Delhi District Court
State vs . on 17 July, 2015
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Date of Institution : 09.01.2015
Date of reserving the Order : 04.07.2015
Date of pronouncing the Order: 17.07.2015
Corruption Case No. : 10/2015
FIR No. : 702/2007
Case Identification No. : 02401R0021462015
Police Station : Nangloi
Under Section : 7/13 (i) (d) (II) of
Prevention of Corruption
Act, 1988
STATE
Vs.
Mahavir Singh
S/o Sh. Bhuliya Ram
R/o H.No.41, Gopal Nagar Extn.,
Najafgarh, Delhi
Argued by: Sh.Balbir Singh, Ld. Addl. PP for the State
Sh.C.R.Jaagar, Ld. counsel for the accused
ORDER
1.1 This order will dispose of objections to framing of charge. Before referring to the detailed facts of the present case, it shall be relevant to notice that the present is one of the 14 connected matters, FIR No. 702/2007 Page 1/19 wherein, initially one consolidated charge sheet was filed by IO, Dr. Joy Tirkey - Addl. DCP, SIT, Crime Branch, Delhi. In the said charge sheet filed before the court on 13.03.2012, 18 persons were cited as accused persons. However, two of them were reported to have expired by the time, charge sheet was submitted.
1.2 Subsequently, an objection was raised by the ld. defence counsel that remaining 16 accused persons can not be charge sheeted and tried together, as the offences indicated against them were independent offences, which did not form part of the same transaction. Reference was made to sec.223 Cr.P.C. and it was submitted that the 16 persons can not be charged and tried together. It was, accordingly, directed that separate charge sheets be filed with respect to each incident. Accordingly, IO filed 14 separate charge sheets & 14 separate cases were registered in this court.
2.1 It is the case of prosecution that the accused persons were employed in Delhi Police. Two associates of the complainant were engaged in the business of selling illicit liquor. Accused persons used to harass them. They sought the help of complainant Chetan Sharma. They also told the complainant that they wanted to close the business but police officials were not letting them close the same. They sought his help. Accordingly, complainant with the help of Sanoj Shukla conducted videography of police officials at various locations in Delhi, FIR No. 702/2007 Page 2/19 during the period July2006 to December2006, wherein, they were seen demanding & accepting money. Similarly, Bhola Ram also sought help of complainant and got recorded videography of two police officials. 2.2 The videography was recorded in HI8 video cassettes, 7 in number. These cassettes were submitted before the Hon'ble High Court of Delhi by the complainant in Crl. Misc. No. 490/2007. Hon'ble High Court of Delhi directed Commissioner of Police 'not only to take departmental proceedings against the accused persons but also to register criminal case against them'. Accordingly, FIR No.702/2007 was registered.
3 All the 7 Video Cassettes were got examined at CFSL, Chandigarh, which reported the video recording to be free from 'addition, deletion and tampering'.
4 During investigation, IO recorded the statement of Chetan Sharma, Daya Shankar, Doodh Nath @ Bhola, Sanoj Shukla, Lalita W/o Bhola, Kartar Singh, Saroj, Anshu @ Sanjay and other formal witnesses. 5.1 Sh.Balbir Singh, Ld. Addl. PP for the State has argued that the statements of aforesaid public persons and the video cassettes establish strong case against the accused persons. Various witnesses stated that accused persons used to harass them & force them to trade in FIR No. 702/2007 Page 3/19 illicit liquor. They are seen demanding & accepting illegal gratification. Ld. Addl. PP has also submitted that the accused persons have been identified by bribe givers. Their voices have been identified by other police officials, who had worked with him. Mode of recording audio output has been explained by Chetan Sharma in his statement dated 13.02.2008. Therefore, they should accordingly be charged for offences punishable u/sec. 7 & 13 (i) (d) of the PC Act.
5.2 Ld. Defence Counsel has strongly contested framing of Charge in the present case. It is argued that the video recording contained in the cassettes is not admissible evidence. The cassettes contain recording of 17 different clips, apparently, recorded on different dates, times & locations. The time gap between the first recording and the last recording is about 6 months, as per the case of prosecution, itself. The Video cassettes, when played do not show the clips in chronological order. Had the recording been done continuously, the clips would have been in chronological order. Thus, the video cassettes do not contain the original recording. There, ofcourse, is no certificate u/sec.65/B of the Indian Evidence Act with respect to the recordings contained in Video cassettes, which are apparently copies of the original recordings. The original recording has been withheld. It is further argued that the shoot has been done from such a distance that the audio input could not have been recorded simultaneously. Referring to the statement of Chetan Sharma recorded by the IO on 13.02.2008, wherein, FIR No. 702/2007 Page 4/19 he has explained the manner of recording audio in put by using mobile phones; it is submitted that none of the mobile phones used were made available by the complainant or other witnesses. Moreover, the call detail records of the phones were also not collected by the IO. Assailing the CFSL report, it is argued that the conclusion arrived at is contrary to the findings recording by the expert himself. There is no opinion of the CFSL, whether the camera sent to FSL could have been used to record the cassettes sent.
5.3 It is further argued that the statements of witnesses namely Daya Shankar, Sanoj Shukla, Doodh Nath @ Bhola, Kartar Singh, Lalita, Anshu @ Sanjay and Saroj are silent as regards any demand of bribe by any of the accused persons. Mere identification of accused persons in the video cassettes accepting money from some of the witnesses does not attract the charge u/sec. 7 & 13 of the PC Act. Moreover, the voice samples of accused persons were not taken and sent to CFSL for comparison and analysis.
5.4 It is further argued by ld. defence counsel on behalf of accused that there is no identification of audio, as the voice samples were not taken. The demand of bribe is not clear. It is further submitted that the complainant & the public witnesses have all admitted in their statements that they were all involved in trade of illicit liquor. The present accused persons being police officials were duty bound to stop FIR No. 702/2007 Page 5/19 any trading in illicit liquor. The complainant party, thus, had malafide reasons to implicate them in a false case, by manipulating audio video evidence. Reliance has been placed upon law laid down in Anvar P.V. Vs. P.K.Basheer reported as Manu/SC/0834/2014's case, Jagdeo Singh Vs State reported as Manu/DE/0376/2015 and Ankur Chawla Vs. Central Bureaue of Investigation reported as Manu/ DE/2923/2014. 6 I have heard ld. Addl. PP, as well as ld. counsel for the accused and with their assistance I have gone through the chargesheet & the judgments of reliance.
7.1 The video recording, as contained in the CDs, which was prepared from the HI8 cassettes, was played during the hearing before this court. From the video recordings, it can be safely observed that :
(i) Some of the clips mention the date of recording. The clips are not in chronological order.
(ii) There is a break between each clip.
(iii) The shooting has been done from a long distance.
(iv) Audio contents of the recordings are not very clear at most
places.
FIR No. 702/2007 Page 6/19
7.2 FSL report records following observations:
(a) Audio and Video contents were segregated using Video Analysis System.
(b) Auditory, waveform and spectrographic analysis of the audio was conducted.
(c) Framebyframe analysis of the video recordings was conducted and different frames were extracted.
(d) Some frames in the video recordings contained transaction of money.
(e) Some discontinuity in the recordings and black frames were also observed.
(f) Different dates and time were found inscribed on different video frames at various locations.
(g) The recording has been done in multi sessions.
(h) Video recording contains numerous video shots. 7.3.1 A perusal of the CFSL report further reveals that Video Camera without memory stick was also sent for analysis. There is no evidence/ statement on record about the fate of memory stick. No explanations has been sought by the IO from the complainant about the availability/ nonavailability of the memory stick of camera, which should contain the original recording. Moreover, there is no opinion expressed by CFSL regarding camera or compatibility of camera with HI 8 cassettes. Despite observing in para no.6 of the report that the 'Different dates & times were found inscribed on different video frames at various locations', it has been concluded that there was no intentional alteration & tempering. The report in my opinion is apparently FIR No. 702/2007 Page 7/19 ambiguous. If the video cassettes contained 17 different clips with blank spaces and discontinuity in between, and the clips are not in chronological order; it can not be possible that the video recording 'is continuous and without any alteration, addition or deletion'. It is apparently a collection of 17 different clips, which have been recorded on different dates & times and transfered subsequently, to the cassettes. Thus, the 7 cassettes seized by the IO and sent for analysis to CFSL are not the original recording. Infact, the query posed by the IO as reproduced in para no.8 of CFSL report does not pose the most relevant & material question to the CFSL, 'whether there is continuity in the recording and whether the cassettes contained the original recording'. 7.3.2 As regards the audio contents of the cassettes V1 to V7, complainant Chetan Sharma in his statement dated 13.2.2008 has explained that audio input was provided using two mobile phones for each sequence. One Mobile phone was kept with the person, who was handing over the bribe and other phone on speaker mode was kept with the complainant, who was operating the camera. Mobile Phones were connected to each other by a call made by one phone to the other. In the same statement Chetan Sharma has further explained that none of the mobile phones used for such recordings are available. It is also pertinent to notice that Call Detail Records of said phones were not seized by the IO to establish that the calls were actually made from one phone to other, during the time of filming the sequence. Such Call FIR No. 702/2007 Page 8/19 Details would also have established the exact date, time and place of the recording. Ld. Defence counsel has also rightly pointed out that the voice sample of accused persons were not taken and analysed at FSL to establish that the voices recorded in cassettes V1 to V7 are of witnesses and accused. In such circumstances the audio input has absolutely no admissibility.
7.3.3 In the absence of any finding by the CFSL that the video recordings contained in cassettes VI to V7 are original and in view of the observation made above, I find merit in the argument of ld. defence counsel that the electronic evidence contained in cassettes VI to V7 is not admissible u/sec.62 of the Indian Evidence Act, as primary evidence. For the electronic evidence contained in cassettes to be admitted as secondary evidence, strict compliance of provisions of Sec.65/B of the Indian Evidence Act is mandatory. The law on this aspect has now been crystalised in Anvar P.V. Vs. P.K.Basheer reported as Manu/SC/0834/2014's case. Hon'ble Supreme Court of India, in Anvar P.V. 's case (Supra) held as under: "Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a FIR No. 702/2007 Page 9/19 non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under subsection (2) are satisfied, without further proof or production of the original. The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B (2)."
Specifying the requirements of certificate u/sec.65/B of Indian Evidence Act, the Hon'ble Supreme Court, further, held as under: "Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice."
It was further held in para no.22 as under: "Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
FIR No. 702/2007 Page 10/19 7.4 Relying upon Anvar P.V.'s case (supra), Hon'ble High Court of Delhi in Jagdeo Singh Vs State (Manu/DE/0376/2015) held as under: "In other words, the law is now abundantly clear. If there is no certificate accompanying electronic evidence in terms of Section 65B i.e., such evidence is "inadmissible". This evidence is inadmissible because it does not satisfy the requirement of the law under Section 65B EA. Such evidence cannot be looked into. Consequently, as far as the present case is concerned, the Court is satisfied that the intercepted telephone calls presented in the form of CDs before the trial court which were then examined by the FSL expert do not satisfy the requirement of Section 65B EA. The net result is that the electronic evidence in this case in the form of the intercepted conversation and the CDRs cannot be looked into by the Court for any purpose whatsoever. "
7.5 There ofcourse is no certificate u/s 65B of the Indian Evidence Act collected by the IO from Chetan Sharma, that contents in cassettes V1 to V7 are true copy of the contents of the original recording. Possibility of certification u/s 65B by Chetan Sharma, at this stage, is of no relevance. Setting to rest any doubts about the stage, at which certificate u/sec.65/B of the Indian Evidence Act is required to be submitted, the Hon'ble High Court of Delhi in Ankur Chawla 's case (supra) held as under: "In the instant case, the impugned order is silent about there being any certificate under Section 65B of the Indian Evidence Act, 1872 in respect of the audio and video CDs and even during the course of hearing, it was asserted on behalf of respondent FIR No. 702/2007 Page 11/19 CBI has failed to show that such a certificate has been filed alongwith the chargesheet...........................
.................................. It was also not shown during the course of the hearing that when the CDs were prepared but since this case was registered on 23rd November, 2009 therefore these CDs must have been prepared soon thereafter and the certificate under Section 65B of the Indian Evidence Act, 1872 has to be of the date when the CDs were prepared but the photocopy of the aforesaid certificate shows that it was prepared on 18th December, 2009 and is thus of no avail. "
In Ankur Chawla 's case (supra), the Hon'ble High Court of Delhi discharged the accused persons holding, that the audiovideo CDs in question, were clearly inadmissible in evidence and were not sufficient to put accused to trial for offence punishable u/sec.12 of the PC Act r/w/sec.120B of IPC. Further, use of sting operation has not gone down well with the superior courts. In Court on its own Motion Vs State & Ors reported as 151(2008) DLT 695 (DB) (R.K.Anand's case), the Hon'ble High Court cautioned against use of digital recording, in the absence of original chip or the Micro Chip. There can be no dispute with the dictum so laid down. Drawing from various academic articles and views of scholar, the Hon'ble High Court of Delhi concluded as follows:
1. A sting operation by a private person or agency is, by and large, unpalatable or unacceptable in a civilized society. A sting operation by a State actor is also unacceptable if the State act commits an offence so that an offence by another person is detected.
FIR No. 702/2007 Page 12/19
2. A State actor or a law enforcement agency may resort to hidden camera or sting operations only to collect further or conclusive evidence as regards the criminality of a person who is already suspected of a crime.
3. The law enforcement agency must maintain the original version of the actual sting operation. Tampering with the original video or audio clips of a sting operation may lead to a presumption of the spuriousness of the entire operation.
4. A sting operation cannot be initiated to induce or tempt an other innocent person to commit a crime or entrap him to commit a crime.
5. Normally, if a private person or agency unilaterally conducts a sting operation, it would be violating the privacy of another person and would make itself liable for action at law.
6. A sting operation must have the sanction of an appropriate authority. Since no such authority exists in India, and until it is set up, a sting operation by a private person or agency, ought to have the sanction of a Court of competent jurisdiction which may be in a position to ensure that the legal limits are not transgressed, including trespass, the right to privacy of an individual or inducement to commit an offence, etc. Thus, the legal position emerges that the memory stick which originally contains the recording is primary evidence, copy of the same in Video cassettes would only be the secondary evidence. In the present case, primary evidence is not available & secondary evidence can not be accepted. I, therefore, hold that the contents of AudioVideo Recordings in cassettes VI to V7 are not admissible in evidence. FIR No. 702/2007 Page 13/19
8.1 Having rejected the electronic evidence, the court is left with oral statements of Chetan Sharma, Sanuj Shukla, Daya Shankar, Kartar Singh, Doodh Nath, Lalita and Saroj etc. I shall now discuss the statement of each of these witnesses,recorded by the IO during investigation.
8.2 Complainant Chetan Sharma in his complaint dated 5.9.2007 has claimed that he has been exposing corruption, which is spread in Delhi Police. In April 2006 his help was sought by Sanuj Shukla and Daya Shankar as some police officials were harassing them. Sanuj Shukla was trading in illicit liquor and he had decided to shut this business but some police officials were forcing him to continue the work. He was threatened by police officials to be involved in false cases, in case he did not pay them money. Sanuj Shukla sought his help to save him from the police officials. He advised Sanuj Shukla to prepare videography of such corrupt police officials. Accordingly from July 2006 to December 2006, complainant prepared videography of police officials, forcibly extracting money from Sanuj Shukla. Similarly Bhola Ram also sought his help. H.C. Manoj and Ct. Ghazi Ram had been harassing him. They had demanded Rs. 15,000/ from him for release of illicit liquor, which they had impounded.
8.3 Daya Shankar in his statement made to the IO on 23.1.2012 stated that he was apprehended in the year 2003 while FIR No. 702/2007 Page 14/19 supplying illicit liquor. In the next 2/3 years, he was involved in several other cases under Excise Act. Since then he was being harassed by the police. He told his grievance to Chetan Sharma, who was also involved in several cases of Excise Act and other offences. They devised a strategy to prepare videography of police officials accepting money from sellers of illicit liquor. Sanuj Shukla was also included by them. He prepared a videography of police officials accepting money at police picket Hiran Kudna, Vishal Garden and Bhajora toll tax. His cousin Kartar Singh, who also worked with him got videography prepared of police offcials accepting money. Video was also prepared of Saroj handing over money to police officials.
8.4 Doodh Nath @ Bhola got recorded his statement on 24.9.2007, wherein he stated that he was a bootlegger and used to pay money to police officials. Sometime back HC Manoj and Ct. Gaze Ram had impounded two cartons of liquor from him and demanded Rs. 30,000/ from him and he had paid Rs.2000Rs.2500/ to HC Manoj. He again paid Rs.700/ /Rs.800/ to HC Manoj. On the advice of Chetan he got prepared a video in November 2006, wherein he had given money to HC Manoj and some money had been given by HC Manoj to Ct. Gaze Ram. On the next day, HC Manoj again came to his house and he put some money in his pocket. HC Manoj demanded Rs. 5,000/ from his wife and admitted having received Rs. 4,000/.
FIR No. 702/2007 Page 15/19 8.5 Smt. Lalita W/o Doodh Nath @ Bhola got recorded her statement dated 23.1.2012, wherein she stated that about five years earlier HC Manoj and HC Gazi Ram had accepted money from her husband, who was involved in cases of sale of liquor. On one occasion HC Manoj had come alone and accepted money from her husband in her presence. The incident had been videographed by Chetan Sharma in their house.
8.6 Kartar Singh has stated to the IO that about six years earlier, he was involved in cases of selling illicit liquor and he was harassed by police official . He informed Daya Shankar about this. Daya Shankar took him to Chetan Sharma, who prepared a video clip of Ran Singh and Ashwani accepting money from him.
8.7 Smt. Saroj W/o Pancham has made a statement that about eight years earlier, she was indulged in sale of illicit liquor and police officials harassed her. She told this fact to Sanuj Shukla, who introduced her to Chetan and on the advice of Chetan Sharma, she got herself video recorded handing over money to Ravinder, Hawa Singh, Azad Singh and Dharam Pal.
8.8 Anshu @ Sanjay stated that he is facing four cases of sale of liquor for the last ten years. He was earlier working for Sanuj Shukla. About four years earlier he went to Goyla Dairy Farm with Sanuj FIR No. 702/2007 Page 16/19 Shukla, wherein he paid money to police officials for permitting them to carry illicit liquor. Chetan Sharma prepared a video film of this incident.
8.9 Sanuj Shukla in his statement made to the IO on 24.9.2007 stated that he was earlier involved in sale of illicit liquor and used to give money to officials of police department and other departments. He was being harassed by them. He consulted Daya Shankar, who introduced him to Chetan sharma. He informed Chetan Sharma that he wanted to stop this business, but police officials forced him to sell illicit liquor. They were threatening to involve him in false cases, in case he did not pay them money. From July2006 to December 2006, with the help of Chetan Sharma, he prepared videography of police officials, who forcibly extracted money from him. In the videography police officials have been filmed demanding and accepting money from him. He had seen the film on the day of his statement. The details of the videography are as under. The witness has then described the contents of 15 videos clips and identified the police officials accepting money from him and also Smt. Saroj, Daya Shankar, Kartar Singh, Doodh Nath @ Bhola and Sanuj Shukla, who are seen handing over money to the police officials.
9.1 A study of the statements of material witnesses, relied upon by the prosecution, as noticed above reveals that none of them has FIR No. 702/2007 Page 17/19 stated about any specific demand of bribe from him/ her and acceptance, as a consequence of the said demand. Each of the witnesses has made general & vague statement that police officials used to harass them and coerced them to trade in illicit liquor. The statement of Chetan Sharma about demand & acceptance of bribe is hearsay. Sanuj Shukla & Daya Shankar, who claimed before him of demand of bribe by police officials, in their statements made to IO, do not state about demand of bribe by any specific police official from them. In later part of their statements, they have all talked of video filming police officials accepting money from them. As discussed in para 7 above, the contents of video film are not admissible in evidence. Statement of Sanuj Shukla is nothing but a narration of the contents of video clips. Since the audiovideo contents, as contained in Cassettes VI to V7 have been held to be inadmissible, oral statements to prove contents thereof are also inadmissible.
9.2 This court is restraining itself from making any observations about the conduct of complainant & witnesses, as they have not been subjected to crossexamination. It is, ofcourse, their admitted case that they were all trading in illicit liquor and were facing cases under the Delhi Excise Act, 2009.
10 Ld. Counsel has rightly pointed out that there is no evidence of any motive or promise by the accused to show any favour or FIR No. 702/2007 Page 18/19 disfavour to the witnesses or complainant. The evidence of demand and acceptance as contained in video cassette is ofcourse inadmissible. The argument that certain other persons seen in the video film have not been cited as witnesses or impleaded as accused can not be appreciated, as this court has already held that contents of the cassettes are inadmissible.
11 For the reasons detailed in para nos.7 to 10 above, I am of the opinion that prosecution has failed to even remotely raise suspicion grave enough to put accused to trial. The court can not act as a mere post office or mouth piece of the prosecution. The evidence relied upon by prosecution has inherent infirmities and cannot in any manner be sufficient for conviction, as laid down in Union of India Vs. Prafulla Kumar Samal & Anr. reported as AIR 1979 SC 366. I, therefore, discharge accused for offences punishable u/sec.7 & 13 (i) (d) & 13 (2) of the PC Act.
Announced in the open Court (NAROTTAM KAUSHAL)
on 17.07.2015 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
FIR No. 702/2007 Page 19/19