Delhi District Court
State vs . Raj Kumar Yadav Etc. on 18 February, 2016
IN THE COURT OF Ms. POONAM CHAUDHRY, SPECIAL
JUDGE07 (CENTRAL), (PC ACT CASES OF ACB, GNCTD),
DELHI
State Vs. Raj Kumar Yadav etc.
CC No. 9/15
FIR No. 18/2010
PS. A.C. Branch
U/s. 7/13(1)(d)/13(2) POC Act
18.02.2016
ORDER ON CHARGE
1.Vide this order I proceed to dispose off the arguments on point of charge.
2. The allegations against the accused in the charge sheet are that a complaint alongwith the video CD and transcript was received in the AC Branch through Central Vigilance Commission, Government of India. The complainant Shri Ravinder Kumar Sejwal stated that he had recorded his conversation with the accused in a matter regarding saving his property from demolition. The recordings were made in pen camera which were then transferred from pen camera to a computer and 3 CDs were prepared from the computer. In the sting accused Raj Kumar Yadav, Patwari and Rajbir Singh, Naib Tehsildar, CC No. 9/15, State Vs. Raj Kumar Yadav etc. 1 were seen demanding Rs. 10,000/ and accepting Rs. 7000/ from the complainant. The complainant further stated that accused Raj Kumar Yadav was posted as Patwari and accused Rajbir Singh posted as Naib Tehsildar at the relevant time in DDA and they had demanded Rs. 10,000/ and had accepted Rs. 7000/ from the complainant for not demolishing his house.
3. As per the allegations made in the chargesheet both the accused used to get false complaints lodged regarding illegal construction and then blackmail the owners of the property with demolition of their houses and to demand money to stop the demolition. It is also alleged that both the accused used to threaten persons that in case money was not paid they would bring the demolition order against their property.
4. It is alleged that complainant used to run gym from his property bearing Khasra No. 225, Village Lado Sarai, New Delhi. It is further alleged that on 22.09.09 accused Raj Kumar, Patwari and Rajbir Singh Naib Tehsildar of DDA came to the gym of the complainant and demanded bribe but as complainant was against giving bribe he recorded the conversation between himself and both the accused in a pen camera. In the recorded conversation accused Raj Kumar, Patwari CC No. 9/15, State Vs. Raj Kumar Yadav etc. 2 stated that in order to save his property from demolition the complainant would have to pay Rs. 10,000/ upon which complainant gave Rs. 7000/ to accused Raj Kumar. After receiving the said amount the accused assured the complainant that his property would not be demolished.
5. Ld. Counsel for accused Rajbir Singh contended that as there was no demand or acceptance of bribe by accused Rajbir Singh charge could not be framed against him. It was further contended that accused Rajbir Singh was not present at the time of demand of bribe and acceptance of bribe. To clarify the said contention of Ld. Counsel for accused CD of the sting operation was played in the court which clearly shows the presence of accused Rajbir Singh and accused Raj Kumar at the time of demand and acceptance of bribe money from the complainant.
6. It was further contended by Ld. Counsel for accused Rajbir Singh that the complainant had a grudge against the accused Rajbir Singh as a suit filed by the complainant against DDA was decided against him (complainant).
7. It was further contended that presence of accused Rajbir Singh CC No. 9/15, State Vs. Raj Kumar Yadav etc. 3 was bonafide on the date of alleged incident as he was on duty for demolition drive in the same vicinity in view of the letter of DDA dated 09.09.09 addressed to DCP South for providing police assistance for demolition and the letter of DDA dated 30.08.10 addressed to the IO. However, I am of the view that this is the defence of the accused Rajbir Singh, and he will get an opportunity to prove at appropriate stage.
8. It was further contended by Ld. Counsel for accused Rajbir Singh that entire case is based on electronic evidence. It was also contended that computer from which the CDs were prepared was not seized. The pen camera was seized on 01.07.10 and remained in he custody of different persons. It was further alleged that the FSL report does not states that the CDs were recorded from pen camera. It was also alleged that the IO took the certificate u/s. 65B of the Evidence Act on 05.01.15 from the complainant, who was not authorized to issue the certificate. It was also submitted that the certificate was to be obtained at the time of seizing the electronic record. It was contended that the CD's were thus inadmissible in evidence in view of Section 65B of the Evidence Act. In support of the said contentions reliance was placed on Anvar P.V. Vs. P.K. Basheer & Others, AIR 2015 SC 180, wherein it has been held as under :
CC No. 9/15, State Vs. Raj Kumar Yadav etc. 4
"(A) Evidence Act (1 of 1872), Ss. 59, 65A, 65B, 63, 65 - Electronic records Admissibility
- Secondary evidence of electronic record -
Inadmissible unless requirements of S. 65B are satisfied.
AIR 2005 SC 3820 : 2005 AIR SCW 4148, Overruled.
Proof of electronic record is a special provision introduced under the Evidenced Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete Code in itself. Being a special law, the general law on secondary evidence under Sections 63 and 65 has to yield. An electronic record by way of secondary evidence therefore shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the CC No. 9/15, State Vs. Raj Kumar Yadav etc. 5 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."
9. It was contended on behalf of both accused that in view of the above judgment an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements of Section 65B of the Evidence Act are satisfied. Thus, the CDs had to be accompanied by a certificate u/s. 65B of the Evidence Act obtained at the time of taking the document without which the secondary evidence pertaining to the electronic record is inadmissible. However, it is pertinent to note that in the present case the complainant handed over the three CDs containing audio video recordings in original recorded from pen camera. Thus, as held in Anvar P.V. Vs. P.K. Basheer & Others, (2014), 10 SCC, 473, in case primary evidence is produced by the complainant, the same is admissible in evidence without compliance of Section 65B of the Evidence Act. The CFSL report stated that pen camera had the audio/video recording facility.
CC No. 9/15, State Vs. Raj Kumar Yadav etc. 6
10. Ld. Counsel for accused Rajbir in support of his contention that if the evidence and the material which has been produced by prosecution gives rise to suspicion only in that case accused is liable to be discharged place reliance upon (2008) 10 Supreme Court Cases 394, Yogesh Alias Sachin Jagdish Joshi Vs. State of Maharashtra, wherein it has been held as under:
"A. Criminal Procedure Code; 1973 - Ss. 227, 228 and 209 - Discharge - Scope and ambit of powers of trial court under S. 227 - Held, if two views are equally possible and the Judge is satisfied that evidence produced gives rise to suspicion only, as distinguished from grave suspicion, he would be fully within his right to discharge the accused - At this stage he is not to see whether the trial will end in conviction or not - Words and Phrases - Expression "not sufficient ground for proceeding against the accused" appearing in S. 227, explained."
11. However, I am of the view that at the time of framing of charge the court has to see whether there is complicity of the accused CC No. 9/15, State Vs. Raj Kumar Yadav etc. 7 in the offence which if put during trial could prove him guilty. In this regard it has been held in (2012) 9 Supreme Court Cases 460 Amit Kapoor Vs. Ramesh Chander and Another, as under :
"Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 Cr.P.C, unless the accused is discharged under Section 227 Cr.P.C. Under both Sections 227 and 228 Cr.P.C, the court is required to consider the "record of the case"
and the documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section concerned exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case.
At the initial stage of framing of charge, the court is concerned not with proof but with a strong suspicion that the accused has CC No. 9/15, State Vs. Raj Kumar Yadav etc. 8 committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage.
12. Thus, at the stage of framing of charge it is to be only seen that whether prima facie case is made out against the accused and court is not required to go into the probative value of material on record. The court has only to see whether there is ground for presuming that accused had committed the offence and court is not to evaluate the sufficiency of evidence to convict the accused.
13. On the basis of the material on record, I am of the view that there are grounds for presuming that both the accused committed offences U/s 7/13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988 r/w Section 120B IPC by abusing their official position as public servants by demand and acceptance of illegal gratification. Accordingly, to come up for framing of charge against both accused on 01.03.2016.
Announced in the open court on this 18th day of January, 2016 (Poonam Chaudhry) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi CC No. 9/15, State Vs. Raj Kumar Yadav etc. 9