abroad, she was paid Rs. 5000/­ as advance but PW­3 was assured that advance will be given to him in 2­3 days; Balwinder @ Bawa kept the passport of PW­3 (Ex. PW­3/A) and of Raji as well as got signature of Raji on some forms. PW­3 was paid advance of Rs. 5000/­ with an assurance that balance amount will be paid at Airport to PW­3 as well as to Ms. Raji. PW­3 has also signed application form for issue of passport (Ex. PW­2/G). On 11.09.2005, PW­3 received telephone call of accused Balwinder to leave that day itself for abroad, he joined others in tempo traveler and then came to Delhi, where officers of ICCR namely Ms. Tyagi, Rakesh Kumar and also Shiv Kumar met him. They handed over passport that the official tour of London will be very beneficial. After staying in the guest house in Delhi, on the following day they left for Delhi Airport, where Shiv Kumar Sharma, Rakesh Kumar, Hargulab Singh and Balwinder @ Bawa were present and one Sikh fellow, who was asked that he can not accompany the group but Balwinder @ Bawa assured that he will be sent in another flight on completion of documents.

PW­3 further deposes about, that after reaching Berlin, as to what state of affair took place from the moment accused Shiv Kumar Sharma took passport of all of them, their stay in the guest house, stay of Shiv Kumar Sharma in other hotel, defection of son of Hargulab Singh on arrival in Berlin, then episode of defection of other members of group vis a vis this information was immediately given to Shiv Kumar Sharma. In the next morning some other members were not found, then Shiv Kumar Sharma was also apprised of it. How PW­3 was treated when he came back India/Delhi and then to his home in Punjab vis a vis he was not paid his balance amount of Rs.5000/­ by accused Balwinder @ Bawa till date. [PW­3 was cross­examined in detail to confront him with his version as well as he was paid his entire remuneration and professional charges vis a vis he had not seen or met Rakesh Kumar at Zimindara Hotel nor Balwinder Bawa @ Bawa asked to join the performing group at abroad].

(xxxvii) PW­55 Ms. Raji, Stage Artist ­ to establish that she is also an artist, she performs at stage shows and dances at various kinds of functions & parties for the last about 10 years. She came into contact to PW­3 Pawan being in same profession and she alongwith Pawan had also performed at Singapore. PW­3 Pawan contacted her in September [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 53 of156 ] 2005 for trip to Europe for artist and also asked PW­55 that she may join him, considering antecedents of Singapore, she consented. He also disclosed that another artist Sonia, known to PW­55, was preoccupied in her other trip. A sum of Rs. 10,000/­ was offered for the trip and PW­ 55 was asked to reach the house of Sonam to finalise it, thus PW­55 alongwith her mother reached at residence of Sonam in Ranjit Singh Nagar, where she was asked to handover her passport to Ms. Bawa, mother­in­law of Sonam and she was given Rs. 5000/­ as an advance and it was assured to pay remaining balance amount after return from Europe. After sometime, she was asked by Pawan to join in the tempo traveler for Delhi to go for trip at Europe. She reached Delhi with others and reached in government office in Delhi and then flight was boarded for Germany.

In Berlin, Germany, it was government guest house and inmate of room were Pawan, Sonam, her husband Saba and PW­55 and in opposite to their room, the other inmates were Sukhbir and others were accommodated at floor below the floor of others. There was rehearsal for performance. Shiv Kumar was also there, who had disbursed DA of 50 Euro to each member of group. PW­55 further deposed as to how Sonam and Saba left that room (where they were relaxing and watching video of performance) stating they were feeling sleepy, then PW­55 alongwith Pawan came to their room to sleep, they did not found Sonam and Saba in the room, then PW­3 Pawan and PW­55 went to the guest house lobby to check them, but they did not find them (Sonam and Saba), immediately PW­3 informed Sukhbir Singh (i.e.PW57), who further telephoned to Shiv Sharma apprising him of those facts. However, Shiv Sharma did not turn up immediately. The next morning, it was also noticed that many more boys were missing from the guest house, which were told by Sukhbir Singh to Mr. Shiv Kumar Sharma but Shiv Kumar Sharma was not perturbed by knowing, instead he asked that there is a flight to be caught.

Out of 15 persons, it is only six came back India. PW­55 further narrates the episode as to how they were badly treated after arrival in India, they managed to reach Ludhiana. She was also examined about her passport and other record. She was not paid her balance amount of Rs.5000/­ which was agreed for the trip. [She was cross­examined on all counts to prove that neither she handed over her passport to [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 54 of156 ] Balwinder Bawa nor any advance of Rs. 5000/­ was given to her or to challenge her testimony. She was also cross­examined on behalf of other accused that she was under the pressure of CBI and that is why she stood witness in the case].

(xxxviii) PW­57 Sh. Sukhvinder Singh - to prove that he operates Events Management Company since 1985 and he has a cultural group by name M/s Rangla and also M/s Sabrang Group besides the business of air­conditioning. Further, he is a professional dancer and he gave various performances for Punjab Academy, Sahitya Kala Parishad, ICCR and other govt. bodies, he is also empaneled with ICCR from the year 2003. He had also gone to North Korea, Thailand, Switzerland, Germany for performances. It was 7/8th September 2005, when he received a call from PW­12 Ms. Kehkashan Tyagi that a Bhangra group of Ludhiana under the name Mehak Punjab Di is being sent to Berlin by ICCR and they require services of technician, he had consented to go.

It was 11.09.2005, when he went to ICCR, where a meeting took place which was attended by accused Shiv Kumar Sharma, PW­12 Ms. Tyagi and PW­57. After meeting, PW­57 was introduced by Ms. Tyagi to Hargulab, who was leader of Bhangra Group Mehak Punjab Di. On 12.09.2004, the flight was boarded for Berlin and PW­57 accompanied the others there. He further narrates as to how other officials at Germany from High Commission were present there and they all were welcomed vis a vis many formalities were completed, as to how rehearsal and performance took place as well as the participants of artists. He also deposed that three boys climbed the gate of guest house and run away, consequently, PW­57 immediately telephoned to Shiv Sharma in the night and also called High Commission on the next morning, Shiv Sharma did not come to the guest house during the night by just saying 'let us see'. Further, in the next morning when PW­57 was supervising his work, someone informed him that three boys namely Prabhjot Singh, Jagdeep Singh and Amanpreet Singh had left the guest house and run away, again Shiv Kumar was informed immediately and thereafter, Shiv Kumar Sharma, Mr. Pandey and local police arrived at the guest house. His further deposition pertains to the other internal affairs happened during their stay at Berlin as well as how they came back India. When he was cross­examined on behalf of State, he also named Sonam, Saba (husband of Sonam), Amarjeet Singh and [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 55 of156 ] Satnam who had run away from the guest house in Berlin, Germany. [He was cross­examined on behalf of accused persons to establish that he has heard the facts from others and not knowing personally and because of these circumstances, he is not aware about immediate complaints initiated on the part of Mr. Pandey in Berlin as well as by Shiv Kumar Sharma].

(xxxix) PW­9 Ms. N (name withheld), Professional Dancer - to prove that she was a professional dancer and she alongwith her fellow dancers used to give performances in groups in the locality. Accused Balwinder Bawa is her maternal aunt (Mami), she is also in the same field. PW­9 alongwith PW­10 A(name withheld) at the instance of Balwinder Bawa went to Zimindara Dhaba for giving dance performance, they performed there; accused Rakesh Kumar and Shiv Kumar Sharma were also present there and after conclusion of dance programme at midnight, accused Balwinder Bawa and Hargulab Singh asked PW­9 and also PW­10 to go with accused Rakesh Kumar and Shiv Kumar for night, they were driven by Gurbhej Singh to a hotel. She was subjected to sexual advances by Shiv Kumar which was resisted by PW­9, then accused Shiv Kumar Sharma left the place, however, when accused Rakesh Kumar made sexual advances but PW­9 started crying; thence Rakesh Kumar made sexual relation with PW­10. In the morning, PW­9 and PW­10 left the hotel, they were accompanied by accused Gurbhej Singh and Balwinder Bawa. The events of performance at Zimindara Dhaba was photographed, the pictures of PW­9 are also in those photographs (Ex. PW­9/A1 to Ex. PW­9/A8), event was also covered by videoy, its CD is also carrying her picture (Ex. PW­9/B1 and Ex. PW­9/B2) as well as the CD of still photography (Ex. PW­9/C). She was paid Rs. 1000/­ as remuneration by Balwinder Bawa for her dance performance at Zimindara Dhaba. [She was cross­ examined to test her memory as well as there was nothing to cull out sexual advances or to put her in the hotel to stay with Rakesh Kumar or anything against Shiv Kumar vis a vis Gurbhej Singh had not taken them to and fro in any vehicle].

(xL) PW­10 Ms. A (name withheld), Professional Dancer - to prove that she was a professional dancer and Hargulab @ Gulab Singh approached for giving dance performance, Balwinder Bawa was also there. PW­9 & PW­10 were chosen for giving dance performance which [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 56 of156 ] were performed by them. PW­10 further deposes on the lines of PW­9 inclusive of the fact that there were sexual advances by accused Rakesh Kumar, when she had resisted it, then he called Hargulab Singh that she was not acceding to his advances, then Hargulab Singh threatened PW­10 to concede to Rakesh Kumar to keep him happy so that she may be sent abroad. Next day, accused Gurbhej Singh drove alongwith Balwinder Bawa back. She is also confirming her pictures of performance in photographs and CD (Ex. PW­9/A to Ex. PW­9/A6 and Ex. PW­10/A; CD Ex. PW­9/D1, Ex. PW­9/D2 and Ex. PW­9/C) [She was also cross­examined in detail alike PW­9 vis a vis to establish there is no role or involvement of any accused].

... ...

(xLi) PW­18 Sh. Avtar Singh - to prove that his son Amarpreet Singh was student of 12th standard in 2004­05 but he had interest in Bhangra (dance) and he had desired to visit abroad. In the year 2005, Amarpreet Singh requested his father/PW­18 that for his Bhangra/dance, he has to visit Germany and he requires Rs. 60,000/­ and the amount is to be paid to someone, who is facilitating his visit abroad/Germany for 15 days. PW­18 collected the amount from his brothers & sisters and then given the amount to his son. Amarpreet Singh went Germany, he called his father PW­18 that he reached Germany and also fine there but after 20­30 days of his visit there, he again called that he was doing some work and then he never contacted PW­18 nor PW­18 knows whereabouts of his son. [There is no cross­examination by any of the accused persons].

(xLii) PW­20 Sh. Najar Singh, Agriculturist - for establishing that he was an agriculturist in the year 2005­06, he has a son namely Jagdeep Singh and a daughter namely Manjot Bawa. In the year 2005 his son Jagdeep Singh requested him for a sum of Rs. 80,000/­ that he has to pay the amount to someone, who is arranging his visit to Germany being to be part of a Bhangra team (dance group), the amount was arranged by PW­20 from the relatives. While leaving for Germany, Jagdeep Singh told that he is visiting there for 15­20 days. His son also called PW­20 on his reaching safely in Germany. But his son never came back India although initially he had called PW­20 on telephone once or twice. In the year 2003 he had also gone to Korea, when he [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 57 of156 ] took Rs. 30,000/­ from PW­20 but he came back India after two years. [There is no cross­examination by any of the accused persons].

(xLiii) PW­21 Sh. Harjinder Singh - for establishing that he has two sons namely Amanjeet Singh and Gurvinder, the former had studied upto 10th/12th standard but the later studied upto 12th standard. Amanjeet used to participate in the group having Bhangra activities after his studies and he also wanted to visit abroad, he was asking financial assistance for his visiting abroad. However, PW­21 came to know much after of Amanjeet Singh went to Germany, he went without permission and consent of PW­21 and he never called PW­21. [There is no cross­ examination by any of the accused persons].

(xLiv) PW­53 Sh. Pritam Singh, Farmer - to prove that Prabhjot Singh is one of his four children, he could not qualify 12th class but he was good Bhangra performer (dancer) and he was involved in playing dancing. He had gone to Ludhiana when came to know in the newspaper that there are some colleges, who may enrolle as the students of B.A without clearing 12th class and Prabhjot Singh went there to joint the college in the year 2005. But after sometime, PW­53 was told by his son that he is a active member of Bhangra team in the college and the team is going to Germany. PW­53 accompanied him to see the trial being held of the said Bhangra team at Zimindara Dhaba, located on Ludhiana­Delhi highway, where PW­53 come across a person namely Gulaba, who was helping boys and girls to perform Bhangra and one inspecting team was also there to view the Bhangra. One person namely Mr. Sharma was also there. PW­53 talked to Gulaba that his son desires to go America then Mr. Gulaba confirmed that after Bhangra team being returned from Germany, it will be sent to America. Prabhjot Singh got stitched his cloth and PW­53 had spent Rs. 25,000/­. Mr. Gulaba and Mr. Sharma had not asked any money from PW­53 but PW­53 had given Rs. 5000/­ to Gulaba after 15 days of trial, when Prabhjot Singh was to go to Delhi. PW­53 further narrates as to how his son had reached Delhi, he was given Rs. 5000/­as traveling charges. Prabhjot Singh reached Germany, he rang PW­53 that Bhangra team had performed in Germany vis a vis Bhangra team had thereafter gone on their own ways and there was nobody to arrange for Prabhjot Singh back from Germany. Prabhjot Singh never returned to India but Prabhjot Singh keeps on telling PW­ 53 as if he is in Belgium or in Germany. {PW­53 was cross­examined on [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 58 of156 ] behalf of State as he was resiling from his earlier statement to CBI as well as saying that he was detained & insisted by CBI to say that moneyh was paid by him in lieu of sending his son abroad}. [He was not cross­examined on behalf of the accused persons].

... ...

(xLv) PW­39 Sh. Amarjeet Singh, Served Indian Army - to prove that he had retired from Indian Army from the post of Subedar in 1999. In the year 2005 he was operating PCO by the side of his house at Ram Tirath Road, his son Satnam Singh was also assisting him. There was demise of some relative in the year 2005, his family met accused Balwinder Bawa who persuaded family of PW­39 to send Satnam Singh abroad as there is no scope in India, then PW­39's wife convinced PW39 to send Satnam Singh abroad through Balwinder Bawa. She (Balwinder Bawa) also persuaded PW­39 on phone that his son Satnam Singh can be sent abroad in Bhangra group. In order to satisfy himself, PW­39 went to a hotel in Ludhiana in 2005, where Bhangra group was to perform, who were expected to be sent abroad through Balwinder Bawa, however, on the arrival of PW­39 at the venue in Ludhiana, the performance was already over and then he visited at the house of Balwinder Bawa, where number of boys and girls were present. Further, to prove that Balwinder Bawa had demanded Rs. 5 lakhs for making arrangement for sending Satnam Singh abroad; but because of financial constraints, PW­39 expressed that he could not pay such amount, he was asked to pay the possible amount and remaining can be paid once Satnam Singh start earning abroad and PW­39 expressed that Satnam Singh does not know Bhangra, he was assured that it is not so required but Satnam Singh will be part of the Bhangra group. Therefore, at the instance of Balwinder Bawa, the particulars of Satnam Singh were given to her and a slip was also handed to him. His son applied for issuance of passport. The passport number was also faxed to Balwinder Bawa. Later on a message was received from some officers from Delhi to inspect/view performance of Bhangra group at Ludhiana and PW­39 was also asked by Balwinder Bawa to visit Ludhiana with that slip and Rs.85,000/­. He went Ludhiana, Satnam Singh was already there, the performance was at Zimindara hotel. A sum of Rs.85,000/­ was given to Balwinder Bawa at her house. PW­39 further narrates about the state of affairs as to how his son Satnam Singh reached Delhi and the [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 59 of156 ] harassment faced by his son, who came back Amritsar for want of sending Satnam Singh abroad by accused by stating that he was not selected, PW­39 came back to Amritsar separately. The application form (Ex.PW­2/K) so filled in for issue of official passport (for visiting Germany with the Bhangra group) for Satnam is not of Satnam Singh.

(xlvi) PW­40 Sh. Satnam Singh, Business of fruit juice seller­ he is son of PW­39 Amarjeet Singh and he has been examined to establish the circumstances on the lines of PW­39 vis a vis as to how he came into contact with Balwinder Bawa through Veero Devi, who is sister­in­law (nanad) of sister of PW­14. He has also deposed that a sum of Rs.5 lakh was asked by Balwinder Bawa from the parents of PW­40, who had expressed their financial constraints as well as PW­40 does not know Bhangra, Balwinder Bawa had assured to pay balance amount after start earning abroad and PW­40's father had paid Rs.85,000/­ to Balwinder Bawa. Further, to prove that application form (Ex. PW­26/B) is of Satnam Singh which bears his signature vis a vis the application form (Ex. PW­2/K) for official passport is not of Satnam Singh/PW­40 nor it bears his signature nor the photograph thereon belongs to him. He also described about his visit at Zimindara dhaba, where he was called by Balwinder Bawa, there was Bhangra group performance but PW­40 was not participant in the performance but Veero's daughter Anju had joined that group besides son and daughter­in­law of Balwinder Bawa in that group. PW­40 was informed by Balwinder Bawa that the group was to be sent to Italy and when arrived at airport of Delhi, he was asked by Balwinder Bawa to wait near the bus and then he was informed by her that he will be sent after a week time, he was asked to go back Amritsar. (He was cross examined by accused, by also putting his statement u/s 161 Cr.P.C PW­40/DX to refute the claim of demand of any amount or any payment of Rs.85,000/­ to Balwinder Bawa and so on).

(xLvii) PW­54 Sh. Ajeet Singh @ Jeeta Pawar, Singer­ to prove that he is a singer by profession and he performs at various exhibitions and programs, he operates his office in shop no.37, Jodhewal Chowk, Ludhiana, Punjab. During these programs, he had already met accused Balwinder Bawa frequently and also Hargulab Singh, who used to arrange for singers to perform abroad. Accused Balwinder Bawa and Hargulab represented him that they could send PW­54 to England for [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 60 of156 ] performance and also asked his photograph and to get him clear in the trial so that he may be sent to England for performance. Balwinder Bawa asked him Rs.50,000/­ to pay to Hargulab during the presence of Jaswant Singh Cheema/PW­56 and they will arrange performance abroad, he paid the amount demanded by borrowing from his friend PW­56. Even PW­56 was also asked by Hargulab Singh that he may also be sent to England or any other country but he will have to spent more or Rs.4­5 lakhs, when PW­56 expressed that he is not trained singer, he was assured otherwise. PW­56 paid the amount in installments and some amount in the presence of PW­54.

Then PW­54 was called by Hargulab Singh and took him to various programs for performance and he also used to take photographs. Balwinder Bawa also met PW­54 once or twice after payment of amount, he was assured to send him abroad. Moreover, Balwinder Bawa and Hargulab had also taken certificates from PW­54 which he had earned at various performance on the plea that the same are required for arrangement for abroad, the said certificates were not returned by them. Further, to prove that Hargulab had called PW­54 for stage performance to have photographs so that the same can be used to show programmes done for going abroad, where witness PW­56 Jaswant Singh Cheema, accused Balwinder Bawa and other Bhangra group made their performances at instance of Hargulab Singh, which were also photographed (album Ex. PW­4/M) under the banner Mehak Punjab Di, which was put up by Hargulab Singh for the purposes of said group and photographs shows the presence of Balwinder Bawa, Hargulab Singh and of other performers. Lastly, Hargulab Singh had brought filled in many certificates with words 'Mehak Punjab Di, Gidda and Bhangra Group'. Balwinder Bawa had returned a part of Rs.50,000/­ paid to her, since he was not sent abroad. PW­54 had handed over his earned trophy (Ex. PW­54/A, of Shaheed Dilbagh Singh Yaadgari Sabyachar Mela) to CBI. (He was cross examined on behalf of Balwinder Bawa that neither she had demanded any amount nor there was any occasion to pay any amount).

(xlviii) PW­56 Sh. Jaswant Singh Cheema, Businessman/Trader ­ to establish the facts on the lines of statement of PW­54 vis a vis in May, 2005 he was sitting with PW­54 when Gulab (i.e. this Hargulab Singh) and Balwinder Bawa came to the office of PW­54, they convinced that a [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 61 of156 ] Bhangra group is to be sent abroad for performance, which may be joined by PW­54 as a singer. Further, PW­56 was also told that if he wishes to go with the group, he has to pay Rs.4 lakh to visit England with the group. PW­54 was asked Rs.50,000/­, since PW­54 was not having money at that time then PW­56 gave Rs.50,000/­ for PW­54 to Hargulab and Balwinder Bawa, Rs. 4 lakh was paid by PW­56 to them in installments, the first installment of Rs.1.5 lakhs was paid in the office of PW­54.

Moreover, Hargulab Singh and Balwinder Bawa had also taken photographs of earned certificates and of mela performances of PW54 in the office of PW­54. PW­56 also accompanied them to printing press office at Shivpuri to have certificates and mela performances to be duplicated for Bhangra group Mehak Punjab Di, but on that day the concerned person at the press office was not available and subsequently Hargulab Singh went to the press office again with certificates and photographs and got duplicate certificates printed and brought the same in the office of PW­54, the witness PW­56 identifies those certificates (Ex. PW­4/F­1:Mehak Punjab Di Bhangra Club, Institute of Folk Dances, a certificate in favour of Jaswant Singh Cheema; Ex. PW­4/F­2: Samaj Sudhar Committee registered Adda Dagan Mukerian, annual cultural program, citation certificate in favour of Hargulab Singh; Ex. PW­4/F­3: certificate in favour of Mehak Punjab Di, Bhangra Gidda Club Ludhiana issued by Mela Paunahari Da; Ex.PW­ 4/F­4: special certificate in favour of Punjab Mehak Di, Bhangra Club, Ludhiana issued by Bawa Shyami Shah Darbar; Ex. PW­4/F­5:

certificate in favour of Mehak Punjab Di Bangra Club, Ludhiana by Shahid Dilbagh Singh Yaadgari Samaya Charak Mela and Ex. PW­4/F­ 6: special certificate in favour of Mehak Punjab Di Gidda Bhangra Club issued by Gaddi Nisheen Mahant Narender Pal Ji/Tila Bawa Sheikh Farid Ji), which were filled in the office of PW­54. PW­56 was also asked to fill in the same, the certificates Ex. PW­4/F­5 and Ex. PW­4/F­ 6 were filled in by PW­56 at the instance of Balwinder Bawa and Hargulab. PW­56 also identifies weekly Manjeet Bulletin, Ludhiana (Ex.

PW­4/H and Ex. PW­4/G) containing publication of photographs and by pointing out that his figure is at Point­X in the photograph.

Hargulab Singh and accused Balwinder Bawa were also accompanied by PW­56 to Subhash Nagar to get newspaper item [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 62 of156 ] printed of back date pertaining to Bhangra group Mehak Punjab Di, they had given amount to the printer to have news article of back date, however, the printer assured to get it done from some other source.

Thence, Hargulab Singh and Balwinder Bawa booked a marriage palace on Rohan Road at Ludhiana where photograph of group performing Bhangra was taken by the photographer arranged by Hargulab and accused Balwinder Bawa. One Tahal Singh Kheeva (PW­ 38/Artist) had given coaching for performing Bhangra and both Hargulab and Balwinder Bawa told that photographs have to be taken as the same are to be sent to Delhi for the group to be sent abroad. PW­56 was announcer in that program vis a vis Hargulab and Balwinder Bawa had costumes to make performance. Initially the photographs were taken without the banners of Mehak Punjab Di and thereafter more photographs were taken by keeping the banner of Mehak Punjab Di in the background, the PW­56 identifies those photographs (in album Ex.PW­4/M), as well as the presence and performance of Hargulab, Balwinder Bawa and of PW­56.

After some time Hargulab and accused Balwinder Bawa told PW­56 that group will go to Germany and not to England but PW­56 expressed that he is not interested to go to Germany and he also asked return of his passport and amount given during training, his passport was returned but not his money till date, the cheques issued were not presented during validity period on the request of Hargulab Singh and Balwinder Bawa. (He was cross examined in detail about his sources of income as well as to challenge his testimony that neither he had given amount of Rs.50,000/­ for PW­54 nor any other amount of Rs.4 lakhs for him or with regard to other aspects deposed by him, particularly Balwinder Bawa never went to any office or press to have publication of news article or other record).

(xLix) PW­38 Sh. Tehpal Singh Kheeva, Municipal Corporation, Ludhiana­ to prove that he used to work with Municipal Corporation of Ludhiana besides he used to organize cultural programs of Bhangra and Punjabi folk dances, he has a group by name M/s Rangla Punjab Cultural Youth Club, which was registered with the youth services vis a vis he used to organize cultural program on 15 th August and 26th January of each year. He narrates the sequence of such events from the year 1982 and onwards, either in India or abroad, even he visited [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 63 of156 ] Korea through ICCR, Delhi. His son Sandeep Kumar Kheeva (PW­36) is also an artist, who also applied for empanelment with ICCR for his group 'Punjabi Lokrang'.

He/PW38 further narrates that he used to organize workshops during summer vacation and also teach Bhangra and folk Punjabi dance to students. He knew Balwinder Bawa, an artist and he used to meet her in different programs/functions. Balwinder Bawa met PW­38 in the Punjabi Bhawan and requested him to teach some of her artist boys Punjabi folk dances and on her request he taught Bhangra and other folk dances to those boys in May­June, 2005, during that session Hargulab Singh and PW­54 were also present and these services were given free to the students, however, the drummer (dholwala) used to be paid charges by them. (PW­38 was cross examined on behalf of accused with regard to antecedents and there was no influence in getting the group empaneled vis a vis the empanelment was done on merits.

(L) PW­36 Sh. Sandeep Singh Kheeva, Bhangra Dancer­ to prove that he is native of Ludhiana, Punjab, he chose Bhangra as his profession and his father (PW­38) have also been performing Bhangra in different groups and his father is having group by name 'Rangla Punjab', empaneled with ICCR. He also narrates that he formed a group in the year 2005 by name 'Punjabi Lok Rang Cultural Group', which was registered with ICCR to perform local Punjabi folk dances of Bhangra, Gidda etc.. He narrates about the activities of this group as well as of PW­36 abroad but he was not knowing anything about Mehak Punjab Di, if any. (He was cross examined alike PW­38 that the empanelment of his group 'Punjabi Lok Rang Cultural Group' with ICCR was on merit).

... ...

(Li) PW­66 Sh. Satyender Pandey, Inspector in Special Crime Region­I, CBI, New Delhi­ to prove that he was posted as Inspector in Special Crime Region­I, CBI, New Delhi, a preliminary inquiry was registered in the Branch in November 2005 about the allegation of misuse of official position in sending several persons from India to abroad in illegal manner, that inquiry was assigned to him. In that process certain facts and documents were ascertained by him and collected. A formal FIR [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 64 of156 ] (Ex. PW­66/B) was registered on 27.3.2006 on the basis of complaint dated 24.3.2006 (Ex. PW­66/A). Further, to prove that in the phase of preliminary inquiry he had collected various documents, which were handed over to the IO by memo (Ex.PW­66/D). He had also participated in the investigation and in that phase three seizure memos (Ex. PW­ 33/A in respect of seizure of 39 photographs and one CD from Surender Kumar; memo Ex. PW­35/A in respect of seizure of two compact disc Sony CDR and memo Ex. PW­66/E in respect of seizure of one Sony CDR) were prepared by him. (He was cross examined to challenge his role as well as the inquiry carried by him or to confront him that the role of other official of ICCR was found to be suspicious but nothing against the accused). ... ...

(Lii) PW­22 Sh. Harmesh Kumar, Jr. Telecom Officer, BSNL, Ludhiana ­ to prove that he alongwith PW­60 is an independent witness in respect of search carried on 29.03.2006 at the house of accused Shiv Kumar. PW­22 was working as Junior Telecom Officer in BSNL, Ludhiana. There search was carried at the residence of accused Shiv Kumar, a search list (Ex. PW­22/A) of seized articles was prepared, to which he is a witness; the seized items are commendation certificates (Ex. PW­ 22/B, in Hindi, Ex. PW­22/C in Punjabi, Ex. PW­22/D1, Ex. PW­22/D2, Ex. PW­22/E1, Ex. PW­22/E2, all in Punjabi, Ex. PW­22/F in English, Ex. PW­22/G in English) and participant identity cards of Doordarshan Kender Jalandhar (Ex.PW­22/H1 & Ex.PW­22/H2), each of such document were endorsed by his signature as token of their seizure in his presence.

Similarly, in November 2006, he was again asked to reach at Inspection Quarters, BSNL at 06:00am on that day, where he had reached with PW­60 Karnail Singh and then joined the investigation by visiting residence of Balwinder Bawa. Many documents were seized from Balwinder Bawa and they were also seized by search memo Ex. PW­19/A and the documents seized were original commendation certificates [Ex. PW­4/F1, Ex. PW­4/F2, Ex. PW­4/F3, Ex. PW­4/F4, Ex. PW­4/F5 & Ex. PW­4/F6] and two newspaper Manpreet Bulletin (Ex. PW­4/G & Ex. PW­4/H showing photographs of performance of Mehak Punjab Di); he is a witness in the seizure memo at Point­B on Ex. PW­ 19/A as well as he also signed each certificate and newspaper [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 65 of156 ] Manpreet Bulletin. [He was cross­examined to dispute his presence as well as recovery of any document at either of the places].

(Liii) PW­60 Sh. Karnail Singh, Sr. TOA, BSNL, Ludhiana - to establish that on 29.03.2006 he alongwith PW­22 joined the investigation while search was carried at the residence of Shiv Kumar at Durga Puri, Ludhiana, Punjab and he is witness to the recovery effected vide seizure memo (Ex. PW­22/A). In addition three diaries (Ex. PW­2/B, Ex. PW­2/C & Ex. PW­2/D) were also seized, to which he is also a witness in the memo. [He has not been cross­examined by any of the accused].

(Liv) PW­19 Sh. Rajinder Singh, Jr. Telecom Officer, BSNL, Ludhiana - to prove that in the year 2006 he was posted as Jr. Telecom Officer, BSNL, Durgri, Ludhiana and he had joined the investigation at Inspection Quarters, Telephone Exchange, Dugri, Ludhiana when documents were seized from Balwinder Bawa on that day, he is a witness at point A in the seizure memo Ex. PW­19/A. [he was cross­ examined to the point that he was not knowing as to what exactly was the document seized nor he had gone through the documents nor he had seen the same].

(Lv) PW­62 Sh. Mayank, JTO (VAS), BSNL, Ludhiana - to establish that he was posted as JTO (VAS), BSNL, Ludhiana and on 29.03.2006 he joined the investigation when accompanied by Sh. Kaushal Kumar (PW­63) SDE and they went to the search operation at the house of Hargulab Singh in village Ladiyan Khurd, PS­Haibowl, Ludhiana, where search was done and a search memo Ex. PW­4/Q was prepared and letter of empanelment dated 31.08.2005 (Ex. PW­4/R) was seized. He is a witness in the search memo. [He has not been cross­examined by any of the accused].

(Lvi) PW­63 Sh. Kaushal Kumar, SDE/P/Plant, BSNL, Ludhiana ­ to establish that he was posted as SDE/P/Plant, BSNL, Ludhiana and on 29.03.2006 he joined the investigation when accompanied by Sh. Mayank (PW­62) and they went to conduct search at the residence of Hargulab Singh in village Ladiyan Khurd, Ludhiana where search memo Ex.PW­4/Q was prepared and letter of empanelment dated 31.08.2005 (Ex. PW­4/R) was seized. He is a witness in the search memo. [He has not been cross­examined by any of the accused].

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 66 of156 ] (Lvii) PW­65 Sh. Ravinder Kumar, Inspector CBI, SCR­1, New Delhi - for establishing that when he was posted as Inspector CBI, SCR­1, New Delhi from 17.03.2003 to 30.11.2006, he was deputed by SP Sh. Vineet Vinayak for the purposes of investigation on 11.04.2006, he visited Ludhiana, Punjab, where accused Gurbhej Singh met him at the Railway Station and led him to Hotel Classic Retreat, where Rakesh Kumar had stayed with two girls on the night of 01.09.2005 and accused Gurbhej Singh had pointed out and identified that place that on 02.09.2005 he had picked up those two girls from the hotel and dropped them at Sherpur Chowk, where accused Balwinder Bawa and Hargulab Singh were to take them, for which pointing out memo (Ex. PW­23/A) was prepared, which was signed by PW­65 at Point­B and by accused Gurbhej Singh at Point­C. Moreover, the visitors register of Hotel Classic Retreat was also inquired from Amit Singh, an employee in the hotel but he could not produce it as IO of another case of PS­Salem Towri had seized it. [He/PW65 was cross­examined that neither he had any authority to proceed for investigation nor any instruction was given to him or he could not produce any documentary record of his authority to investigate the case vis a vis the pointing out memo Ex. PW­3/A is a fabricated document].

(Lviii) PW­23 Sh. Harmeet Singh, Accountant with Hotel Classic Retreat, Ludhiana - to prove that on 11.04.2006 he was an Accountant with Hotel Classic Retreat, Ludhiana and CBI officers visited him during investigation, a document Ex. PW­23/A was prepared in the hotel, he is a witness at Point­A therein. He was also inquired about the register maintained in the hotel but it was already with the police. He could not recollect in what context Ex. PW­23/A was prepared. [There is no cross­ examination on behalf of accused persons].

(Lix) PW­61 Sh. Sarwan Singh, Asstt. Commandant, 27 th Battalion PAP, Jalandhar Cantt. ­ PW­61 was got examined with regard to certain records in respect of accused Gurbhej Singh and PW­61 was Asstt. Commandant, 27th Battalion PAP, Jalandhar Cantt. in the year 2006. A fax message was received from CBI, which was replied by letter dated 08.03.2007 (Ex. PW­61/1) about the detail of joining as well as places of posting during certain period from 01.01.2005 to 06.04.2006. [There is no cross­examination on behalf of accused persons].

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 67 of156 ] (Lx) PW­64 Sh. Gurkirpal Singh, SP (Traffic), Ludhiana - PW­64 was summoned and examined to establishing close relationships of Shiv Kumar Sharma with the DGP Sarabjeet Singh as well as to Rakesh Kumar of Ministry of External Affairs. He deposed about his posting from time to time being in Punjab Police at different assignments from the year 1999 to the year 2009. [He was not supported the case of prosecution to authenticate their relations, he was cross­examined in detail on behalf of State but failed to get support the case as explored in his cross­examination].

(Lxi) PW­71 Sh. Himanshu Khanduri, Inspector CBI, SCR­1, New Delhi­ to establish that during 2006­07, he was Inspector CBI, SCR­I, New Delhi, he was given instructions by IO/Inspector S.K. Rathi and in obedience of those directions, PW71 proceeded for investigation and seized certain record from the office of Deputy Director, ICCR, New Delhi, the record was seized its memo dated 02.05.2006 (Ex. PW­ 11/Y2) was prepared, whereby original passports­ Ex. PW­14/C of Satnam Singh, Ex. PW­14/E of Amarjeet Singh, Ex. PW­14/F of Amanpreet Singh, Ex. PW­14/G of Jagdeep Singh, Ex. PW­58/A of Prabhjot Singh, Ex. PW­58/B of Satnam Singh s/o Balwinder Bawa & Amarjeet Singh, Ex. PW­58/C of Gurmeet Bawa and another passport Ex. PW­4/P of Randeep Singh were seized besides list of passports and colour prints of photographs].

... ...

(Lxii) PW­29 Sh. Ashwani Sharma, Sr. Vice President, Shree Sidh Yogi Bawa Balak Nath Prachar Sangh ­ for establishing that he was Sr. Vice President of Shree Sidh Yogi Bawa Balak Nath Prachar Sangh and Shri Raj Sharma was its President. Shree Sidh Yogi Bawa Balak Nath Prachar Sangh, does programme from 11th to 15th April of each year for glorification and in the memory of Bawa Balak Nath, the programmes are organised at Hari Om Mandir, Moti Nagar, Ludhiana and artists used to be invited. Moreover, the certificate (Ex. PW­4/F3, of dates 11th,12th, 13th, 14th & 15th April 2005 in favour Mehak Punjab Di, Bhangra­Gidda Club, Ludhiana) is bearing name of their Sangh but it was not issued by the Sangh of PW­29 at any point of time. [This witness was not cross­examined].

(Lxiii) PW­30 Sh. Baljeet Singh, Printing Press Business - for establishing that he operates Printing Press since 1997 under the name [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 68 of156 ] and style of M/s Dilkhush Printing Press by using treadle machine. Hargulab Singh alongwith his associates visited him for getting printed certificate of private organisation, however, PW­30 had refused it since he was not having off­set machine to print them. Again he came after 2­ 3 days and requested that some programme is to be organised, he urgently requires certificates and on his request, PW­30 got printed from someone else the certificates by charging Rs.1200­Rs.1300/­, the said certificates got printed [Ex. PW­4/F1 to Ex. PW­4/F6] by him but the printed certificates when got printing were not bearing the words 'Mehak Punjab Di'. [This witness was not cross­examined on behalf of any of the accused].

(Lxiv) PW­31 Sh. Sai Prem Singh, Pradhan of Hazrat Peer Bawa Sunet Shah Wali Memorial Trust - for proving that he is Pradhan of Hazrat Peer Bawa Sunet Shah Wali Memorial Trust since 1992 and prior to it, his mother and he used to look after the Dargah. They organises a programme at Dargah for three days each year in the last week of June, the devotees and visitors come there of their own as no invitation are issued, they themselves come and give performance. As a mark of respect, trophies and certificates are issued to performers but no monetary remuneration to anyone. The certificates are issued under the signature of General Secretary and Pradhan/PW­31. A canceled certificate (Ex.PW­30/A, inadvertently written as Ex.PW30/A for Ex.PW31/A, since no such documents ExPW30/A was endorsed in the statement of PW30) is of the said Trust/Dargah However, a copy of similar certificate (Mark­X) in favour of Mehak Punjab Di was never issued by the said Dargah/Trust. [This witness was not cross­examined on behalf of any of the accused].

(Lxv) PW­32 Sh. Jasbir Singh Sahota, Cane Development Inspector, Punjab - to prove that he is Organiser, General Secretary of Samaj Sudhar Committee, Mukrian, Dagan Adda, District Hoshiarpur, Punjab and during the period from 2004­2006 he was also working as Cane Development Inspector with Cane Department, Mukrian, District Hoshiarpur. He also remained General Secretary of Samaj Sudhar Committee from the year 2000­2006. The President of Committee was Santokh Singh Dalowal. He also explains that the Committee was formed to remember the martyrs of Kargil War and their families; renowned personalities are invited in the functions to honour them as [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 69 of156 ] well as honour is given to students/persons including artists, teachers, doctors and others, who achieved laurels in their respective fields or professions. The function is organised on 29 th & 30th of September, which was also performed from years 2004 to 2006. Invitees were by way of invitation cards and also posters for general public to make them aware of the function. PW­32 confirms that CBI took specimen of original certificate (since cancelled) of Samaj Sudhar Committee, invitation card and original poster in Punjabi 'Jai Jawan Jai Kisan 6 th Sabyachar Mela' by seizure memo Ex. PW­32/A, which he had signed at Point­A and [its is poster Ex. PW­32/B. cancelled certificate Ex. PW­ 32/C, invitation card Ex. PW­29/A for 6th Sabyachar Mela for 29th & 30.09.2004­Wednesday and Thursday]. However,the certificate Ex. PW­4/F2 of Samaj Sudhar Committee in favour of Hargulab Singh was not issued by the Committee of PW­32 nor it bears signature of its President or of Pradhan/PW­32 nor such certificate was ever since issued of date 10.12.2004 as mentioned in Ex. PW­4/F2. [This witness was also not cross­examined on behalf of any of the accused].

(Lxvi) PW­34 Sh. Karnail Singh, Farmer & Sarpanch of Village Malkowal

- to prove that he was Sarpach of Village Malkowal, he is farmer and one Dilbagh Singh Subedar was resident in the village, he was martyr of Kargil War. In the honour of Dilbagh Singh and his sacrifices for the country, a Sabyachar Mela used to be organized in the village, which was first time organised in the year 1995. In the year 2005, it was organised on 13.02.2005 at Senior Secondary School, Malkowal, for which no printed invitation cards were given but all were invited by pasting of posters for the Mela. The participant artists used to be Honorarium from the collections made from the village itself. The CBI was handed over as specimen of framed blank certificate/format 'Shaheed Dilbagh Singh Yadgari Sabyachar Mela' 13.02.2005 day­ Sunday bearing two photographs (Ex.PW­34/B, being a format on which certificates used to be issued by the Committee) vide memo Ex. PW­ 34/A. PW­34 further deposed that a certificate (Ex. PW­4/F5) on yellow colour bound paper in favour of Mehak Punjab Di Bhangra Club was not issued by PW­34 or its organisation nor it bears signature of Shaheed Dilbagh Singh Sabyachar Committee vis a vis it is not in the format of certificate in practice of the Committee. [This witness was not cross­ examined on behalf of any of the accused].

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 70 of156 ] (Lxvii) PW­70 Sh. Narender Pal Singh, Gaddi Nashin at Tila Bawa, Ludhiana ­ to prove that he has been Gaddi Nashin for the last about 40 years of Tila Bawa Sheikh Fareed Samadhi, Bawa Sawan Shah Chown Basti, Jodewal, Ludhiana, Punjab. The Samadhi of Bawa Sheikh Farid organises Mela in the month of September, when artists perform Bhajan, folk songs, Qawwali and after the conclusion of Mela, momentum are given to artists. The momentum carries a photograph of Sheikh Farid and name of artist is also mentioned thereon, a momentum (Ex. PW­54/A) is specimen of momentums issued in the year 2003 on the eve of 28th Annual Mela. He further deposed that certificate (Ex. PW­4/F6) on a hard paper sheet in favour of Mehak Punjab Di Gidda Bhangra Club of 28 th Annual Mela of 16­17/18.09.2005 was not issued by them vis a vis this paper certificate shows holding of 28th Mela in the year 2005 whereas it was 30 th Mela that held at the Samadhi in the year 2005, he opined that the certificate Ex. PW­4/F6 is a forged certificate. [This witness was not cross­examined on behalf of any of the accused].

... ...

(Lxviii) PW­67 Sh. D.R. Handa, Sr. Scientific Officer, Grade­1 (Document) CFSL, CBI, New Delhi - for proving that he is M.Sc. Forensic Science, Post Graduate in Forensic Sciences from Delhi University and he had examined about 2.5 lakhs documents in thousand of cases till date (he was examined on 28.01.2016 before the court). Further, to establish that he had examined and compared the admitted signature/writing alongwith the specimen signatures and writing of Rakesh Kumar, Ms. Kehkashan Tyagi, Shiv Kumar, Hargulab and of Jaswant Singh and consequent to applying scientific means and techniques and with the help of video spectral comparator­5000, twin video comparator and magnifying glass, then he gave his detailed analytical report dated 11.03.2008 (Ex. PW­67/B), the letter and documents were received by letter dated 13.06.2007 (Ex. PW­67/A) and result was forwarded to the authorities by letter dated 13.03.2008 (Ex. PW­67/C). [This witness was not cross­examined on behalf of any of the accused]. ... ...

(Lxix) PW­1 Sh. Manjeet Singh, Reader, Registrar of Marriage, Amritsar

- in order to establish the marriage certificate of Gurmeet Bawa and Sukhdeep Singh (who are daughter­in­law and son of Balwinder Bawa [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 71 of156 ] wife of Jasbir Singh) that they married on 21.03.2005 and got their marriage was registered on 29.03.2005 in the office, which is in the register at serial no. 4232 dated 29.03.2005 (Ex. PW­1/A), the certificate on Schedule­D being extract from Hindu Marriage Register is Ex. PW­1/B bearing signature of Registrar of Marriage at Point­A (which PW­1 identifies). Gurmeet Kaur's father name is Jagir Singh and Sukhdeep Singh's father name is Jasbir Singh[This witness was not cross­examined on behalf of any of the accused].

(Lxx) PW­26 Sh. Pawan Kumar, UDC, Passport Office, Jalandhar - to establish the record of application form for issue of passport to Satnam Singh, PW­26 appeared to identify signature of Superintendent Ms. Veena Khanna that he worked with her in the section of verification of application/applicants being part of his duty. In that tenure, the application form of Satnam Singh was dealt (Ex. PW­26/B colly.), its record was handed over to CBI by Ms. Veena Khanna by letter dated 19.09.2006 Ex. PW­26/A. [This witness was also not cross­examined on behalf of any of the accused].

(Lxxi) PW­50 Sh. Pradeep Madnanai, Manager Operations, Carlson Wagonlit Travels, New Delhi - for establishing that in 2005 he was posted as Manager Operations, Carlson Wagonlit Travels, New Delhi and his job was inclusiding of booking air/train tickets for the clients. ICCR was on their panel since 2004 for the purposes of booking air /train tickets/international travel insurance. It was being dealt normally by Ms. Kehkashan Tyagi/PW­12 and on 05.09.2005 a fax message (Ex. PW­50/A) was received from ICCR to send quotation for 15 members dance group from Delhi­Berlin­Delhi, who was to make departure on 12.09.2005 for a week, the quotations were sent in sealed cover (Ex. PW­50/B & Ex. PW­50/C) on 06.09.2005. Around 7/8.09.2005, it was informed on telephone that option­2 of the quotation has been approved and the ticket must be booked for option­2 of the quotations. At that time Lufthansa Airlines was checked for the group booking but the seats were not available but it could be on payment of Rs. 2000/­ extra per person, which were conveyed to Ms. Kehkashan Tyagi by e­mail dated 09.09.2005 (Ex. PW­50/D), which was confirmed by return e­mail of 09.090.2005 (Ex.PW­50/E) and then bill for 15 persons was raised on 12.09.2005 (vide invoice Ex. PW­50/F). The payment was received by [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 72 of156 ] cheque at the end of September 2005. [This witness was not cross­ examined on behalf of any of the accused].

(Lxxii) PW­52 ASI Geetanand, HC No. 30/F, FRRO, New Delhi - to establish that he was posted in the office of Foreigner Branch, FRRO from the year 2003 to January 2009. On requisition pursuant to letter dated 05.06.2006 about arrival and departure of persons for period August 2003 to September 2005, the list of those persons (Ex. PW­ 52/B) was provided with covering letter dated 08.08.2006 (Ex. PW­52/A) to CBI, Special Crime Division­1. [This witness was not cross­examined on behalf of any of the accused].

(Lxxiii) PW­58 Sh. SurAjeet Som, Assistant in Consular Section, MEA­ to prove that he was Section Officer in May 2004 and posted at Embassy of India in Armenia, he was transferred to PV­II Section, Ministry of External Affairs and joined in August 2005. PV­II Section deals with issuance of deeplomatic passport and official passport to the govt. officials and other persons nominated by government departments. They were issued ordinary passports so as to enable them to visit concerned country. Further he elaborates the procedure for temporary passport to the prospective visitors going abroad as well as the hierarchy of officers deals with those applications. He also deposed about the identification of officers dealt with the relevant 15 passports (Ex. PW­4/O, Ex. PW­14/B to Ex. PW­14/D, Ex. PW­3/A, Ex. PW­14/E to Ex. PW­14/G, Ex. PW­4/D, Ex. PW­55/A, Ex. PW­14/H, Ex. PW­58/A to Ex. PW­58/B) as well as to identify their signature on the record. In addition,there was political clearance of 15 passports/persons, detailed in letter dated 05.09.2005 Ex. PW­17/B accompanying name list of 15 persons, out of them Hargulab Singh was a leader. [This witness was also not cross­examined on behalf of any of the accused].

(Lxxiv) PW­74 Sh. S.K. Rathi, Inspector in SIU­I, CBI, New Delhi - to prove that he was posted as Inspector SIU­1, CBI, New Delhi and he was assigned investigation of this case [FIR Ex.PW­66/B] on 17.03.2006, he was handed over the documents collected during preliminary inquiry by Inspector Sateyender Pandey (PW­66) and then he carried the investigation. In that phase not only he visited at different places to investigate the case but also recorded statement of witnesses, collected more documents and then as per need of the investigation, it was carried forward and scientific opinion was also obtained in respect [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 73 of156 ] of questioned writings/signatures as well as the specimen of accused persons and of others/PWs. The handwriting expert opinion was accordingly filed with supplementary police report. Since Rakesh Kumar was a public servant, the appropriate permission was taken to carry the inquiry, which was accorded, then case was registered & investigation was carried. Moreover, it was also applied for sanction to prosecute accused Rakesh Kumar and sanction order dated 10.12.2007 (Ex. PW­ 5/A) was accorded. Hargulab Singh was one of the five accused in police report, but he got recorded his statement u/s 164 Cr.P.C and he was also granted pardon by the court. [He was cross­examined in detail on all points of investigation as well as on the point of obtaining sanction to prosecute Rakesh Kumar, to establish that the investigation was not proper or as per norms].

5.1 (Statement of accused persons & their defence evidence) - Then statement of all the accused, without oath, u/s 313 Cr.P.C were recorded. They were explained individually the adverse circumstance and material against them. They have responded by blend of different expressions, some questions/allegations have been denied by them, some question were responded like matter of record, others reply was with explanations. Moreover, many facts were admitted directly or by implication. All of them have claimed their innocence as well as their falsely implication and witnesses have deposed falsely.

5.2 Accused Rakesh Kumar has denied all allegations, either with regard to empanelment of 'Mehak Punjab Di' or of his influence on anyone or expert Sub­Committee members vis a vis he has not done any wrong but did his duties as per rules and norms. Being head of the institution, he performed his acts and duties in the interest of institution. He has been implicated in the present case just on the statement of approver and investigation has not been carried fairly or independently.

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 74 of156 ] The witnesses had there own reasons to depose against the accused. PW­4/Hargulab Singh had falsely deposed against him at the instance of the CBI, who gave him immunity from legal punishment for large and variegated crimes committed by him. The other witnesses were under the undue pressure and fear of the CBI. Witness Sunil Bhalla has deposed against him because accused has discontinued the practice of presenting flower bouquets to the artists and also videos of the ICCR functions at Delhi, since by these acts witness Sunil Bhalla and other official's earning came to an end. PW M.S. Grover has deposed against accused because he felt that he was not being given importance, which he thought he deserved, being the second highest officer in the hierarchy in the organization. Further, accused is innocent, he has not committed any offence nor he is in any conspiracy that may have attended the affairs of the group 'Mehak Punjab Di' or to facilitate illegal immigration of members under the group 'Mehak Punjab Di'. He was not complicit in it, or aware of it, or could have discovered it by exercise of prudence or diligence expected of him. He had not abused his power, authority or discretion as a public officer for undue benefit to the group 'Mehak Punjab Di' or to any person associated with it. He had not made any demand or requested or obtained or received or retained any illegal gratification from any person in relation to his duties as a public servant, nor have knowingly caused to be made any wrongful loss to the government or any corresponding wrongful gain to any person or to himself. He had also not cheated the government or caused it to suffer any loss or any wrongful gain at its expense to anyone or himself. He has not created or used or got used any forged [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 75 of156 ] document for any purpose whatsoever. As appearing, some members of group 'Mehak Punjab Di' had not returned India from Germany, there was a feeling that those seeking to illegally migrate to Europe had abused the sponsorship provided by ICCR to the artists and the cultural group and the matter had to be probed. PW­4 Hargulab Singh himself confessed about illegal immigration for money but later, he came back, however, the CBI had not arrested him. He had been given unjustifiable immunity in exchange for committing perjury against Rakesh Kumar. Moreover, after the registration of this case, the CBI also registered and investigated another case against accused to find out if his assets were disproportionate to his known means of income. After going through the details of his assets and investments of his wife and children, the said investigation has been closed in favour of accused by the CBI, and a closure report to that effect has been filed, which has been accepted by the court of Special Judge, New Delhi. He opted for defence evidence.

5.3 Accused Shiv Kumar took the plea of his innocence and also ground of alibi that he had not visited the office of Rakesh Kumar, DG, ICCR, Azad Bhawan, New Delhi in the year 2005 particularly on 27.04.2005 or on 05.09.2005, as on those days he was in his office at Punjab Agricultural University, Ludhiana, Punjab. Moreover, he had also not gone to Zimindara Dhaba on 01.09.2005 but on 02.09.2005 at 03:00pm to see Rakesh Kumar there, where he happened to meet Ms. Kehkashan Tyagi. He rarely went to the office of Rakesh Kumar. He is not involved in any act of conspiracy or taking any amount from anyone or to get them defected in Berlin, Germany. Since he was sent as [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 76 of156 ] Manager in the group, he had informed the Embassy as well as police immediately when he came to know about defection of some members of the group. He met/saw Hargulab Singh first time on 02.09.2005 at Zimindara Hotel, therefore, there was no question of any conspiracy or any other act with Hargulab Singh. He claims to be innocent and he has been implicated falsely by CBI as he refused to become a witness against Rakesh Kumar as CBI pressurized him to do so. In fact, CBI had forcibly trespassed into his house, removed his valuable articles and also took him forcibly and then foisted this case against him. Shiv Kumar Sharma also opted for defence evidence.

5.4 Accused Balwinder Bawa @ Bawa also replied. She confirms some photographs, documents, facts vis a vis many allegations have been denied as false or many of them are not concerned with her. She admits that PW­9 and PW­10 are known to her, however, after performance on 01.09.2005 at Zimindara Hotel, both of them left for their house, although they were not engaged by her for the performance. Sukhdeep Singh is his son and Gurmeet Kaur is her daughter­in­law, they married of their own and they were living separately, why his name as Satnam Singh was mentioned by him in his application form (in place of his actual name) for official passport is not known to her. She has no role at all in the registration of empanelment of 'Mehak Punjab Di' as she never visited the office of ICCR, Delhi at any point of time. She, being a professional artist, came in contact of Hargulab Singh as a co­incident, when there was some local performance in the area. She never accompanied Hargulab Singh for registration of empanelment of Mehak Punjab Di, she never went to [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 77 of156 ] the office of ICCR, Azad Bhawan, Delhi. She does not know the reason of putting the banner of Mehak Punjab Di, when performance was given as an artist at Zimindara Hotel. The photographs (in album Ex.PW­4/M) were of performance at Zimindara Hotel of 01.09.2005 and she had not given any performance on 02.09.2005 and those photographs are also pertaining to 02.09.2005. She has been falsely implicated, neither the CBI visited her residence at any point of time, her signatures were obtained under force which had been converted into seizure memo of recovery of certificates, whereas neither anything was recovered from her nor she had accompanied Hargulab or PW­56 at any place or office or Press for getting printed commendation certificates or newspapers of Manpreet Bulletin. However, she admits that she is visitor to Jalandhar Doordarshan Kendra, she used to sign in the Register for entry but she denied entry card of Jallandhar Doordarshan Kendra (ExPW4/D) was given to Hargulab Singh. She also admits her in picture in photographs (Ex.PW­9/A1 to Ex.PW­9/A8, which were pertaining to performance at Zimindara Hotel) and also in the photographs (in album Ex.PW­4/M) having banner 'Mehak Punjab Di' in the background besides picture in earlier photograph (Ex.PW­4/E7, her picture is at Point­X) and also presence of Hargulab Singh at that place (shown in photograph at Point­Y in Ex.PW­4/E8). She confirms her talk with PW­72 Sudhanshu Pandey on telephone and she had requested PW­72 to convince her son and daughter­in­law to come back India; she was also angry because Hargulab Singh had not taken her in Germany in that group despite she sings very well. She opted for defence evidence.

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 78 of156 ] 5.5 Accused Gurbhej Singh during his statement claimed him innocent, he was never deployed with Shiv Kumar Sharma in any capacity and he has been falsely implicated. Neither he knew about any formation of 'Mehak Punjab Di', nor he had any role in its emapnelment, it is unknown fact to him. He saw accused Hargulab Singh, Balwinder Bawa and Rakesh Kumar first time in the court. There was no occasion for him to go to office of ICCR in the year 2005 either in March, April, May or September 2005. He had no occasion to visit Zimindara Dhaba in respect of Mehak Punjab Di (either on 01.09.2005 or 02.09.2005 or on other occasion or on 7/8.09.2005 in regard to Mehak Punjab Di). However, he may be getting through in front of Zimindara Dhaba during his official duties in the area. On 02.09.2005, he was posted in Jalandhar with Sh. Amar Singh Chahal, there was no occasion for him to be at Zimindara Dhaba on that day nor any scope for him that he took/drove the two girls to Sherpur Chowk on 02.09.2005. He has no brother­in­law by name Amanjeet Singh. His only brother­in­law is settled in India, it is falsely alleged that his brother­in­law was inducted in the group Mehak Punjab Di to visit abroad. He has not paid any amount for sending him abroad. First, he opted for leading defence evidence but subsequently by his statement dated 28.07.2017, he closed the defence evidence without producing any witness.

5.6 (Defence Evidence)­ Consequently accused Rakesh Kumar got examined two witnesses (DW­5 & DW­6), Shiv Kumar Sharma got examined three defence witnesses (DW­2, DW­3 & DW­4) and accused Balwinder Bawa got examined sole witness (DW­1) in support [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 79 of156 ] of their defences. The particulars of defence witnesses and their purpose of examination are detailed in chronological way as follows:­

(i) DW­1 Ms. Rajwant Bawa, Matron, Mahila Jail, Ludhiana, Punjab - She was summoned and examined to establish record about Balwinder Bawa's period in judicial custody in other cases in Punjab during the period from March 2006 to November 2006, consequently DW1 produced record (Ex.DW­1/A) containing information from Woman Jail, Ludhiana, Punjab that she was in Ferozpur Jail vide entry of 29.03.2006 in FIR No. 72/3.3.2006 PS­City Moga and she was admitted on bail and released on 27.04.2006. In another FIR No. 142/05 PS­Hobowal, she was in jail on 02.07.2006 and released on 20.09.2006. In third case of complaint No. 270/2004 of PS­Nakodar of complaint u/s 138 of Negotiable Instrument Act, there were production warrant and she was acquitted on 25.10.2006 ( on court query at the time of final hearing, Ld. defence counsel Sh. S.B. Sharma, Advocate clarifies that DW­1 was summoned with record to ascertain about certain dates of judicial custody, that purpose was achieved and it does not require to further analyse the deposition of DW­1 for final adjudication). [He was cross­ examined on behalf of State that DW­1 has no personal knowledge about the case.]

(ii) DW­2 Sandeep Wadhera, SHO, PS Sadar, Ludhiana, Commissionate - in order to establish that on 03.10.2006, he had recorded DDR No.33 (Ex. PW­DX4) to the effect that DW­2 was threatened by IO/Inspector S.K. Rathi/PW­74 because Raj Kumar (i.e.PW2) s/o Chanan Ram was detained by the police u/s 107/151 Cr.P.C consequent to complaint of Nabi Rasool Khan vide DD No.21 dated 02.10.2006 (Mark­DW­2/A, as result PW­2 was arrested u/s 107/151 Cr.P.C) as well as DW­2 was asked to release the said Raj Kumar forthwith otherwise to face the consequences, being threat, as if DW­2 did not know how CBI deals with such persons. [He was cross­ examined on behalf of State that because of telephonic call he could not say whether actually it was Inspector S.K. Rathi of CBI on phone on 03.10.2006.]

(iii) DW­3 Dr. Gursahab Singh Manes, Sr. Research Engineer cum Head of Department, Department of Farm Machinery & Power Engineering, Ludhiana University, Ludhiana, Punjab - to prove that in [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 80 of156 ] the year 2015, he was posted as Sr. Research Engineer cum Head of Department, Department of Farm Machinery & Power Engineering, Ludhiana University, Ludhiana, Punjab and accused Shiv Kumar Sharma was employed as Senior Draftsman in the Department of Farm Machinery and Power Engineering, Ludhiana University, Punjab. Further, to prove record of letters dated 16.09.2008 and of three letters of 08.04.2010, 10.08.2015 and of 01.09.2015 (Ex. PW­3/A colly., also consisting copies of a few applications of leave availed on 29.3.2005, 11.5.2005, 23/24/27/28.6.2005 & of EL 12.9.05 to 23.9.05) are of their department. Moreover, accused Shiv Kumar had availed compensatory leave on 29.03.2005 and 11.05.2005, he had also availed casual leave on 23.06.2005, 24.06.2005, 27.06.2005 and 28.06.2005. [He was cross­ examined on behalf of State that DW­3 has no personal knowledge about the case.]

(iv) DW­4 Dr. Inderjeet Singh Dhaliwal, Professor and Head, Department of Farm Machinery & Power Engineering, Ludhiana University, Ludhiana, Punjab ­ to establish that he was Head of Department, Department of Farm Machinery & Power Engineering from 2008 to 2010 and accused Shiv Kumar Sharma was posted as Senior Draftsman. During the year 2008 to 2010 the working hour of Ludhiana University were from 09:00am to 05:00pm as well as accused Shiv Kumar Sharma was in his office on 27.04.2005 and 05.09.2005. Further, to establish that original letter dated 15.09.2008 and other three letters of 08.04.2010, 10.08.2015 and of 01.09.2015 (Ex. PW­3/A colly.) were issued under the signature of DW­4. [He was cross­examined on behalf of State that DW­4 has no personal knowledge about the case.]

(v) DW­5 Sh. Deepak Singh, Sr. Audit Officer, Office of Director General of Audits (Central Expenditure), ITO, Delhi - to prove the record obtained by accused Rakesh Kumar under RTI from office of Indian Council of Cultural Relations (ICCR) consisting audit reports of the year 2003­04, 2004­05 and 2005­06 to demonstrate the functions of the organisation, fiscal aspects besides balance sheet of the organisation that it had not suffered or caused any losses by accused. [He was cross­examined on behalf of State that DW­5 has no personal knowledge about the case.]

(vi) DW­6 Sh. Manjeet Singh, Assistant Section Officer, MEA, New Delhi - to establish certain internal record of ICCR or Ministry of [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 81 of156 ] External Affairs, consisting order dated 11.12.2007 (Ex. DW­6/1) that disciplinary inquiry was contemplated, record of approval u/s 6A of the DSPE Act 1946 (Ex. DW­6/2) to proceed for initiation of case, request letter dated 18.11.2005 (Ex. DW­6/3) by Ministry of External Affairs to Deputy Inspector General of Police, the other record of concurrence for investigation by CBI (Ex. DW­6/4 & Ex. DW­6/5), letter no. 4558 dated 26.09.2007 (Ex. DW­6/6=Ex. PW­74/DX1) in respect of forward of draft sanction order by Sh. Satish Golcha, IPS to the Secretary, MEA; letter dated 05.10.2007 (Ex. DW­6/7=Ex.PW­74/DX2) by Sh. Satish Golcha, DIG, CBI to Joint Secretary, MEA, Delhi for advising initiation of regular departmental action, copy of letter dated 23.09.2005 (Ex. DW­6/8) that a communication of CBI was comprising 01 page and other number of pages of its annexures were 79 and information/letter dated 25.03.2010 (Mark­XD) consequent to RTI application dated 08.02.2010 to the effect that in reply to query/paragraphs 2 & 4 it was informed 'Minister In­ Charge' . [He was cross­examined on behalf of State firstly he had no personal knowledge of the documents, secondly, the documents were not in personal custody of DW­6, however, he could identify signature of Mr. A. Bhatacharjee, at Point­X on Ex. DW­6/8, being custodian of the record.]

(vii) DW­7 Sh. Vinay Vohra s/o Chand Praksh Vohra, Senior Programme Director, ICCR, Azad Bhawan, I.P. State, Delhi - in order to establish the record pertaining to the official activities of the office of outgoing cultural delegations, particularly implementation report from 01.04.2005 to 31.03.2006 (Ex. DW­7/1), groups/artists supported by council for single country visit during 1998­1999 (Ex. DW­7/2) objects of the Constitution of ICCR (Ex. DW­7/3), attested copy under RTI, circular dated 15.12.2005 of revised delegated financial powers of officers of councils (of Director General, Dy. Director General and Programme Director (Admn.) Ex. DW­7/4), reply dated 07.04.2007 under RTI (Ex. DW­7/5), another reply dated 29.04.2007 under RTI (Ex. DW­7/6), reply dated 06.05.2010 under RTI (Ex. DW­7/7), reply dated 20.11.2007 under RTI (Ex. DW­7/8), reply dated 07.03.2008 under RTI (Ex. DW­ 7/9), reply dated 25.04.2008 under RTI (Ex. DW­7/10), reply dated 08.07.2008 under RTI (Ex. DW­7/11), reply dated 26.06.2008 under RTI (Ex. DW­7/12), reply dated 22.08.2008 under RTI (Ex. DW­7/13) and order dated 26.07.2016 by first appellant authority in respect of RTI application 06.06.2016 (Ex. DW­7/14) and letter dated 24.06.2016 (Ex.

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 82 of156 ] DW­7/15) in respect of RTI application dated 06.06.2016 for exploring the relevant dates, facts and record. [He was cross­examined on behalf of State that DW­7 is just carrier of the record and he has no personal knowledge about the case.] Then evidence was closed by the accused persons.

6.1 (Final hearing) - At this juncture, Sh. Mukul Sharma, Advocate for Rakesh Kumar, Sh. V.B. Handa, Advocate for accused Shiv Kumar & Gurbhej Singh and Sh. S.B. Sharma, Advocate for Balwinder Bawa made their respective submissions, besides there are brief synopsis by them, which are on the lines of oral contentions.

6.2 The submissions on behalf of accused Rakesh Kumar are of two fold viz firstly on the point of sanction to prosecute as well as its validity and secondly on other merits of case. The submissions on behalf of other three accused are on the merits of the case. It does not require to reproduce their contentions herein, as the same will be dealt appropriately issue wise.

7.1 (Findings with reasoning) - The rival contentions of both the sides are considered, keeping in view the evidence on record (which is in the nature of oral testimony of witnesses, documentary record and opinions), the statutory provisions of law and law declared in precedents.

7.2 (Ingredients of relevant sections of law) ­ In order to appreciate the contentions of the parties, it is appropriate to reproduce the relevant requirement of law so that nature of formal charges, facts and features [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 83 of156 ] of evidence are considered together to arrive at conclusion. They are as under:­ Essential Ingredients­ Sec 13(1)(d) of Prevention of Corruption Act 1988­ Criminal misconduct by a public servant­ Section 13(1)(d)(i) if Public Servant by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage;

or Section 13(1)(d)(ii) if Public Servant by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;

or Section 13(1)(d)(iii) if Public Servant while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage, without any public interest.

[N.B (1) All the three clauses are independent and distinctive to constitute ingredients of offence u/s 13(1)(d), (2) the acts (i) or (ii) above need not be in discharge of his duties.] of Indian Penal Code­ Section 120A IPC [criminal conspiracy] ­ (1) there should be an agreement between the persons (who are alleged to conspire), and (2) the agreement should be­

(a) for doing of an illegal act, or

(b) for doing by illegal means an act which may not itself be illegal.

(3) some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Rule for the proof of criminal conspiracy­ The essence of criminal conspiracy is an agreement to do an illegal act such an agreement can be proved by direct evidence or by circumstantial evidence or by both. The direct evidence to prove conspiracy is rarely available. Therefore, [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 84 of156 ] circumstances proved before, during and after the occurrence have to be considered to decide on the complicity of accused.

Section 415 IPC (definition of cheating)­ (1) deception caused by accused to generate inducement in the mind of complainant/a person (2) (a) fraudulently or dishonestly inducing complainant/ that person­

(i) to deliver any property to any person or

(ii) to consent that any person shall retain property. OR

(b) intentionally inducing complainant/that person to do or omit to do anything which he would not do or omit if he were so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.

Section 420 IPC (cheating and dishonestly inducing delivery of property)­ (1) the person deceived delivered to some­one or consented that some person shall retain certain property, (2) the person deceived by induced by the accused to do, as above, (3) such person acted upon such inducement in consequence of his been deceived by the accused.

(4) that accused acted fraudulently or dishonestly when so inducing that person.

(5) the accused acted fraudulently or dishonestly when so inducing that person OR (1) the person deceived by induced by the accused to do, (2) such person acted upon such inducement in consequence of his been deceived by the accused.

(3) the accused so induced that person intentionally (4) that person dishonestly induces the person deceived to deliver any property to any person or to make, alter or destroy the whole or any part of valuable security, or anything which is signed or sealed, and which is capable of being converted into valuable security.

Section 463 (defining forgery) r/w Section 464 IPC ( making of false document) (1) the making of a false document or false electronic record or part of it and [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 85 of156 ] (2) the making should be with intend to­

(a) cause damage or injury to (i) the public, or (ii) any person or

(b) support any claim or title

(c) cause any person to part with property

(d) enter into any express or implied contract

(e) commit fraud or that fraud may be committed.

Section 468 IPC(forgery for purposes of cheating)­

(i) that the document is a forgery,

(ii) the accused forged the document

(iii) he did, as above, intending that the forged document would be used for the purposes cheating.

Section 471 IPC (using as genuine a forged document or electronic record)

(i) fraudulent or dishonest use of a document or electronic record as genuine.

(ii) knowledge or reasonable belief on the part of the person using the document or electronic record that it is a forged one.

or

(i) that the document or electronic record was a forged document.

(ii) the accused used such document.

(iii) he used it as a genuine.

(iv) that he knew or had reason to believe, that it was a forged Indian Evidence Act, 1872­ Section ­133­An accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

Section114­ Court may presume existence of certain facts­ Illustration

(b) - The court may presume ­that an accomplice is unworthy of credit, unless he is corroborated in material particulars.

8.1 (Issue of sanction to prosecute accused Rakesh Kumar) ­ ­Since a legal issue has been raised on the points of sanction order [either of competency of PW5 or existence of any approval for sanction [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 86 of156 ] order or validity of sanction order] to prosecute public servant Rakesh Kumar, therefore, it is necessary to adjudicate it first because it will have legal consequences as well as it will determine the next course of appreciation of evidence. There is requirement of law of valid sanction to prosecute public servant.

8.2.1 (Initial submission of State)­ Ld. Public Prosecutor Shri Raj Kamal began by referring statement of PW­5 Shri Debnath Shaw that he/PW5 has proved the sanction order (Ex.PW­1/A), he deposed that he had after considering carefully and examining the statement of witnesses recorded u/s 161 CrPC, other relied upon documents forwarded by CBI about allegation against Rakesh Kumar. then sanction to prosecute public servant Rakesh Kumar was accorded. In fact, it like an administrative acts by the sanctioning authority and not of judicial or quasi­judicial functioning. The sanction order dated 10.12.2007 (Ex PW5/A) meet the requirement of law.

8.2.2 (Submissions on behalf of accused Rakesh Kumar)­ Whereas Sh. Mukul Sharma, Advocate for Rakesh Kumar has many reservations, on the same face of record of sanction order (Ex.PW­1/A), statement of PW5 Shri Debnath Shaw, particularly the facts emerged from his cross examination, statement of IO/PW74 and the record produced by DW6 Manjeet Singh, who has produced record, which was considered by the PW5 before passing order (ExPW5/A). There is no sanction by actual statutory appointed Sanctioning Authority, thus order (Ex PW5/A) is not competent sanction order and it is an invalid order, which is emerging from the record itself. It is mandatory that the sanctioning authority shall [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 87 of156 ] be provided with complete record by the investigating agency so that the Sanctioning Authority may consider it to apply its independent mind and whatever record is considered by the sanctioning authority, it should have also been reflected in the sanction order. Here the situation is very serious. Firstly, according to PW5 and PW74, the Sanctioning Authority is Hon'ble President of India but PW5 has other view that Hon'ble Minister of External Affairs is also Sanctioning Authority vis a vis PW5 has delegated power to issue sanction order (Ex PW5/A) on his behalf, whereas the power of sanction to prosecute is a statutory in nature and it delegation could by legislation, it has not been established; the power cannot be delegated unless by statute it is so provided. Thus, PW5 had no authority to write order 10.12.2007. Moreover, the official noting (Ex PW5/DY) does not approve of sanction to prosecute Rakesh Kumar, but it is confining to just suspension order u/s 10(2) of CCS (Conduct) Rules. There is mentioning in noting (ExPW5/DX) about draft sanction, it was neither produced before the President of India/Minister of External Affairs nor it was get approved, then how draft sanction can be considered as approved nor it was in the official record produced. Moreover, PW5 emphasized during his statement that draft sanction was prepared in their office, which was subject of noting for necessarily approvals and no draft order was received from CBI, when he was confronted with the record (Ex PW5/DX and Ex PW5/DY), he admits that CBI had sent draft order and copy of draft order and the order (ExPW5/A) are verbatim, even punctuation. The theory of preparing draft in office or getting its approved from Sanctioning Authority, are all demolished.

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 88 of156 ] Moreover, the contents of sanction order are contrary to the actual position, also emerging from cross examination of PW5. It is written in sanction order that he had seen and examined carefully the material and documents, statement of witnesses recorded by Investigating Officer, which were produced before them and they also considered the circumstances of case against Rakesh Kumar and then sanction was approved and order was issued. PW­5 was examined and cross examined in detail on material aspects. The clear picture emerged is that record produced before PW­5 was total 79 pages comprising CBI/S.P.'s Report and one sheet of letter no.4557 dated 26.9.2007 (ExPW74/DX3) (revealed from subsequent letter dated 5.10.2009 ExPW74/DX2=ExDW6/7) and then subsequently draft sanction of 3 sheets (with covering letter no.4558 dated 26.9.2007 (Ex.PW74/DX1=ExDW6/6) was sent. Official Witness DW6 Manjeet Singh had also produced the record, out of which, copies of such CBI/SP report 79 pages, covering letter of one page and draft order prepared by CBI in three pages, was retained in the court file. Moreover, accused had obtained relevant information under RTI (ExDW6/8), which also confirms that it were 79 pages of report and 1 more sheet. PW74 had denied it, by explaining that entire record was sent for consideration to Sanctioning Authority but he admits that the documentary record is of full of trunk/big box, then when it was sent, through whom it was, what is diary number when it was sent/dispatched to authority and when it was received back, then its diary number; IO had no answer because he deposed falsely. Since, the record was of just 79+1=80 pages and sanction was granted on that basis, as no [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 89 of156 ] other material was provided to PW5 or others Seniors. It is crystal clear in statement of PW­5 that neither statement u/s 161 Cr.P.C of the witnesses nor the documentary record collected by IO was produced before PW­5 or competent authority for consideration and to apply its independent mind. The CBI/S.P. report just mentions names of documents and names of witnesses, they cannot be treated either the statement of witnesses or the documents in order to make an independent decision. There are voluminous record of documents and statement of witnesses in boxes, it also needs time to go through. No documentary record or statement of witnesses were forwarded for assessment. It is speaking volumes that just those 79+1=80 sheets were sent, the same was basis of order ExPW5/A, how could there is application of mind, there is no application of mind or independent opinion. Order ExPW5/A is just another copy of draft sanction order. It also constraints, in the letter, for the sanctioning authority that the SP report forwarded shall be kept confidential and it shall not be conveyed to anyone and if anyone seeks its copy under RTI, then view of office of CBI shall be ascertained.

There is mentioning of offences of the Indian Penal Code, 1860 in one paragraph of order ExPW5/A but no sanction u/s 197 CrPC; it [order ExPW5/A] just concludes to the provisions of the Prevention of Corruption Act,1988. Therefore, the requirement of law of sanction laid down in codified law, their interpretation in precedent/judicial pronouncements have not been complied with. There is no sanction at all, order ExPW5/A is not only invalid but also without authority to PW5 , it cannot be acted upon and in fact the sanctioning authority has not [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 90 of156 ] given any approval nor it had complete and actual material to form an independent opinion or to apply its judicious mind. Actually it not was possible for it for want of relevant material before it to be assessed by it. Ld. defence counsel fortifies his contentions while relying upon­ (A) Central Bureau of Investigation Vs. Ashok Kumar Agarwal (2014) 14 SCC 295, dod 22.11.2013)(relevant paragraph 16, 20, 22, 23, 28, 44 and 59)­in this case charge­sheet was filed by CBI, the Special Judge took cognizance of offence, however, the respondent filed application to challenge the validity of sanction u/s 19 of the Act 1988. The Special Judge, New Delhi that it was not appropriate stage to decide the whether he sanction is in valid. However, the respondent filed revision petition before Hon'ble High Court of Delhi to decide the question of failure of justice in according sanction and to examine the sanctioning authority, as a pre­charge stage, if it Dims fit. Then CBI filed the appeal against that order. It was held (in para 59) that the stage of examining the validity of sanction is during the trial and we do not propose to say that the validity should be examined during the stage of inquiry or at pre­trial stage. In addition, the procedure for sanction was also laid.

16. The legal propositions can be summarised as under:

16.1 The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge­sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction 16.2 The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 91 of156 ] 16.3 The power to grant sanction is to be exercised strictly keeping mind the public interest and the protection available to the accused against whom the sanction is sought.

16.4 The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.

16.5 In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.

20. Be that as it may, in State of T.N. V. M.M. Rajendran this Court dealt with a case under the provisions of the 1988 Act, wherein the prosecuting agency had submitted a very detailed report before the sanctioning authority and on consideration of the same, the competent authority had accorded the sanction. This Court found that though the report was detailed one, however, such report could not be held to be the complete records required to be considered for sanction on application of mind to the relevant material on record and thereby quashed the sanction.

22. Para 22.16 of the CBI Manual reads as under:

"22.16 On completion of investigation in a case covered in Items 22.15.1 and 22.15.2, even CBI shall send its report to the administrative authority along with relevant statement of witnesses recorded during investigation and the documents. The judgment of the Supreme Court in State of T.N. V. M.M. Rajedran and Circular No. 21/33/98­PD dated 6­5­ 1999 issued by the Policy Division are also referred to in this regard."

23. A three­Judge Bench of this Court in Vineet Narain Vs. Union of India to prevent the erosion of the rule of law, issued a large number of directions to various authorities. Relevant part of the directions issued to CBI reads:(SCCp. 270, para 58) "58.(I)(12) The CBI Manual based on statutory provisions of Cr.P.C provides essential guidelines for the CBI's functioning. It is imperative that CBI adheres scrupulously to the provisions in the Manual in relation [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 92 of156 ] to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned."

28. The High Court in the impugned judgment and order has taken a prima facie view that:

28.1. CBI had not sent the complete record to the sanctioning authority.

28.2. The order dated 11­7­2007 passed by the Special Judge made it evident that the learned counsel appearing on behalf of CBI had conceded before the court that only SP's report alongwith list of evidence (oral) and list of evidence (documentary) were sent to the sanctioning authority for the purpose of according sanction.

28.3 The statement of witnesses and other relevant documents were not sent to the sanctioning authority as per the own case of CBI.

28.4 The observation in the sanction order dated 26­11­2002 that "the case diaries and documents collected by the investigating officers during the course of investigation, statements of witnesses under Section 161 Cr.P.C and under Section 164 Cr.P.C were considered by the sanctioning authority" is factually incorrect.

28.5. The aforesaid facts make it clear that the sanctioning authority had not considered the entire material available with the investigating agency.

44. The covering letter of the draft sanction dated 24­5­2007 does not make it clear as to what had been sent to the sanctioning authority. It reveals that along with the draft sanction order, a list of witnesses and list of documents had been sent. The relevant part thereof reads as under:

"The SP's report sent herewith may please be treated as a secret document and no reference to it may be made in the sanction order when issued. In case the Ministry/Department, due to some reasons wants to depart from the material placed on record for issuing sanction, the matter may please be discussed with the undersigned so that the sanction for prosecution so accorded is not found wanting legally.

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 93 of156 ] Since the relied upon documents are very large in quantity, they are not being enclosed. The investigating officer of this case Sh. V.K. Pandey, will show the documents and also explain the evidence as and when required. Further list of witnesses and list of documents, will be provided, if necessary."

Thus, it is evident that even on the date the draft sanction was sent, the investigation was not complete.

59. Undoubtedly, the stage of examining the validity of sanction is during the trial and we do not propose to say that the validity should be examined during the stage of inquiry or at pre­trial stage.

(B) Ashok Kumar Agarwal Vs. CBI & Ors. 2016 (154) DRJ 489 dod 13.1.2016 (relevant paragraphs 68, 69, 70, 71,73,74) ­The petitioner filed writ petition and revision petitions, wherein he assailed orders of sanction of competent authority, orders on point of charge of Special Judge in the charge­sheet filed by CBI. The Hon'ble High Court of Delhi discussed the issues on point of valid sanction with precedent, including paragraph 16 of case of Central Bureau of Investigation Vs. Ashok Kumar Agarwal (2014) 14 SCC 295, in paragraph no.62 of the judgment.

68. In the case of State of Maharashtra Vs Mahesh G. Jain, reported (2013) 8 SCC 119, the Supreme Court relied on the decision of Mohd. Iqbal Ahmed (Supra) and held as follows :

14.1 It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.

14.2 The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution..."

69. Considering the conspectus of decisions above­referred the following propositions can be culled out:

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 94 of156 ]

a) Grant of sanction is a sacrosanct act and is intended to provide safeguard to a public servant against frivolous and vexatious litigation.

b) The sanctioning authority after being apprised of all the facts, must be of an opinion that prima­facie a case is made out against the public servant.

c) Thus, for a valid sanction the sanctioning authority must be apprised of all the relevant material and relevant facts in relation to the commission of the offence.

d) This application of mind by the sanctioning authority is a sine qua non for a valid sanction.

e) The ratio of the sanction order must speak for itself and should enunciate that the sanctioning authority has gone through the entire record of the investigation. Thus, the sanction order must expressly show that the sanctioning authority has perused the material placed before it, and after considering the circumstances in the case against the public servant, has granted sanction.

f) If the application of mind by sanctioning authority is not apparent from the sanction order itself then the burden of proving that the entire relevant record was placed before the sanctioning authority rests on the prosecution. The prosecution must establish and satisfy the court by leading evidence that the entire record of investigation was placed before the sanctioning authority.

70. In the present case, the respondents have despairingly failed to discharge the onus of proving that the sanction order dated 21.06.2002 is valid and that all the relevant documents were sent to the sanctioning authority for its perusal. None of the documents that go to demonstrate the innocence of the petitioner viz. the reply to the LR dated 27.06.2001 and the relevant Fax dated 13.01.1998 were shown to have been available to the sanctioning authority. These documents clearly and unequivocally establish that the Fax in question was in fact sent by the Swiss Bank Corporation, however, it is purported to have reached Mr. Barjatya by mistake. Resultantly, the Fax in question was a genuine one, and was not forged or fabricated as alleged by the prosecution.

71. The sanction order dated 21.06.2002 is a verbatim copy of the draft sanction order sent along with the SP's report on 30.10.2001 and illustrates non­application of mind by the sanctioning authority. I have gone through and compared the draft sanction order and the sanction order dated 21.06.2002 and it clearly appears that the sanctioning [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 95 of156 ] authority has given its imprimatur to the draft sanction order without applying its mind to the relevant material. The sanction order dated 21.06.2002 as well as the SP's report dated 30.10.2001 do not allude to the reply to LR dated 27.06.2001, or the relevant Fax dated 13.01.1998 sent by the Swiss Bank Corporation to Mr. Barjatya. Thus, the sanction order itself does not reflect that the afore­stated relevant documents were examined by the sanctioning authority before granting sanction for prosecution. The sanctioning authority who, purportedly went through the above­mentioned documents, as per the noting of the then Hon'ble Finance Minister, is not even the sanctioning authority that signed the sanction order dated 21.06.2002.

73. Therefore, in view of the foregoing discussion, Issue No. (ii) raised in Writ Petition (Criminal) No. 1401/2002, is answered in the affirmative and it is held that the sanction order dated 21.06.2002 is invalid.

74. The only issue raised is Criminal Revision Petition No. 338/2014 is whether the sanction order dated 26.11.2002 is invalid on account of the circumstance of failure to place the relevant documents on record as well as on account of non­application of mind by the sanctioning authority while granting the subject sanction.

(C) Prof N.K. Ganguli vs. CBI, New Delhi, (Criminal Appeal No. 798/2015, date of decision 19.11.2015) (relevant paragraph no.19)­ A charge­sheet was filed against the appellant for allegations u/s 13(1)(d), & 13 (2)of PC Act and for offences punishable u/s 120­B of IPC and the Special Judge took the cognizance finding that there was sufficient material against the accused in police charge­sheeted, for allegations of commission of offences by officials (by abusing official position as public servant pursuant to criminal conspiracy) alongwith unknown persons by unauthorizedly and illegally the plot in question transferred from IPCO to ICPO­ICMR, Cooperative Group Housing Society in which they were also members and ultimately after construction of the flats, they also obtained individual flats after getting pecuniary benefits for themselves and others and caused loss to the ICPO­ICMR. Because of transfer of plots, the officials of ICPO have been deprived of getting official quarters in future. The petition u/s 482 CrPC was dismissed by the Hon'ble High Court. While dealing in appeals, on the point of sanction to prosecute, it was held in paragraph­19 ­''In the instant case, [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 96 of156 ] since the allegations made against the Appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government u/s197 of CrPC was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence''...Further, ''for the aforesaid reasons, we set aside the impugned judgment and order of the High Court dated 27.05.2013 passed in Application Nos. 480 of 2013, 41206, 40718, 41006 and 41187 of 2012 and order dated 07.10.2014 passed in Application No. 277KH of 2014 in Special Case No.18 of 2012 and quash the proceedings taking cognizance and issuing summons to the appellants in Special Case No. 18 of 2012 by the Special Judge, Anti Corruption (CBI), Ghaziabad, U.P in absence of previous sanction obtained from the Central Government to prosecute the appellants as required under Section 197 of CrPC. The appeals are allowed. All the applications are disposed of''.

(D). Ashok Shankarrao Chauhan vs. His Excellency Sh. Ch. Vidyasagar Rao, Hon'ble Governor of Maharashtra, W.P.no.776/2016, dod 22.12.2007, Bombay High Court]­ By order dated 17.12.2013, the hon'ble Governor had refused to accord sanction after considering the material and by proper application of mind. But on 4.2.2016, another order was passed by subsequent Hon'ble Governor of Maharashtra, while granting sanction 197 Cr.P.C. for launching prosecution against the petitioner for offences punishable u/ss 120B & 420 IPC. The grant of sanction was mainly challenged on ground that order dated 4.2.2016 is review of previous order 17.12.2013. The CBI had proposed sanction u/s 197 CrPC and u/s 19 of the Prevention of Corruption Act, 1988. The issue was also regarding no scope for review of earlier order. While considering the issue of material for consideration as well as application of mind, it was held­ "para­18.The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it....

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 97 of156 ] para­19 Since the validity of "sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution"

[emphasis supplied]. The above observations reveal that while granting sanction, the Competent Authority or sanctioning authority is required to apply its independent mind to the evidence collected by the prosecution and other material placed before it.

8.3 (Further/counter submissions of State on point of sanction to prosecute) ­ Now Ld. Public Prosecutor requests that contentions on behalf of Rakesh Kumar are not tenable, since there were official noting in detail (ExPW5/DX and Ex.PW5/DY) of the allegations against Rakesh and there was 'approval with signature' of Hon'ble Minister of External Affairs, which PW5 had also identified. There is also clear mentioning of perusal of record of material put up before him, which was considered besides other circumstances and then sanction ExPW5/A was given, it is a valid sanction by competent Sanctioning Authority, PW5 is also competent to sign the sanction order u/s 19 of the Prevention of Corruption Act, 1988. There is no infirmity in case 'draft sanction order' is sent, for guidance, as held in CS Krishnamurthy [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 98 of156 ] Vs. State of Karnataka 2004(4) SCC 81 that in case a draft sanction order is sent to the sanctioning authority, then also if there is material on record to show that sanctioning authority had applied its mind to the material sent to it then, the sanction order is valid.

Since wrong acts of accused Rakesh Kumar are also of sexual favour, it does not fall into the area of his official duties, therefore, sanction u/s 197 CrPC was not required. Moreover, sanction order is also for allied offences, which may be read for all allegations. Shri Raj Kamal Ld. Public Prosecutor, relies upon:

(X1) State of Himachal Pradesh Vs M.P. Gupta [ Appeal Crl.

no.339/1997 & Appeal Crl. 351/1997 dod 09.12.2003]­ There were two sets of proceedings firstly for offences punishable u/s 120B, sec.420 r/w sec.511 IPC & u/s 5(2)(1)(d) of the PC Act 1947 ( which sec. 13(1)

(d) in new PC Act 1988), the accused was directed to be charged by order dated 5.8.1995 by the Special Judge. Secondly, the charge was framed on accused on 15.11.1995 for offences punishable u/ss 467,468, 471,420,120B IPC & u/s 5(2)(1)(d) of the PC Act 1947 ( which sec. 13(1)(d) in new PC Act 1988). The accused had challenged the legality of proceedings at the stage of charge, there was sanction of 13.6.1990 but the stand of State was that sanction was unnecessary and inconsequential since section 197 CrPC was not applicable. Accused file revision petition before High Court, the revision petition was allowed in respect of charge framed on 15.11.1995 by setting it aside and quashing the proceeding. However, proceedings for offences punishable u/s 120B, sec.420 r/w sec.511 IPC & u/s 5(2)(1)(d) of the PC Act 1947 ( which sec. 13(1)(d) in new PC Act 1988) were directed to be continued, without findings on the point of validity of sanction dated 13.6.1990. Hence, the scope of section 197 CrPC was dealt in detail:

"(Bakhshish Singh Brar Vs Smt Gurmej Kaur AIR 1988 SC 257, its extract) The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 99 of156 ] proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. 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 his 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 case [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 100 of156 ] To what extent an act or omission performed by a public servant in discharge of his duty can be Dimed to be official was explained by this Court in Matajog Dobey v. H.C. Bhari (AIR 1956 44) thus: "The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty...there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty"

Following the above legal position it was held in Harihar Praad, etc. v. State of Bihar (1972(3) SCC 89) as follows:

"As far as the offence of criminal conspiracy punishable under Section 120­B, read with Section 409, Indian Penal Code is concerned and also Section 5 (2) of the Prevention of Corruption Act is concerned, they can not be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is not part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."

The impugned judgments of High Court were set­aside.

(X2) State of Kerala Vs V. Padmanabhan Nair [Appeal Crl. no.632/1999 dod14.07.1999]. The case against the respondent, in shorts is that while he was working as Executive Engineer at the Moovattupuzha Valley Irrigation Project Division, he joined himself into a criminal conspiracy with four other accused for defrauding the Government by misappropriating about 600 tonnes of steel rods (costing Rs. 1,26,000/­). When respondent was charge­sheeted for the aforesaid offences, he appeared before the Special Judge's Court and filed a petition to discharge him on the ground that no prior sanction, as contemplated in Section 197 of the Code, has been obtained. Respondent, however, conceded before the Special Judge that no previous sanction is necessary under Section 6 of the P.C. Act 1947. But the Special Judge overruled his contention and held that "there is no necessary at all to obtain a sanction under Section 197 of the Code to proceed against the petitioner under the provisions of the P.C. Act 1947."

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 101 of156 ] As the matter was taken up before the High Court the decision of this Court in Harihar Prasad v. State of Bihar, [1972] 3 SCC was cited before the learned Single Judge, who heard the matter. It was held in the said decision that: "as far as the offence of criminal conspiracy punishable under Section 120­B, read with Section 409 of the Penal Code is concerned and also Section 5 (2) of the Prevention of Corruption Act are concerned, they can not be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. It is not part of the Code of Criminal Procedure. It is not part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar to a prosecution under Section 120­B, read with Section 409 of the Penal Code"...

This Court has stated the correct legal position in Shreekantiah Ramayya Munnipalli v. State of Bombay, AIR (1955) SC 287 and also Amrik Singh v. State of Pepsu, AIR (1955) SC 309 that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties.

Consequently, the judgment of quashing by High Court was set aside and the Special Judge directed to proceed in the matter.

(X3) Matajog Dobey Vs H.C. Bhari (1956 AIR 44, 1955): There was search warrants, which authorised the officials to enter into the premises. Four officials went there, the entrance door of one of the premises and lock of of a room of other premises was broken. On being challenged, they tied the Caretaker and Proprietor, of respective premises, besides assaults. Two complaints under IPC ­one by Caretaker and other by Proprietor­ were filed against officials before Magistrate. It was proceeded and accused took the plea of want of sanction to prosecute, since they were authorised by search warrant to enter into the premises and do search. Their plea was allowed by the magistrates, which were also confirmed by Hon'ble High Court in the revision petitions. It was again assailed. The common question under consideration was 'whether sanction u/s 197 CrPC is necessary and views of High Court was affirmed. It was discussed 'The interpretation [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 102 of156 ] that found favour with Varadachariar, J. in the same case is stated by him in these terms at page 187: "There must be something in the nature of the act complained of that attaches it to the official character of the person doing it". In affirming this view, the Judicial Committee of the Privy Council observed in Gill's case(1) "A public servant can only be said to act or purport to act in the discharge of his official duty, if this act is such as to lie within the scope of his official duty... The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office". Hori Ram's case (1) is referred to with approval in the later ease of Lieutenant Hector Thomas Huntley v. The King­Emperor (1) but the test laid down that it must be established that the act complained of was an official act appears to us unduly to narrow down the scope of the protection afforded by section 197 of the Criminal Procedure Code as defined and understood in the earlier case. The decision in Meads v. The King (1) does not carry us any further; it adopts the reasoning in Gill's case (1). There are two cases of this court to which reference may be made here. In Shreekantiah Ramayya Munipalli v. The State of Bombay (1), Bose, J. observes as follows: "Now it is obvious that if section 197 of the Code of Criminal Procedure is construed too narrowly, it can never be applied, for of course, it is not part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning". The question of previous sanction also arose in Amrik Singh v. The State of PEPSU (6). A fairly lengthy discussion of the authorities is followed up with the summary: "If the acts complained of are so integrally connected with the duties attaching to the offence as to be inseparable from them, then sanction under section 197 (1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required".

8.4 Ld defence counsel (for accused Rakesh Kumar), with the permission of court, further submits to the counter submission of State that there is contradictory of State on the one side, reliance is being placed on sanction order (Ex.PW5/A) that it is u/s 19 of the PC Act [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 103 of156 ] 1988 and of allied offences (although allied offences of IPC are not mentioned) and on the other side, the plea is that no sanction u/s 197 CrPC is required. It shows that there is still dilemma to the State of two extremes.

Further, the ratio of case of CS Krishnamurthy (supra) was on the point of draft sanction that it may be sent to the sanctioning authority, however, the situation in the present case is not just confining to sending of draft sanction but there are other more circumstances of competency of PW5, want of sending record of statement of witnesses recorded u/s 161 CrPC, documents collected were also not sent for consideration of sanctioning authority. The law presented does not apply.

9.1 (Findings with reasons on point of 'sanction to prosecute accused Rakesh Kumar)­ The rival contentions are considered, keeping in view the material on record, statutory provisions of law and the law laid down in precedents presented or otherwise. The accused Rakesh Kumar had also raised issue on the point of sanction after commencement trial of this, that too after statement of PW5. His contentions were rejected, without final observations, then he assailed that order dated 18.3.2013 before Hon'ble High Court of Delhi, however, while disposing his revision petition by order dated 10.9.2014, it was held in para 17 thereof that proceedings cannot be quashed in middle of trial vis a vis the trial court will consider it after evidences by both the side. Thus, the issue is matter of trial. In view thereof, this court can determine this issue in this judgment.

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 104 of156 ] 9.2 The relevant material, record and evidence for decision on this issue are ­ (i) statement of PW5 Joint Secretary (CNV) & CVO, Ministry of External Affairs, who authored sanction order ExPW5/A (ii) covering letter no. 4557/3/1 dated 26.9.2017 written to Secretary, MEA, New Delhi by Shri Satish Golcha on behalf of PW74/IO SK Rathi, it was accompanying CBI/SP report [this letter reference find mention in subsequent letter dated 5.10.2007 ExPW74/DX2=ExDW6/7] (iii) CBI/SP's report with its annexes of list of names of witnesses & names of documents to be proved (iv) another letter no. 4558 dated 26.9.2007 (Ex PW74/DX1= ExDW6/6) accompanying draft of sanction order send by Shri Satish Golcha of CBI to Ministry of External Affairs, (v) Statement of IO/PW74 S K Rathi, (vi) Statement of DW6 Manjeet Singh, Assistant Section Officer with record. It is relevant, appropriate and feasible also to reproduce the text of covering letter no. 4557/3/1 dated 26.9.2017 for appreciation of contentions of both the side­ text of letter­ "From­ Satish Glochha, I.P.S. Central Bureau of Investigation Dy. INSPECTOR GENL. OF POLICE Government of India SPECIAL CRIME REGION­1 S­1, Hutments, Dalhousie Road, New Delhi­110 011 Tel. No. : 011­23013713 Fax: 011­23011334 No. 4557/3/1(S)/2006­SIU.I/CBI/SCR­ Dated: 26­09­2007 To The Secretary, Ministry of External Affairs, [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 105 of156 ] Govt. of India, South Block, New Delhi.

Sub: Case RC.1(S)/2006­SIU­I/CBI/SCR­I/New Delhi (Illegal Human Trafficking Case).

Sir, I forward herewith the report of Superintendent of Police, CBI, SCR­I, New Delhi which gives out the facts of the case and the result of investigation.

2. The report indicates that there is sufficient material for launching prosecution against Shri Rakesh Kumar, erstwhile Director General, Indian Council for Cultural Relations (ICCR), New Delhi. The SP's Report may be treated as a confidential document and should not be cited anywhere. In case any applicant seeks copy of the SP's Report or part thereof under RTI Act, views of this office should be ascertained as per Sec.11 of RTI Act before deciding the matter.

3. The sanction for prosecution u/s 19 of Prevention of Corruption Act, 1988 may be accorded for prosecuting Shri Rakesh Kumar.

4. This office may be intimated suitable dates for making available statement of witnesses and relied upon documents, if required.

Yours faithfully Encl: As above.

­sd­ (Satish Glochha)"

9.3 The sanction u/s 19 of the Prevention of Corruption Act 1988 is required when a public servant is to be prosecuted & sanction u/s 197 of the Code of Criminal Procedure 1973 when public servant commits offences under the Indian Penal Code 1860 during or under the color of his duties. There are detailed instructions & guidelines laid down in precedent CBI Vs Ashok Kumar Agarwal 2014 14 SCC 295 (supra, particularly its paragraph 16) and also in State of T.N. Vs. M.M. Rajendran 1998 9 SCC 186 (ibid.). By apply them to the facts, feature & [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 106 of156 ] evidence of this case, it is held that sanction order dated 10.12.2007 (Ex.PW5/A) to prosecute Rakesh Kumar is invalid as it does not qualify the requirements of law, for the following reasons:­ (A1) PW5 mentions in sanction order dated 10.12.2007 that after fully & carefully examining the material and on perusal of documents and statement of witnesses u/s 161 CrPC recorded by IO and placed before Central Government in regard to the allegations and circumstances of the case, sanction (ExPW5/A) was accorded. He also narrates in his examination in chief about such record, however, during his cross examination, he was explored about record of SP's report with record, draft sanction and PW5 confirmed it was the only record received and examined by him to accord the sanction.

(A2) The record of SP report (65 pages) with list of witnesses (6 pages) & documents (8 pages) and draft sanction (3 pages) is the only record sent to MEA for accord of sanction. They are 79+3=82 pages only. There is no proof of other record was sent or called for or inquired or proposed to be forwarded on requisition or otherwise to sanctioning authority.

(A3) PW5 said he had seen statement of those witnesses, which IO recorded u/s 161 CrPC and documents before accord of sanction but during cross examination it is established that actual record received was not comprising the statement of witnesses u/s 161 CrPC & documents or single statement of any witness or a document but it was just SP report, list of names of witnesses and list of files of documents, which were enclosure to covering letter. This list or report of SP/CBI is not substitute of actually recorded statement of witnesses u/s 161 CrPC or substitute in place of documents collected or produced or seized during investigation.

(B1) It stands proved that investigating agency or PW74 had not provided for perusal to Sanctioning Authority any record of FIR, statement of witnesses or documents collected during investigation, recovery memos, statement of accused, for scrutiny by Sanctioning Authority. PW5 affirms receipt of annextures to SP Report , which are just the list of names of witnesses but as per order ExPW5/A, the said [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 107 of156 ] record was construed as statement of witnesses by the sanctioning authority.

(B2) The list/SP report just mentions names of 79 witnesses and 103 names of files/documents after background of the case. This, itself is speaking volume that no actual record of statement of witnesses or documents collected was forwarded for perusal of sanctioning authority.

In addition, in the first police report/charge­sheet dated 24.12.2007 (it was filed in the court on 27.12.2007), there is list of 129 files (as compared to 103 files mentioned in SP report) and number of witness cited are 87 (as compare to 79 mentioned in list of 'SP report).

Moreover, in the SP report, there is also narration of statement/explanation given by accused persons, it also names Kehkashan Tyagi (as accused no. A2, not arrested). IO had also recorded statement u/s 161 CrPC of Ms Kehkashan Tyagi twice ­firstly on 3.4.2006 and secondly on 6.10.2006 (Ex PW12/Z­5), both statement are prior to date of SP report dated 26.9.2007. However, name of Kehkansha Tyagi is not mentioned in the list of witnesses in SP report but she is cited as a star witness in first police report filed in It also reflects, since name of Kehkansha Tyagi was not in the list of witnesses in SP report, the Ministry was never told that she is to be a star witness of prosecution as well as it also make clear that her statements u/s 161 CrPC were not presented with SP report; her statements were with­ held. rather an impression was given in the SP report as if she is expected to be charge­sheeted. Ms. Kehkansha Tyagi was examined as prosecution witness/PW12 in the Court as her name was in the list of witnesses in the chargesheet. This kind of situation shows, from the record, that two different parallel representations were made in the report about a single fact.

(B3) In fact SP report along with list is opinion/conclusions drawn by SP/IO in respect of accused or record and the Sanctioning Authority was forwarded only that record of 79 pages. Sanctioning Authority had only considered that record of that opinion/conclusions to make out its own decision for sanction.

(B4) PW5 has explained its official noting dated 4.10.2007 (ExPW5/DX), which regard to departmental action against Rakesh Kumar and also noting dated 4.12.2007/5.12.2007 (ExPW5/DY) that all [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 108 of156 ] allegations against Rakesh Kumar were considered before sanction was approved by Hon'ble Minister by writing word 'approved' of proposal but on the other­side of defence, it is emphasized that it confines to only one aspect of suspension u/s 10(2) of CCS (Conduct) Rules and not about other two.

The record is speaking itself. It was proposed for three items (viz. to initiation of disciplinary inquiry, suspension of Rakesh Kumar and sanction to prosecute Rakesh Kumar), the second last authority in hierarchy endorsed that there can be suspension u/s 10(2) of the Rules. However, there is common final 'approval' at point B in ExPW5/DY, without rejection of any­one. It does not mean that by reciting section 10 (2) Rules, the other proposal was deleted or removed from the agenda.

But, simultaneously in the contents of both notes (Ex PW5/DX and Ex.PW5/DY), it is repeatedly mentioned by different expressions [gist of CBI report, gist of CBI case, accusation of CBI against Rakesh Kumar, CBI report cites various section etc.] of considering CBI/SP report about allegations in official noting [ExPWPW5/DX and ExPW5/DY] and there is no mentioning of or considering other material other than SP report. Thus, facts were taken as it is from the SP report for making noting and opinion, by all in the hierarchy, even till noting were put up before hon'ble Minister of External Affairs. Thus order (ExPW5/A) is not emerging from original record of statement of witnesses & documents but from opinions in report of SP. The sanctioning authority or PW5 had considered only that record and none else. The sanctioning authority ought to have cognizance of original & actual record of statement and documents about its existence and contents, particularly referred in the order ExPW5/A. (B5) It is admitted case of PW5 that the draft sanction (either prepared by the Department itself or draft suggested by CBI) was not put up before final/Sanctioning Authority for approval, even that draft was also not in record produced by DW6 but other record of 79 pages and draft order of three pages prepared by CBI and sent to Ministry by separate letter (ExPW74/DX1=Ex.DW6/6). When the draft was not presented for approval before the sanctioning authority, there was no occasion for sanctioning authority to approve it, then how without approval, Shri Debnath Shaw/PW5 could sign it by treating it as approved. In case the Department had opined (in noting of 4.10.2007 ExPW5/DX) that draft [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 109 of156 ] sanction order is within the parameter of law, it does not mean, it is not be presented for approval or get approved from sanctioning authority when noting dated 4.12.2007/5.12.2007 (Ex.PW5/DY) were presented; the draft was also required to be got approved.

(B6) There is no proof that draft order was prepared by the Department, statement of PW5 does not reconcile in this respect with record but record sanction order (ExPW5/A) is exact reproduction of draft sanction of CBI.

(B7) The sanction order (ExPW5/A) is signed by PW5 as writing at end 'by order an on behalf of the President of India', PW74 also asserts that sanctioning authority is also President of India but PW5 is of second opinion that it is Minister for External Affairs. Despite so, the other requirements, mentioned above, are not satisfied.

(C1) When the actual/original record was not made available to Sanctioning Authority, how it could be able to apply its independent mind? It was not feasible.

(C2) The sanctioning authority was also to satisfy itself that there was existence of actual material (of documentary record & statement of witnesses recorded) and that material record was to be considered for coming to the conclusion, whether, or not sanction is to be granted, whereas as per evidence including statement of PW5 & officials noting (ExPW5/DX & ExPW5/Y) it was just CBI report with lists of witnesses & list of documents were considered. The material record of statement of witnesses, documentary record collected or seized during investigation was not produced before Sanctioning Authority to carry its own analysis for making opinion, thus order (ExPW5/A) is not based on scrutiny of documents or actual statement of witnesses mentioned contrary to facts of never seen the record by them.

(C3) It is very clear from the statements of star witnesses, particularly PW5 that no other record (except SP report of 79 pages & draft sanction of 3 pages) was before the sanctioning authority. It cannot be treated an human err/omission since the letter sent and contents of draft sanction were prepared to need of the case; by mentioning of statement of witnesses u/s 161 CrPC & documents in the draft shows that they were aware of requirement. However, in covering letter such documents were with­held instead just report of SP was sent. Further, in letter [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 110 of156 ] dated 5.10.2007 (ExPW74/DX2= ExDW6/7), Mr Satish Golcha wrote/suggested for regular departmental enquiry against Rakesh Kumar by mentioning of SP report already sent by letter 26.9.2007. Thus, actual record was thought not to be sent, it has not been sent.

PW/IO 74 projects that record was sent. Whereas, there is no evidence of sending such record (of statements u/s 161 CrPC or of documentary record) or showing record to Sanctioning Authority nor PW5 says so, the statement of PW74/IO that he shown entire record is not getting any support either from its own record of all letters or from statement of PW5 or other convincing material as to when it was sent (?), or in what manner (?) or whether it was at requisition or at whose instance the production of record was done (?), particularly when he himself had not written letters to Sanctioning Authority.

(D1) The draft order is u/s 19 of the Prevention of Corruption Act, and order (Ex PW5/A) is also u/s 19 of the Act 1988 and there is no sanction order u/s 197 of the Code, 1973 although in body of order ExPW5/A various sections of the Indian Penal Code are mentioned. PW74 also confirms that no sanction u/s 197 CrPC was obtained. Ld Public Prosecutor has contended that it was not required for offences under the Indian Penal Code, 1860. The case of prosecution is also of allegations that accused Rakesh Kumar had exceeded his powers/authority during discharge of official duties as well as he had sexual favour as one of the consideration. So, one aspect is directly associated with his routine duties and other aspect is not so. Had there been allegation/charge of section 354 IPC, sanction would not be required being law in Explanation to sub­section (1) of section 197 CrPC vis a vis sexual favour may falls in the category of criminal misconduct under the Act, 1988. Whereas, neither there was charge­ sheet nor such charge u/s 354 IPC. Obviously, sanction u/s 197 CrPC was contemplated as offences of IPC are mentioned in the body of draft sanction as well as in sanction order (Ex PW5/A) that there was abuse of official position by accused but no sanction was requested u/s 197 CrPC nor so obtained nor granted.

(D2) The case law presented on behalf of State on the points of sanction u/s 197 CrPC, when sanction is not required, does not apply to the situation in hand because of facts and features of this case. The law of precedents was discussed in 'Padma Sundara Rao & others Vs [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 111 of156 ] State of Tamil Nadu & others [2002 3 SCC 533] that ratio of a case is a facts specific i.e. ratio of a case has to be read as per facts of the particular case an even change of single fact can make difference to the ratio of case'.

(D3) The precedents CBI Vs, Ashok Kumar Agarwal case (supra) and other case Ashok Kumar Agarwal Vs CBI case (supra) and other cases presented on behalf of accused Rakesh Kumar applies to the situation in present case and there is no other precedent or case law presented on behalf of State to held the sanction order 10.12.2007 (ExPW5/A) as valid sanction.

Accordingly, the contention on this issue stand disposed off by holding that sanction order dated 10.12.2007 (ExPW5/A) u/s 19 of the Act,1988 is invalid order to prosecute Rakesh Kumar.

9.4 Now question arises, what are legal consequences of holding the sanction order invalid. Its answer also lies in law laid down in other precedents and reliance is placed on followings­

(a) State of T.N. Vs. M.M. Rajendran 1998 9 SCC 186 dod 5,2,1997­ The respondent was held guilty u/ss 7 & 13(2) of the Act, 1988 by IIIrd Additional Sessions Judge, Madras, he filed an appeal before High Court, he had raised issue of valid sanction before proceeding in the matter, it was also dismissed. Held, "that the High Court has also come to the finding that although the Personal Assistant to the City Commissioner of Police, Madras has deposed in the case to substantiate that proper sanction was accorded by the City Commissioner of Police, the witness has also stated that the report even though a detailed one was placed before the Commissioner by him on consideration of which the Commissioner of Police had accorded the sanction, it appears to us that from such deposition, it cannot be held conclusively that all the relevant materials including the statements recorded by the Investigating Officer had been placed before the Commissioner of Police. It appears that the Commissioner of Police had occasion to consider a report of the Vigilance Department.

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 112 of156 ] Even if such report is a detailed one, such report cannot be held to be the complete records required to be considered for sanction on application of mind to the relevant materials on records. Therefore, it cannot be held that the view taken by the High Court that there was no proper sanction in the instant case is without any basis. It, however, appears to us that if the sanction had not been accorded for which the criminal case could have been initiated against the respondent, there was no occasion either for the trial court or for the appeal could to consider the prosecution case on merits. Therefore, the High Court need not to have made the findings on merits about the prosecution case. We make it clear that findings made by the courts on merit of case will stand expunged and will not be taken into consideration in future". [underlined is supplied for emphasis by this court].

(b) Nanjappa Vs State of Karnataka 2015 (14) SCC 186 dod 24.7.2015 (relevant paragraphs 19, 20, 21 and 24)­ The charge­sheet was filed against appellant of allegation of bribe, he was acquitted by the trial court by holding that prosecution failed to prove the charge, however, in appeal by State, the High Court converted the acquittal into conviction u/s 7 & 13 r/w 13(2) of the Act 1988, by holding that issue of valid sanction was not raised at appropriate stage, he was also awarded sentence and fine. The appellant came in appeal against his conviction, he also raised issue of sanction. Held­

19. The legal position was reiterated once more by this court in State of Karnataka v. C. Nagarajswamy, wherein this Court summed up the law in the following words:

"25. In view of the aforementioned authoritative pronouncements, it is not possible to agree with the decision of the High Court that the trial court was bound to record either a judgment of conviction or acquittal, even after holding that the sanction was not valid. We have noticed here­in­before that even if a judgment of conviction or acquittal was recorded, the same would not make any distinction for the purpose of invoking the provisions of Section 300 CrPC, 1973 as, even then, it would be held to have been rendered illegally and without jurisdiction."

20. What is important is that, not only was the grant of valid sanction held to be essential for taking cognizance by the court, but the question about the validity of any such order, according to this Court, could be [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 113 of156 ] raised at the stage of final arguments after the trial or even at the appellate stage. This Court observed: (C. Nagarajaswamy case, SCC p. 375, paras 14­16) ­ "14. Ordinarily, the question as to whether a proper sanction has been accorded for prosecution of the accused persons or not is a matter which should be dealt with at the stage of taking cognizance. But in a case of this nature where a question is raised as to whether the authority granting the sanction was competent therefor or not, at the stage of final arguments after trial, the same may have to be considered having regard to the terms and conditions of service of the accused for the purpose of determination as to who could remove him from service.

15. Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regard sanction may be determined at an early stage..

16. But, even if a cognizance of the offence is taken erroneously and the same comes to the court's notice at a later stage a finding to that effect is permissible. Even such a plea can be taken for the first time before an appellate court."

Since, the sanction is held invalid and in terms of law laid down in precedents Najappa Vs State of Karnataka & State of T.N. Vs. M.M. Rajendran that when sanction is held not valid, the accused is to be discharged as it is related to initial stage of cognizance, accordingly the accused Rakesh Kumar is discharged and no further findings are required be given on merits of case in respect of Rakesh Kumar.

9.5 In view of above of discharge of Rakesh Kumar, another legal question arises, whether the decision in respect of other accused Shiv Kumar Sharma, Balvinder Bawa and Gurbhej Singh should be with­ held?. The simple answer is, the decision cannot be with­held because evidence on record for accused Shiv Kumar Sharma, Balvinder Bawa and Gurbhej Singh will remain the same. But, in view of discharge of [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 114 of156 ] Rakesh Kumar, the appreciation of evidence is to be done in such a manner, without keeping in view case of Rakesh Kumar, since that evidence on record cannot be read either against or in favour of Rakesh Kumar, the evidence in this file is like non­est for the purposes of Rakesh Kumar. Further, it is necessary to make it crystal clear that charges u/s 120B IPC, u/s 120B r/w 420, 468, 471 IPC r/w sec 13(2) r/w 13(1)(d) of the Act 1988 [common for all] cannot be opined by reading name of Rakesh Kumar in evidence, for aforementioned reasons, but otherwise it is be seen what or not has not been proved against other accused namely Shiv Kumar Sharma, Balvinder Bawa and Gurbhej Singh by independent assessment. However, the evidence against Hargulab Singh will also be considered, either led by him or by other witness. With this finding and clarifications, now the charges against Shiv Kumar Sharma, Balvinder Bawa and Gurbhej Singh are taken.

10.1 (Issues with regard to other three accused) - Now the appreciation of evidence is to be carried in respect of other three accused namely Shiv Kumar Sharma, Balvinder Bawa and Gurbhej Singh subject to rider mentioned in sub­paragraph 9.5 above. Accordingly, the submissions of both the parties will be referred and then it will be decided.

10.2 (Submission on behalf of State)­ Sh. Raj Kamal, Ld. Public Prosecutor for State contends that in case of conspiracy, it is very rare when direct evidence would be available or to be established, however, the acts, deeds and things done spells out what was originally thought of, this kind of situation is existing in the present case. The totality of [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 115 of156 ] circumstances and their sequences are unfolding the material that first of all Hargulab Singh was intending to send his son Randeep Singh abroad and to materialize it, a Bhangra group under the name Mehak Punjab Di was advised as a device to achieve the motive. In this process all the accused inclusive of PW­4 Hargulab Singh was also a part and parcel thereof. The application for empanelment was filed, then as conspired, VCDs, photo album were got prepared to project as if there was performance of Bhangra group, whereas it was just a camouflage of performance under the banner of Mehak Punjab Di to show as some performance by it. In addition, commendation certificates were got fabricated and Press clippings were got fabricated showing publication of performance of Mehak Punjab Di of back date. In manufacturing all these photographs, VCDs, certificates and Press clippings, there is clear involvement of all the accused as well as of Hargulab Singh by duplicating of certificates by copying of originals of Ajeet Singh/Jeeta, then getting it printed from Press as well as news articles in Manpreet Bulletin from another press. Moreover, accused Shiv Kumar a well acquaintance to Rakesh Kumar had acted as a conduit between Rakesh Kumar on the one side and other accused on the other side, with a clear intention to send the persons abroad to facilitate them defect from Berlin, Germany and to facilitate it, an huge amount of Rs. 7.50 Lakhs per person was charged for such facilitation, which was collected by Shiv Kumar from others and through Balwinder Bawa for Rakesh Kumar. Accused Balwinder Bawa has also explored the persons to be joined in the group as well as Shiv Kumar also joined his persons besides brother­in­law of Gurbhej Singh. The group Mehak [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 116 of156 ] Punjab Di was got registered, whereas empanelment was for promotion of Indian culture abroad, however, this group was not got registered for this purpose but to achieve their personal gains and to get facilitated to go abroad and then defect therefrom. All the persons joined in the group were found not artists rather under the garb of artists, they were joined in the group. Hargulab Singh, his son and many more were not artists, since the purpose was to facilitate them to move abroad and then to defect from Berlin. Those nine persons had succeeded in the design. There are sufficient material of documentary record created/forged and filed in support of application for registration/empanelment of Mehak Punjab Di, consideration in cash and kind/sexual favour too, joining of non­artists in the group and then their defection from Berlin are against all the accused to held them guilty in respect of charges framed against them. The written submissions reproduces the narrations of witnesses with reference to some documents.

10.3.1 (Submission on behalf of Shiv Kumar Sharma & Gurbhej Singh)­ Sh. V.B. Handa, Advocate for the accused has submissions in two parts, firstly being submissions on behalf of accused Shiv Kumar Sharma & Gurbhej Singh and second limb is as a reply to the written submission/synopsis of State on the point of conspiracy. In nutshell, it is contended that the material on record in the form of oral statement of witnesses, its analysis as well as the other documentary record, do not suggest either element of conspiracy among the accused persons or proof of any of the facts to cull out forgery for the purpose of cheating, [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 117 of156 ] cheating or any use of forged document by the accused persons, rather by taking into account statement of relevant witnesses (particularly PW­ 74 & DW­2, DW­3, DW­4) alongwith the record, it proves ground of alibi in respect of accused Shiv Kumar Sharma and no where Gurbhej Singh is in the picture, particularly on the alleged dates of 27.4.2005, 19.5.2005 or in the months of March, April, May, June and September 2005. The written submission of State are just reproduction of examination­in­chief of witness with documents, however, the entire statement of witnesses are to be read for all fairness. This is the gist of the submissions.

10.3.2 For the purposes of case of Shiv Kumar Sharma, the material witnesses are PW­2 Raj Kumar, PW­4 Hargulab Singh, PW­53 Pritam Singh, PW­74/IO S.K. Rathi, defence witnesses DW­2 Sandeep Wadhera, DW­3 Dr Gursahab Manes and DW­4 Dr inderjit Singh Dhaliwal, out of them PW­2 and PW­4 are two star witnesses of prosecution. PW­2 talked much about business and properties vis a vis that Shiv Kumar Sharma used to get plots to his friends and his family members through him but there is no evidence collected or proved to establish this stand. It was also alleged that Shiv Kumar Sharma had relations with several IPS officers or he got recruited his nephew in Punjab Police against payment of Rs.2 lakhs, there is no proof of this fact. PW­2 is an over interested witness, to see maximum damage to accused Shiv Kumar Sharma by deposing against him, simultaneously he admits that there were number of cases registered against him/PW­2 on the complaint of Shiv Kumar Sharma and his relatives. The circumstances are speaking a lot and the scrutiny of his statement like [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 118 of156 ] Shiv Kumar Sharma had purchased the property in the name of Gurbhej Singh or there was benami transaction or he knows that Shiv Kumar Sharma used to supply girls to Rakesh Kumar or PW­2 got insurance policy for himself through the wife of Rakesh Kumar, or so on but not an iota of fact has been collected or brought in evidence, if they were in existence, the same should have been proved by prosecution. PW­2 also says that Shiv Kumar used to take cheques from him in lieu of cash or Gurbhej Singh having told PW­2 that Shiv Kumar Sharma is assisting to send his brother­in­law abroad, all are nothing but self creations.

During cross­examination of PW­2 many starling facts appeared like he studied upto 8th standard or he can read a little bit English but he can sign in English vis a vis the prosecution got identified many writings from PW­2 as if the same are of Shiv Kumar Sharma, PW­2 neither saw Shiv Kumar Sharma writing or signing nor he is a handwriting expert, it is a serious abuse of process of law. PW­2 admits of his facing various criminal cases, which includes serious offences and he also admits his enmity with accused Shiv Kumar Sharma besides he does not know anything about this case and PW­74/IO also states that it was 14.9.2006 when PW­2 voluntarily came to CBI office and he recorded the statement, it clearly reflects that there was connivance between them, otherwise no where in the trial it surfaced as to how PW­2 is a relevant witness or to which fact for this case or why he reached CBI, when he does not fall in the category of any kind of witness to case. PW­2 Raj Kumar was nourishing grudge against Shiv Kumar.

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 119 of156 ] PW­74 claims that it was November 2006 when he came to know about litigation pending between accused Shiv Kumar Sharma and PW­2 Raj Kumar, however, the official record of DDR No. 33 dated 3.10.2006 produced by DW­2 Sandeep Wadhera SHO at P.S. Sadar, Ludhiana proves that PW­74 had threatened him for action on phone, it is not fair on the part of IO to say that he came to know about litigation in November 2006. PW­53 Pritam Singh also talks about the pressure of CBI, when he was detained for two days to narrate that he had paid money to accused, whereas he remained affirmed to his stand that no money was paid by him to the accused persons.

Similarly, PW­4 Hargulab Singh mentions about many facts of year 2002 or he heard from some people of Haibowal that Shiv Kumar Sharma was sending persons abroad after taking money, there is no proof of such imaginary facts. PW­4 further says that Shiv Kumar Sharma told him to form a Bhangra group or in March 2005 he alongwith Shiv Kumar and Gurbhej Singh went to Delhi and Rs.1 lakh was given to Shiv Kumar Sharma for being paid to Rakesh Kumar or on 27.4.2005 Shiv Kumar Sharma handed over Rs.1 lakh to Rakesh Kumar or in May 2005 he alongwith Shiv Kumar and Gurbhej again visited office of ICCR or it was told that only three persons out of the group could be left abroad, all these are nothing but the bundle of lies and concocted story. PW­5 Hargulab Singh was named as accused, however, he became approver but his entire evidence remains uncorroborated and it is settled law that an approver is most unreliable and untrustworthy witness, who had bargained for his immunity. He had to qualify the test of worthiness for his credibility in the Court, the [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 120 of156 ] provisions of Indian Evidence Act inclusive of section 114 (illustration 'b') provides that Court may presume an accomplice is unworthy of credit unless his evidence is corroborated on material particulars. There is no corroboration of the facts to the evidence of PW­4 Hargulab Singh. Moreover, the documentary evidence produced by defence witnesses (DW­3 and DW­4) clearly establish that Shiv Kumar Sharma was present in his office at Punjab Agricultural University Ludhiana, particularly on 27.4.2005 and 5.9.2005, the dates which PW­4 falsely alleges that Shiv Kumar Sharma and Gurbhej Singh were accompanied by him to the office of ICCR, Delhi. The timings of office of Shiv Kumar was from 9 a.m. to 5 p.m.. This evidence demolishes the entire case of prosecution and it establishes that Shiv Kumar Sharma and Gurbhej Singh never went to the office of Rakesh Kumar and there is a false story against these accused in respect of empanelment of group Mehak Punjab Di, which is nothing but brain child of PW­4 Hargulab Singh.

The investigating agency introduced Kehakashan Tyagi as a witness as a thought that some sort of corroboration shall be provided by Kehakashan Tyagi, if she is made a prosecution witness instead of an accused. There are various circumstances which shows the link between PW­4 Hargulab Singh and PW­12 Kehakashan Tyagi, like PW­ 12 had enjoyed hospitality of PW­4 on 1.9.2005 in Ludhiana, as she was get lodged in Hotel Maharaja Regency, booked by Hargulab Singh by citing wrong address, shopping to her at Mall Road, Ludhiana at the expenses of Hargulab Singh, she had handed over official letter of empanelment personally to Hargulab Singh, whereas the letter was sent by post officially on 8.9.2005, it was received back undelivered. PW­12 [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 121 of156 ] was also declared hostile, as she was not supporting the case of prosecution. Moreover, PW­12 Kehakashan Tyagi was named in column no. 12 of police report vis a vis she was also arrayed in the list of witnesses, how this can be practiced in police report by the investigating agency, it is against the basic cannon of law. PW­12 deposed that she had not received any list of members participants from Shiv Kumar Sharma to be sent to Germany nor whether other section of ICCR had received any list from Shiv Kumar Sharma, consequently the prosecution case that only those persons would be sent abroad to be named by Shiv Kumar Sharma is negated. There is no evidence or an inference to prove nexus between Shiv Kumar Sharma and Rakesh Kumar.

The accused Shiv Kumar Sharma was arrested and he was kept in jail; whereas on the other side Hargulab Singh was not arrested when he arrived India vis a vis IO did not verify but during pending trial of this case, he wrote letter on 10.8.2015 (Ex. DW­3/A) to Punjab Agricultural University to ascertain the leave availed by Shiv Kumar Sharma during March 2005 to July 2005 and on the other side IO states he did not verify from the Punjab Agriculture University, whether, or not he was present there. It is very highly tainted and shoddy investigation and inconsistent statement of PW­74. The statements of PW­4 and PW­74 cannot be read and relied upon. IO had not tried to join other members of group in the investigation, who had returned India after taking asylum in Berlin. The circumstances are establishing that Shiv Kumar Sharma had not gone to Delhi at any point of time with regard to empanelment of group Mehak Punjab Di nor he had any role vis a vis the allegations [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 122 of156 ] are false against him. Hargulab Singh is also involved in getting prepared false declaration for passport by giving different date of birth and different names which has been detected in police inquiry. His conduct also speaks a lot that he alongwith his son went abroad and defected there besides other members which was with his prior preparation. The statement of PW­35 Praveen Kumar is also much relied witness of prosecution, however, how his version can be believed when he says that Shiv Kumar Sharma was in police in Ludhiana and he can identify Shiv Kumar Sharma but he failed to identify Shiv Kumar Sharma in the Court. PW­37 Arjun Dass of Hotel Zimindara Dhaba deposed that all the entries in the register of hotel were pertaining to Hargulab Singh, no where accused Shiv Kumar Sharma is involved. However, on 2.9.2005 when Shiv Kumar Sharma went to Ludhiana to see Rakesh Kumar, there Kehakashan Tyagi suggested that Shiv Kumar Sharma may be sent with the group and he agreed being an allurement to travel abroad at the expenses of Government, he was attracted by such allurement and thereafter on 5.9.2005 ICCR wrote to University. It is his bonafide but he had no role either in India or abroad to defect any member of the group. He wrote to the authorities immediately, when the members of group were found missing during stay in Berlin, it does not make out any offence against him. Shiv Kumar Sharma remained in judicial custody. There were allegation of collection of amount but no evidence has been gathered about recovery of such amount, nor ICCR New Delhi has disclosed any fact to the IO that Shiv Kumar Sharma was instrumental in defection of the members of the group. No case has been proved against Shiv Kumar Sharma.

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 123 of156 ] 10.3.3 PW­4 Hargulab Singh deposed that Sh. Amanjeet Singh is brother­in­law of Gurbhej Singh or he had paid money to Shiv Kumar Sharma, however, Gurbhej Singh had explained in his statement u/s 313 Cr.P.C that he has no brother­in­law by name Amanjeet Singh nor he had approached Shiv Kumar Sharma to send his brother­in­law abroad. It is PW­21 Harjinder Singh [father of Amanjeet Singh] says that he had not paid any amount to anyone for his son Amanjeet Singh, who had actually gone abroad. IO/PW­74 had not clarified or investigated any fact whether Amanjeet Singh was brother­in­law of Gurbhej Singh. These vital aspects have not been considered in investigation to be verified by the IO.

Moreover, PW­61 Sarwan Singh, Assistant Commandant was examined in the Court and a letter dated 8.3.2007 alongwith fax (Ex. PW­61/A) about the period 1.1.2005 to 30.9.2005 and 20.12.2002 to 31.3.2006 that Constable Gurbhej Singh was posted as Gunman to Sh. A.S. Chahal PPS (SP), however there was no cross examination to challenge the relevant facts deposed by PW­61 in favour of Gurbhej Singh. PW­61 was also declared hostile but nothing was cull out against Gurbhej Singh. It stood established that at no point of time Gurbhej Singh was deputed with Shiv Kumar Sharma and it also falsifies story of PW­4 that he alongwith Gurbhej Singh alongwith Shiv Kumar were visiting accused Rakesh Kumar in Delhi. It does not appeal to anyone the story devised by PW­4 or by others.

10.3.4 Thus, there is no direct or circumstantial evidence of conspiracy. There is no role of Shiv Kumar Sharma in formation of Mehak Punjab Di [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 124 of156 ] group or its empanelment or demand or receive of any money from any member of group or preparation or rehearsal of Bhangra group or instrument in defection of members of group. Rather, he wrote letter to the authorities immediately. Similarly, there is no brother­in­law by the name Amanjeet Singh of Gurbhej Singh nor Gurbhej Singh visited Delhi with Shiv Kumar Sharma or with Hargulab Singh.

10.3.5 It is admitted case of prosecution in its written synopsis that there is no direct evidence of conspiracy, however, from the evidence, even there is no element of conspiracy is emerging from evidence on record. There is no proof of visit in March 2005 by accused Shiv Kumar Sharma or of Gurbhej Singh, no record has been collected with regard to entry in office to show that there was visit by them. The explanation of prosecution that no entry could be there since Hargulan Singh was with Shiv Kumar Sharma, who has acquaintance with Rakesh Kumar, is not believable, since it is a public office. Shiv Kumar Sharma was in his office on 27.4.2005 and 5.9.2005, no evidence has been produced from the reception of ICCR office if there was such visit. There is also no proof that accused Shiv Kumar or Gurbhej Singh were in any way connected with the formalities of empanelment of Mehak Punjab Di rather it is the case of PW­4 Hargulab Singh that he applied and visited ICCR office for empanelment of the group. The facts and circumstances are reflecting conspiracy of PW­4 Hargulab Singh and PW­12 Kehakashan Tyagi. The CBI had not applied to the Court to take the specimen of Shiv Kumar Sharma, the expert opinion cannot be considered. There is also inconsistent statement of PW4 about idea of formation of Bhangra Group in January 2005 or March 2005. Therefore, [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 125 of156 ] prosecution failed to prove the allegations against the accused persons and they deserve acquittal.

10.4 (Submission on behalf of Balvinder Bawa) - Ld. Defence counsel Sh. S.B. Sharma, Advocate submits that first of all it is to be seen what kind of charge was framed and only from that angle the submissions are advanced. The charge against Balwinder Bawa is of conspiracy u/s 120­B IPC and 468 IPC of forgery for the purposes of cheating, that too is of a narrow compass of forging of newspaper bulletin or photo album, VCDs and fake certificates. However, there is no evidence against Balwinder Bawa of such charges. The State had filed written submission, also discussing the concept of conspiracy and it is clearly mentioned in the submission that there is no direct evidence of conspiracy in the present case. The case of prosecution itself is of circumstantial evidence, but no circumstantial evidences has been surfaced or proved against the accused either to cull out conspiracy or forgery for the purposes of cheating.

Neither accused Balwinder Bawa ever since visited the office of ICCR at any point of time, nor she is signatory to the application nor any member of Mehak Punjab Di, consequently when no where she is involved, how it can be alleged that she is in the conspiracy. Moreover, PW­4 Hargulab Singh himself admits and narrates that application form or other record were furnished by him, how the accused can be blamed for wrong done by PW4. So far allegations of visiting of Printing Press for commendation certificates are concerned, it is abundantly clear from the statement of PW­4 that he alongwith PW­54 Ajeet Singh @ Jeeta [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 126 of156 ] Pawar and PW­56 Jaswant Singh Cheema visited the Printing Press and he also states that he filled in and signed those commendation certificates, accused Balwinder Bawa is no where in the picture. In addition, PW­30 Baljeet Singh of Printing Press further confirms that it was Hargulab Singh and another person came to him, he does not mention woman or name Balwinder Bawa. PW­54 was also cross­ examined on behalf of State and he failed to confirm the plea of State that it was Hargulab Singh, Jaswant Singh Cheema, Balwinder Bawa and PW­54 went to Manpreet Bulletin. There is no proof of visiting of Balwinder Bawa to the office of Manpreet Bulletin for newspaper clippings. So far performance at Zimindara Dhaba is concerned, it was professional performance on 01.09.2005 but accused was never told by Hargulab Singh the purpose of that performance. There is also no proof that Hotel Classic Retreat was booked by her on 01/02.09.2005. The statements of PW­9 & PW­10 are contradictory, they deposed differently, which do not inspire confidence as on the one side they say they reached Sherpur Chowk and on the other side they say Balwinder Bawa had taken them from Sherpur Chowk, where Gurbhej Singh had brought them vis a vis they narrated it was in April/May 2006; which was not the case of the prosecution. There is also no documentary proof that PW­9 & PW­10 had gone to Hotel Classic Retreat, there is also no complaint filed by them against Balwinder Bawa. The recovery/seize of so called documents is suspicious from the statement of PW­22, PW­19 & PW­74, since PW22 says the recovery was effected from the residence of Balwinder Bawa but the other witness PW19 claims that the documents were produced by Balwinder Bawa vis [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 127 of156 ] a vis PW­74 give some strange detail that he had visited Ludhiana twice. If he had gone there for making search at the house of Shiv Kumar on one date and then at the house of Balwinder Bawa on other date as well as his third visit is in jail to interrogate Balwinder Bawa, his testimony does not stand on truth. Thus, so called recovery is doubtful, it does not inspire confidence. Moreover, PW­53 Pritam Singh [father of Prabhjot] deposed that he was kept for two days in CBI office by insisting him to state that he had paid the money in respect of his son, however, PW­53 had not conceded to the pressure of CBI. This shows how CBI had pressurized the witness to depose as per its wishes. Under these circumstances, the material on record do not establish that there was any meeting of mind to cull out conspiracy or involvement of Balwinder Bawa at any point of time for empanelment of Mehak Punjab Di or at any time subsequently. She is a professional singer and in case she made performances at some functions, it will not attract criminality in the form of present prosecution. In fact, the circumstances are reaffirming her innocence. It is concluded that to avoid repetition, the submission on law point & appreciation of evidence made on behalf of other accused may also be considered for this accused. She is entitled for acquittal.

11.1 (Findings on these issues) ­ Since there are manifold facts at different locations and some of them are also carrying sequence. Therefore, for effective appreciation of evidence, the events may be divided broadly in three phases vis a vis discussion on evidence, whether it establish or not the charges against accused persons :

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 128 of156 ] (1) March 2005 ­31.8.2005 [i.e. the phase immediate prior to and on 27.4.2005 when application for empanelment of group Mehak Punjab Di was filed and it was registered], (2) 1.9.2005 to 12.9.1005 [i.e. events from 1.9.2005 on­wards, letter dated 31.8.2005 of empanelment was delivered to Hargulab Singh, filling in the applications for official passports for the group members and departure of group Mehak Punjab Di to Berlin] and (3) 12.9.2005 to 16.9.2005 [events at Berlin, including defection of 9 members of group and coming back of 6 members] 11.2 It is settled law that onus to prove charges lies on the prosecution.

It is also law that an accomplice is a competent witness but rule of caution and presumption casts that testimony of an accomplice shall be corroborated by material particulars. Therefore, while appreciating the evidence, the statement of approver need not to be corroborated in each aspect by other independent testimony, but when additional evidence support the statement of accomplice, then statement of accomplice will be treated as corroborated. Similarly, PW2 is not direct evidence to any of the phases of events but he claims to be having information or knowing Shiv Kumar Sharma as well as his social relations & personal affairs etc. Therefore, it will be appropriate to discuss the evidence, initially by keeping aside statements of PW4 and of PW2, to be considered after statements of others, subject to necessary exceptions.

In order to stream­lines the sequences, it is necessary to narrate them briefly. First of all on second visit at ICCR office, an application dated 27.4.2005 (Ex.PW4/A) with four photographs (Ex.PW4/B1 to Ex.PW4/B4 of Bhangra Group), a visiting card of Mehak Punjab Di [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 129 of156 ] (Ex.PW4/C) and an Entry Card of Jallandhar Doordarshan Kendra [in yellow colour ExPW4/D) was filed under the signature of Hargulab Singh. Thereafter, an album of 39 photographs [Ex.PW4/M, consisting 32 photos of Bhangra without banner of Mehak Punjab Di and 24 photos with banner in background of Mehak Punjab Di], 2 VCDs of Bhangra performances [ExPW4/I­1 and ExPWQ4/I­2], copies of commendation certificates and newspapers bulletins [part of Mark Z1 to Z9] were filed. The performance VCDs were considered by the Expert Sub­Committee. Letter dated 31.8.2005 of empanelment of Mehak Punjan Di [Ex PW4/R] was delivered to Hargulab Singh in Ludhiana on 1.9.2005 by PW12. Then application forms for officials passports were filled in, ordinary passports were kept by ICCR by surrender certificates and visas were obtained. The Group of 15 members made departure for cultural programme at Berlin, out of 9 members defected and 6 members came back.

12.1 It is matter of record and also written submission of State that there is no direct material of conspiracy vis a vis it is rare to have direct evidence of conspiracy. It has not been surface in evidence whether, or not visitors register is maintained or how visitors are dealt on direct window or else in the Office of ICCR. Thus, there is no documentary evidence to show of visit of accused persons in March 2005, on 27.4.2005, 5.9.2005 or on other dates in the office of ICCR, New Delhi except that application form dated 27.4.2005 of Hargulab Singh, filed on that day, which was registered vide no. Folk/Punjab/129/4 and applications for officials passports were of 5.9.2005.

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 130 of156 ] 12.2 There are other attending circumstances, since this application was further supplemented with more record of 2 VCDs, album, copies of news clippings and commendation certificates, which were placed after short time of filing of application. How this record came into existence and who are involved therein, it is to be explored from evidence.

The statements of witnesses [PW54 Ajeet Singh, PW56 Jaswant Siingh Cheema, PW30 Baljeet Singh] are material. PW54 says that Balwinder Bawa alongwith Hargulab Singh came to him, since he knows her. He was convinced by them to go abroad, he had handed over his certificates. PW56 was also present, he was also convinced. PW56 also says that he alongwith Hargulab Singh and Balwinder Bawa had gone to the office of PW30/Printing Press of at Shivpuri for getting printing of duplicate certificates but concerned person was not there on that day of visit, that is why thereafter on second visit Hargulab Singh had also gone there. Similarly, he also visited office of other press in Subhash Nagar alongwith Hargulab Singh & Balwinder Bawa for getting printed news items in Manpreet Bulletin of back­date. It is also deposed both by PW54 and PW56 that printed certificates were brought in the office of PW54, which were filled in by PW4 and two certificates [ExPW4/F5 and ExPW4/F6] were filled in by him at the instance of PW4 and accused Balwinder Bawa. However, handwriting expert (PW67) had not tendered his opinion about manuscript writings in 'Gurmukhi script' in those certificate because of want of knowledge of Gurmukhi script. It was contended on behalf of accused Balwinder Bawa that PW30 had not uttered about visit of Balwinder Bawa at Press nor by PW54 during his cross examination by State. However, there is [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 131 of156 ] no confusion since there are mentionin of two separate Press/Offices one is at Shivpuri of PW30 and another is at Subash Nagar. PW56 clearly speaks that he accompanied at both places, however, on first visit at press of PW30, Balwinder Bawa also accompanied him but concerned person at Press office was not there, that is why Hargulab Singh had gone there again for duplication of certificates.

Both witnesses PW54 and PW56 had participated in the programme organized by Hargulab Singh at Rohan Road, Ludhiana in those programme photographs and VCDs were prepared. Accused Balwinder Bawa had also joined it as performer. She admits allegations (in her reply to question no.372) about her picture/ presence in the photographs (ExPW4/M) but she also claimed (in her reply to question no.561) that photographs were of 1.9.2005 of event at Zimindara Dhaba. Whereas, it was around May 2005 when the photographs (Ex PW4/M) were filed together VCDs, newspaper clippings & copies of certificates in support of application dated 27.4.2005; it much before the event of 1.9.2005 at Zimindara Dhaba. The album (ExPW4/M) is not of event of 1.9.2005 as claimed by Balwinder Bawa. PW56 confirms his picture in the album as well as in VCDs, PW56 also confirms his picture in photograph appeared in Manpreet Bulletins got printed from the Press. It was just staged performances for preparing record in VCDs and photographs to show /project that Mehak Punjab Di had done performance in some function.

12.3 There are copies of commendation certificates & newspaper cuttings [part of Mark Z1 to Z9] filed too. The original commendation [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 132 of156 ] certificates & newspaper Manjeet Bulletin [Ex.PW4/F1 to Ex.PW4/F6, Ex.PW4/G, ExPW4/H] were seized on 9.11.2006 by seizure memo [Ex.PW19/A] during the presence of PW19 and PW22 from accused Balwinder Bawa. The seized documents are bearing signatures of both PW19 & PW22 as token of seizure in their presence. Ld. Defence counsel has pointed out that there is major contradiction in the statements of PW19, PW22 and PW74, as one version of PW22 is about seizure of documents from the residence of Balwinder Kaur but other version of PW19 is it was seized from Balwinder Kaur, whereas PW74 says it was produced by Balwinder Bawa, he had not given any notice for production of record. By reading their statements and record together, PW22 and PW19 had joined PW74 for investigation at Inspection Quarters BSNL Ludhiana, seizure memo Ex.PW19/A also mentions the same address of Inspection Quarter vis a vis PW22 also says of his visit at residence of Balvinder Bawa as well as documents were seized from Balwinder Bawa. Thus, it proves the recovery of documents from Balwinder Bawa, she also signed the seizure memo as producer of documents besides signature of both the witnesses on documents seized, there is no cross examination to the version of PW22. IO/PW74 also deposed that record was produced at Inspection Quarter. There is no ambiguity. Another component is of reply by Balwinder Bawa (to question no.283) that on that day she was in jail and not at her residence, however, as per statement of defence witness/DW1 (who produced jail record of inmate Balwinder Bawa), she was not in jail on 9.11.2006. Consequently, it leaves no scope to say that seizure memo was got signed in jail. In another reply (to question [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 133 of156 ] no.288) she said, she has no knowledge of those certificates/documents [viz. Ex.PW4/F1 to Ex.PW4/F6, Ex.PW4/G, ExPW4/H].

However, a question arises, how could those documents be in possession of Balwinder Bawa, since it was Hargulab Singh who filled in and get it filled certificates in the office of PW54? This requires to refer the statement of PW4, for limited purposes, that when PW4 had made departure to Germany, he had handed­over the original documents to Balwinder Bawa at Delhi to keep them with her. That is why it were in her possession and she produced them before CBI. This does not disprove the recovery from her.

12.4 The said certificates [Ex.PW4/F1 to Ex.PW4/F6, Ex.PW4/G, ExPW4/H] were got printed from the press of PW30 Baljeet Singh of Dilkhush Printing Press. The other relevant witnesses are (PW29, PW31, PW32, PW34, PW70) of religious and other social organisations, none of them had been cross examined on behalf of accused. PW29 of Sidh Baba Balak Nath Prachar Sangh deposed that certificate Ex PW4/F­3 was not issued by them. PW32 of Samaj Sudhar Committee had not issued certificate Ex PW4/F­2 nor it bears signature of office bearer. PW34 of Shahid Dilbagh Singh Sabhyachar Mela had also not issued certificate Ex PW4/F5 [it is a paper­bond of 22cmx27.5cm] but actual practice is to issue in photo­frame [as form & format in photo­ frame Ex PW34/B, of size 44cmx32cm]. PW70 of Gaddi Nishan Samadhi Baba Sheikh Farid had also not issued certificate Ex PW4/F6 but it issues in the shape of Trophy containing monogram and depicting [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 134 of156 ] in middle photo of Baba Farid, like Trophy ExPW54/A (which was awarded to PW54 Ajeet Singh alias Jeeta Pawar). Thus, certificates [Ex.PW4/F1 to Ex.PW4/F6] have been proved fabricated and forged documents, its copies [parts of Mark Z1 to Z9] were filed in support of application for empanelment of Mehak Punjab Di. The news­clippings are of same status, they were got printed ante­dates from the press.

12.5 On 29.3.2006, search at the residence of Shiv Kumar Sharma at Durgapuri, Ludhiana was done by IO/PW74 by joining two independent witnesses (PW22 and PW60) and during search the seized items were commendation certificates (Ex. PW­22/B, in Hindi, Ex. PW­22/C in Punjabi, Ex. PW­22/D1, Ex. PW­22/D2, Ex. PW­22/E1, Ex. PW­22/E2, all in Punjabi, Ex. PW­22/F in English, Ex. PW­22/G in English) and participants' identity cards of Doordarshan Kender Jalandhar (Ex.PW­ 22/H1 & Ex.PW­22/H2) by memo ExPW22/A. Each of such documents were endorsed by signatures by witnesses as token of its seizure in their presence besides seizure of personal diaries (ExPW2/B, ExPW2/C and ExPW2/D) of Shiv Kumar Sharma. Accused Shiv Kumar Sharma in his statement as well as in final submissions emphasized that a forcible entry was made into his house and he was brought to office of CBI, he was arrested and he had to remain in custody. However, independent witnesses (PW22 and PW60) were neither cross­examined on this issue nor the witnesses had deposed any fact of forcible entry into the house. Thus, search and seizure was carried peacefully. The seized articles are not disputed.

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 135 of156 ] Ld. Defence counsel has another reservations that visit of IO twice in Ludhiana create doubtful circumstance as once he visited Balwinder Kaur in jail, then search of residence of Shiv Kumar Sharma and another claimed visit at residence of Balwinder Kaur or at Inspection Quarter. Its answer is in the record, first of all on 29.3.2005 IO had gone to Ludhiana for search of house of Shiv Kumar Sharma, at that time Balwinder Bawa was in jail and other date of visit was of 9.11.2006, when Balwinder Bawa produced the record in Inspection Quarter, BSNL. No other date has surfaced on record from either side about visit of IO in Ludhiana.

12.6 The certificates/blank certificates [Ex. PW­22/B, in Hindi, Ex. PW­ 22/C in Punjabi, Ex. PW­22/D1, Ex. PW­22/D2, Ex. PW­22/E1, Ex. PW­ 22/E2, all in Punjabi, Ex. PW­22/F in English, Ex. PW­22/G in English] are matching the record of copies of certificates [part of Z1 to Z9] filed with application Ex.PW4/A in office of ICCR as well as other commendation certificates [Ex.PW4/F1 to Ex.PW4/F6, Ex.PW4/G, ExPW4/H] recovered from accused Balwinder Bawa. Moreover, the participants' identity cards of Doordarshan Kender Jalandhar (Ex.PW­ 22/H1 & Ex.PW­22/H2) recovered by memo ExPW22/A from the house of accused Shiv Kumar Sharma are also of yellow color, which are identical to participant's identity card Jallandhar Doordarshan (Ex.PW4/D) and other commendation certificates, which were initially filed with application form dated 27.4.2005 (ExPW4/A). It cannot be co­incident, particularly the documents seized are matching with the copies filed in support of application as well as to each others' [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 136 of156 ] documents. There is hidden thread, it is emerging from layers of expressions of recovered identical documents.

13.1 In the second phase the relevant witnesses are PW9, PW10, PW25, PW33, PW35, PW37, PW53, PW54, PW56 and corresponding record of photographs etc. Since, the performance of Mehak Punjab Di was to be viewed officially, thus venue of Zimindara Dhaba was selected, it was booked by Hargulab Singh, which is not disputed fact. It is also not disputed that it was PW12 Kehkashan Tyagi, who had personally delivered the letter dated 31.8.2005 (Ex.PW4/R, under the signature of Shri R.M. Agarwal) to PW4 Hargulab Singh, this letter was also seized in search of his house by search memo dated 29.3.2005 (ExPW4/Q). The performance was to be viewed by officials of ICCR and its Director General Rakesh Kumar, its Programme Officer/PW12 Kehkansha Tyagi had also viewed the performance done on 1.9.2005 and 2.9.2005. Their presence is not disputed.

However, accused Balwinder Bawa admits her presence on 1.9.2005 at Zimindara Dhaba just as a performer on invitation of Hargulab Singh as trial without payment of any consideration (reply to question nos. 175 and 176), she left the venue after performance at 7 pm (reply to question no.236), artists PW9 and PW10 came there of their own and they had also left for their residence after performance on 1.9.2005 (reply to question no.237). PW37 Arjun Chand was also present there. Balwinder Bawa alongwith her artists visits Zamindara Dhaba for lunch generally (reply to question nos.421 & 435). She also admits her picture in photograph of performance (at point X in [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 137 of156 ] ExPW4/E­7), picture of Hargulab Singh in another photo (at point Y in ExPW4/E­8), pictures of PW9 and PW10 (reply to question nos 372,153, 155). However, she does not know the purpose of putting banner Mehak Punjab Di behind stage. The VCDs are stated to be matter of record. PW3 Pawan and PW55 Raji had been there of their own (reply to questions 180 and 346). Witnesses PW39 and his son PW40 say that they visited Zimindara Dhaba on that day on insistence of Balwinder Kaur, they had not participated in performance but PW40 was aspirant to go abroad. The performance was recorded in VCDs [ExPW9B1 and ExPW9/B2] and in photographs [ExPW4/E­1 to ExPW4/E­39, its still CD is ExPW33/A], both PW9 and PW10 identify their pictures in those videos and photographs.

13.2 Accused Shiv Kumar Sharma admits his presence at Zimindara hotel/ dhaba but of 2.9.2005 that too at 3pm to see Rakesh Kumar visiting there, where PW12 Kehkashan Tyagi asked him to join the Group, it was his first time to come to know it. He was not present there on 1.9.2005, there is no question of any episode of night between 1/2.9.2005 (these are also the replies by him to questions no.176,152,192, 458) and he never went to office of Rakesh Kumar in this regard (reply to question 442); he rarely visits office of Rakesh Kumar. Although during cross­examination of PW4, Rakesh Kumar and Shiv Kumar Sharma had denied their presence at Zimindara Dhaba.

13.3 Accused Gurbhej Singh claimed, he has no role at any stage and he had no reason to go to Zimindara Dhaba on 1.9.2005 or 2.9.2005.

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 138 of156 ] Since he had not gone there, there was no reasons for him to pick and drop any one or any girl.

13.4 The evidence is to be revisited. PW3 Pawan Kumar was asked by Sonam Gill for performance at Zimindara Dhaba and she also requested him to bring one more male and female artist, PW3 reached at venue of Zimindara Dhaba with other male artist PW25 Mr.Vipin and female artist Ms Sonia. They were paid for their performance at Zimindara Dhaha. Then on receipt of information from PW3 about programme proposed by Balwinder Bawa, PW55 alongwith her mother visited house of Balwinder Bawa to consent to send her abroad as an artist in the Group. PW9 and PW10 also deposed that they had gone Zimindara Dhaba as performer/dancer on asking of accused Balwinder Kaur, they were paid charges for performance. They also identify their pictures in the videos and photos. They also describe the episode happened in the room of hotel, since both were asked by Balwinder Bawa and Hargulab Singh and in the next morning accused Gurbhej picked them from a Hotel and taken to Hargulab Singh and Balwinder Bawa. PW9 was cross­examined on behalf of accused Balwinder Bawa, it was responded by PW9 as 'It is incorrect to suggest that I myself alongwith my Bua 'A' [name with­held] wanted to visit abroad alongwith group, therefore, for our own we went to the hotel room with Shiv Kumar Sharma and Rakesh Sharma'. The other witness PW10 in her cross­examination says 'Accused Balwinder Bawa is my Mami. It is correct that at the instance of Balwinder Bawa I had given dance performance a various places. It is correct that whatever dance [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 139 of156 ] performance I had given with Balwinder Bawa I was paid for the same' It affirms the case of prosecution about presence of Shiv Kumar Sharma, Gurbej Singh, Balwinder Bawa on 1.9.2005 and 2.9.2005 at that venue and it negates the stand of Shiv Kumar Sharma about his absence on 1.9.2005 at Zimindara Dhaba as well as after performance was over. It also negate the plea of absence of Gurbhej Singh at that venue. The photographs of performance also proves that Balwinder Bawa was also present in performance of 2.9.2005, by negating her plea that she left the venue after performance of 1.9.2005 was over at about 7pm. The performance of 1.9.2005 was at night time and last long as appearing from the statement of other witnesses too.

13.5 There are oral statements of witnesses about presence of accused persons. The photographs are of performers. The official team viewed the performance. Some of accused are admitting their presence, partly for one day or fully for both days. However, the circumstances on record proves presence of accused Shiv Kumar Sharma, Balwinder Bawa and of Gurbhej Singh. PW12 Kehkansha Tyagi alongwith DG Rakesh Kumar also came there to view the performance is not a disputed fact, which is also getting support from their official record of availing train tickets for visiting Ludhiana. Then process of filling in application for official passport was started as per names given.

13.6 The application forms for official passports are bearing date of 5.9.2009 [of Shiv Kumar, Satnam Singh, Pawan Kumar, Amanjit Singh, Jageep Singh, Prabhjot Singh, Satnam Singh, Raji respectively ExPW2E to ExPW2/L and of Amanpreet Singh ExPW12/S]. Other [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 140 of156 ] applications for official passports of Hargulab Singh (ExPW4/K), Randeep Singh (ExPW4/L), Mandeep Singh (ExPW12/O), Gurmeet Kaur (ExPW12/X) and of others were filled in and furnished. On 5.9.2005 itself surrender certificates of each individual, in respect of ordinary passport, were issued by PW12 Kehkansha Tyagi that ordinary passports were surrendered for safe custody besides list of their passport details [ExPW12/K­1], which were forwarded by her to passport office by letter dated 5.9.2005 [ExPW12/K] and that passports were kept in safe custody [vide forwarding letter dated 5.9.2005 ExPW12/M]. The list members is of 15 persons [Ex PW12/K1 i.e.14 persons+ leader Hargulab Singh].

How their names were finalised?. It is undisputed that there is no written list of members was asked by ICCR from leader Hargulab Singh. It is also not disputed that the name of PW57/technician Sukhvinder Singh was given by PW12 Kehkansha Tyagi, which is deposed by PW57 himself. Moreover, accused Shiv Kumar Sharma admits that it was PW12 who asked him join the group. PW3 and PW 55 had also said that they were joined in the group as performer/artists by Balwinder Bawa by agreeing to pay Rs.10,000/­ for the trip as well as they would get commendation certificates, however, they were partly paid of Rs.5000/­ each. Although, accused Balwinder Bawa had denied that she called them or any amount or certificates were offered to them or any advance was paid to them (in reply to question no.175 & 176). However, during cross examination of these star witnesses, who had also gone to Berlin in the Group, were suggested [as case of Balwinder Bawa] that their entire due amount was paid and nothing was left to be [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 141 of156 ] payable by Balwinder Bawa. PW3 Pawan replies as "I must have been asked to join this group by Balwinder Bawa on the basis of my professional capabilities. It is incorrect to suggest that I was paid my complete professional charges. I had not made any complaint against anyone for non payment of my professional charges. It is incorrect to suggest that I had not made any complaint as my complete charges were paid to me as were agreed." Thus, the names of PW3 and PW55 was included by Balwinder Bawa. Balwinder Bawa had gone to Shiv Kumar Sharma immediately after coming to know from Hargulab Singh that her name is not in the list of members of the group going abroad and when Shiv Kumar Sharma refused to include her name in the list, she had threatened to call the police and inform of sexual exploitation of PW9 and PW10 at the night between 1/2.9.2005 at hotel after performance in Zimindara Dhaba. Then Shiv Kumar Sharma had talked on telephone, took instructions and permitted the name of son and daughter­in­law of Balwiner Bawa in place of her name, for which she had agreed; thus her son Saba/Sukhdeep/Satnam Singh and daughter­ in­law Sonam Gill/Gurmeet Kaur were included in the list. PW38 Tehal Singh Kheeva also confirms that he parted training of Bhangra/dance at the request of Balwinder Bawa. The statements of PW54 Ajeet Singh alias Jeeta Pawar and of PW56 Jaswant Singh also suggests that it was Hargulab Singh and Balwinder Bawa who prepared them for going abroad and also taken money from them. PW39 and PW40 have narrated the harassment and trauma faced them at Airport Delhi at the hands of Balwinder Bawa for not taking PW40 in the Group at Berlin but he was sent back from Airport.

[C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 142 of156 ] There are other names of members namely Prabhjot Singh, Amanpreet Singh, Jagdeep Singh and Amanjit Singh. PW18 Avtar Singh [father of Amanpreet Singh], PW20 Shri Nazar Singh [father of Jagdeep Singh], PW21 Harjinder Singh [father of Amanjit Singh] and PW53 Pritam Singh [father of Prabhjot Singh] were examined about their children, they had not completely supported the case of prosecution. But PW53 had met Hargulab Singh and Shiv Kumar Sharma at Zimindara Dhabha to send his son abroad. The application forms filled in on 5.9.2005 for officials passport [Ex PW2/E to ExPW2/L and ExPW12S] were provided by office of ICCR and PW12 Kehkashan Tyagi also says that the same were partly filled in the office of ICCR by Shiv Kumar Sharma and other officers of ICCR. Many personal particulars of identity marks were also asked on telephone from Hargulab Singh and Balwinder Bawa on 5.9.2005 gets corroboration that event of performance at Ziminara Dhabha was over on 2.9.2005, thereafter names were finalized till 4.9.2005 and then around 4.9.2005 Shiv Kumar Sharma got names and signatures on application forms for official passports, application forms were already left with him by officers of ICCR. ICCR had officially written on 5.9.2005 to the Office/employer of Shiv Kumar Sharma about his forthcoming journey to Berlin on 12.9.2005. It was 7.9.2005, when Shiv Kumar Sharma applied for earned leave for period from 11.9.2005 to 23.9.2005 [to attend some Cultural Prorgamme at Germany sponsored by Ministry of External Affairs ], as per record own record (Ex. DW3/A colly.) get produced by Shiv Kumar Sharma through witness DW3. There is no written or official communication by ICCR to leader/PW4 of Group of Mehak Punjab Di [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 143 of156 ] about forthcoming programme of 11/12.9.2005. PW57 Sukhvinder Singh had received information on 11.9.2005 about departure on next day from PW12. Further, it gets corroboration that on 6.9.2005 Shiv Kumar Sharma called Hargulab Singh that group would leave Berlin in a week because it was Shiv Kumar Sharma having all information on 5/6.9.2005 of expected programme and departure, which nullifies his denial of this fact in his reply (to question no.255 of his statement u/s 313 CrPC). Shiv Kumar's application for official passport is of 5.9.2005, the surrender certificate for leaving ordinary passport to ICCR office is also of 5.9.2005, PW12 also says that Shiv Kumar Sharma was in the office of ICCR while filling in the application forms and Shiv Kumar Sharma had not given any other explanation as to when he had actually signed the application for official passport or surrendered his original ordinary passport to ICCR, if it was other than of 5.9.2005. It is admitted plea of accused Shiv Kumar Sharma that he was lured to go abroad at State expenses.

The defence/official witnesses DW3 and DW4 were examined and get produced letters by accused Shiv Kumar Sharma to prove that he was on duty on 5.9.2005 and 27.4.2005 and office hours were from 9Am to 5pm as well as there was no cross­examination of such material witnesses by the State. On plain reading of the statements of DW3 & DW4 alongwith letters issued by them in respect of 27.4.2005 and 5.9.2005, it is apparent from the contents of letter that registers of attendance was not available and it was not produced. Thus, it is just inference of presence in office because of want of record. The record of copy earned leave application for 11.9.2005 to 23.9.2005, copy of [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 144 of156 ] application for availing leave on 29.3.2005 (for visiting Delhi) and on 11.5.2005 are part of record (ExPW3/A). In addition, the application forms were partly filled in the office of ICCR [where Rakesh Kumar, PW12 Kehkansha Tyagi, PW70 Narender were also present], the specific writings at points Q56 to Q59; Q66­Q67; Q79 Q81;Q85 Q86; Q101 Q102; Q109 Q110; Q119 Q120 Q151 to Q155 and Q93 [on application forms for official passports ExPW2E to ExPW2/L and ExPW12/S] alongwith writing on personal paid & diary [ExPW22/C and PW22/A bearing writing at points Q­175 & Q­178] were examined by handwriting expert/PW67 with the specimen S­60 to S­169 and S­235 to S­242 of Shiv Kumar Sharma. PW67 has analytical assessed the specimen and questioned writings (Qs), those at aforementioned points in the diary, pad and on application forms were found matched with the specimen of accused Shiv Kumar Shama. The writing (Q142, Q143) on application (ExPW12/X) for passport for Gurmeet Kaur was found matched with the writing of PW12 Kehkansha Tyagi. Neither handwriting expert/PW67 nor IO/74 was cross examined about specimens or its results or investigation on this score. Ld defence counsel has rightly pointed out that PW2 is not witness to writing of Shiv Kumar vis a vis he knows bit of English, thus PW2 does not fall, for the purposes of writing, in the category of direct evidence u/ss 59/60 of the Indian Evidence Act. But the opinion/report ExPW67/B of handwriting expert/PW67 Shri D.R. Handa is covered by sections 47/45 of the Indian Evidence Act 1872. Consequently, it would not yield any benefit to accused Shiv Kumar Sharma of either dates of 27.4.2005 or of 5.9.2004, since for want of proof of attendance register position is like [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 145 of156 ] oral statement of one side of absence in his office against another oral statement of his presence in ICCR, New Delhi, the circumstances are leaning towards his presence in the office of ICCR because of statement of other witnesses of ICCR office, writings on applications for official passports, surrender of his passport and certificate in lieu thereof, seeking information on telephone from Hagulab Singh and from Balwinder Bawa to complete the applications, which were already got signed from the applicants on 4.9.2005. It is also manifest that if accused met PW12 Kehkansha Tyagi at Zimindara Dhaba, being first time, would she include Shiv Kumar Sharma in the Group by posing confidence to the extend that formal application forms for official passports were handed­over to get it filled or collect passports of those persons, which were brought [partly filled­up] in the office of ICCR on 5.09.2005, where list of those 15 members were prepared. It was not all of sudden but in continuity of earlier events. The statement of PW53, that he was detained by CBI, if so, does not discard the case of prosecution, particularly it is the only witness, who uttered so and the other prosecution witnesses have not complained in their statement.

13.7 There is no independent evidence that accused Gurbej Singh had taken any record of certificates and news­clippings, VCDs, album to furnish it to office of ICCR after filing of application for empanelment or around May 2005. In fact official witness of ICCR and PW4 says that it was PW4, who had brought and furnished the record in the office of ICCR. PW4 also says that he took commendation certificates, newspaper clippings, VCDs to the office of ICCR. There is no independent evidence that Gurbej Singh had also gone to the office of [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 146 of156 ] ICCR around 7/8.9.2005 to furnish VCDs/photographs in the office of ICCR of performance of 1/2.9.2005 at Zimindara Dhabha vis a vis the charge pertains to use of forged record of commendation certificates etc., filed in support of application ExPW4/A. 14.1 In this third phase, the most relevant witnesses are PW3 Pawan Kumar , PW55 Raji, PW57 Sukhviner Singh and PW72 Suhanshu Pandey abroad The other particular official witnesses in India are PW12 Kehkansha Tyagi & PW15 Mahender Kumar Sehgal, when 15 members had gone to Berlin on official passport through ICCR. Hargulab Singh's son Randeep Singh had gone to private residence of Palvinder Singh immediately on arrival at Berlin, then Hargulab Singh had also joined his brother Palvinder Singh in Berlin, they had not stayed in the Guest house. They had not performed on 14/15.9.2005 at Berlin, which is admitted fact/allegations by Shiv Kumar [ in his reply to question no.503]. PW3 and PW55 when did not find Sonam Gill/Gurmeet Kaur and Saba/Satnam Singh in their room, then Shiv Kumar Sharma was informed immediately through PW57, however, Shiv Kumar Sharma had not arrived at guest house from the Hotel, where he was staying. Similarly, information was also given immediately to Shiv Kumar Sharma, when other more members of the group were not found in the Guest room in the morning, it was also informed through PW57. They are Satnam Singh alias Puppi Amanjit Singh, Prabhjot Singh, Amanpreet Singh and Jagdeep Singh. However, Shiv Kumar Sharma had lodged information on 16.9.2005 [Ex.PW72/F]. PW72 had not noticed absence of group members in the first day of performance and also on the next performance or as to how many persons had given [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 147 of156 ] performance. Total nine persons had defected, out of them Hargulab Singh came back India later­on. On 16.9.2005 PW12 Kehkansha Tyagi also disclosed to PW15 that there is defection of members of the Group Mehak Punjab Di, since PW12 had that information only on 16.9.2005 and not prior to it, whereas some of them defected much prior, Shiv Kumar Sharma had not informed earlier to anyone of officials.

14.2 Here some other aspect are also relevant to mention. Accused Balwinder Bawa was asked (one of the question is 157) that name of her son is Sukhdeep Singh, marriage was also got registered in proper name (vide certificate Ex.PW1/A) then why her son furnished other name of Satnam Singh in the application form for formal passport, her response is that her son Sukhdeep Singh and daughter­in­law Gurmeet Kaur had married of their choice and against the wishes of Balwinder Bawa, she has no concern at all to them; she does not know the reasons for mentioning wrong name despite affixing correct photograph. In her other reply to allegations (in question no.591) she says that the prosecution witnesses have deposed so because they could not go abroad due to poor performances. In her reply (to question no.497) she elucidated that she had called PW72 Sudhanshu Pandey after one week to convince him to send back India her son. She further said that she was angry/annoyed because Hargulab Singh had not taken her in the group despite she sings very well.

These aspects unfold many hidden facts. Accused Balwinder Bawa was aspirant to go abroad, she could not go there and she felt angry vis a vis when her name was not list, then on 3.9.2005 she [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 148 of156 ] alongwith Hargulab Singh went to see Shiv Kumar Sharma, to include her name in the list failing which there will be police report about episode to PW9 and PW10 and after seeking instructions, the name of her son and daughter­in­law were included in the list (with Shiv Kumar Sharma) instead of name of Balwinder Bawa. It was all after performance of Mehak Punjab Di at Zimindara Dhaba. It was not all of sudden that she form intention to go abroad but from the inception. In order to shield herself, she said that she left Zimindara Dabha after performance at about 7pm on 1.9.2005, she was just performing for trial and she did not know the purpose of putting of banner Mehak Punjab Di behind the stage on that day or so in earlier performances, she took such pleas as defensive but her plea could not be proved. She also said as if she has no concern with her son and daughter­in­law or they are living separately but at the contrary PW3 was called by Sonam and then PW3 and PW55 alongwith her mother visited Sonam, which is house of Balwinder Bawa immediate after 2/9/2005. Thus, an after thought plea is being taken that she has no concern with her son or daughter­in­law.

14.3 Ld. defence counsels took strong plea about status of PW4 Hargulab Singh as of approver, who is weak kind of witness, unless his testimony is corroborated by independent evidence vis a vis PW4 has been habitual to obtain repeatedly passport by wrong particulars. The detailed discussion in aforementioned paragraphs on material aspect is based on facts in record and statement of witnesses (which are other than the statement of PW4). PW4 in his statement on oath had also narrated all such facts chronologically, with documentary record too. [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 149 of156 ] PW4 also deposed facts which are showing his own complicit, including the facts that name of Satnam Singh was written by Shiv Kumar as per instruction (in place of actual name of Sukhdeep Singh in application form for official passport). The ordinary passports and application forms were with Shiv Kumar Sharma too, even ICCR prepared the surrender certificate by keeping the passports in sake custody but without bothering to see take passport of Sukhdeep Singh (as list of member ExPW12/K1 does not mention details of passport of Sukhdeep Singh, whose application form was filled in as Satnam Singh but citing correct name of mother Balwinder Kaur and spouse name as Gurmeet Kaur). Therefore, not only there exists independent material of evidence and circumstances against accused persons and also against Hargulab Singh in those evidence but also in the statement of PW4 against himself and against other accused. It can also be said that the statement of PW4 is getting corroboration from statement of other witnesses and from the record vis a vis those record & statements are independent in nature too.

PW2 Raj Kumar has been in litigation with Shiv Kumar Sharma or his relatives or employee of relative but majority of litigation are of after registration of this case. Otherwise, the case does not rest on sole statement of PW2.

14.4 By taking into consideration totality of circumstances, it is crystal clear that PW4 Hargulab Singh wanted to send his son Randeep Singh abroad, it is just an individual wish. However, he devised the mean of formation of Bhangra group, on the advises he had received from Shiv [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 150 of156 ] Kumar Sharma, who had acquaintance with Rakesh Kumar. It is also in evidence that Balwinder Bawa and Hargulab Singh knew each other much prior to year 2005. The concept took place initially was further developed with Balwinder Bawa to explore it in that direction of joining of members in group. The application was appended with four photographs, visiting card of Mehak Punjab Di and entry identity card of Jallandhar Doordarshan Kendra [ExPW4/D]. Later­on, to make it appear authenticate of cultural programme performance, as per advices received and after getting confirmed from Shiv Kumar Sharma, two press clippings of Manpreet Bulletin, 2 VCDs, album and copies commendation certificates [part of Z1 to Z9] were filed in support of application for empanelment. The originals of those commendation certificates [ExPW4/F1 to ExPW4F6] and news­clippings [ExPW4/G and ExPW4/H] were seized from accused Balwinder Bawa. They are forged and created documents. Similar blank commendation certificates [ExPW22/B to ExPW22/G] and entry identity cards of Jallandhar Doordarshan Kender [ExpW22/H1 and ExPW22/H2] were also recovered and seized from the house of accused Shiv Kumar Sharma. The yellow color entry card of Jallandhar Doordarshan Kender [Ex PW4/D, filed with application dated 27.4.2005 ExPW4/A] is similar to yellow color entry cards of Jallandhar Doordarshan Kendra [ExPW22/H1 and Ex.PW22/H2 seized from the house of accused on 29.3.2006]. Entry Card of Jallandhar Doordarshan Kendra [Ex.PW4/D] was filed with application by PW4 Hargulab Singh, since he was handed it over by accused Balwinder Bawa. The other record is also similar too. The VCDs with performance were staged under the banner of Mehak [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 151 of156 ] Punjab Di was not just act of PW4 Hargulab Singh but with active involvement of Balwinder Bawa vis a vis it was being done on the advises through Shiv Kumar Sharma as to what will serve the purpose or not. That is why from time to time in the sequences of events, there was aid and advise to materialize the concept. The performance at Zimindara Dhaba was another forwarding act of this concept. Although during the cross­examination of PW4 was confronted that Rakesh Kumar and Shiv Kumar Sharma had not come to Zimindara Dhaba but by numbers of statements of witnesses as well as statement of accused persons to those circumstances, it stood proved that they had come to that venue of Zimindara Dhaba. Balwinder Bawa wanted to go abroad, that is why she had requested PW12 Kehkansha Tyagi on that day to consider their group. PW9 and PW10 were also compelled to stay with them. Later, official passports were prepared and group had gone Berlin, Germany but out of 15 persons only 6 came back at first and 1 later­on.

It was being projected that Shiv Kumar Sharma was not present in the office of ICCR New Delhi either on 27.4.2005 or on 5.9.2005 or on other dates or Balwinder Bawa had also not visited office of ICCR, New Delhi nor her presence is counted by PW30 at Press Office or it does not make out conspiracy. In fact, charge against Balwinder Bawa is of conspiracy and forgery of documents, charge against Gurbhej Singh is of conspiracy and knowingly use of forged documents as genuine and charge against Shiv Kumar is of conspiracy as well as of cheating and use of forged documents as genuine. That is why all the phases have been discussed in detail to cull the factual position. It is [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 152 of156 ] crystal clear that there has been conspiracy at level based with Shiv Kumar Sharma and inter­se with Hargulab Singh and in its implementation a conspiracy with Balwinder Bawa with confidence of Shiv Kumar Sharma and in the series of development to achieve it, it was manned with Hargulab Singh and staged performance was recorded in VCDs and in photographs, commendation certificates were got printed and duly filled in/signed by Hargulab Singh and also filed in by PW56 at instance of PW4 besides news clippings, which were recovered from Balwinder Bawa but its copies were furnished in ICCR office by Hargulab Singh. In the charter of Group members Shiv Kumar Sharma included his own persons as members of group, even application forms were with him, which he got signed from them, their passports were also collected by him, those persons had defected in Berlin. He was sent Berlin as Manager but circumstances are speaking that he had been acting alike In­charge of all affairs from event of Zimindara Dhaba, he could explain how he received the passport of those persons. PW18, PW20 and PW21 have not named accused persons qua their children but PW53 gave inconsistent statement like he spent Rs.25,000/­ for his son Prabhjot Singh to go abroad vis a vis no amount was asked by accused, however, he had given Rs.5000/­ to Hargulab Singh of his own, when departure was made to Delhi, he had also telephone call of Prabhjot Singh about performance by the Bhangra group. The statement of PW53 is like telling partly and hiding partly and vice­versa. This does not dilute the allegations. It is not necessary of physical presence of all, when conspiracy is acted upon, there are clear contribution by way of acts and documents by PW3 [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 153 of156 ] Hargulab Singh, accused Shiv Kumar Sharma and accused Balwinder Bawa. There is also consultation and approvals of things at one end and then actions at other end, it meets the requirement of law.

14.5 These elements of conspiracy are also subsisting among PW4 Hargulab Singh (since approver), accused Shiv Kumar, accused Balwinder and it stands proved. The role of Gurbhej Singh is proving or inferring therefrom.

14.6 The group was registered ICCR for promotion of Indian cultural abroad and members were to go there to perform. Many members are non­artists but their applications were filled in as artists, some members in group did not know Bhangra, even Randeep Singh was special­able child, but their names were included in the Group, since the purpose was to go abroad and then defect there, it was done too. Had it been made known the purpose, there would have been no approval or visa but it was done under the garb of empanel of Mehak Punjab Di. The sinister design was from the inception, that is why 'artists' was mentioned in applications for official passports and members of the group had defected in Berlin. It has also caused losses to the Government exchequer, which computed as Rs.6,79,973/­.

14.7 PW4 names accused Gurbhej Singh had accompanied him in the office of ICCR in April 2005, it is not getting corroboration. It was also stated by him that PW4 had again gone to ICCR office to furnish copies of certificates etc. but Gurbhej Singh had gone there to furnish record of performance of 1.9.2005/2.9.2005, this is also not proved against him by other witness vis a vis charge does not pertain to that [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 154 of156 ] record of performance at Zimindara Dhaba. There is also no proof from the statement of PW61 that Gurbhej Singh acted as gunman for accused Shiv Kumar during that relevant period or otherwise. It is also not proved that who was brother­in­law, whom he got sent abroad. However, PW9 and PW10 deposed about picking and dropping them by Gurbhej Singh but it is not establishing formal charges framed against Gurbhej Singh vis a vis the pointing out memo (ExPW23/A) was immaterial, when other record was not collected nor that place was got identified from the witnesses.

15.1 Therefore, the evidence on record proves charges of section 120B (1) r/w sec.420, 468 and 471 r/w sec.468 IPC against accused Shiv Kumar Sharma and Balwinder Bawa as well as substantive charge of section 420, 471 r/w sec.468 IPC against Shiv Kumar Sharma and charge u/s 468 IPC against Balwinder Bawa, by satisfying requirements as detailed in paragraph no.10.2 above.

However, accused Shiv Kumar Sharma & Balwinder cannot derive any benefit that charge u/s 120B IPC was for four accused & not exclusively for them [Shiv Kumar Sharma & Balwinder] for the reasons­ firstly, the findings being returned are not in respect of Rakesh Kumar, secondly charge has not been proved against Gurbhej Singh and thirdly as per spirit of sec. 221(2) CrPC (when one of offence is proved in series of acts but offence was not charged) there is no bar to give such findings qua two accused persons Shiv Kumar Sharma and Balwinder Bawa on the basis of evidence on record, particularly when formal charge u/s 120B IPC r/w sec. 420,468, 471 IPC was also framed [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 155 of156 ] against both the accused too. Moreover, in K Prema S Rao Vs Yadla Srinivasa Rao & others (AIR 2007 SC 11), by invoking the provisions of section 221(2) CrPC the accused was held guilty u/s 306 IPC, when there was acquittal u/s 304B IPC but conviction u/s 498A IPC. Hargulab has been found equally involved in the episodes, however, he was given pardon, that is why he appeared as witness for State.

Thus, both Shiv Kumar Sharma and Balwinder Bawa are held guilty for proof of charge of section 120B (1) r/w sec.420, 468 and 471 r/w sec.468 IPC besides for substantive charge of sections 420, 471 r/w sec.468 IPC against Shiv Kumar Sharma and charge u/s 468 IPC against Balwinder Bawa.

15.2 Accused Gurbhej Singh is acquitted of charges framed against him for want of proof by evidence. Digitally signed by INDERJEET INDERJEET SINGH This judgment concludes. SINGH Date:

2019.10.10 16:12:09 +0530 Announced in open court today (Inder Jeet Singh) Thursday, Asvina 18, Saka 1941 Special Judge (PC Act)/ CBI­17, Delhi/ 10.10.2019 [C.C. No.01/2019 State Vs. Rakesh Kumar & 3 Ors. Page 156 of156 ]