Delhi District Court
Cbi vs . Ram Kumar Singh & Ors. Page 1 Of 134 on 26 September, 2015
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IN THE COURT OF JITENDRA KUMAR MISHRA
SPECIAL JUDGE (PC ACT) CBI,
KARKARDOOMA COURTS : EAST DISTRICT
DELHI
Unique ID no. 02402R0002502008
AC No. 66/11/2008
RC No. SIB-2007-E-0001
IN THE MATTER OF :-
Central Bureau of Investigation (CBI)
VERSUS
1 Ram Kumar Singh (A-1)
S/o Sh. Kalu Ram
R/o C-1/357, Yamuna Vihar, Delhi - 53.
2 Anil Kumar Arora (A-2)
S/o Sh. K.C. Arora
R/o H. No. D-72, Aruna Park, Shakarpur, Delhi - 92.
3 Rakesh Aggarwal (A-3)
S/o Sh. Radhey Shyam Aggarwal
R/o 1/9336, West Rohtash Nagar,
Shahdara, Delhi - 32.
.......Accused persons
Date of Institution : 03.01.2008
Date when Judgment is reserved : 11.09.2015
Date of Judgment: : 22.09.2015
CBI Vs. Ram Kumar Singh & Ors. Page 1 of 134
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J U D G M E N T
1 Facts of the case of prosecution in brief are that accused Ram Kumar Singh is a public servant being junior Engineer, he did not perform his duties. As per orders of Hon'ble High Court in WP (C) No. 4582/2003, an inquiry was conducted against Engineers and officials of MCD to prove their nexus with Builders and Political Bosses. During inquiry, a complaint was filed by Sh. Sanjay Dubey, Inspector CBI and present case was registered.
2 It is case of the prosecution that accused no. 1 was posted as JE in ward no. 71-72, Shahdara South Zone during the period 10.08.2004 to 01.08.2005. It is alleged in the charge-sheet that accused no. 1 entered into criminal conspiracy with accused no. 2 and knowingly, had not taken any demolition action at premises no. D-15 and B-53, Shakarpur, Delhi, causing pecuniary gain to accused no. 2. Accused no. 3, associate of accused no. 2 unauthorizedly constructed four flats in the left portion of plot no. B- 53, Shakarpur without sanctioned plan and sold the same to CBI Vs. Ram Kumar Singh & Ors. Page 2 of 134 3 innocent buyers. After demolition of old structure on the said plot, accused no. 2 and accused no. 3 illegally constructed five storeyed building comprising of nine flats during the year 2004-2005 and sold the same by deceitful means to different buyers in the garb of being authorized construction. It is further alleged that accused no. 2 and 3 entered into a criminal conspiracy and accused no. 1 being public servant did not take any action regarding booking, sealing and demolition of unauthorized structure. There are four complaints including the complaint made by SHO PS Shakarpur regarding unauthorized construction, accused no. 1 did not take notice of the same. Accused no. 1 did not initiate any action against accused no.2 & 3 for construction of authorized five flats on property no. D-15, Shakarpur, Delhi. Vide letter dated 12.05.2007, Executive Engineer intimated regarding unauthorized construction without sanctioned building plan. It is alleged that accused no. 1 being public servant violated the directions issued by MCD by issuing various circulars and orders.
3 It is case of the prosecution that unauthorized construction was carried out at B-53, Shakarpur, Delhi which was CBI Vs. Ram Kumar Singh & Ors. Page 3 of 134 4 earlier in the possession of accused no. 2 & 3, who have constructed buildings comprising of 9 flats at B-53, Shakapur, Delhi. It is further alleged that those flats were sold to innocent buyers by accused no. 2 and 3.
4 It is case of prosecution that property no. B-53, Shakapur, Delhi was purchased by accused no. 2 & 3 in the year 2004, old construction was demolished by the two accused persons and they started construction at B-53, Shakapur, Delhi in the month of August, 2004 through contractor Mohd. Israr. As per prosecution, it was the duty of the JE (B) to taken action under Section 344 and 343 of DMC Act, 1957 but since Ram Kumar Singh (A-1), the then JE (B), Incharge of the ward, entered into criminal conspiracy with accused no. 2 & 3, failed to take any action against accused no. 2 & 3.
5 It is case of prosecution that during investigation it was revealed that accused no. 2 & 3 did not inform the purchasers that the flats were constructed illegally without any sanctioned building plan. It is further revealed that there was violation of various CBI Vs. Ram Kumar Singh & Ors. Page 4 of 134 5 circulars/standing orders issued by MCD from time to time by accused no. 1.
6 On completion of investigation, charge-sheet was filed before the Court. Copies of documents were supplied to the accused persons in compliance with provisions of Section 207 Cr.PC.
Charge :-
7 Charge for offences punishable under Section 217 IPC, under Sections 13(2) read with Section 13 (1) (d) of PC Act was framed against Sh. Ram Kumar Singh (A-1). A separate charge for commission of offences punishable under Sections 120-B IPC read with section 13(2) read with Section 13(1) (d) of P.C. Act was also framed against all the accused persons namely Ram Kumar Singh (A-1), Anil Kumar Arora (A-2) and Rakesh Aggarwal (A-3) vide order dated 10.02.2010, to which all the accused persons pleaded not guilty and claimed trial. Prosecution was called upon to lead evidence.
CBI Vs. Ram Kumar Singh & Ors. Page 5 of 134 6 Prosecution evidence :-
8 In order to prove its case, prosecution examined following witnesses:-
PW1- Constable Israil Khah
PW2- Sh. Y. A. Zafri, AE, MCD Karol Bagh (Project),
New Delhi.
PW3- Sh. V. K. Gaur, Office Incharge, Building South
Zone, Shahdara, MCD, Karkardooma, Delhi.
PW4- Sh. Deen Mohd, ZRO, Delhi Jail Board.
PW5- Sh. Sanjay Dubey, Inspector CBI, EOU-V, New
Delhi.
PW6- Sh. Hitesh Golash, Assistant Manager, Power
Supply, Krishna Nagar, Delhi.
PW7- HC Dharmender Singh,
PW8- Sh. Bhagwat Singh Manral
PW9- Sh. Sushil Kumar, Superintending Engineer, City
Zone, MCD, MLUG, Car Parking, Asaf Ali Road, Delhi Gate.
PW10- Sh. Parvesh Kumar Arora
PW11- Sh. Nitin Pratap Singh
PW12- Smt. Vidya Rani Sharma
PW13- Sh. Vikas Bahri
PW14- Ms. Shivani Singh
PW15- Smt. Manju Jain
CBI Vs. Ram Kumar Singh & Ors. Page 6 of 134
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PW16- Sh. Amit Kumar
PW17- Sh. Naresh Kumar
PW18- Smt. Sudesh Gupta
PW19- Sh. Chander Parkash
PW20- Israr Ahmed
PW21- Sh. Sanjeev Sharma, UDC East, Building
Department.
PW22- Sh. Ajay Rawal, SDM Patel Nagar.
PW23- Sh. Panakj Joshi
PW24- Sh. Radha Charan, SDM, Seelampur, Delhi.
PW25- Inspector Somender Tyagi
PW26- Sh. R. P. S. Bhatia, Dy. Secretary, Home
Department, GNCT of Delhi.
PW27- Sh. V. K. Bugga.
PW28- Sh. Lajpat Rai Arora
PW29- Sh. B. S. Arora, Retired Deputy Superintendent.
PW30- Sh. J. R. Katiyar, Inspector, CBI EOU-IV
PW31- Sh. Vijay Kumar Shukla, Dy. Superintendent of
Police, CBI (IO), Special Crime-II, New Delhi. Prosecution evidence was closed vide order dated. 30.04.2014.
Statement under Section 313 CrPC 9 Statement under section 313 Cr.P.C. of all the accused CBI Vs. Ram Kumar Singh & Ors. Page 7 of 134 8 persons recorded. In statement under Section 313 CrPC, accused persons denied all the incriminating material appearing in evidence against them and claimed innocence.
Defence Evidence 10 In their defence, accused persons examined Sh. Ashok Kumar as D1W1 and Sh. Mahesh Sharma as D3W1. Defence evidence in the present matter was closed on 06.08.2014. APPRECIATION OF EVIDENCE :
11 PW-1 Ct. Israil Khan has deposed in his statement that in the month of September 2002, he was posted in PS Shakarpur, Delhi and remained posted there uptill February 2007. He further deposed that during his posting in the aforesaid police station, he looked after the unauthorized construction on various properties, prepared the report and gave the same to his senior officials. He proved letter dated 25.07.07 Ex. PW-1/B, alongwith its annexures attested by Sh. Vaid Singh Malik Ex. PW-1/B. During his cross- CBI Vs. Ram Kumar Singh & Ors. Page 8 of 134 9 examination, this witness stated that he has seen the unauthorized construction on properties no. D-15 and B-53 in Shakarpur. Ex. PW-1/A is perused. It is a list of properties under unauthorized constructions alongwith the name of constables, measurement of the properties etc. Ex. PW-1/B is report dated 25.07.07 by SHO PS Shakarpur alongwith the production cum receipt memo Ex. PW-1/B is written regarding particulars of documents received in this case. During cross-examination, the witness has stated that he has seen unauthorized construction at properties no. D-15 and B-53 Shakarpur. He did not remember the exact dates and months of the unauthorized constructions. He further submits that he had seen unauthorized construction at property no. D-15 in the year 2004 and with regard to the unauthorised construction at property no. D-53, he did not know. He had prepared the document with regard to the enquiry made, the form was filled and the same was delivered to the Reader of the SHO. He has further stated that he used to prepare the form with regard to the unauthorized constructions in the area but did not remember the number of details of other properties. He further deposed that he was accompanied with constable Ashok and at the time of inspection, CBI Vs. Ram Kumar Singh & Ors. Page 9 of 134 10 constable Ashok was with him. He further deposed that property bearing no. D-15 Shakarpur is measuring 100 Sq. Meter but he does not recollect the exact dimension, direction or storey of the building. He submitted his report on the inspection of the property from the outside of the property. At the time of submitting his report, the building was under construction. He further deposed that he did not remember the number of workers working for unauthorized construction or the date of preparation of the report with regard to the unauthorized construction in property no. B-53 Shakarpur, Delhi. He further deposed that he did not recollect whether the report with regard to both the properties was submitted on the same day or some other day and he did not take any action except to submit the report to the SHO in the shape of a form. He further deposed that he did not send any complaint to the MCD Office and made entry in the police station after his return from the spot. He denied the suggestion that the form was filled up by him in the police station. He has admitted that he is neither the author of the documents Ex. PW-1/A and Ex. PW-1/B, nor these documents were prepared by him. He has further admitted that entries shown in Ex. PW-1/A were not prepared in his presence. CBI Vs. Ram Kumar Singh & Ors. Page 10 of 134 11 12 PW-2 Sh. Y.A. Jafri, Assistant Engineer, MCD has proved Ex. PW-2/A which is a letter issued by him to the Inspector of CBI EOU-V, New Delhi which bears his signatures at point A. He further deposed that alongwith this letter he forwarded the existing plan of properties no. D-15, Shakarpur, Delhi and B-53, Shakarpur, Delhi and the said existing plans are Ex. PW-2/B and Ex. PW-2/C. He also proved letter dated 12.05.07, Ex. PW-2/D and another letter dated 12.05.07 Ex. PW-2/E. Both these letters were regarding encroachment on government land in respect of plot no. D-15 Shakarpur, Delhi and B-53, Shakarpur, Delhi. He further deposed that the buildings in question were totally unauthorized. He also proved letter no. 12.05.07 Ex. PW-2/F which bears his signatures at point A. He has further stated that whatever unauthorized construction was noted by the field staff, demolition action was taken immediately at ongoing stage and if the construction was complete, then show cause notice was served to the owner of the building and after completion of various formalities, the demolition programmes were fixed as per priority and policy of the department and the demolition programme was being fixed by CBI Vs. Ram Kumar Singh & Ors. Page 11 of 134 12 Executive Engineer (Building). He further deposed that the owner/builder applies for the sanction of the building plan of the property. The architect of the owner submits the plan for which the construction is to be carried out alongwith various documents. During cross-examination, it was stated that he was not the concerned AE during the check period pertaining to present case. He had visited the properties in question after registration of the present case. He further deposed that he was not aware about the originals of Ex. PW-2/B and Ex. PW-2/C. He has admitted that Ex. PW-2/B and Ex. PW-2/C were not prepared by him. He has admitted that both these documents did not bear the name of the person who designed. He has admitted that he did not have any personal knowledge about the time of the construction at the site in accordance with Ex. PW-2/B and Ex. PW-2/C. He had admitted that the Property Watch Register is being maintained in every zone. He has further stated that due to work load or inadvertence, entries of few of the properties are left over to be recorded. He has stated that sometimes the target is also fixed for the booking of the unauthorized construction for every JE per month. He has admitted that for the unauthorized construction the criminal cases were filed CBI Vs. Ram Kumar Singh & Ors. Page 12 of 134 13 by the MCD in the court of Metropolitan Magistrate. He further deposed that he has no knowledge if any criminal complaint case has been filed in the present case and he could not say how many properties were booked as unauthorized properties in the same street or in the same mohalla. He has admitted the suggestion given by the defence counsel that just because of non booking of unauthorised properties led to the presumption of taking bribe. He denied the suggestion that he had sent letters Ex. PW-2/A, Ex. PW- 2/D, Ex. PW-2/E and Ex. PW-2/F in mechanical manner under the pressure of CBI. He has further deposed that he did not know whether JE Ram Kumar was Incharge of two wards. He has admitted that CBI had recorded his statement with regard to the procedure but did not remember the date and time of inspection of the aforesaid property. He further deposed that the construction of D-15 Shakarpur, Delhi was 4-5 years old when inspection was done by him but did not remember the exact date of inspection of the aforesaid property. He further deposed that he couldn't tell the measurement of property no. D-15 and the directions of the land or orally the numbers of rooms constructed at property No. D-15 Shakarpur, Delhi. He further deposed that he had no personal CBI Vs. Ram Kumar Singh & Ors. Page 13 of 134 14 knowledge nor there was any complaint that there was any bribe given or taken in the construction of aforesaid property. 13 PW-3, Sh. V.K. Gaur, Office Incharge Building, South Zone, Shahdara, MCD has deposed that CBI had asked the report with regard to the property from him and he submitted the report that the properties as asked for were not booked as unauthorized construction. He handed over the diary register to the CBI. The diary register was being maintained by the then LDC Sh. Sanjeev Sharma and he was working under his supervision. 14 PW-4, Sh. Deen Mohd, Retired ZRO, Delhi Jal Board has stated in his deposition that he remained posted as ZRO (East- I), Delhi Jal Board from 24.11.06 to 30.11.07. He has further stated that applying for new water connection, the application has to be made by the owner of the property to the Executive Engineer of concerned area and the application should be accompanied by ownership proof and ration card and thereafter, from the office of Executive Engineer, instructions were issued to the concerned Junior Engineer for inspection of the site in question. JE visits the CBI Vs. Ram Kumar Singh & Ors. Page 14 of 134 15 spot and submits report on aspects like whether any cutting of road is required, distance of the property from the main water line etc. The JE submits his report to the AE. He further disclosed the entire procedure for obtaining new water connection. He further deposed that new water connection can be granted for the purpose of construction, known as temporary connection. But the regular new water connection is given only on completion of the building on submission of completion certificate issued by the MCD. He proved letter no. DJB/ZRO(E)-I/2007 (D-59) Ex. PW-4/A which bears his signatures at point A. Vide the said letter, he had forwarded 10 water connection files pertaining to the property no B-53, Gali Jain Mandir, Shakarpur; D-15, Shakarpur and J&K 131, Laxmi Nagar. The files are the original files which were being maintained in the office of ZRO (East)-I, Preet Vihar. The files are Marked PW-4/A1 to PW-4/A10. There is no serious challenge to the testimony of this witness during his cross-examination.
15 PW- 5 Sh. Sanjay Dubey, Inspector CBI, EOU-V has deposed that since June 2005, he was working as Inspector CBI, EOU-V, New Delhi and during this tenure, he was entrusted the CBI Vs. Ram Kumar Singh & Ors. Page 15 of 134 16 inquiry vide PE1/2006 EOU-V, New Delhi which was registered on the directions of Hon'ble High Court of Delhi. The allegations of the inquiry were against the hierarchy of the MCD Officers regarding their involvement in the large scale of unauthorized construction including the commercial construction in their jurisdictional area and their nexus with owners/builders for the purpose. The said inquiry is related to the tenure of Sh. R.K. Gupta, the then Executive Engineer (Building) Shahdara, South Zone, MCD, Delhi, who worked in that area for a period of 09.08.04 to 31.12.05 and during this period 477, cases of unauthorized construction were booked. He further deposed that preliminary inquiry further revealed that Sh. Ram Kumar (A-1), the then, JE (Building), Shahdara, South Zone, MCD, Delhi who worked in ward nos. 71 and 72 of the Zone entered into a criminal conspiracy with builder Sh. Anil Kumar Arora (A-2) and Sh. Rakesh Aggarwal (A-3) facilitated them for continuing with unauthorized construction of the buildings which were without sanctioned building plan by the MCD and in violations of the MCD guidelines/circulars/DMC Act etc. He further deposed that he did not take any action as per DMC Act or other existing provisions which facilitated the builders (A-2 & A-3) in completion of such CBI Vs. Ram Kumar Singh & Ors. Page 16 of 134 17 buildings which were without sanctioned building plans by the MCD. This act of A-1, further facilitated A-2 & A-3 in selling the flats so prepared on such buildings to innocence/unsuspecting buyers and caused pecuniary gains to the builder. In this regard, he has filed a complaint with SP, CBI, EOU - V, New Delhi and the same is Ex. PW-5/A which bears his signatures at point A. This complaint was regarding the unauthorized construction on property no. D-15 & B-53, Shakarpur, Delhi for which owner/builders were A-2 & A-3. During cross-examination, this witness stated that preliminary inquiry was conducted by him bearing no. PESIB-2006-E0001 DT. 10.05.2006. He had handed over the complete file of preliminary inquiry to his SP alongwith his complaint Ex. PW-5/A. He has admitted that file of preliminary inquiry is not relied upon in the present case and no permission was obtained from State Government for conducting preliminary inquiry. He denied the suggestion that he was deposing falsely to this effect. He denied the suggestion that the preliminary inquiry is not relied upon in the present case as no such preliminary was conducted by him. He has further deposed that he had visited properties no. D-15 and B- 53 personally for 2-3 times but he could not tell the dates of such CBI Vs. Ram Kumar Singh & Ors. Page 17 of 134 18 visits. He further deposed that he did not get the construction of property no. D-15 and B-53, Shakarpur, Delhi photographed. He denied the suggestion that he has lodged a faulty complaint against property no. D-15 & B-53, Shakarpur, Delhi and deposing falsely. 16 PW-6, Sh. Hitesh Golash, deposed that he joined BSES, Yamuna Power, Ltd. on 02.06.05 as Assistant Manager. He has explained in his examination in chief detailed procedure for obtaining temporary electricity connection for construction purposes. He further deposed that it takes about 10-15 days in sanctioning the temporary connection; temporary connection cannot be regularized and afresh application alongwith the requisite documents are required for a regular connection. He further deposed that vide seizure memo dated 18.09.07 which is Ex. PW- 6/A, he had handed over the documents mentioned therein to the IO which bears his signatures at point A on both the pages and the attested copy of the report is Ex. PW-6/B, which bears his signatures at point A, attested copy of customer request is Ex. PW- 6/C which bears his signatures at point A. The other photocopies of documents running into four pages are Mark XI collectively. The CBI Vs. Ram Kumar Singh & Ors. Page 18 of 134 19 customer request of Suman Jain in respect of property no. D-15, Shakarpur, Delhi comprising 12 pages is collectively Ex. PW-6/D. The consumer request of Sh. P.K Jain in respect of property no. D- 15, Shakarpur, Delhi comprising 12 pages is collectively Ex. PW- 6/E. The consumer request of Prema Manral in respect of property No. D- 15, Sharkarpur, Delhi comprising of nine pages is collectively Ex. PW-6/F. The consumer request of Alpana Singh in respect of property no. D-15, Shakarpur, Delhi comprising of 11 pages is collectively Ex. PW-6/G. He further deposed that his report in respect of property no. B-53, Aruna Park, Shakarpur, Delhi is Ex. PW-6/H which bears his signatures at point A. He also proved scanned copies of consumer request in respect of property no. B-53, Aruna Park, Shakarpur Delhi which were attested by him at points A are Mark X-2 to X7. During cross-examination, he denied that Mark X2 to Mark X7 are forged documents or that these have been fabricated by him at the instance of the Investigating Officer of the case. He denied the suggestion that no such files Mark X2 to Mark X7 were available in his office. He has further submitted that CBI recorded his statement on 18.07.07 at CGO Complex, Lodhi Road, New Delhi.
CBI Vs. Ram Kumar Singh & Ors. Page 19 of 134 20 17 PW-7, HC Dharmender Singh deposed that on 18.09.04, he was posted at PS Shakarpur as Constable and was on beat duty covering A. B, D & U Block of Shakarpur and found that property bearing no. B-53, Shakarpur, old building was being demolished and new building was being constructed in the form of pillars. He filled up the form as prescribed and submitted the same to the SHO through Reader. He further deposed that the name of the accused i.e. Anil Kumar Arora, the Builder was revealed to him during inquiry made by him. He further deposed that A-2 was also having a shop by the name of Kabuliwala on the main Vikas Marg. He also filled up unauthorised construction form in respect of property no. D-15, Shakarpur, Delhi against same accused no. 2. He further deposed that the Reader to the SHO enters the particulars in a register on the basis of unathorised form submitted by him and proved the copy of the said register pertaining to the above said property as Ex. PW-1/A. During cross-examination, PW- 7 denied the suggestion of the Ld. defence counsel that no property nos. D-15 or B-53 were ever inspected by him. During cross- examination, he further admitted that A-2 was not found by him on CBI Vs. Ram Kumar Singh & Ors. Page 20 of 134 21 the above two properties when allegedly inspected by him but the name of accused no. 2 was revealed to him from Munshi available on the properties. He has further stated that he demanded the ownership documents from the said Munshi but he refused to show the same as the Munshi said that papers were not with him. 18 PW-8, Bhagwat Singh Manral has deposed that this property was purchased by him from A-2 on payment of Rs. 50,000/- made by him in the year 2005 and got immediate possession. He had purchased third floor of the property which comprised of covered area of approximately 40 square meters which was already constructed when it was purchased by him. This property comprised of two rooms, one kitchen and toilet cum bathroom. He further deposed that he was not told about the unauthorized nature of the property when he had purchased it. The water and electricity connection had already been obtained by the builder when he purchased the said property. He had further submitted that property comprises mezzanine, first, second and third floor and his floor is second floor back side. There are total six flats in the said property. There are two shops on the back side of CBI Vs. Ram Kumar Singh & Ors. Page 21 of 134 22 said property. He has further stated that no official from MCD has ever visited his property. He further identified his signatures at point A on Ex. PW-1/B. He also brought the copies of documents pertaining to the property are collectively marked as Ex. PW-1/A. During cross-examination, PW-8, he has stated that property i.e. flat in question was purchased by him in the month of 2004 when he got the sale deed registered in the name of his wife Smt. Prema Manral. He did not ask for the sanction plan for the construction of the flat from its owner. During cross-examination a suggestion to PW-8 was given by the counsel for accused no. 2 that PW-8 was aware about the fact that site plan of the property was not sanctioned at the time of purchase of the property and the suggestion was denied. Therefore, this court observes here, it is an admission on the part of accused no. 2 that he sold the property to PW-8 without obtaining sanctioned plan. PW-8 admits that entire property was already constructed. In the further cross-examination of PW-8 he further states that no police official visited the flat between 2002 to 2004.
19 PW-9 Sh. Sushil Kumar, Superintending Engineer, CBI Vs. Ram Kumar Singh & Ors. Page 22 of 134 23 MCD, has deposed that on the on going unauthoruised construction, it was the duty of JE to visit the site and to detect the site of unauthorised construction, if any with regard to on going unauthorised construction. He further deposed that JE has power to immediately get the same demolished then and there, without issuing any Show Cause Notice. PW-9 further deposed that if some unauthorised construction is found to have been completed then the property is booked by JE by registering FIR, thereafter, a Show Cause Notice was put up by JE to AE and AE issues the Show Cause Notice to the owner of the property requiring him to answer to the question of unauthorised construction. Thereafter, the file is sent to the Office Incharge (Building) and demolition programme is prepared. He has further proved letter dated 12.05.07 issued by him as Ex. PW-2/D. He has proved his signatures at point B on this document. He further proved his signatures at points B on Ex. PW-2/E and Ex. PW-2/F also. He further proved his signatures at point A on letter dated 12.05.07 Ex. PW-9/A. He further proved documents Ex. PW-9/A1 to Ex. PW- 9/A2. During cross-examination, upon a specific question, this witness stated that 'if the JE does not book the unauthorized CBI Vs. Ram Kumar Singh & Ors. Page 23 of 134 24 property then it is possible that he may have taken the bribe'. 20 PW-10, Sh. Pravesh Kumar Arora, in his deposition has stated that ground floor of B-53 Shakarpur, Delhi was purchased on 02.12.05 by his sister-in-law Smt. Avinash Malhotra through GPA and connected documents for about Rs. 1.5 lacs from Builder i.e. A-
2. At the time of purchase, he was also present and it was informed by A-2 that whether flat was authorised or unauthorized or whether sanctioned building plan was obtained from MCD or not. The consideration amount was paid in cash. The constructions were completed by the Builder A-2. Ever since the purchase of flat till date no official from MCD has ever visited that flat for carrying out the demolition. The flat was purchased under the impression it was authorised construction. The builders had given in writing that the property is legal from all angles. On 08.05.07, he had produced the property documents before CBI vide seizure memo Ex. PW- 10/A, bearing his signatures at point A. This witness brought the original documents as Ex. PW-10/B. In his cross-examination, he has admitted the suggestion that he had not asked the sanctioned plan from the seller A-2 as he was not aware of this formality. He CBI Vs. Ram Kumar Singh & Ors. Page 24 of 134 25 denied the suggestion that he was well aware about the fact of non
- sanctioning of the plan. He has further admitted that property is having 100 % built up area.
21 PW-11 Sh. Nitin Pratap Singh has deposed that in the year 2004 his father had purchased a flat bearing no. D-15 Shakarpur, Delhi - 92 from Mr. Sushil Goel and A-2. The consideration amount was Rs. 70,000/- which was paid either in the form of DD or cheque. He had sold the flat in the month of February 2008. He further deposed that during the period between 2004 to February 2008, no official of MCD had ever visited the flat for any purpose.
22 On 22.06.07, PW-11 produced the property documents before CBI vide seizure memo Ex. PW-1/A bearing his signatures at point A. The original documents are no longer in his possession because he had handed over the same to the purchaser at the time of sale of the property in February 2008. This witness was declared hostile witness but during cross-examination by the Ld. PP for CBI, the witness stated that whatever documents CBI Vs. Ram Kumar Singh & Ors. Page 25 of 134 26 were required for the electricity connection, were supplied to the builder who forwarded the same to the BSES office. During cross- examination of this witness by Ld. Counsel for accused no. 1, witness further stated that when the applicant purchased the flat, the building was completely constructed, including other adjacent buildings.
23 PW-12, Smt. Vidhya Rani Sharma, deposed that she had purchased the property in the year 2005, the copy of the documents pertaining to the purchase of the property are Ex. PW- 12/A1 to Ex. PW-12/A9. She had purchased the property from A- 3 . She has further stated that there were total nine flats in the property B-53 Shakarpur, out of which she had purchased one property. No action was taken by MCD in respect of her property after the purchase of the property. She further deposed that the property papers were handed over to CBI by her husband Sh. Raghunath Prasad Sharma vide production cum receipt memo Ex. PW-12/B bearing signatures of her husband at point A. During cross-examination, she has admitted that Ex. PW-12/A5 to Ex. PW- 12/A9 are not registered with the office of Sub Registrar. She has CBI Vs. Ram Kumar Singh & Ors. Page 26 of 134 27 further admitted that the property has 100 % build up area but she cannot say if 100 % build up area is not permitted in case of sanctioned plan. She denied the suggestion that she was never told by A-3 that property was authorised.
24 PW-13 Sh. Vikas Bahri, has deposed that she has purchased the property from Sh. Umesh Kumar through A-2. Copy of the property documents were handed over him to CBI vide seizure memos dated 08.05.07 Ex. PW-13/A and Ex. PW-13/B and bear his signatures at point A. He proved the copy of sale deed dated 12.01.06 is Ex. PW-13/C, copy of GPA dated 14.12.05, Ex. PW-13/D. He has further stated that at the time of purchase of property he was told by accused no. 2 that the property is perfectly authorised and even that the colony is regularised. This fact has been mentioned in writing at Clause no. 7 of Ex. PW-13/C. During cross-examination, he admitted that no obstruction was raised by the concerned Registrar office for not registering the sale deed on the ground of construction being unauthorized. 26 PW-14, Ms. Shivani Singh has stated that she had CBI Vs. Ram Kumar Singh & Ors. Page 27 of 134 28 purchased the residential property bearing No. B-53, Top Floor, Aruna Park, Shakarpur, Delhi in November 2005 from A2 and paid sale consideration of Rs. 1,50,000/- for the purchase of said flat. She has further stated that there are nine flats and her flat is on the fourth floor. She had handed over documents pertaining to purchase of property vide covering letter dated 09.05.07 Ex. PW- 14/A; copy of general power of attorney comprising seven pages Ex. PW-14/B bearing signatures of accused no. 2 at point B; copy of agreement of sale Ex. PW-14/C bearing her signatures at point A; copy of the receipt of full and final payment Ex. PW-14/D bearing signatures of accused no. 2 at point A (Original seen and returned); copy of affidavit Ex. PW-14/E, bears signatures of accused no. 2 at points A and B (Original seen and returned); copy of possession letter Ex. PW-14/F bears signatures of accused no. 2 at point B (Original seen and returned); copy of deed of will Ex. PW-14/G which bears signatures of accused no. 2 at point A (Original seen and returned). This witness was declared hostile. During cross- examination by Ld. PP for CBI, the witness admitted that A- 3 was also a builder in respect of such flats. Witness admitted that he was not informed by the builder that the construction was CBI Vs. Ram Kumar Singh & Ors. Page 28 of 134 29 unauthorized and the same was constructed without any sanctioned building plan. She further admitted that the said fact was concealed by the builder and that no MCD official had ever visited her flat from the date of purchase of flat till date. She further testified that A-3 told her that there was no legal problem with the building. During cross-examination, it is admitted by this witness that she had not received any demolition notice from MCD till date. During cross-examination, witness further denied the suggestion that A-2 was not the builder of the flat.
27 PW-15, Smt. Manju Jain deposed that she is residing at B-53, Second Floor Gali Jain Mandir, Shakarpur, Delhi-92 from 2005 when she had purchased the said flat from A-2 for a sum of Rs. 1,50,000/-. At the time of purchase of this flat, she was not apprised of the fact that the premises was an authorised or an unauthorized construction nor did she make any enquiry about this fact. She further deposed that there are total nine flats in the building. She has further stated that A-2 was also having one partner either by the name of Rajesh or Rakesh Aggarwal. She also stated that no MCD official has ever come to her premises. CBI Vs. Ram Kumar Singh & Ors. Page 29 of 134 30 She was not told by the A-2 that the construction of premises purchased by her was an unauthorized construction without sanctioned plan, nor she knew that the flats sold by A-2 and A-3 were unauthorisedly constructed and are without sanctioned plan. She had handed over the documents relating to her premises vide memo Ex. PW-15/A which bears her signatures at point A & B . She identified Ex. PW-15/B as copy of agreement to sell, copy of GPA, copy of possession letter, copy of final payment, copy of cheque, copy of PAN card, copy of her election I Card, copy of electricity bill, copy of water bill and further deposed that all these copies are bearing her signatures at point A on every sheet. During cross- examination, she denied the suggestion that it was in her knowledge that the building in which she had purchased a flat was without a valid sanctioned plan. She had admitted that the construction over the building was 100 % built up area. This witness further stated that she did not face any difficulty at the time of registration of the documents in Sub Registrar Office. 28 PW-16, Sh. Amit Kumar stated that in the year 2005, he had purchased a premises bearing no. B-53, First Floor, Jain CBI Vs. Ram Kumar Singh & Ors. Page 30 of 134 31 Mandir Gali, Shakarpur Delhi - 92 from Smt. Suman Singhal who was the general power of attorney of A-2 for Rs. 1,60,000/-. His deposition is similar to the deposition of PW-13, to PW-15. He has also proved the relevant document Ex. PW-16/A . He further deposed that he had sold the said flat in June 2011 before that he was residing in the same continuously from the time of purchase. During cross-examination similar suggestion was denied that it was in his knowledge that the building in which he had purchased the premises was without a valid sanctioned plan. 29 PW-17, Sh. Naresh Kumar deposed that in the year 2007, he was posted as Addl. Commissioner (Engineering) with MCD. He further deposed that he had accorded sanction of prosecution of A-1, JE with MCD in the present case vide his sanction order Ex. PW-17/1 bearing his signatures at point A on all the pages. He further deposed that the sanction was accorded by him after going through the statement of the witnesses, FIR, documents seized during investigation and other documents. He further deposed that he was the appointing authority of A-1 and was competent to remove him from the service at the relevant time. CBI Vs. Ram Kumar Singh & Ors. Page 31 of 134 32 During cross-examination, it was stated that no separate inquiry was conducted by him before giving the sanction to prosecute A-1. No serious challenge to the testimony of this witness by any accused.
30 PW-18 Smt. Sudesh Gupta, deposed that she was owner of property bearing no. D-15, Shakarpur, Delhi and this property was sold by her on 13.02.04 to A-2 vide documents Ex. PW-18/A to Ex. PW-18/4. She also identified her signatures on power of attorney dated 13.02.04 Ex. PW-18/5, executed by her in favour of A-2. She further deposed that when she disposed of property bearing no. D-15 Shakarpur, Delhi, it was having old construction of two rooms and one hall. During cross-examination, witness stated that property D-15 Shakarpur, Delhi was purchased in the year 1989. No serious challenge has been made to the testimony of this witness during cross-examination. 31 PW-19, Sh. Chander Prakash stated that he executed irrevocable general power of attorney dated 10.08.04 in favour of A- 3 with regard to property no. B-53, Jain Mandir Wali Gali, CBI Vs. Ram Kumar Singh & Ors. Page 32 of 134 33 Shakarpur, Delhi. The copy of GPA is Ex. PW-19/1. He also proved other documents executed in favour of A-3 which are Ex. PW-19/2 to Ex. PW-19/10. During cross-examination, the witness admitted that he had not seen the property after disposal. No serious challenge to the testimony of this witness also during the cross-examination.
32 PW-20, Israr Ahmed has deposed that the construction work was done by him at plot no. B-53 from August, 2004 to June 2005 and one Sh. Suresh had carried out electricity work in the said building. He has further deposed that cost of construction may have been more than Rs. 3 lacs. The payments were made to them in cash only. He further deposed that he did not know if before he finished work in building B-53, certain people started residing in the building. However, this witness during his cross-examination has stated that he did not know A-2 and A-3 and he did not do any construction work for A-2 and A-3.
33 PW-21 Sanjeev Sharma stated that during, the period May 2003 to May 2007, he was posted in Building Department CBI Vs. Ram Kumar Singh & Ors. Page 33 of 134 34 Shahdara, South Zone as LDC. He deposed that his job was diary dispatch. In the discharge of their duties, they were maintaining a diary register in which as and when any complaint was received, the same used to be put up before the Executive Engineer after recording the entry in the said diary. He proved the extract of diary register of the period 16.09.04 to 23.02.05 maintained in the Building Department, Shahdara South Zone, Delhi and the same is Ex. PW-21/1. He further deposed that the entry from page 173 to 175 are in his own hand and the same is Ex. PW-21/2 (Colly). He also proved entry no. 4437 dated 23.09.04 in the diary register at page 172 Ex. PW-21/1, entry no. 4662 dated 04.10.04 at page no. 173 Ex. PW-21/2, entry no. 4875 dated 15.10.04 at page no. 174 Ex. PW-21/2, entry no. 5014 dated 26.10.04 at page no. 175 Ex. PW-21/2. PW-21 further deposed that all such entries are relating to the complaints made in respect of unauthorized construction in property bearing No. B-53, Shakarpur, Delhi. He has further stated that all the four complaints were forwarded to A-1. He has further stated that one FIR dated 09.02.05 bearing no. 102/2005, PS Shakarpur was also registered on the complaint of A-1. A-1 had also informed to the office about the theft of his Maruti Car bearing CBI Vs. Ram Kumar Singh & Ors. Page 34 of 134 35 No. DL-2CN-1229 including other articles. The copy of FIR bearing No. 102/2005, PS Shakarpur was given by A-1 to the office and the same was supplied to the IO of CBI on 30.10.07.
34 PW-22, Sh. Ajay Rawal who was posted as Sub Registrar - VIII District East, Delhi from October 2004 to January 2007 proved the fact about the registration of the documents produced by the different witnesses before this Court regarding the sale of the flats at the property. This witness during cross- examination stated that as and when documents are produced for registration, they only go by the contents of the documents and are not aware of the actual physical condition of the property. He has further admitted that for the purpose of registration of property, they are not concerned about the nature of the construction carried out in the said property. They do not verify whether the construction is authorized or unauthorized in nature.
35 PW23, Sh. Pankaj Joshi deposed that in August 2004, he was working as Sub Registrar VIII, Geeta Colony. He has proved the registration of documents Ex. PW-23/1 to Ex. PW-23/2. CBI Vs. Ram Kumar Singh & Ors. Page 35 of 134 36 During cross examination, this witness also stated that at the time of registration, they do not do the physical inspection of the property. He has further admitted that in case of multiple units on one piece of land, the revenue is increased in multiple of the number of the units.
36 PW-24, Smt. Radha Charan stated that in October 2007, she was posted as SDM Preet Vihar. She proved documents Ex. PW-24/1 to Ex. PW-24/3. This witness admitted that the construction on properties B-53, Aruna Park Shakarpur and D-15, Aruna Park, Shakarpur was not constructed on the Government land.
37 PW-25, Inspector Somendar Tyagi deposed that he was posted as SHO PS Shakarpur from January 2007 to October 2007. He has proved letter dated 19.07.07, issued by Sh. Vijay Kumar Shukla, Inspector CBI to SHO. He also proved his report dated 25.07.07 alongwith two enclosures as Ex. PW-25/2. During cross examination, he has denied the suggestion that no intimation regarding unauthorized construction was forwarded to the MCD CBI Vs. Ram Kumar Singh & Ors. Page 36 of 134 37 regarding properties in question. This witness further stated that the construction in this case was for the period from 2004 to 2006 and his posting as SHO in the concerned PS was of the period subsequent to that. Thus, testimony of this witness is of no use either for the prosecution or for the defence. 38 Testimony of PW- 26, Sh. R.P.S. Bhatia, Dy. Secretary, Home Department, GNCT of Delhi is also not of any use for the prosecution or the defence as the witness has not stated anything material in his deposition. Similarly, PW-27 also not stated anything material in his evidence.
39 PW-28, Sh. Lajpat Rai Arora, has stated that he had purchased the flat bearing no. B-53, TF-1, Gali Jain Mandir, Shakarpur, Delhi from A-2 and A-3 for a sum of Rs. 1.5 lacs. He also proved production cum receipt memo Ex. PW-28/1, the self attested copy of sale deed Ex. PW-28/2. He also proved documents pertaining to the property such as Ex. PW-28/3 (colly) to Ex. PW-28/6. He also proved Ex. PW-28/7, which is an inventory filled up by the IO. During cross-examination this witness stated CBI Vs. Ram Kumar Singh & Ors. Page 37 of 134 38 that electricity connection is still in the name of the builder. 40 PW-29, Sh. B.S. Arora deposed that he was posted as Sub Registrar VIII, Geeta Colony Delhi in the year 2007. This witness stated about the facts of registration of various documents Ex. PW-29/1 to Ex. PW-29/6 alongwith relevant documents. This witness also admitted that the Sub Registrar office has nothing to do with the nature of the property, whether the same was authorized or unauthorized.
41 PW-30, Sh. J.R. Katiyar, deposed that in the year 2007, he was posted as Inspector CBI EOU IV, New Delhi and during the said period, he was investigating two MCD cases bearing no. 3/2007 and 5/2006. He further deposed that he had collected certain documents from Chief Town Planner, MCD, Executive Engineer (Building) MCD Headquarter Delhi and Urban Development Department, Government of NCT of Delhi. He has proved the production cum seizure memo Ex. PW-30/1. During his cross-examination, he denied the suggestion that the properties in question in the present case are not situated in the Shakarpur area. CBI Vs. Ram Kumar Singh & Ors. Page 38 of 134 39 42 PW-31, Sh. Vijay Kumar Shukla, deposed that in the year 2007 he was posted as Inspector CBI (EOU -V) Branch, New Delhi. Investigation of this case was entrusted to him on which he conducted investigation of this case. This case was related to criminal conspiracy hatched amongst all the accused persons (A1, A-2 & A-3) to which A-1 abused his official position as public servant and allowed A-2 and A-3 to carry out unauthorized construction at plots no. D-15 and B-53 Shakarpur, Delhi in utter violation of existing bye laws and building bye laws etc. during the period August 2004 to June 2005. He further deposed that he was the IO of the case since beginning till end. He further deposed that chargesheet was prepared by him and submitted before the Court. He further deposed that the case was registered by CBI pursuant to forder dated 20.04.06 of Hon'ble High Court of Delhi in Writ Petition (C) No. 4582/2003, whereupon first a preliminary inquiry was registered on 10.05.06 and the same was converted into FIR No. RC-SIB 2007 E 0001 dated 02.04.07. He has proved Ex. PW-1/B which is a letter dated 25.07.07 sent by SHO PS Shakarpur, Delhi bearing his signatures at point A wherein he had informed that CBI Vs. Ram Kumar Singh & Ors. Page 39 of 134 40 unauthorized construction was carried out at the properties D-15 and B-53 Shakarpur, Delhi during the year 2004 and information in this regard was sent by them to DC, MCD Shahdara South Zone vide office letters dated 30.03.04 and 25.09.04. He proved many documents out of which one document is Ex. PW-1/A which is report dated 23.07.07 qua properties bearing nos. D-15 and B-53 Shakarpur Delhi by Executive Engineer (Building) Shahdara South Zone, wherein status of existing building as on 23.07.07 was provided. It was informed that these properties were unauthorisedly constructed without any sanctioned site plan. Being IO he disclosed all the facts pertaining to the case collected by him during the investigation. He further deposed that properties bearing nos. D-15 and B-53 Aruna Park, Shakarpur, Delhi were purchased by A-2 and A-3 and thereafter, A-2 & A-3had constructed flats in the properties. He proved his letters Ex. PW-24/1 and Ex. PW-24/2. It is further stated that the flats constructed on both the properties were in jurisdiction of MCD Shahdara South Zone for approval of construction of house/flats, water and sewage connection and other development works in the unauthorized regularized colonies area and also that the properties do not come CBI Vs. Ram Kumar Singh & Ors. Page 40 of 134 41 under Lal dora/extended Lal dora. He also proved Ex. PW-24/3 which is a report received by him from SDM Preet Vihar qua second portion of 100 Sq. yards, out of total area of 200 sq. yards comprising of property bearing no. B-53 which was purchased by A-
3. This property also did not come under Lal dora/extended Lal dora. He has proved various other documents Ex. PW-31/1 to Ex. PW-31/62. He is the Investigating Officer of the case and has filed the chargesheet in the present matter. During cross-examination, this witness denied the suggestion that the nature of the construction whether authorized or unauthorized, was not the subject matter of his investigation. This witness stated upon a specific question that unauthorized constructions in question were raised without sanctioned building plan and no betterment charges were paid to MCD by A-2 and A-3 and there is a document on record to show that the buildings were totally unauthorized on account of non availability of sanctioned building plan. 43 This witness further admitted that during investigation, it was revealed that A-1 was posted in the Zone between 10.08.04 to 01.08.05. Upon a specific question, PW-31 deposed that as per CBI Vs. Ram Kumar Singh & Ors. Page 41 of 134 42 MCD property no. D-15, Shakarpur, Delhi falls in D-BLock, Shakarpur. As per revenue records received during investigation description of the property has been given as D-15, Aruna Park, Shakarpur, Delhi. Upon a specific question this witness admitted that flats related to D-15, were sold by A-2 on 30.07.04, 06.09.06 and 08.09.04. This witness further admitted that flats related to property no. B-53, Shakarpur were sold on 07.12.05, 25.11.05, 30.06.06, 14.12.05 and 02.12.05. Another flat in property no. B-53 was sold by A-3 on 25.04.05. This witness denied the suggestion that water connections by Delhi Jal Board on property no. D-15 were given after completing the construction. During his investigation, he found that the water connections were sanctioned even during construction in the said property. 44 Here, this court observes that this piece of testimony of this witness has not been challenged by defence counsel. This witness stated that as per Ex. PW-4/A, the date of sanction of all the water connections in property no. D-15, Shakarpur is mentioned as 25.05.04 at point X. He denied the suggestion that A-1 was not posted in the area during construction of property no. D-15, CBI Vs. Ram Kumar Singh & Ors. Page 42 of 134 43 Shakarpur. During, cross-examination of this witness it was suggested that no unauthorized construction was ever carried out by A-2 and A-3 on either of the property and the suggestion was denied. He further denied the suggestion that MCD had not taken any action against the accused because the construction in the properties in question was authorized.
45 In defence, accused persons have examine D1W1, Sh. Ashok Kumar, Office Incharge (Building Department), Shahdara, South Zone, EDMC, who brought the demolition register for the period 16.08.04 to 16.03.06. Photocopy of the said register is Ex. D1W1/A (OSR).
46 Another witness examined is D3W1, Sub Registrar VIII- A, Preet Vihar, who brought the summoned record i.e. four sale deeds regarding the various plats of property no. B-53, Shakarpur, Delhi.
313 Cr.P.C.
CBI Vs. Ram Kumar Singh & Ors. Page 43 of 134 44 47 A-1 during his statement under section 313 Cr.P.C. did not dispute the deposition of PW-4 that the new water connection can be granted for the purpose of construction known as temporary connection and the regular new water connection is given only on the completion of building on submission of completion certificate issued by MCD. Thus, it is not disputed by A-1 that regular water connection can be granted on submissions of completion certificate issued by MCD. He also did not dispute in the same statement, the deposition of PW-6 that after obtaining a new connection for construction purposes, one has to apply a temporary connection with documents including property papers etc. for obtaining electricity connection. A-1 further admitted the same statement as deposed by PW-6 that it takes 10-15 days in sanctioning the temporary connection and temporary connection cannot be regularised and afresh application alongwith the relevant papers are required for a regular electricity connection. In the same statement, A-1 further admitted in the deposition of PW-9 that the basic duty of looking out for unauthorized construction is that of JE (B) of the concerned Ward and JE (B) is posed under AE (B) in the office of EE (B). He also admitted the deposition of PW-9 that if CBI Vs. Ram Kumar Singh & Ors. Page 44 of 134 45 some complaint of unauthorized construction is received, the same is marked to concerned JE (B) who inspects the site and if some unauthorized construction is found to have already been completed, then the property is booked by the JE by registering FIR and thereafter show cause notice is issued to the owner of the property in question of unauthorized construction. Thereafter, the file is sent to the office Incharge (B) and demolition programme is prepared. He did not dispute the correctness of deposition of PW-9 that with regard to on going constructions, it is the duty of JE to detect the unauthorized construction and JE has the power to get the same demolished then and there without issuance of show cause notice. In the same statement, A-1 also did not dispute the deposition of PW-31 that the case was registered by the CBI in the Hon'ble High Court dated 20.4.2006 in Writ Petition (C) no. 4582/2003. He also did not dispute the testimony of PW-31 that Ex. PW-9/A is ward wise tenure list of JE, AE and EE who worked in Shahdara South Zone w.e.f. 01.01.99 to 08.03.07 and the same was forwarded to him by EE(B) Shahdara South Zone, wherein the tenure of A-1 has been shown at point A from 10.08.04 to 01.08.05 in ward no. 71/72 in which unauthorized construction in D-15 and CBI Vs. Ram Kumar Singh & Ors. Page 45 of 134 46 B-53, Shakarpur, Delhi were carried out during the said period. 48 Statement of A-2 (Anil Kumar Arora) was also recorded U/s 313 Cr.P.C, A-2 has stated that he had not seen any notice served upon from MCD in respect of unauthorized construction at properties no. D-15 and B-53, Shakarpur, Delhi. He has further admitted the testimony of PW-4 that installation of the water connection in the premises was carried out in accordance with rules. A-2 did not dispute the deposition of PW-4 that the new water connection can be granted for the purpose of construction and known as temporary connection and regular water connection is given on the completion of building on submission of completion certificate issued by MCD.
49 He also did not dispute the testimony of PW-6 that for obtaining a new connection for construction purposes, one has to apply a temporary connection with various documents or it takes about 10-15 days in sanctioning the temporary connection. He further deposed that temporary connection cannot be regularized and fresh application alongwith documents are required for regular CBI Vs. Ram Kumar Singh & Ors. Page 46 of 134 47 connection.
50 A-2 in his statement did not dispute the testimony of PW-4 that new water connection can be granted for the purpose of construction known as temporary connection and the regular new water connection is given on completion of building on submission of completion certificate issued by MCD. He also did not dispute the testimony of PW-6 that for obtaining water connection for construction purposes, one has to apply a temporary connection with various documents and it takes 10-15 days from temporary connection and temporary connection cannot be regularised. Afresh application alongwith documents are required for a regular connection. A-2 did not dispute the testimony of sale of property to various persons by him. He has further claimed that he has not received any information/intimation/notice from MCD in respect of unauthorised construction. He has admitted that he has sold ground floor of property no. B-53 Shakarpur Delhi to Smt. Avinash Malhotra. A-2 did not dispute the testimony of PW10 that A2 did not inform that the flat was unauthorized and no sanctioned plan was obtained from MCD or A2 had given them in writing that the CBI Vs. Ram Kumar Singh & Ors. Page 47 of 134 48 property was legal from all angles. Similar facts have been stated in the same statement by A2 regarding the testimony of PW11 who had purchased the second floor of property no. D-15, Shakapur Delhi. A2 did not dispute the deposition of PW12 that there are total 9 flats in the property no. B-53, Shakapur, Delhi out which PW- 12 had purchased one property. She had stated similar facts as stated herein by other property buyers. A2 has not denied the fact that he sold the property to various buyers as unauthorized construction. Similar replies have been made with regard to PW13, PW14, PW15, PW16 and PW18 by A2 in his statement. However, while answering question no. 185 in the said statement he denied that there was unauthorized construction on the property and encroachment on the government land. A specific question no. 194 put to A2 such as :-
"Q.194 It is in evidence against you as deposed by PW-31 Vijay Kumar Shukla IO that D-15 Ex.PW2/A is a report dated 23.07.2007 qua property no. D-15 and B-53 Shakarpur Delhi by Ex. Engineer (B) Shahdara South Zone wherein the status of the existing building on the two properties as on 23.07.2007 has been provided stating therein that in property no. D-15, Shakarpur Delhi, parking plus two shops on ground floor, one flat each on first and second floor, CBI Vs. Ram Kumar Singh & Ors. Page 48 of 134 49 two flats each on third and fourth floor i.e. total six flats had been constructed and in property no. B-53 Shakarpur parking plus one flat on ground floor, two flats each on first, second, third and fourth floor i.e. total nine flats had been constructed and the aforesaid construction on both the aforesaid properties was without sanctioned building plan."
51 In the statement U/s 313 Cr.P.C. A2 has given evasive reply regarding property which was without sanctioned plan but admitted position is that he is not able to cite or refer any sanctioned site plan and also admitted the fact that total 9 flats were constructed on both the properties.
52 Another question bearing no. 199 was put to this witness such as:-
"Q.199 It is in evidence against you as deposed by PW31 Sh. Vijay Kumar Shukla DSP that in reply to this letter Ex.PW24/1 (D-18) he received Ex.PW24/2 (D-19) giving details of the two properties and it was also mentioned in this reply that two properties were purchased having area about 100 sq yards by co-accused Anil Kumar Arora (A2) from Smt. Sudesh Gupta wife of Ved Prakash Gupta and Sh. B.K. Sharma and then co-accused Anil Kumar Arora constructed flats in these properties."
CBI Vs. Ram Kumar Singh & Ors. Page 49 of 134 50 53 A2 has answered the same as matter of record. He has further stated that there was no inspection of property has ever conducted by the MCD officers neither any show cause notice or demolition notice was ever served upon the property for unauthorized construction. He has further stated that property B- 53, Shakarpur, Delhi falls in Khasra no. 1057/477 situated at Mandawali, Fazalpur Ilaqa Shahdara, Delhi, as per Revenue records.
54 A3 in his statement under Section 313 Cr.PC admitted the deposition of PW12 that she purchased upper ground floor-I, B-53, Shakarpur, Delhi in the year 2005 from A3. He has further admitted in the deposition of PW12 that there are nine flats in property B-53, Shakarpur, Delhi out of which she had purchased one property. There is one flat on the ground floor and two flats each on first, second, third and fourth floor. However, he denied that he had told to PW12 that the property was authorized. It is stated that no such representation was made by him. Therefore, it is admitted case of A3 in his statement under Section 313 Cr. PC CBI Vs. Ram Kumar Singh & Ors. Page 50 of 134 51 that the property was not authorized. Similar deposition of PW3 is also not disputed by A3 in the same statement. Document Ex PW19/2, Ex PW19/3 were executed in favour of A3. Document Ex PW19/3 also bears left thumb impression of A3 at point A & B and his signatures at point C & D on all three pages. A3 further did not dispute deposition of PW22 that sale deed Ex PW22/3 was executed by A3 in favour of Lajpat Rai Arora which was registered on 07.12.2005. He has further admitted the execution of Ex PW22/6, Ex PW22/7, Ex PW23/1, Ex PW23/2. A3 further did not dispute deposition of PW8 that he purchased flat no. B-53, TF-1, Shakarpur, Delhi from A3 and A2 for a sum of Rs.1.5 lac. A3 further admitted that he had signed the documents and payment was made to him through cheque. A3 further admitted the deposition of PW28 regarding execution of documents by A3 in his favour regarding various documents. He has further stated that he has nothing to do with property no. D-15, Shakarpur, Delhi and only half of the portion of B-53 was purchased by him and claimed innocence in this case.
55 Hon'ble Supreme Court in Raj Kumar Singh @ Raju @ CBI Vs. Ram Kumar Singh & Ors. Page 51 of 134 52 Batya v. State of Rajasthan 2013 AD (S.C.) 433 referred various judgments passed by various Hon'ble High Courts in para no. 30, 31 & 32 which are reads as:-
"30. In Rafiq Ahmed @ Rafi v. State of U. P. MANU/SC/0959/2011; AIR 2011 SC 3114, this Court observed as under:
"It is true that the statement under Section 313 Code of Criminal Procedure cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events."
31. In Dharindhar v. State of U. P. MANU/SC/0480/2010; (2010) 7 SCC 759, this Court held:
"The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 Code of Criminal Procedure is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the Court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail that opportunity and if he fails to do do then it is for the Court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under CBI Vs. Ram Kumar Singh & Ors. Page 52 of 134 53 Section 313 Code of Criminal Procedure."
32. In Ramnaresh and Ors. v. State of Chhattigarh MANU/SC/0163/2012: AIR 2012 SC 1357, this Court held as under:
"It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 Code of Criminal Procedure is upon the court. One of the main objects of recording of a statement under this provision of Code of Criminal Procedure is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused take benefit of this opportunity, then is statement made under Section 313 Code of Criminal Procedure, in so far as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law."
Thereafter, Hon'ble Supreme Court further held in para no. 36 as under:-
"36. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Code of Criminal Procedure is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given CBI Vs. Ram Kumar Singh & Ors. Page 53 of 134 54 an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Code of Criminal Procedure cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution's evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Code of Criminal Procedure is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Code of Criminal Procedure.
An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish an explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself."CBI Vs. Ram Kumar Singh & Ors. Page 54 of 134 55
56 Thereafter, now all such statements of accused persons recorded u/s 313 Cr.P.C. alongwith observations made by this Court herein this judgment to be read with context with all exhibited documents in the light of referred law laid down by the Apex Court. 57 I have gone through the entire file including documents. I have heard the arguments at length advanced by Sh. U. C. Saxena, Ld. Sr. PP for CBI, by Sh. Sanjay Gupta, counsel for A1 and A3 and Sh. N. S. Bisht, counsel for A2. Written arguments have also been submitted by all the accused persons. 58 I have gone through the written arguments filed on behalf of A-1, wherein A-1 has heavily relied upon judgment titled as A.K. Ganju Vs. CBI, bearing Crl. M.C. No. 2384/11, 3011/11 and 3800/11, decided on 22.11.2013, wherein it is objected that CBI is not competent to investigate the matters involving unauthorised construction in Delhi. It is further objected that for attracting provisions of P.C. Act, the CBI has failed to bring on record any bribe transaction or money transaction between the accused persons as per A.K. Ganju's case (Supra). It is further CBI Vs. Ram Kumar Singh & Ors. Page 55 of 134 56 objected that there is no evidence regarding meeting of minds of accused persons nor collected any call details of phones of accused persons to show any nexus between them. It is further objected that no departmental inquiry was initiated against delinquent officials by the concerned department. 59 It is further objected that the present case is covered under DMC Act and DMC Act would prevail over all the acts. It is further submitted that presumption under Prevention of Corruption Act is not attracted in the present case as no valuable thing has been obtained by corrupt illegal means in this case also by abusing the position as a public servant. It is further objected that CBI has not been able to prove in evidence about the quantum of loss suffered by MCD. It is further submitted that good revenue was received by the Revenue Department and revenue received from sale of property. Therefore, it is difficult to believe by any stretch of imagination or argument that there is commission of an act causing loss to any Department but rather, gave multiple revenue to three or more departments. There is no evidence qua section 120 B IPC against any of the accused person. It is further objected that there CBI Vs. Ram Kumar Singh & Ors. Page 56 of 134 57 is concealment of preliminary enquiry by the CBI. Therefore, all presumption goes against the CBI U/s 114 (g) of Evidence Act, as no such PE was conducted by the CBI at any point of time. There is no presumption U/s 20 P.C. Act read with section 7 P.C. Act. The prosecution has to prove its case beyond any reasonable doubt. Various documents proved by CBI, have been challenged in their arguments.
60 Written arguments on behalf of A-2 also considered wherein, it is submitted by A-2 that regarding the property in question, prosecution has failed to collect any document in respect of unauthorised construction in the above-said properties being the area falling in the Lal dora or extended Lal dora and there is no evidence for criminal conspiracy.
61 It is further submitted that the entire case of CBI is based upon suspicion and surmises. However, the prosecution is duty bound to prove each and every circumstance against the accused beyond any reasonable doubt.
CBI Vs. Ram Kumar Singh & Ors. Page 57 of 134 58 62 Similar arguments have been taken on behalf of A-2 as taken on behalf of A-1. A-1 has relied upon A.K Ganju's case (Supra). Similarly, A-2 has also relied upon the said judgment. 63 Written arguments also submitted by A-3 wherein it is objected that CBI has not been able to bring on record any nexus between A-1 and A-3. There is no demand or acceptance of pecuniary advantage between the parties and therefore, he has also relied upon the judgment 'A.K. Ganju's case (Supra). Similar arguments have been raised on behalf of A-3 as raised by other accused persons in their defence.
64 Before proceeding further, this court has to consider the law laid down in 'A.K. Ganjus' (Supra) judgment which has been heavily relied upon by the Ld. defence counsels. The judgment has been gone through.
a) In para 3 of the judgment, it is mentioned that as per the chargesheet, the case of CBI is regarding issuance of wrong completion certificate etc. where A.K. Ganju, who was an CBI Vs. Ram Kumar Singh & Ors. Page 58 of 134 59 approved Architect, submitted faulty completion drawings. The building was booked for unauthorized construction by the then JE in the said case and some servant quarters in the terrace floor were demolished, show cause notices have been issued to the owners. The role of A.K. Ganju was that he had submitted faulty completion drawings, infringements of various provisions of law in the construction of property and not shown by the Architect in the plan. Completion plan prepared by A.K. Ganju did not tally with the photographs submitted with the plan. It was agitated in the said case that the entire case of the CBI was that there was unauthorized construction and, therefore, it should be presumed that there was collusion between the Architect, MCD Officers and Engineers. It is also argued that there was no evidence to support that there was any unauthorised and/or illegal construction at the time when the completion certificate was granted, therefore, ingredients of section 13(1) (d) of P.C. Act were missing in the case.
b) It is further argued in para 31 of the judgment that since MCD Act is a complete code in itself and bars any other agency or court from taking cognizance of any violation of the MCD CBI Vs. Ram Kumar Singh & Ors. Page 59 of 134 60 Act. Therefore, CBI has no power to usurup the functions of the Commissioner under the DMC Act and to investigate the matter of unauthorized construction in violation of MCD Bye-laws.
c) In para no. 40 of the said judgment, it is mentioned that there was no evidence to show that there was any illegal or unauthorized construction in 1991 when the completion certificate was granted.
d) In para 46 of the said judgment, it is further agitated that offences under the DMC Act are not notified by the Central Government under section 3 of DSPE Act. In para - 55, the case of the prosecution has been mentioned as that in furtherance of the conspiracy, the completion certificate was issued concealing the unauthorized construction.
e) In para - 98 the Hon'ble High Court held that the building was booked for unauthorized construction by the then JE and show cause notices were issued.
CBI Vs. Ram Kumar Singh & Ors. Page 60 of 134 61
f) In para - 99, it is mentioned that the report was submitted by the MCD officers committee. Moreover, it is held that the charges against the accused persons are in pursuance of the violation of the MCD Act and therefore, the Hon'ble High Court held that CBI or any Authority has no power to investigate the matter of unauthorized construction in violation of MCD Bye-laws, unless, it is notified by the Central Government. However, the fact as discussed herein above pertaining to A.K. Ganju case (Supra) are not applicable to the present case.
g) The fact involved in the said case is regarding submissions of wrong completion drawings which were issued by an Architect. Moreover, the building was booked by JE in the said case; show cause notices were issued; faulty completion drawings were submitted; infringements of various provisions of law in the construction of property not shown by the Architect in the plan; completion plan was prepared and submitted which was got by having the illegal coverage and unauthorized construction and violation of MCD Act. But the fact remains that there is no such fact submitted by CBI pertaining any such question. The fact remains CBI Vs. Ram Kumar Singh & Ors. Page 61 of 134 62 that in the present case, admittedly, no sanctioned completion drawing or plan has been brought by any of the accused persons. It is not the case of CBI that CBI has come before the court to prove any violation of building Bye laws. The case of the CBI is that they have come to establish illegal nexus between builders and JE, who involved in corrupt practices which is allegedly covered under P.C. Act and he (A-1) abused his position as JE.
h) In the judgment, JE booked the building for unauthorized construction whereupon show cause notices were issued. Thus, in the said case, JE had done his duty but in the present case JE i.e. A-1 never booked the building or has ever issued any show cause notice or taken any demolition action upon the properties of A-2 and A-3.
i) In the judgment, there was no statement which refers to active collusion, conspiracy between builder and MCD Officers, therefore, MCD Persons were different persons. In the present case according to CBI, evidence has been brought regarding active collusion and conspiracy between JE and builders CBI Vs. Ram Kumar Singh & Ors. Page 62 of 134 63 and JE is a public servant. In A.K Ganju's case, there was no evidence to show regarding illegal unauthorized construction at particular area in 1991 when the completion certificate was granted. But the fact remains that in this case, there is no defence that at any time completion certificate was given.
j) In the judgment, it is the case argued that completion certificate was issued concealing unauthorized construction at the time of issue of said certificate but in this case, no completion certificate has ever been issued as neither CBI nor defence has agitated as such.
k) In the judgment, there was dispute for carrying out unauthorized construction at different point of time as the facts involved in the said case that unauthorized construction was carried out after issuance of completion certificate but such facts are not involved in the present case.
l) In the present case, CBI has not relied upon any report of any committee but in A.K Ganju's case CBI had relied CBI Vs. Ram Kumar Singh & Ors. Page 63 of 134 64 upon the report submitted by the MCD Officers Committee. Moreover, in the judgment, unauthorized and non-compoundable construction existed in the buildings were demolished much prior to the case registered by the CBI. There is no such case of CBI here, regarding any demolition of unauthorized or non-compoundable construction.
65 In para - 116, of the judgment Hon'ble High Court of Delhi held :-
"....... However, there is no statement of any witness which refers to or which alleges that there was active collusion and conspiracy between the aforementioned persons........ .
........... In the case in hand, there is nothing to connect the petitioners inter-se and there are no allegations which could form a chain of any conspiracy......."
66 Therefore, Hon'ble High Court in the said case made observations and has given findings in the facts of the said case only. Similarly, in para no. 114, Hon'ble High Court observed the facts by referring the facts of the said case and the chargesheet filed in the said case. Therefore, the Hon'ble High Court has made observations in A.K Ganju's case in the light of set of the facts of CBI Vs. Ram Kumar Singh & Ors. Page 64 of 134 65 the said case only and those set of facts are different from the set of the facts involved in the present case.
67 Moreover, in the present case CBI has filed chargehseet in compliance of the directions passed by the Hon'ble High Court in Writ petition (C) no. 4582/2003.
68 Moreover, Central Bureau of Investigation (Crime) Manual - 2005, Chapter 14 wherein clause 14.4 reads as under:-
"Besides the above, the Supreme Court of India and the High Courts may also direct investigation or enquiry by CBI under powers vested with them by Constitution of India. In such cases the consent or notification, of the Central/State Government concerned, is not required".
69 But A.K Ganju's case was not registered upon the directions passed by any court. Therefore, simply this fact also differentiated all such findings given in A.K Ganju's case. Moreover, Hon'ble High Court in A.K Ganju's case has passed findings pertaining to the facts of that case which are not applicable to this case. Therefore, A.K Ganju's case is not going to be of any CBI Vs. Ram Kumar Singh & Ors. Page 65 of 134 66 help to the accused persons.
70 During arguments, Ld. Counsel for the accused further relied upon Hari Devi Sharma vs State (Delhi Administration). However, the facts of this case are not applicable to the facts of the present case in as much as in the said judgment the appellant has asked for bribe and the part of the bribe was paid but the facts of the present case as presented by CBI in the present case, there is no question of asking and payment of bribe. But it is the case of the CBI that A-1 had abused his official position as JE by not booking the unauthorized construction carried out by A-2 and A-3 and thus, he was involved in corrupt practices which fact is covered under the Prevention of Corruption Act and other two accused are co-accused in such criminal conspiracy which is covered under section 120-B IPC as all the accused persons were in agreement for commission of an offence.
71 Ld. Counsel for A-1 further relied upon Ms. Shreya Jha Vs. CBI and referred para no. 7, 8, 12 and 13 of the said judgment and submits that in view of this judgment, CBI is unable to establish CBI Vs. Ram Kumar Singh & Ors. Page 66 of 134 67 any nexus among A-1, A-2 and A-3. Ld. Counsel for the accused further relied upon V. Vankata Subbarao Vs. State and relied upon para no. 24 of this judgment. He further submits that presumption U/s 20 of PC Act is not available for CBI in this case as CBI is not able to establish any demand or acceptance of either of the accused. However, here again, this court observes that this judgment is not applicable to the facts of the present case as in view of the observations made herein above i.e. there is no demand or acceptance by a public servant.
72 Ld. Counsel for accused further relied upon judgment titled State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede and referred para no. 16. However, this judgment is also not applicable to the facts of the present case as this judgment is passed regarding illegal gratification, demand, acceptance and recovery of the amount. Again this court observes that there is no demand, acceptance and gratification in the present matter. For the similar reasons, the another judgment relied upon i.e. B. Jayaraj Vs. State of Andhra Pradesh, facts of the judgments are not applicable to the present case.
CBI Vs. Ram Kumar Singh & Ors. Page 67 of 134 68 73 The basic foundation of this case is the order dated 20.04.06 passed by Hon'ble High Court of Delhi in Writ Petition (C) No. 4582/2003 and others to inquire into illegal nexus between builder and officials of MCD.
"........We have time and again observed that the rampant and large scale unauthorized construction which exist in Delhi could not have come up without the negligence, apathy and connivance of the MCD engineers and officials. Such engineers and officials cannot be allowed to get away with simple disciplinary action at the departmental level only resulting in either dismissal or some other penalty. The remissness and apathy on their part do not appear to be a simple case of dereliction of duty. There is much more to it than what meets the eye............."
74 Admitted fact is that A-2 and A-3 carried out construction at property nos. B-53 and D-15. During arguments, Ld. Counsel for the accused tries to establish the case that identity of building or location of the site is not established. But during entire cross- examination, it is not the case of either of the accused that there was any different location where unauthorised construction was carried out by A-2 and A-3. Moreover, if position was as such then CBI Vs. Ram Kumar Singh & Ors. Page 68 of 134 69 definitely, accused would have stated so during recording of their statements U/s 313 Cr.P.C. Ex. PW-23/1 is a document executed in favour of A-3 on 10.08.04 regarding transfer of property by previous GPA holder in his favour, wherein it is mentioned that property no. B-53, Gali Jain Mandir, Shakarpur, Delhi. Similarly, there is another document which is in favour of A-2 wherein vide Ex PW-31/42 address is mentioned as D-15, Aruna Park, Shakarpur Delhi. Admittedly, properties bearing nos. B-53 and D-15 are involved in the present case. It is also not disputed fact that property falls in the area of Shakarpur. Therefore, if it was the case of the accused that property nos. B-53 and D-15 situated in Shakarpur, Delhi are not properties of A-2 and A-3 but those properties are of another street of Shakarpur area which was involved in unauthorized construction carried out by some other person, then definitely, this defence could be set up by both the accused. Even A-1 who was the JE deputed in the concerned area could definitely bring authenticated evidence wherein, it is stated that property no. B- 53 and D-15 are not involved as such in this case but those properties are different from the properties in question but it is not the case of the accused persons as such and admittedly, these documents are CBI Vs. Ram Kumar Singh & Ors. Page 69 of 134 70 in favour of A-2 and A-3. Even by Ex. PW-31/40 address mentioned as Aruna Park, Shakarpur Extension, Delhi and by Ex. PW-23/1 the address mentioned is Jain Mandir Wali Gali. It is not the case of the prosecution that both these properties are not nearby to each other and thus, both these accused (A-2 & A-3) had carried out construction at above-mentioned properties in connivance with A-1. Ex PW21/1 and Ex PW21/2 also mentioned such facts. Therefore, identity of the property may be challenged during arguments but it is not the case either in the documents brought by CBI or in defence during evidence established by the accused. Rather identify of the properties established in view of proved documents before this Court.
75 Another argument raised by the Ld. Counsel for the accused that by constructing multiple units at both the properties, different electricity connections were obtained, different water connections were obtained and therefore, Government revenue was increased. Moreover, it is further argued that Government got more house tax due to these multiple units.
CBI Vs. Ram Kumar Singh & Ors. Page 70 of 134 71 76 But the fact remains that it is not the case of CBI that Government may be at loss or not but the case of the CBI is that A- 2 and A-3 committed criminal conspiracy with A-1 who is a public servant, caused illegal and unlawful gain for which they were not entitled. Moreover, this court is of the considered view that during Urban Building and Development whenever a construction has to be carried out it has multiple facets i.e. it also has to ensure the sewage supply system, water supply system, electricity system and the most important the safety of human being which is a serious concern for the authorities during Urban Building and Development. If an unauthorized construction is carried out then this is not the argument that no one has suffered loss or Government has gained more house tax. Since, matter of house tax is entirely different regarding validity of the construction but the fact remains that the court cannot lost the sight to the fact that if unauthorized construction carried out without sanctioned building plan, then definitely, it may cause loss or harm to the public and also cause loss of property to others. Since, the authorities like MCD by allowing construction after giving sanctioned site plan then definitely, it has to take into consideration many facts and facilities CBI Vs. Ram Kumar Singh & Ors. Page 71 of 134 72 including the safety of the people. If a person has carried out illegal construction then definitely, the said person is putting life of many persons in danger including residents of said building. If a building may collapse due to any reason, then definitely, habitants of that building including residents of that area all would face the consequences and in these circumstances, definitely, being welfare State, the Government has to pay compensation which may further cause loss to the exchequer. Moreover, it was the duty of A-2 and A-3 to obtain sanctioned site plan before carrying out construction and A-1 was duty bound to supervise to the nature of the construction. Moreover, the Ld. Counsel for the accused did not take into consideration while arguing the case that the authorities are also entitled for development charges and other charges by sanctioning the building plan. The charges such as development charges etc., are being spent towards the development of the urbanised facilities and if those development charges would have been paid then definitely, it would go to the Government exchequer and therefore, A-2 and A-3 caused loss to the Government exchequer A-1 joined hands despite being public servant to allow such loss to the public exchequer.
CBI Vs. Ram Kumar Singh & Ors. Page 72 of 134 73 77 Section 23 defines Wrongful gain :-
"Wrongful gain" - "Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled".
Similarly, this provision further defines wrongful loss :-
"Wrongful loss" - "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled".
78 A-2 and A-3 gained by unlawful means by raising construction without obtaining sanctioned building plan to which A-2 and A-3 illegally entitled. Similarly, A-2 and A-3 caused wrongful loss by making unlawful or illegal construction which caused loss to the public exchequer for which the public exchequer was legally entitled.
79 Therefore, this argument raised by the Ld. Counsel for the accused does not hold water in view of the discussions made as above.
80 During arguments, learned counsel for the accused CBI Vs. Ram Kumar Singh & Ors. Page 73 of 134 74 raised arguments that CBI has concealed important documents such as preliminary inquiry and has not brought before this court. However, how this document is going to prejudice the defence of the accused, has not been explained by the accused. When facts of unauthorized construction, identity of the property and other relevant facts have been established then I do not find any merit in such argument.
81 Another argument raised by Ld. Counsel for the accused that different water connections are available for different residents at both the buildings and the same can be granted in terms of statement of PW-4 only after completion of building and only on completion of certificate issued by MCD. Admittedly, no completion certificate has been provided by either of the accused or CBI. It is not the case of the accused established during cross- examination of PWs or defence evidence or statement recorded U/s 313 Cr.P.C. that completion certificate was granted regarding all such constructions by the MCD. But still water connection have been installed in the properties as per files Mark PW-4/A1 to Ex. PW-4/A10. Those files are perused. In none of the files, it is CBI Vs. Ram Kumar Singh & Ors. Page 74 of 134 75 mentioned that water connection have been granted in terms of completion certificate. In such circumstances, this Court is of the considered opinion here that CBI ought to implead concerned officials of Delhi Jal Board as accused who without submission of completion certificate issued, regularised water connection to all the constructions. But this fact is not going to help either of the accused as none of the accused has been able to produce completion certificate issued by MCD regarding construction. Moreover, A1 did not dispute in his statement recorded under Section 313 CrPC that regular water connection is given only on completion of building on submission of completion certificate issued by the MCD.
82 Similarly PW-6 has also stated about Temporary connection for construction purposes. It takes about 10-15 days in sanctioning the temporary connection and temporary connection cannot be regularized and afresh application alongwith the requisite documents are required for a regular connection. But CBI has not impleded such official of Delhi Jal Board, who provided connections without completion certificate. Ld. Sr. PP for CBI couldn't answer CBI Vs. Ram Kumar Singh & Ors. Page 75 of 134 76 such query of this court.
83 Similar arguments have been taken by the Ld. Counsel for the accused regarding electricity connections. However, for electricity connection Mark X1 is perused alongwith Mark X1, there is copy of an affidavit of dues undertaking, wherein it is mentioned as :-
"That I/we want the Electric Connection for the Domestic use and the grant of electric connection will not confirm any legal right for regularisation of building/land use in respect to the electricity connection provided at above premises".
84 Similar undertaking has been submitted by A-3. Therefore, if there was regularised building then no such undertaking was required to be given by any of the accused. 85 Another argument raised by Ld. Counsel for accused that A-1 was posted as JE w.e.f 10.08.04 to 01.08.05 in the concerned Ward and construction had already taken place prior to the posting of A-1. Therefore, A-1 cannot be held liable for any such unauthorized construction including present case if any. Ex. CBI Vs. Ram Kumar Singh & Ors. Page 76 of 134 77 PW-31/39 executed in favour of A-3 on 10.08.04. Prior to 10.08.04, there was no concern of A-3 with property bearing no. B-53, Shakarpur Delhi. Similarly Ex. PW-29/1 is also issued on 10.08.04 in favour of A-3. Ex. PW-23/3 was executed in favour of A-2 on 10.08.04 regarding property bearing no. B-53, Shakarpur Delhi. Ex. PW-29/2 was executed in favour of A-2 on 13.02.04 in respect of D- 15, Shakarpur Delhi.
86 Another argument raised by the Ld. Counsel for the accused that CBI has not been able to establish that there was any meeting of mind among A-1, A-2 and A-3 or there was any illegal agreement to do illegal or legal act or by illegal agreement which can be designated as a criminal conspiracy. Therefore, here this court relied upon case titled as Mir Nagvi Askari v. CBI Crl. Appeal No. 1477 of 2004 decided by Hon'ble Supreme Court on 07.08.2009, it has been observed as:-
"Criminal conspiracy, it must be noted in this regard, is an independent offence. It is punishable separately. A criminal conspiracy must be put to action; for so long as a crime is generated in the mind of the accused, the same does not become punishable.CBI Vs. Ram Kumar Singh & Ors. Page 77 of 134 78
Thoughts even criminal in character, often involuntary, are not crimes but when they take a concrete shape of an agreement to do or caused to be done an illegal act or an act which is not illegal, by illegal means then even if nothing further is done, the agreement would give rise to a criminal conspiracy.
The ingredients of the offence of criminal conspiracy are:
(i) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means.
Condition precedent for holding the accused persons to be guilty of a charge of criminal conspiracy must, therefore, be considered on the anvil of the fact which must be established by the prosecution, viz., meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.
The courts, however, while drawing an inference from the materials brought on record to arrive at a finding as to whether the charges of the criminal conspiracy have been proved or not, must always bear in mind that a conspiracy have been proved or not, must always bear in mind that a conspiracy is hatched in secrecy and it is difficult, if not impossible, to obtain direct evidence to establish the same. The manner and circumstances in which the offences have been committed and the accused persons took part are relevant. For the said purpose, it is necessary to prove that the propounder had expressly agreed to it or caused it to be done, and it may also be proved by adduction CBI Vs. Ram Kumar Singh & Ors. Page 78 of 134 79 of circumstantial evidence and/or by necessary implication [see Mohammad Usman Mohammad Hussain Maniyar & Ors.
v. State of Maharashtra (1981) 2 SCC 443] The following passage from Russell on Crimes (12th Edn. Vol 1) cited by Jagannatha Shetty, J. in Kehar Singh and Ors. v. State (Delhi Administration), [1988 (3) SCC 609 at 731] brings out the legal position succinctly:
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough."
Further it was noted in Kehar Singh (supra) that to establish the offence of criminal conspiracy, it is not required that a single agreement should be entered into by all the conspirators at one time. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has to play in general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished.
In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself.
This Court in State of Maharashtra v.
Som Nath Thapa [(1996) 4 SCC 659] opined that it is necessary for the prosecution to establish that a particular unlawful use was CBI Vs. Ram Kumar Singh & Ors. Page 79 of 134 80 intended, so long as the goods or services in question could not be put to any lawful use, stating:
"24. The aforesaid decision weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods for services in question may be inferred from the knowledge itself. This apart, the prosecution has not be establish that a particular unlawful use was intended, so long as the goods or services in question could not be put to any unlawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or services to an unlawful use."
[See also K. R. Purushottaman v. State of Kerala (2005) 12 SCC 631].
Since we have dealt with the law with respect to criminal conspiracy in detail in R. Ventakrishnan v. Central Bureau of Investigation (Criminal Appeal 76 to 2004 decided today) we need not deal with it here at once again.
We may however notice that this court most recently in Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh and Anr. v. C.B.I. Through it is Director, 2008 (14) SCALE 240 after taking recourse to law governing the filed note thus:
"55. The principles which can be CBI Vs. Ram Kumar Singh & Ors. Page 80 of 134 81 deduced from the above noted judgments are that for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every details of the conspiracy so long as they are co-participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy."
87 This Court also relies upon A.K. Ganju's case (Supra) wherein the Hon'ble High Court held as under :-
"To constitute an offence of conspiracy, meeting of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition that existence of conspiracy is to be deduced from the circumstances and each circumstance should be established by reliable evidence and the circumstances must form chain of events from which the only irresistible conclusion would be against those persons. The criminal conspiracy is an independent offence in the Indian Penal Code. The unlawful agreement is a sine-qua-non for constituting an offence under the Indian Penal Code and not an accomplishment."
88 In Ram Narain Popli v. Central Bureau of Investigation AIR 2003 SC 2748, Hon'ble Supreme Court CBI Vs. Ram Kumar Singh & Ors. Page 81 of 134 82 observed as:-
"371. No doubt in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused."
89 In Firozuddin Basheeruddin & Ors. v. State of Kerela 2001 (3) ACR 2163 (SC) Hon'ble Supreme Court observed as:-
"23. Like most crimes, conspiracy requires an act (acuts reus) and an accompanying mental state (mens rea). The agreement constitute the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. In the face of modern organized crime, complex business arrangements in restraint of trade, and subversive political activity, conspiracy law has witnessed expansion in many forms. Conspiracy criminalizes an agreement to commit a crime. All conspirators are liable for crimes CBI Vs. Ram Kumar Singh & Ors. Page 82 of 134 83 committed in furtherance of the conspiracy by any member of the group, regardless of whether liability would be established by the law of complicity. To put it differently, the law punishes conduct that threatens to produce the harm, as well as conduct that has actually produced it. Contrary to the usual rule that an attempt to commit a crime merges with the completed offense, conspirators may be tried and punished for both the conspiracy and the competed crime. The rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interests of security, a person may carry out his part of a conspiracy without even being informed of the identify of his co-
conspirators. Since an agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of co-operation between the accused. What people do is, of course, evidence of what lies in their minds. To convict a person of conspiracy, the prosecution must show that he agreed with others that together would accomplish the unlawful object of the conspiracy."
90 The defence taken by the accused persons in their written arguments that the property is falling under the area Lal dora or extended Lal dora but the fact remains that all documents executed by them on the basis of various papers which have CBI Vs. Ram Kumar Singh & Ors. Page 83 of 134 84 already been proved before this court, did not mention that the property in question is falling under the area of Lal dora or extended Lal Dora.
91 The Court has to consider the circumstance which form a chain of events. In this case A1 was posted in the concerned ward 71/72 from August, 2004 to August, 2005. It is not in dispute that the properties under which the construction was carried falling under the jurisdiction assigned to A1. It is also not disputed that A2 and A3 carried out illegal construction without sanctioned building plan which is also case of A2 during cross-examination of PW8 that no sanctioned plan was there at the time of purchase of property by the PW8. Similar case was established by A2 during cross- examination of PW10, PW12, PW15 and other witnesses. PW9 clearly stated that it was the duty of JE to visit the site and detect the site of unauthorised construction, if any with regard to on going unauthorised construction. He further deposed that JE has power to immediately get the same demolished then and there, without issuing any Show Cause Notice. PW-9 further deposed that if some unauthorised construction is found to have been completed CBI Vs. Ram Kumar Singh & Ors. Page 84 of 134 85 then the property is booked by JE by registering FIR, thereafter, a Show Cause Notice was put up by JE to AE and AE issues the Show Cause Notice to the owner of the property requiring him to answer to the question of unauthorised construction. The property falls within the jurisdiction of MCD and did not come under Lal Dora and extended Lal Dora as per report submitted by PW24. As per Ex PW24/2 the relevant portion is reproduced herein:-
"As per the details above, the flat are constructed under the jurisdiction of the MCD, Shahdara, South zone, Shahdara, Delhi for various purpose i.e. approval of construction of house/flats, water connection, sewage connection and other development work in the unauthorized regularized colonies area. This awarded land does not come under "LAL DORA' or 'EXTENDED LAL DORA'."
92 Therefore the property falls under jurisdiction of MCD Shakarpur, South Zone, Shakarpur, Delhi and as per the testimony of PW9, it was the duty of the concerned JE to do all required in accordance with the duties assigned to him. The property B-53, Shakarpur, Delhi as per Ex PW19/1 and Ex PW19/2 was purchased on 10.08.2004 in favour of A3 and vide Ex PW29/3, it was executed by Sh. D. K. Sumara in favour of A3 on 10.08.2004. Therefore, B- CBI Vs. Ram Kumar Singh & Ors. Page 85 of 134 86 53, Shakarpur, Delhi was transferred in the name of A2 and A3 only on 10.08.2004 when A1 was posted in the said ward wherein the property B-53, Shakarpur Delhi is situated. Construction can be initiated only thereafter, not prior to that by A2 and A3. Therefore, in view of this discussion, it comes out that A1, A2 and A3 committed a conspiracy for construction of unauthorized construction at property no. B-53, Shakarpur, Delhi. 93 All the accused persons have committed the offence to gain pecuniary advantage as it is proved by the witnesses produced by the prosecution that the accused persons constructed 9 flats in property no. B-53, which were sold by A2 and A3 after taking money consideration as disclosed by the prosecution witnesses. Moreover, it comes in the testimony of PW14 who testified that A2 told her that there was no legal problem with the building. Rather it is the case of deception and cheating also. A-1 committed criminal misconduct by keeping his eyes shut so that A-2 and A-3 may continue their illegal activities of carrying on unauthorized construction in the properties. He (A-1) committed the offence of omission and did not perform his official duty as CBI Vs. Ram Kumar Singh & Ors. Page 86 of 134 87 discussed herein above. Therefore, A1 by abusing his official position being a public servant committed offences punishable under Section 217 IPC and U/s 13 (2) read with Section 13(1) (d) of P.C. Act.
94 Now the Court has to discuss the offence committed in respect of property no. D-15, Shakarpur Delhi. Admittedly the property was purchased in the month of February, 2004. At that time, A1 was not posted in the said ward. Counsel for CBI has argued that the construction cannot complete within 6 months but it may continue even during the tenure of A1 as six flats were constructed in property no. D-15 were sold only in the month of September, 2004. However, the contention raised by learned Sr. PP for CBI is doubtful in respect of evidence led on behalf of CBI. It could be said that the construction can be done within one month, two months or it may take months or years together. Therefore, regarding the fact of construction, A1 cannot solely be held liable though it is the evidence which has come on record that construction is not authorized or is according to the sanctioned plan. Here I have to refer testimony of PW9 who stated that if CBI Vs. Ram Kumar Singh & Ors. Page 87 of 134 88 some unauthorised construction is found to have been completed then the property is booked by JE by registering FIR, thereafter, a Show Cause Notice was put up by JE to AE and AE issues the Show Cause Notice to the owner of the property. A specific question was put by learned counsel for A1 to PW9 during cross- examination. The said question and answer are hereby reproduced:-
"Q. If the JE does not book the unauthorized property, would it lead to the inference that the JE has taken the bribe?
A. It may be possible that he might have
taken the bribe."
95 In this regard reference may be made in decision R.
Venkatakrishnan Vs. Central Bureau of Investigation Criminal Appeal No. 76 of 2004 decided by Hon'ble Supreme Court on 07.08.2009, wherein it has been observed as:-
"...... Relevant portions of Section 13 which provide for criminal misconduct by a public servant reads as under.
"13. Criminal misconduct by a public servant. -(1) A public servant is said to commit the offence of criminal misconduct- ....(d) if he,-
....(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any CBI Vs. Ram Kumar Singh & Ors. Page 88 of 134 89 public advantage; or (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which shall may extend to seven years and shall also be liable to fine."
Section 13 in general lays down if a public servant, by corrupt or illegal means or otherwise abusing his position as a public servant obtained for himself or for any other person any valuable thing or pecuniary advantage he would be guilty 'criminal misconduct'. Clause (2) thereof speaks of the punishment for such misconduct.[ See C. K. Damodaran Nair v. Government of India AIR 1997 SC 551.] The ingredients of sub-clause (iii) of S 13 (1)
(d) contemplate that a public servant who while holding office obtains for any person any valuable thing or pecuniary advantage without any public interest would be guilty of criminal misconduct. Sub-section (2) of section 13 provides for the punishment for such criminal misconduct.
Minimum sentence is prescribed under Section 13(2) of the 1988 Act and public servant who abuses his position as such for obtaining for himself or for any other person any valuable thing a pecuniary advantage cannot be punished for a term of imprisonment, which is less than for the duration of one year. For convicting the person under Section 13(1) (d) (iii), there must be evidence on record that accused 'obtained' for any other person and valuable thing or pecuniary advantage without any public advantage.
In Dalpat Singh v. State of Rajasthan CBI Vs. Ram Kumar Singh & Ors. Page 89 of 134 90 [AIR 1969 SC 17] while interpreting an analogous provision in the unamended Prevention of Corruption At, this opined noted:
"The ingredients of the offence under Section 5(1) (d) are : (1) that the accused should be a public servant, (2) that he should use some corrupt or illegal means or otherwise abuse his position as a public servant, (3) that he should have obtained a valuable thing or pecuniary advantage, and (4) for himself or any other person."
The Madras High Court in B. Ramachandran and S. S. Abdul Hameed v.
State rep. by The Inspector of Police, Special Police Establishment, Central Bureau of Investigation, Anti Corruption Branch, Crl. A. No. 553 of 2000 decided on 23.03.2007 noted thus:
"Section 13(1) (d) of the said Act also deals with the criminal misconduct by a public servant by means of corrupt or illegal means, obtains for himself of for any other person any valuable thing or pecuniary advantage; or by abusing his position as a public servant, obtains for himself or for any other person any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtains for any person any valuable things or pecuniary advantage without any public interest."
96 Thus, in R. Sai Bharathi v. J. Jayalalitha & Ors. AIR 2004 SCC 692, Hon'ble Supreme Court observed as:-
"..... To attract provisions of Section 13(1) (d) of the Prevention of Corruption Act, public CBI Vs. Ram Kumar Singh & Ors. Page 90 of 134 91 servant obtains for himself or any other person any valuable thing or pecuniary advantage
(i) by corrupt or illegal means, or
(ii) by abusing his position as public servant, or
(iii) without any public interest."
97 Therefore, it is not the case of A1 that he ever booked property no. D-15, Shakarpur, Delhi. In such circumstances, this Court has no hesitation that A1 committed the act for pecuniary advantage, in illegal connivance with A2 and A3 as he abused his position as a public servant. It was the duty of A1 to book the unauthorized construction and the testimony as referred of PW9 has not been challenged except that there was no complaint that A1 had taken the bribe. The fact remains that it was the duty of A1 to book property due to unauthorized construction which A1 did not book. This fact is further fortified with the fact that PW18 specifically stated that when he disposed of property no. D-15, it was having old construction of two rooms and one hall wherein six flats have been constructed by A2 and A1 neither booked the property nor put up the show cause notice before AE nor he had gone for registration of FIR regarding said illegal construction. At CBI Vs. Ram Kumar Singh & Ors. Page 91 of 134 92 this stage, the court cannot resist to observe that the CBI has not explained what stopped it to implead the concerned JE who was responsible in ward no. 71/72 in respect of property no. D-15, Shakarpur, Delhi prior to posting of A1 i.e. prior to 10.08.2004 as possibility is that the construction in the property no. D-15, Shakarpur, Delhi might have started immediately after the purchase of said property in the month of February, 2004 by other accused. In such circumstances, the construction under whose tenure at the said property was started or was continuing or was completed could not be ascertained and liability for abusing the official position in respect of the said construction could be ensured. However, it does not make lesser the guilt of A-1 in connivance with A-2 and A-3 in view of observation made herein above.
98 From the discussion and observations made herein- above, the case of the prosecution stands proved beyond any reasonable doubt. Nothing could be pointed out by the defence regarding any doubt towards the case of the prosecution. 99 Therefore, in view of the above detailed discussion, all CBI Vs. Ram Kumar Singh & Ors. Page 92 of 134 93 the accused persons in this case are held guilty for commission of offences punishable U/s 120-B IPC read with Section 13 (2) read with Section 13(1) (d) of P.C. Act.
100 Similarly, as already held in para no. 93 of the judgment, A-1 has already been held guilty and accordingly, he is also convicted for the commission of offences punishable under Section 217 IPC and U/s 13(2) read with Section 13(1) (d) of P.C. Act. 101 Hence, all the accused persons are held guilty and convicted accordingly.
Dictated & announced (JITENDRA KUMAR MISHRA) in the open Court on SPECIAL JUDGE (P.C ACT) CBI, 22.09.2015. (EAST), KKD COURTS: DELHI.
CBI Vs. Ram Kumar Singh & Ors. Page 93 of 134 94
IN THE COURT OF JITENDRA KUMAR MISHRA SPECIAL JUDGE (PC ACT) CBI, KARKARDOOMA COURTS : EAST DISTRICT DELHI Unique ID no. 02402R0002502008 AC No. 66/11/2008 RC No. SIB-2007-E-0001 IN THE MATTER OF :-
Central Bureau of Investigation (CBI) VERSUS 1 Ram Kumar Singh (C-1) S/o Sh. Kalu Ram R/o C-1/357, Yamuna Vihar, Delhi - 53.
2 Anil Kumar Arora (C-2) S/o Sh. K.C. Arora R/o H. No. D-72, Aruna Park, Shakarpur, Delhi - 92.
3 Rakesh Aggarwal (C-3) S/o Sh. Radhey Shyam Aggarwal R/o 1/9336, West Rohtash Nagar, Shahdara, Delhi - 32.
.......Convicts ORDER ON SENTENCE CBI Vs. Ram Kumar Singh & Ors. Page 94 of 134 95 1 Vide separate judgment dated 22.09.2015, all the three convicts have been convicted for commission of offences punishable under Section 13 (1) (d) and 13(2) of PC Act read with Section 120 B of IPC. Convict (C-1) has been further convicted for the offences punishable under Section 217 IPC and 13(1)(d) and 13 (2) of PC Act.
2 On 24.09.2015, arguments have already been advanced on behalf of both the parties for about 1 ½ hours on the point of sentence.
3 It is submitted by Sh. U.C. Saxena, learned Sr. PP for CBI that the offences for which the convicts have been convicted affects the society at large and prays for maximum punishment and fine.
4 It is further submitted by learned Sr. PP for CBI that the convicts have been convicted for the crime committed for economic offences which affects the economy of the country. C-1 not only committed offence against the society but also by keeping shut of CBI Vs. Ram Kumar Singh & Ors. Page 95 of 134 96 his eyes committed the evidence against his employer i.e. corporation. He further submits that convicts are not small people. They are educated persons and role model of the society where they used to sit and live. He further submits that C-2 & C-3 are builders and committed offences only to make rich themselves at the cost of others. It is further argued by learned Sr. PP that sometimes crimes have been committed under compulsion or social pressure or those circumstances upon which a convict has no control and is bound to become victim of circumstances. But in this case there was no such compulsion either of economic or else whatsoever. Convicts have committed offences may under notion that if they would commit the crime then nothing would harm them as under the influence of their ill gotten wealth they have license to do such crime.
5 Learned Sr. PP for CBI further submits that all the convicts are influential people of the society. They are leading luxurious life and have their weight in their respective communities. It is further submitted that public have faith upon such people and they are guilty of breach of the faith of public. It is further submitted CBI Vs. Ram Kumar Singh & Ors. Page 96 of 134 97 that if such people are allowed to go scot free or only awarded minimum sentences then definitely it will convey wrong message to the society to the effect that nothing would happen if one does corruption.
6 Learned Sr. PP further argues that this trial started on the directions of the Hon'ble High Court vide order dated 20.04.06 passed by Hon'ble High Court of Delhi in Writ Petition (C) No. 4582/2003 and others to inquire into illegal nexus between builder and officials of MCD.
"........We have time and again observed that the rampant and large scale unauthorized construction which exist in Delhi could not have come up without the negligence, apathy and connivance of the MCD engineers and officials. Such engineers and officials cannot be allowed to get away with simple disciplinary action at the departmental level only resulting in either dismissal or some other penalty. The remissness and apathy on their part do not appear to be a simple case of dereliction of duty. There is much more to it than what meets the eye............."
Ld. Sr. PP for CBI further submits that possibility cannot be ruled out that there may be other instances or offences CBI Vs. Ram Kumar Singh & Ors. Page 97 of 134 98 committed by these people during the service tenure of C-1 as all the convicts have meeting of minds. He further submits that C-1 did not come under employment of the corporation on the very same day or few months prior when crime has been unearthed as C-1 was serving already for years.
7 Learned Sr. PP further prays that all the convicts should be given maximum punishment as provided under statute alongith highest amount of fine.
8 Learned Sr. PP further claim cost of entire prosecution as per Section 357 (1) (a) of Cr.P.C. upto the amount of Rs. 25 lac to Rs. 30 lac since the CBI has investigated the matter thoroughly and called witnesses from different places. He further submits that CBI has taken services for the purpose of investigation of best professionals and also hired best prosecutors to bring the guilt at home of the convicts. He further submits that keeping in view all the facts of rising cost of transportation, communication and various other applicable methods for the purpose of investigation and to bring the witnesses before the Court from different places Rs.30 lac CBI Vs. Ram Kumar Singh & Ors. Page 98 of 134 99 would not be actual cost incurred in prosecution but definitely it will compensate to some extent the expenses incurred in the prosecution of this case.
9 Learned Sr. PP for CBI further agues that these convicts have got education from the institutions where the State provided subsidy in the education. He further submits that instead of serving their nation, they involved in such illegal activities and white collar crimes which caused harm to the society. Thus they also wasted the money provided by the State in their education and caused loss of the valuable money received from the tax-payers. He further submits that C-1 was selected because of his qualification at the relevant time. Government spent expenditure for recruiting and selection with expectation that he will serve the people of the nation towards progress of the country. Instead of taking care of prestige of the country all of the convicts misused their education and worked to harm the society at large. Learned Sr. PP further submits that C-1 should also be held accountable for making payment of such expenditure as he is a public servant. CBI Vs. Ram Kumar Singh & Ors. Page 99 of 134 100 10 Learned Sr. PP further argued that C-2 and C-3 are also educated persons. He further submits that instead of being good and honest builders they facilitated C-1 to commit the crime for which all have been convicted. Learned Sr. PP further submits that the legislature made provisions for need of sanctioned building plan at the time of construction not only just for token or decorative purpose but it has significance. When a sanctioned plan has to be sanctioned then the concerned corporation/authority takes care about civic amenities provided in the area which included water, electricity and sewage and now in this century another issue has been arisen i.e. taking care of parking space. In this century crimes have been taken place in cities like Delhi for parking space also and if construction would be allowed unauthorizedly without taking care of parking space then definitely it will cause adverse effect to law and order in the society. Therefore, without taking care need of sanctioned building plan, there would be collapse of civic amenities due to unauthorized construction. 11 Learned Sr. PP further submits that there were number of flats have been constructed due to crime committed wherein the CBI Vs. Ram Kumar Singh & Ors. Page 100 of 134 101 gullible buyers who put their hard earned money with hope that they would enjoy peaceful life in their own house. But the fact remains that house purchased by them from the convicts are unauthorized and at any time they would come on the road if demolition action would be taken place. He further submits that if unauthorized construction would be collapsed then definitely it will cause danger to life and limb of various local people and such case, State has to pay compensation to all such persons for which convicts would not be available at the place but they would definitely go scot free in these circumstances. 12 He further submits that now a days, local circle rate is Rs.56640/- where the construction cost is Rs.5600/- per square meter to be charged by civic amenities. Betterment charges to be levied as per formula 150 x area x 4. He further submits though circle rate is of today but definitely the convicts after getting unauthorized construction put their money into their account and must have invested somewhere to multiply their profits for which they were not entitled at the cost of others including the State. He submits that in such circumstances interest at the rate of 24% for CBI Vs. Ram Kumar Singh & Ors. Page 101 of 134 102 earned profits should be recovered from all the convicts or the compensation should be imposed keeping in view the present circle rate of the local market alongwith present market rate of the said property.
13 He further submits that C-1 is still in the job and getting salaries and also earning money through corruption. C-2 is running shop under the name and style of 'Kabuliwala' at a Mall as already came in the evidence whereas C-3 is well established and rich businessman. He further submits that sentence and fine should be exemplary and deterrent in nature so that society shall get message. He further requested that direction for circulation of this appropriate judgment to all civic authorities in the city i.e. all three cooperation, Delhi Jail Board, PWD and other like institutions so that every public servant who may be serving at the respective places should get a message. He further submits that convicts are not entitled for any sympathy on any ground as mentioned by Hon'ble Supreme Court in various cases as crime has been committed by the convicts towards the society. Learned Sr. PP claimed maximum punishment for all the offences committed by CBI Vs. Ram Kumar Singh & Ors. Page 102 of 134 103 convicts which should consecutive and not concurrent. He relied upon Section 31 CrPC and submits that punishment should be consecutive so that convicts should get maximum punishment. He further submits that convicts should be made liable to pay compensation of Rs.1 crore, Rs. 5 Crore and Rs. 3 Crore respectively.
14 Sh. Sanjay Gupta, learned counsel for C-1 countered the arguments of learned Sr. PP and submits that CBI is trying to make hill out of a mole. He further submits though C-1 is held guilty but possibility cannot be ruled out that there were lacs of houses in such wards where C-1 was posted and it was not possible for him to keep eye upon all the constructions which were carried out in his tenure. He further submits that C-1 is of 53 years of age who joined MCD in 1988 as JE. He further submits that in the present case challan was filed without arrest by the CBI and convicts without fail are appearing in this case. He further submits that C-1 is having one son of 29 years who is marred but separated from him and another son is of 21 years who is unmarried and studying engineering. He is having unmarried daughter of 25 years CBI Vs. Ram Kumar Singh & Ors. Page 103 of 134 104 of age who is studying in Maulana Azad Medical College. His wife is a house maker. He further submits that he is to take care of old and ailing father and mother aged 85 and 80 years respectively. He is the sole bread earner of his family. He further submits that there is no criminal record of C1. He does not maintain car but only rides at two wheeler scooter. He requests for taking lenient view keeping in view the reformatory school of jurisprudence that punishment should be given only for the purpose of reformation so that convict may have chance to prove him reformed person. 15 Sh. Ramesh Gupta, Learned Sr. Advocate appears of C-2 and C-3 submits that C-2 is 53 years of aged and only 12th class passed and is having father aged about 75 years and mother aged about 70 years. His wife is a house lady. He is having two sons both are unemployed despite having higher education. He is earning from ice cream parlour in V3S Mall which is on lease and thus not have ownership of the ice cream parlour. He is income tax payee and thus contributes towards the nation building by making payment of income tax.
CBI Vs. Ram Kumar Singh & Ors. Page 104 of 134 105 16 Learned Sr. counsel further argued that C-3 is 45 years of age. He is having old and ailing parents i.e. father aged about 68 years and mother aged about 65 years. He is having two sons of teen age i.e. 15 and 17 years. He is now cloth merchant earning his livelihood at the shop of his father. He is still sole bread earner of his family. It is submitted that recently operation has been carried out for stone of C-3 and from 12.09.2015 to 14.09.2015, he was admitted in hospital where stunts have been implanted. Medical documents of C-3 have also been referred to substantiate arguments in this regard.
17 He further submits that both the convicts are neither habitual offender nor repeated offenders. This is the single isolated case where alleged crime has been committed involving the convicts.
18 Learned Sr. counsel submits that though CBI has time and again submitted that crime has been committed but the civic authority i.e. MCD did not initiated proceedings against all the convicts. He further submits that there are unauthorized CBI Vs. Ram Kumar Singh & Ors. Page 105 of 134 106 constructions carried out in the said colony has been regularized and thus became authorized constructions. He further agitates that every person should have right to life which includes right to live and thus C-2 and C-3 have built up houses which were affordable for the middle class of the society. He further submits that in the said area every body has raised constructions but why only C-2 and C-3 have faced prosecution, not explained by CBI at any place. He further submits that no prejudice has caused to the buyers as there is regular water and electricity connection in the flats. Therefore, construction has been though termed as authorized by CBI but no prejudice has caused ether to the buyer or any person in the society. He further relied upon Sections 344, 345, 332, 149, 466A of Delhi Municipal Corporation Act, 1957 alongwith Schedule XII of the said Act and submitted that special Statute has already provided maximum punishment for six months for crime committed under the said act and the said Special Act shall override provisions of any other Act regarding any unauthorized or illegal construction.
CBI Vs. Ram Kumar Singh & Ors. Page 106 of 134 107 19 Learned counsels for convicts jointly submit that the purpose of criminal judicial administration system towards reformation and not towards retribution. They further submit that keeping in view all such facts mentioned herein, lenient view may be taken in favour of all the convicts.
20 Learned counsel for the convicts advanced arguments that none of them is hardened criminal. If they would given longer punishment then definitely it would affect their health as well as caused adverse consequences. It is submitted that lenient view may be taken against all the convicts.
21 Learned defence counsel has countered this argument of learned Sr. PP and submitted that Rs.1 crore, Rs. 5 crore and Rs.3 crore are imaginary figures. He further submits that no basis has been disclosed by CBI to claim such high compensation as by imagination or conjuncture cannot be claimed. 22 He further submits that claim of the CBI that punishment should be consecutive is again going to harsh towards the accused CBI Vs. Ram Kumar Singh & Ors. Page 107 of 134 108 persons. He further submits that if judgment passed by equal court or higher Court there is no example or precedent could be cited by learned Sr. PP regarding consecutive sentences. Rather sentence always be run concurrently as practice. It is submitted that illness of the convicts and their dependents of the family members should be taken into consideration.
23 Learned Sr. PP countered the arguments and submits that it was upon the convicts when they had committed crime and if they did not think for consequences at the time of commission of crime then definitely they cannot claim leniency from this Court. He further submits that in catena of judgments Hon'ble Apex Court and other Courts held that corruption is like a cancer to the society, it should be uprooted so that society should be in accordance with lawful means. Learned Sr. PP has relied upon State of Rajasthan v. Dhool Singh AIR 2004 SC 1264, wherein the Hon'ble Supreme Court observed as under:-
"The courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is not absolute or whimsical. It is controlled by law CBI Vs. Ram Kumar Singh & Ors. Page 108 of 134 109 and to some extent by judicial discretion, applicable to the facts of the case. Therefore, there is a need for the courts to apply its mind while imposing sentence."
CBI has further relied upon judgment Sevaka Perumal, etc. v. State of Tamil Nadu AIR 1991 SC 1463, wherein Hon'ble Supreme Court observed as under:-
9. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine to public confidence in the efficacy of law and society could not long endure under serious threats. If he courts did not protect the injured, the injured would then resort to private vengeance. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.
10. It is clear from the evidence that the accused indulged in illegal business of purchase and sale of ganja. They conspired to entice innocent boys from affluent families took them to far flung places where the dead body could not be identified. The letters were written to the parents purporting to be by the deceased to delude the parents that the missing boy would one day come home alive and that they would not give any report to the police and the crime would go undetected. For murder in a span of five years were committed for gain in cold blooded, premeditated and planned way. It is undoubted that if the trial relating to Athiappan murder had taken place and concluded earlier to the trial and conviction of other three murders are not relevant facts to be considered. But in this case the trial of the murder relating to Athiappan and Hariamachandran practically took place simultaneously by which date the appellants were convicted for the murder of Chellaurai and Christodas. Therefore, the reference of conviction and sentence by the Sessions Court to those two CBI Vs. Ram Kumar Singh & Ors. Page 109 of 134 110 cases also are relevant facts. The deceased Harimachandran is no other than the nephew (elder sister's son) of A-1. This would establish his depravity and hardened criminality. No regard for precious lives of innocent young boys was shown.
They adopted the crime of murder for gain as a means of living."
24 He further submits that as per judicial verdict pronounced earlier in various cases that when the statutes provides maximum sentence, it is only for the talk purpose but it should be implemented. He further submits that if the Court is not going to pass maximum sentence, then there must be some strong reasons for not doing so by the Court. He further submits that if statutes provides maximum sentence then definitely maximum sentence should be awarded as there is no reason for non-awarding of maximum sentence. He strongly objects about leniency towards any of the convicts.
25 Learned defence counsel further submits that learned Sr. PP for CBI misconstrued the law, in as much as if the Court is going by the arguments of learned Sr. PP then definitely in every case maximum punishment i.e. capital punishment to be awarded as a rule but intention of the legislature is not as such. It is CBI Vs. Ram Kumar Singh & Ors. Page 110 of 134 111 discretion lies with the Court depending upon the circumstances and facts of each and every case.
26 This Court considers rival contentions of both the parties. This Court also refers other judgments passed by superior Courts such as:-
27 In the case titled Mehkar Singh Vs. Central Bureau of Investigation, Hon'ble High Court of Delhi, 2011 (3) Crimes 94, (2011) ILR 4 Delhi 656 has held that :-
".......... There was no denial of the fact that the corruption by the public servants and particularly the law enforcers like the accused is an alarming menace to the society and which is spreading its tentacles in all walks of life. With regard to the quantum of sentence, nothing specific was pointed out by the learned defence counsel except for praying for leniency in view of the protracted pendency of the case. This was no ground to mitigate the gravity of the offence as per the catena of judgments of the Hon'ble Supreme Court and reference here can be made only to the case of State of A.P. Vs. V. Vasudeva Rao Manu/SC/0916/2003: (2004) 9 SCC 319.
In the given factual matrix, I am not persuaded to impose the minimum sentence as prayed by the learned defence counsel. In the overall circumstances, while maintaining the conviction as awarded by the learned Special Judge, I am of the view that ends of justice would be met by sentencing the accused to two years of rigorous imprisonment on each count.CBI Vs. Ram Kumar Singh & Ors. Page 111 of 134 112
Consequently, the order of sentence stands modified in the sense that the accused shall stand sentenced for two years rigorous imprisonment each under section 7 and also under Section 13(2). The rest of the order shall remain unchanged. Both sentences shall run concurrently. The period of imprisonment already undergone shall be set off. The accused shall be taken into custody to undergo the imprisonment as awarded. The appeal stands dismissed."
In the case titled Raj Kumar Vs. State of Delhi, Hon'ble High Court of Delhi, 2015 IV AD (Delhi) 280 has held that :-
"57. So far as the sentence is concerned, the appellant as let off rather lightly by the learned Special Judge by awarding RI for one year with fine of Rs. 4,000/-, and on failure to pay the same, to undergo SI for four months for the offence under Section 7 of of the P.C. Act; and to further undergo RI for two years with fine of Rs. 6,000/- and on failure to pay the same, to undergo SI for six months for the commission of offence punishable under Section 13(1) (d) read with Section 13 (2) of the P.C. Act. The appellant, who as a Beat Constable, was found guilty of committing criminal misconduct by exploiting his authority to force the complainant to pay him bribe. An officer entrusted the task of protecting the law, blatantly breached the same. Looking to the rampant corruption prevalent in the society, the sentence should, and could, have been harsher. I am, therefore, not inclined to reduce the sentence awarded by the learned Special Judge. The appellant shall surrender forthwith and undergo the remaining sentence."
In the case titled State of Madhya Pradesh Vs. CBI Vs. Ram Kumar Singh & Ors. Page 112 of 134 113 Shambhu Dayal Nagar Hon'ble Supreme Court of India, 2007 (2) ACR 1428 (SC) has held that :-
"15. The corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Large scale corruption retards the national building activities and everyone has to suffer on that count. As has been aptly observed in Swatantar Singh Vs. State of Haryana reported in MANU/SC/0510/1997, lymph nodes, the vital veins of the body politics social fabric of efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of corrupt would gather thick and untraceably clouds around the conduct of the officer and gain notoriety much faster than the smoke.
And also in para no. 19 held that :-
..... From the analysis of the above decisions and the concerned provisions with which we are concerned, the following principles emerge:
a) When the court issues notice confining to particular aspect/sentence, arguments will be heard only to that extent unless some extraordinary circumstance/material is shown to the Court for arguing the matter on all aspects.
b) Long delay in disposal of appeal or any other factor may not be a ground for reduction of sentence, particularly, when the statute prescribes minimum sentence. In other cases where no such minimum sentence is prescribed, it is open to the court to consider the delay and its effect and the ultimate decision.
c) In a case of corruption by public servant, quantum of amount is immaterial. Ultimately, it depends upon the conduct of the delinquent and the proof regarding demand and acceptance established by the prosecution.CBI Vs. Ram Kumar Singh & Ors. Page 113 of 134 114
d) Merely, because the delinquent lost his job due to conviction under the Act may not be a mitigating circumstance for reduction of sentence, particularly, when the Statute prescribes minimum sentence".
In the case titled Shiv Nanda Sahay Srivastava Vs. The State of Bihar, Hon'ble High Court of Patna, 2011 (59) BLJR 124 has held that :-
"18. when corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within the bounds of law. One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as 7 years and directed that even if the said period of imprisonment need not be given the sentence shall not be less than the imprisonment for one year. Such a legislative insistence is reflection of Parliament's resolve to meet corruption cases with a very strong hand to given signals of deterrence as the most pivotal feature of sentencing of corrupt public servants. All public servants were warned through such a legislative measure that corrupt public servants have to face very serious consequences. If on the other hand any public servant is given the impression that if he succeeds in protracting the proceedings that would help him to have the advantage of getting a very light sentence even if the case ends in conviction, we are afraid its fallout would afford incentive to public servants who are susceptible to corruption to indulge in such nefarious practices with immunity. Increasing the fine after reducing the imprisonment to a nominal period can also defeat the purpose as the corrupt public servant could easily raise the fine amount through the same means."CBI Vs. Ram Kumar Singh & Ors. Page 114 of 134 115
In the case titled Soman Vs. State of Kerala, Hon'ble Supreme Court of India, (2013) 1 SCC 382 has held that :-
"22. ..... 1 Courts ought to base sentence decisions on various different rationales - moth prominent amongst which would be proportionality and deterrence.
2 The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint.
3 In so far as proportionality is concerned, the sentence must be commensurate with the seriousness or gravity of the offence.
4 One of the factors relevant for judging seriousness of the offence is the consequences resulting from it.
5 Unintended consequences/harm may still be properly attributed to the offender if they were reasonably foreseeable."
In the case titled A.B Bhaskara Rao Vs. Inspector of Police CBI, AIR 2011 SC 3845 Visakhapatnam, Hon'ble Supreme Court of India has also relied upon the judgment titled as State of M.P Vs. Shambhu Dayal Nagar MANU/SC/8623/2006 (Supra).
In the case titled Manish Jalan Vs. State of Karnataka, AIR 2008 SC 3074, Hon'ble Supreme Court of India, AIR 2011 SC 3845 has held that :-
12. .....In Hari Singh Vs. Manu/SC/0183/1988:
Sukhbir Singh and Ors. 1989 Cril. J. 116, while emphasising the need for making liberal use of the provisions contain in Section 357 Cr.P.C. this court has observed thus:
It may be noted that this power of Courts to award compensation is not ancillary to other CBI Vs. Ram Kumar Singh & Ors. Page 115 of 134 116 sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed as step forward in our criminal justice system.
However, in awarding compensation, it is necessary for the Court to decide if the case is a fit one in which compensation deserves to be awarded. If the Court is convinced that compensation should be paid, then quantum of compensation is to be determined by taking into consideration the nature of the crime, the injury suffered and the capacity of the convict to pay compensation etc. It goes without saying that the amount of compensation has to be reasonable, which the person concerned is able to pay. It the accused is not in a position to pay the compensation to the injured or his dependents to which they are held to be entitled to, there could be no reason for the Court to direct such compensation. In Sarwan Singh and Ors Vs. MANU/SC/0163/1978, State of Punjab : 1978 Cril. J 1598.
Very recently in Dilip S. Dahanukar Vs. MANU/SC/1803/2007 : Kotak Mahindra Co. Ltd. and Anr. 2007 Crl. J. 2417 explaining the scope and the purpose of imposition of find and/or grant of compensation to a great extent must be considered having the relevant factors therefore in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but Sub Section (3) of Section 357 does not CBI Vs. Ram Kumar Singh & Ors. Page 116 of 134 117 impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a judge."
In the case titled Rekha Sharma Vs. Central Bureau of Investigation, 218 (2015) DLT 1, Hon'ble High Court of Delhi has held that :-
488. .......... The Supreme Court in its decision reported as (2013) 11 SCC 401, Jasvir Kaur Vs. State of Punjab expressed concern on the absence of a sentencing policy in the country and, therefore, cautioned the Courts to calibrate the punishment with due care and upon taking into account the relevant attending circumstances. The Supreme Court quoted with approval the luminous observations of English Judge Henry Alfred Mc Cardie which are reproduce hitherto-fore:
"....Trying a man is easy, as easy as falling off a log, compared with deciding what to do with him when he has been found guilty.
Chapter 19 of the Delhi High Court Rules deals with sentencing of offenders and throws insights on this aspect.
"1. The award of suitable sentence depends on a variety of considerations - The determination of appropriate punishment after the conviction of an offender is often a question of great difficulty and always requires careful consideration. The law prescribes the nature and the limit of the punishment permissible for an offence, but the Court has to determine in each case a sentence suited to the offence and the offender. The maximum punishment prescribed by the law for any offence is intended for the gravest of its kind and it is rarely necessary in practice to go up to the maximum. The measure of punishment in any particular instance depends upon a variety of considerations, such as the motive for the crime, its gravity, the character of the offender, his age, antecedents and other extenuating or aggravating circumstances, such as sudden temptation, previous convictions, and so forth, which have all to CBI Vs. Ram Kumar Singh & Ors. Page 117 of 134 118 be carefully weighed by the Court in passing the sentence."
The facts of the present case as unfurled by the overwhelming evidence led by the prosecution at trial reveal a shocking and spine-chilling state if affairs prevalent in our country. An ingenious employment scam spanning across eighteen (18) districts of State of Haryana was given effect to by persons at the helm of power and the entire bureaucratic machinery fell prey to its satanic influence. Laudably, few individuals who were examined at the trial were forthright in the hour of adversity and did not succumb to the pressures exerted upon them from all quarters. Some individuals, such as PW-14, Dhup Singh, were not even high ranking officers of th Civil Services, but mustered courage to successfully repel the pressure exerted upon them.
It is submitted that the authors of the present crime were essentially public servants; who were duty bound to preserve and uphold the dignity of law. Some had even been administered 'oath' in terms of the Constitution of India. Yet they chose to flagrantly violate the law, betraying the trust reposed in them by the citizens and the Constitution. The very nature of the present crime, its magnitude, ramifications, designed manner of execution and the deleterious impact on the society at large, warrants a strict view, lest, justice be rendered sterile.
Very recently the Supreme Court in its decision pronounced on 06.05.2014 in the case of Dr. Subramanian Swamy Vs. Director, Central Bureau of Investigation and Another, (2014) 8 SCC 682 while holding section 6A of the Delhi Special Police Establishment Act, 1946 to be ultravires took serious note of malaise of corruption in our country and pertinently observed :
"77 This court in Shobha Suresh Jumani, took judicial notice of the fact that because of the mad race of becoming rich and acquiring properties overnight, or because of the ostentatious or vulgar show of wealth by a few or because of change of environment in the society by adoption of materialistic approach, there is cancerous growth of CBI Vs. Ram Kumar Singh & Ors. Page 118 of 134 119 corruption which has affected the moral standards of th people and all forms of governmental administration.
XXX XXX XXXX XXXX
XXX XXX XXXX XXXX
80 ...In the supplementing judgment, A.K
Ganguly, J. While concurring with the main
judgment delivered by G.S. Singhvi, J. observed:
"Today, corruption in our country not only poses a grave danger to the concept of constitutional governance. It also threatens the very foundation of the Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our Premabular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption....."
81 In balakrishna Dattatrya Kumbhar, this Court observed that corruption was not only a punishable offence but also, "undermines human rights, indirectly violating them, and systematic corruption, is a human rights' violation in itself, as it leads to systematic economic crimes".
82 In R.A. Mehta, the two-Judge Bench of this Court made the following observations about corruption in the society:
"Corruption in a society is required to be detected and eradicated at the earliest as it shakes "the socio-economic-political system in anotherwise healthy, wealthy, effective and vibrating society".
Liberty cannot last long unless the State is able to eradicate corruption from public life. Corruption is a bigger threat than external threat to the civil society as it corrodes the vitals of our polity and society. Corruption is instrumental in not proper implementation and enforcement of policies adopted by the Government. Thus, it is not merely CBI Vs. Ram Kumar Singh & Ors. Page 119 of 134 120 a fringe issue but a subject-matter of grave concern and requires to be decisively dealt with."
83 ..... It was observed :
"Abuse of public office for private gain has grown in scope and scale and hit the nation badly. Corruption reduces revenue; it slows down economic activity and holds back economic growth. The biggest loss that may occur to the nation due to corruption is loss of confidence in the democracy and weakening of the rule of law."....... In the celebrated words of Martin Luther King, Jr. ; "Morality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless."
28 In the light of referred judgments, the court has to consider the rival arguments of both sides. This Court is of the considered opinion that in Delhi City, the entire civic system has been collapsed wherein corruption is a contributing factor. If unauthorized construction takes place then definitely it is a challenge to law and order situation. C-1 who had responsibility to take care whether any unauthorized construction was being taking place in his wards, where he was posted but instead of performing his duties diligently, he allowed C-2 and C-3 to carry out unauthorised construction at such properties. I do not agree with the contention raised by the Ld. Counsel for C-1 that there was lacs of houses in such wards where C-1 and it was not possible to check each and every property. This court is of the considered CBI Vs. Ram Kumar Singh & Ors. Page 120 of 134 121 opinion that in a construction, there is activity of demolition first, laying foundation thereafter, erecting structure, finishing and polishing, etc. It is not the case either of the convicts that such construction was taking place in a secret manner. It is apparent that such construction cannot take place in a single day, two days, one week or two weeks but definitely it will take months together as such construction require not only effort and skill of one person but many persons at different stages to be involved. Therefore, I do not agree with the contention raised by the Ld. Counsel for C-1 that C-1 could not detect such construction and therefore, leniency may be taken in his favour. Definitely, this court also observed in the judgment passed that it is the case where intentionally, C-1 kept intentionally his eyes closed for what was going on towards the activity of C-2 and C-3 unless and until, there was intentional conspiracy by joining hands by all the convicts, such crime was not possible.
29 If this court goes by the arguments raised by the Ld. Counsel for C-1 then definitely representation being public servant was getting salary out of the tax paid by the citizens of this country CBI Vs. Ram Kumar Singh & Ors. Page 121 of 134 122 involving in corrupt activities. C-2 and C-3 who had stated unauthorized construction definitely carried out illegal activities to make rich themselves with illegal conspiracy involving C-1 and therefore, all of them must have joined to share all illegal profits and in such circumstances, I do not agree with the contention raised by the Ld. Counsel for A-1.
30 Regarding another arguments, that he is not a habitual and repeated offender, therefore, no adverse inference could be drawn. I do not agree with the contentions raised by the Ld. Counsel C-1 that if a conspiracy is committed then there must be meeting of minds which can take place only when there is exchange and agreement of ideas which comes only when all the participants of the conspiracy for understanding for commission of crime. Such understanding can be made only when they committed crime repeatedly. Similarly, offence may not come in the notice of the prosecuting agency and this crime has come under the notice of prime prosecuting agency i.e. CBI. Moreover, this court cannot lost the sight to the fact that this case has been registered only after directions passed by the Hon'ble High Court in CBI Vs. Ram Kumar Singh & Ors. Page 122 of 134 123 Writ Petition (C) no. 4582/2003. Therefore, this court is of the considered opinion that illegal nexus of builder and public servant was of such a nature in this case that they were not having terror or respect of the law but they flouted all the laws and bylaws to make themselves rich at the cost of others. Their only motive was to earn maximum profit out of unauthorized construction by committed such criminal conspiracy and wherein C-1 who is the public servant must be a mastermind because without his involvement such crime was not possible at all. If he would not have allowed the same then definitely no such unauthorized construction could have been taken place in this case.
31 This court does not agree with the arguments raised by the Ld. Counsel for C-1 that no body has suffered. I do not agree with the contentions raised by the Ld. Counsel for C-1 as much as that in Delhi city frequent incidents taking place regarding collapse of unauthorized constructions and therefore, such a plea would not be available and whosoever is involved in the offence i.e. public servant or builder should be punished so that others may get lesson that look if you are going to do such crime then definitely CBI Vs. Ram Kumar Singh & Ors. Page 123 of 134 124 clutches of law follow you.
32 Similar reasons are here for convict no. - 2 & 3. This court does not agree with the contentions raised by the Ld. Senior Counsel for C-2 and C-3 that in Delhi city people are involved in unauthorized constructions and why these convicts have been made scape goat. Ld. Sr. PP for CBI submits that in other courts too there are other similar cases. I do not find any merit in the arguments advanced by the Ld. Sr. Counsel for C-2 and C-3. It is the duty of every citizen of country to report the crime committed so that criminal system come into motion. Therefore, here again this court draws the inference that convicts are not good citizens by not putting criminal law into motion but instead they themselves involved in the crime. If corruption is being done by some one then other citizen has duty to report the crime to law enforcing agency but they should not follow it. Therefore, I do not agree with the contentions raised by the Ld. Sr. Counsel.
33 Arguments have been taken place regarding family members, dependents and condition of their family members of all CBI Vs. Ram Kumar Singh & Ors. Page 124 of 134 125 convicts. I do not agree with all such arguments also. It was the duty of all the family members of all the convicts that whenever the convicts were going to do crime like corruption and got themselves rich, then the duty of their family members was to stop the convicts to refrain themselves from crime. The family members instead of stopping them kept silent. Therefore, the court cannot have mercy upon family members of such persons who committed the crime of corruption.
34 This court also does not agree with the contentions raised by the Ld. Sr. Counsel for C-2 and C-3 that the crime of unauthorized construction covers under DMC Act and therefore, it is a complete Code and maximum punishment may be awarded interms of the said Act. This Court does not agree with the said contention in as much as in the present case, convicts have been convicted under Prevention of Corruption Act. The legislator has stated the statement of objects and reasons for this Act as such :-
"Statement of Objects and Reasons - The Bill is intended to make the existing anti- corruption laws more effective by widening their coverage and by strengthening the provisions.CBI Vs. Ram Kumar Singh & Ors. Page 125 of 134 126
The prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanam Committee. There are provisions in Chapter IX of the Indian Penal Code to deal with public servants and those who abets them by way of criminal misconduct. There are also provisions in the Criminal Law Amendment Ordinance, 1944, to enable attachment of ill-gotten wealth obtained through corrupt means, including from transferees of such wealth. The Bill seeks to incorporate all these provisions with modifications so as to make the provisions more effective in combating corruption among public servants".
35 Thus, the legislature in clear words expressed its intention that for giving coverage of offences of corruption by widening their coverage with more effective registration has been indicated and therefore, the court has to consider this case according to the intentions of the legislature. The legislature is of the view that corruption should be stopped and curbed at the very foundation. If there is alliance of public servant and builder then definitely it will generate more crime towards the society. The gullible buyers who purchased the houses had no option but to submit before the Court pretending satisfaction for the property CBI Vs. Ram Kumar Singh & Ors. Page 126 of 134 127 purchased by them as they were aware if in any circumstances, they were likely to evict from the property, then they would be on roads as cost of the property prices in Delhi have been multiplied. Escalation of property values in the city like Delhi are so high that now such buyers are compelled to live in unauthorised construction. However, C-2 and C-3 were duty bound to inform the buyers at the time of sale of the property that the same was unauthorized construction and they have to purchase upon their own risk. Even law prohibits for the sale of unauthorized construction. If a property is unauthorized, it is unauthorised for all purposes, therefore, such argument is not available to the convicts. 36 This court is of the considered opinion that all the convicts have multiplied their profits of money ill gotten by them from the unauthorised construction as they might have invested in other investments which may not have come in the notice of the court, if the matter would not have come before this Court. This court does not agree with the arguments raised by Ld. Sr. Counsel for C-2 and C-3 that right to life include right to live and thus unauthorized construction in this case should be absolved to all the CBI Vs. Ram Kumar Singh & Ors. Page 127 of 134 128 convicts. This court does not dispute the fundamental right for every citizen to right to life or right to live but it does not make any right for unauthorized construction by anyone. Moreover, in this case accused persons made unauthorized construction to earn the profits not to live in those houses, therefore, such argument cannot be accepted.
37 This court also considers the fact that it is usual in property matters that people who purchases the property evades the tax and charges by showing the property of lesser value but in fact the transaction takes place showing other value which does not come in the knowledge of civic authorities. It further generates black money which is the prime concern now a days as legislature is putting all the efforts to curb the menace of black money. 38 This Court agrees with the contention raised by the Ld. Sr. PP that in this country most of the people have made the way of corruption as their way of living style as it appears to them the easiest route to get early success and easy wealth. The corruption has spread to such an extent in the society that it becomes disease CBI Vs. Ram Kumar Singh & Ors. Page 128 of 134 129 among professionals, medical professionals, educational professionals or even the custodian of the nation i.e. politician of this country. No corruption can take place until and unless the public opinion may give it sanctity. Sanctity only comes when it becomes the life style of the people of the country. Great Scholars of the country Chanakya and Vidur have mentioned in old testaments that if servant of the king becomes corrupt then integrity of the State would be at threat. Here servant of the King would be C-1 as he was getting salary from the State. Now, in the democratic system by every citizen of the country is like King of the State because all such citizens of the country elect their representative and those representatives conduct affairs of the State through public servants. It is the duty of the public servants that they should remain faithful to the State, otherwise integrity of the State would be at jeopardy. But instead to prove his faith, C-1 committed the crime by joining the hands with C-2 and C-3. Therefore, I do not find that any leniency can be granted as prayed by their respective counsels.
39 However, this Court does not agree with the contention CBI Vs. Ram Kumar Singh & Ors. Page 129 of 134 130 raised by the Ld. Sr. PP that punishment should be run consecutively. Since, all the convicts are going through the pangs of trial for the last so many years therefore, this court does not agree with the contention raised by the Ld. Sr. PP. 40 Ld. Sr. PP further submits that all the convicts are also liable for the fine in the offences under which they have been punished, they have to pay fine to the State. He further claims compensation U/s 357 (1) of Cr.P.C. and also claim compensation to the MCD to whom all the convicts by hatching criminal conspiracy and by commission of crime caused pecuniary loss as well as to the reputation of the institution.
41 Thus, this Court keeping in view all the facts and circumstances and health of the convicts, their age, their economic condition and responsibility towards their family and maintaining balance between reformative theory as argued by the Ld. Defence counsels and arguments in favour of exemplary punishment to be awarded as argued by the Ld. Sr. PP, this court is of the considered opinion that the punishment should be given to all the convicts as CBI Vs. Ram Kumar Singh & Ors. Page 130 of 134 131 under :-
(a) Convict Ram Kumar Singh (A-1) has been convicted and is being awarded sentence of rigorous imprisonment for a period of six years for the offences punishable U/s 120-B read with Section 13 (2) read with Section 13 (1) (d) of P.C. Act. He is also convicted and is awarded sentence of rigorous imprisonment for a period of two years for the offence punishable U/s 217 IPC. He has been also convicted and is being awarded sentence of rigorous imprisonment for a period of six years for the offences punishable U/s 13 (2) read with Section 13 (1) (d) of P.C. Act. He is also sentenced to pay fine of Rs. 30 lacs (Thirty Lacs). In default of payment of fine, he is to undergo rigorous imprisonment for a period of one and half years (18 months). Fine is being imposed upon this convict as this convict by abusing his official position allowed C-2 and C-3 to do unauthorized construction and 15 flats were got constructed in the prime location of Delhi i.e. Shakarpur Delhi, which is a highly, densely populated area.
(b) Convict Anil Kumar Arora (A-2) has been convicted CBI Vs. Ram Kumar Singh & Ors. Page 131 of 134 132 and is being awarded sentence of rigorous imprisonment for a period of six years for the offences punishable U/s 120-B read with Section 13 (2) read with Section 13 (1) (d) of P.C. Act., and is also sentenced to pay fine of Rs. 40 lacs (Forty Lacs). In default of payment of fine, he is to undergo rigorous imprisonment for a period of two years. Fine has been imposed in view of the fact that he unauthorisedly got constructed 9 flats in one property bearing No. B-53, Shakarpur, Delhi and 6 flats were also constructed in the property no. D-15 Shakarpur Delhi and has earned profits out of the sale of total 15 flats which are in the prime location of Delhi i.e. Shakarpur Delhi, which is a highly, densely populated area.
(c) Convict Rakesh Aggarwal (A-3) has been convicted and is being awarded sentence of rigorous imprisonment for a period of three and half years (42 months) for the offences punishable U/s 120-B R/w Sec. 13 (2) read with Section 13 (1) (d) of P.C. Act., and is also sentenced to pay fine of Rs. 15 lacs (Fifteen Lacs). In default of payment of fine, he has to undergo rigorous imprisonment for a period of nine months. Fine has been imposed in view of the fact that he got unauthorisdely constructed 6 CBI Vs. Ram Kumar Singh & Ors. Page 132 of 134 133 flats in one property bearing No. D-15, Shakarpur, Delhi and he has earned profits out of the sale of total 6 flats which are in the prime location of Delhi i.e. Shakarpur Delhi, which is a highly, densely populated area.
42 All the sentences shall run concurrently.
43 The fine imposed shall be dealt with U/s 357 (1) Cr.P.C., out of the collected fine 25 % shall be applied towards the expenses incurred for the prosecution and is payable to CBI. Rs. 2 lacs from each of the convicts shall be deposited by the convicts as a fine to the State and rest of the amount shall go to the concerned MCD which shall be incurred towards the rehablitation of all the 15 occupants of the properties bearing No. B-53, Shakarpur, Delhi and D-15 Shakarpur, Delhi as both the properties have been unauthorizedly constructed and in case occupants of the said properties have to be rehabilitated.
44 Benefit of Section 428 CrPC, if any, be given to all the convicts.
CBI Vs. Ram Kumar Singh & Ors. Page 133 of 134 134 45 All the convicts have been supplied with copy of judgment and order on sentence free of cost separately. 46 File be consigned to Record Room.
Dictated and announced in the open Court on 26.09.2015.
( JITENDRA KUMAR MISHRA) SPECIAL JUDGE, CBI ( PC ACT) EAST DISTRICT KKD COURTS: DELHI.
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