Delhi District Court
Offence Under The Act. (N.M. Rajendran vs . State Reported As 1995 on 6 July, 2017
-1-
IN THE COURT OF MS.HEMANI MALHOTRA/SPECIAL JUDGE
(PC ACT)(ACB)/CENTRAL05/TIS HAZARI COURTS/DELHI
CC No. : 14/2017
FIR No. : 33/2008
PS : Anti Corruption Branch
Under Sections 384/120B/34 IPC
and 7/13(1)(a)&(d) and 13(2) POC Act
Case ID No. DLCT010007812017
State
Versus
1.D.N. Rana
2. Bhupinder Kumar @ Bhupender Singh
3. Ram Sakal Yadav
4. Chandeshwar Yadav
5. Virender Kaushik (since expired) Date of institution : 16.01.2017 Date of receiving by this Court : 16.01.2017 Date of reservation of Order : 07.06.2017 Date of pronouncement of Order : 06.07.2017 ORDER ON CHARGE
1. Vide this order, I intend to decide the proposition whether sufficient material has been placed on record by the prosecution warranting framing of charges against accused D.N. Rana (MI/Health/NDMC), Bhupinder Kumar @ Bhupender Singh (JC/Water/NDMC), Ram Sakal Yadav and Chandeshwar Yadav (both private persons/Pan wala) under Order on Charge in case FIR No.33/08; PS ACB Page No. 1 of 13 -2- Sections 384/120B/34 IPC and Sections 7/13(1)(a) & (d) of Prevention of Corruption Act (hereinafter referred to as 'PC Act').
2. Briefly stated, facts of the prosecution case are that complainant Shiv Kumar Tiwari gave a written complaint dated 04.09.2008 to Anti Corruption Branch alleging that he is running a small time business of eatables in front of Shop No.105, Baba Kharak Singh Marg. He is regularly harassed by officials of NDMC, Police and Labour to pay them illegal gratification for running his business. Under fear of losing his business, he has been paying almost Rs.25,000/ per month to the aforesaid officials. He also alleged that the other small time shopkeepers in the vicinity are also constrained to pay illegal gratification to these officials and the said illegal gratification was collected by Chandeshwar Yadav and Ram Sakal Yadav who were running a Pan shop. In his complaint, Shiv Kumar Tiwari specifically named Virender Kaushik, Lalit, Kanta Parsad, Naresh Sharma, J.S. Meena, Sidh Gopal, Shiv Dayal, Ashwani, D.N. Rana and Bhupinder Singh (officials of NDMC and Labour), Pratap, Kishore and Bhagirath (police beat staff) as the public servants (NDMC/Labour/Police officials) who were demanding illegal gratification on regular basis from him and the others.
3. It is further the case of the prosecution that on receipt of the complaint, officials of Anti Corruption Branch provided the complainant Shiv Kumar Tiwari with a recording instrument/recorder to conduct a sting operation to trap the corrupt officials. Consequently, complainant made audiovideo recordings from 05.09.2008 to 03.10.2008 and handed over the same to the official of Anti Corruption Branch. Thereafter, on the basis of the complaint of Shiv Kumar Tiwari and the audiovideo recordings, present case FIR No. 33/08 dated 06.10.2008 u/ss 384/120B/34 IPC and Order on Charge in case FIR No.33/08; PS ACB Page No. 2 of 13 -3- 7/13(1)(a)&(d) and 13(2) PC Act was registered. During investigation, SI Karnail Singh prepared 8 CDs from the original recordings and handed over the same to Insp. Ranbir Singh, IO of the present case. Pursuant thereto, public servants i.e. accused D.N. Rana, Bhupinder Kumar @ Bhupender Singh, Virender Kaushik (since expired) and private persons Ram Sakal Yadav and Chandeshwar Yadav and other officials were arrested against whom separate chargesheets based on the same FIR were filed.
4. On completion of investigation, chargesheet was filed on 16.01.2017 and accused D.N. Rana, Bhupinder Kumar @ Bhupender Singh, Ram Sakal Yadav and Chandeshwar Yadav were summoned for 14.02.2017 to face trial. Since accused Virender Kaushik had expired during investigation, proceedings against him stood abated.
5. Lengthy arguments on charge were addressed by learned counsels for accused D.N. Rana, Bhupinder Kumar @ Bhupender Singh, Ram Sakal Yadav and Chandeshwar Yadav and learned Addl.PP for the State.
SANCTION U/S 19 PC ACT
6. During the course of arguments, learned Counsel for accused D.N. Rana and Bhupinder Kumar (both public servants) sought their discharge on many grounds apart from the ground that the sanction orders dated 03.06.2013 according sanction to prosecute both the accused persons were invalid and bad in law.
7. It was very vehemently argued by learned Counsel for accused public servants D.N. Rana and Bhupinder Kumar that at the time of according sanction i.e. 03.06.2013, documents viz. (i) FSL report dated 30.09.2013 Order on Charge in case FIR No.33/08; PS ACB Page No. 3 of 13 -4- regarding voice identification of complainant; (ii) Certificate u/s 65B of Indian Evidence Act dated 25.05.2016 in support of the secondary evidence i.e. the CDs and (iii) Supplementary Statement of complainant recorded on 20.09.2015 were not in existence and hence, not placed before the sanctioning authority. The sanction orders thus do not stand the scrutiny of law and deserve to be declared invalid.
8. Since it is the demand of the legislature u/s 19 of the PC Act that to prosecute a public servant u/ss 7, 10, 11, 13 and 15 of the PC Act, previous sanction which should be necessarily a valid sanction is a prerequisite, it will be in the interest of justice that the sanction orders dt. 03.06.2013 passed by Ms. Archna Arora, Chairperson/Disciplinary Authority, NDMC according sanction to prosecute accused D.N. Rana and Bhupinder Kumar are scrutinised in the light of the arguments of defence.
9. The law regarding according of sanction is well settled and has been reiterated in a catena of decisions. It has been observed time & again by the Hon'ble Supreme Court that according of sanction is not an idle formality but a solemn and sacrosanct act following the consideration of all the materials placed before him not to be guided by extraneous considerations, which alone provides the protection to public servants against frivolous prosecutions and litigations. This requirement of law is necessarily incumbent upon the investigating agency, to be complied with, before launching prosecution against the person accused of the offence under the Act. (N.M. RAJENDRAN VS. STATE reported as 1995 CRL.L.J. 4195).
10.In the judgment of P.L. TATWAL VS. STATE OF MADHYA PRADESH in CRL.
APPEAL NO.456/2014 it was observed by Hon'ble Supreme Court as Order on Charge in case FIR No.33/08; PS ACB Page No. 4 of 13 -5- follows:
"The grant of sanction is only an administrative function. It is intended to protect public servant against frivolous and vexatious litigations. It also ensures that a dishonest officer is brought before law and is tried in accordance with law. Thus, it is a serious exercise of power by the competent authority. It has to be apprised of all the relevant materials, and on such materials, the authority has to take a conscious decision as to whether the facts would reveal the commission of an offence under the relevant provisions. No doubt, an elaborate discussion in that regard in the order is not necessary. But decision making on relevant materials should be reflected in the order and if not, it should be capable of proof before the Court."
11.The fact that the following documents:
(i) FSL report dated 30.09.2013 regarding voice identification of complainant;
(ii) Certificate u/s 65B of Indian Evidence Act dated 25.05.2016 in support of the secondary evidence i.e. the CDs; and
(iii) Supplementary Statement of complainant recorded on 20.09.2015;
were not in existence on 03.06.2013 and hence not placed before the Sanctioning Authority is not a question which requires any debate. Further, from the said facts, it is also thus abundantly clear that the investigation was incomplete when sanction was accorded on 03.06.2013. In such circumstances, entire proceeding stands vitiated as held in RAM KRISHAN PRAJAPATI VS. STATE OF U.P. (2000) 10 SC CASES 43 as under:
"It is unnecessary to go into the other merits of the case as we hold that want of sanction would totally exclude the jurisdiction of the Special Judge under the Act of 1947 from taking cognizance of the offence. In the result we allow this appeal and set aside the impugned judgment and also the conviction and sentence passed on him."
12.In K. NARSIMHACHARI VS. STATE, INSPECTOR OF POLICE ACB CUDDAPHA DISTRICT reported as 2003 CRL.L.J. 3315, it has been held that:
"The requirement of the existence of sanction cannot be given by mere interpretation to the effect that once cognizance is taken the absence of sanction becomes irrelevant. If cognizance itself cannot be taken in the absence of sanction and taking cognizance of an offence by whatever means Order on Charge in case FIR No.33/08; PS ACB Page No. 5 of 13 -6- cannot justify the existence or absence of sanction. In fact as strictly speaking if there does not exist any valid sanction, it cannot be said that the cognizance of offence, was taken by itself, cannot cure the defect in this regard, hence the prosecution of the appellant was vitiated."
13.Taking into consideration the ratio of the aforesaid judgments, I am of the considered opinion that sanction orders dated 03.06.2013 do not stand the scrutiny of law and since the present case has been instituted on the basis of an invalid sanction, I need not go into the merits of the case. The proceedings are therefore, held void ab initio.
14.Resultantly, accused D.N. Rana and Bhupinder Kumar are hereby discharged of the offences under the Prevention of Corruption Act. It is clarified that this order shall not preclude the State from filing fresh chargesheet after obtaining valid sanction from the Competent Authority against accused D.N. Rana and accused Bhupinder Kumar.
15.So far as the private persons namely accused Ram Sakal Yadav and Chandeshwar Prasad are concerned, it is evident that no sanction to prosecute them is required. Hence, it is incumbent upon this Court to analyse the material which has been placed on record to ascertain if the same is sufficient to warrant framing of charge against the private persons.
ELECTRONIC EVIDENCE
16.The prosecution has very strenuously relied upon the audiovideo recordings alleged to have been prepared by the complainant Shiv Kumar Tiwari in the recording devices supplied by Anti Corruption Branch.
17.On a query put to the IO during the course of arguments, it was very Order on Charge in case FIR No.33/08; PS ACB Page No. 6 of 13 -7- candidly informed that no original recording or recording devices were in existence as on date. According to the prosecution, after the original incriminating audiovideo recordings were handed over by complainant Shiv Kumar Tiwari to SI P.V. Mathew, SI P.V. Mathew handed over the same to SI Karnail Singh of Anti Corruption Branch. SI Karnail Singh had thereafter fed the audiovideo recordings in the office computer and prepared 8 CDs (4 original and 4 copies) which were seized by the IO/Insp. Ranbir Singh on 06.10.2008. It is this secondary evidence which is in the shape of CDs along with certificate of SI Karnail Singh u/s 65B of Indian Evidence Act dated 25.05.2016, which is relied upon by the prosecution.
18.Now, the question which needs to be answered is, "if the secondary evidence in the shape of CDs allegedly containing incriminating audio video recordings sans the original recordings admissible in evidence or not?"
19.As per the law settled so far, it is necessary that in every case involving electronic evidence, the recording device viz., camera/spy camera/audio/video recorder/mobile phone etc. used to store/process the evidence and original storing device viz., DVR/cassette/memory card etc., wherein such evidence/record has been stored, both are subjected to opinion of a notified cyber expert about its genuineness. In absence of which, the authenticity of electronic record cannot be established. This further implies that even a legally valid certificate u/s 65B Evidence Act will not be enough to invoke judicial confidence in absence of expert opinion about the genuineness of primary electronic record. Meaning thereby, in the absence of the original storing device and the recording device, a valid certificate u/s 65B along with secondary electronic Order on Charge in case FIR No.33/08; PS ACB Page No. 7 of 13 -8- evidence is not an admissible piece of evidence.
20.In the judgment of KUNDAN SINGH VS. STATE decided by Hon'ble Mr. Justice Sanjiv Khanna and Hon'ble Mr. Justice R.K. Gauba, reported as I (2016) DLT (CRL.) 144 DB, it has been observed as follows:
".......However, it must be understood that mere admission or admissibility of the electronic record would not mean that the contents of the electronic record have been proved beyond doubt and debate and are automatically proved when the document is marked exhibit. Mere marking of a document as exhibit does not dispense with the proof of its contents (see Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1856, Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745 and Mohd. Yusuf v. D., AIR 1968 BOMBAY 112). Provisions of Section 65 of Evidence Act are apposite on the said legal principle and reference can also be made to Sections 91 and 92 of the Evidence Act. The latter sections deal with exclusion of oral evidence by documentary evidence in certain cases and in which cases oral evidence can be led even when there are documents recording terms of contract, grant or any other disposition of property or when a matter is required by law to be reduced to a form of a document. The effect of the aforesaid provisions is that when a certificate under Section 65B authenticates the computer output, it will only show and establish that the computer output is the paper print out or media copy, etc. of the computer from which the output is obtained. The court has still to rule out when challanged or otherwise, the possibility of tampering interpolation or changes from the date the record was first stored or created in the computer till the computer output is obtained. The focus over here is not so much on the creation of the output as stipulated under subsection (2) to Section 65B, but rather on the preservation and sanctity of the record after it was originally created. It extends beyond identification of the particular computer equipment and the process or equipment used for computer output, etc. It would relate to the policies, procedures for use of the equipment that stored the said information since creation and data base and integrity of the same. Questions which would arise and have to be answered is whether data base was protected and had no or limited access, which permits modification/ alteration; whether the data base could be wrongly lodged or created or could be transferred or changed when the data base was transferred and stored in the backup systems. These are questions which are pertinent and have to be examined to ascertain whether or not there was possibility of change, alteration or manipulation in the initial or original data after it was created. The courts must rule out that the records have not been tampered and read the data or information as it originally existed. These are aspects which are not codified as such, for probative value is examined on the case to case basis keeping in mind the relevant facts."
21.Therefore, in view of the settled law qua the electronic evidence, the only inevitable conclusion which can be arrived at is that the CDs in the Order on Charge in case FIR No.33/08; PS ACB Page No. 8 of 13 -9- present case in the absence of primary evidence/original recordings are inadmissible in law and therefore, cannot be looked into even at the stage of framing of charge.
STATEMENTS OF THE COMPLAINANT
22.The perusal of the material placed on record by the prosecution reveals that during the course of investigation, several statements of complainant Shiv Kumar Tiwari were recorded u/s 161 Cr.P.C. The first statement which is heavily relied upon by the learned Addl.PP for the State is an undated statement of Shiv Kumar Tiwari. The bare reading of the said statement reflects that he gave a complaint to Anti Corruption Branch on 04.09.2008, whereafter, he conducted sting operation through audio video recorder supplied to him by Anti Corruption Branch on several dates i.e. 05.09.2008, 08.09.2008, 10.09.2008, 27.09.2008 and 03.10.2008 of the incriminating conversations between him and the accused persons and other officials of NDMC, Labour and Police. The undated statement however, reveals that no allegations of demand and acceptance of illegal gratification were made in this statement.
23.In the next statement dated 22.02.2013 relied upon by the prosecution, the complainant Shiv Kumar Tiwari interse contradicted his undated statement regarding the mode of recording and stated that he had made the audiovideo recordings in the recording device supplied to him by ACB by switching on the speaker mode of his mobile phone and that the said mobile phone had got lost. Thus, from his statement dated 22.02.2013, it is not clear if the complainant had made the recordings by meeting the officials or he had made recordings while speaking to them telephonically.
Order on Charge in case FIR No.33/08; PS ACB Page No. 9 of 13 -10-
24.The third statement of the complainant is dated 20.09.2015 which reflects that the complainant has materially improved upon his previous statement and has stated that sting operation was also conducted on 11.09.2009, 24.09.2008 and 26.09.2008 apart from the dates i.e. 05.09.2008, 08.09.2008, 10.09.2008, 27.09.2008 and 03.10.2008. It was only in this supplementary statement dated 20.09.2015 that the complainant made specific allegations of demand and acceptance of illegal gratification by the accused persons and other officials of NDMC, Police and Labour. In the said statement, it was also stated by him that at about 11.15 am on 26.09.2008, the complainant with the recording device provided by SI P.V. Mathew, went near his shop where he made recording of his conversation with accused/Insp. D.N. Rana, Insp. Virender Kaushik (since expired), Pan wala, accused Bhupender Singh and some shopkeepers, wherein all the aforesaid persons in conspiracy with each other had demanded Rs.5,000/ from him, which on demand was given by him. It is pertinent to mention here that the complainant did not specifically name accused Chandeshwar Yadav and Ram Sakal Yadav (although they were already known to him) as the private persons who had demanded Rs.5,000/ from him in consortium with the other named persons. Otherwise also, the statement dated 20.09.2015 which gives the particulars of demand and acceptance of illegal gratification of Rs.5,000/ by unnamed Pan walas and other accused persons was recorded after seven years of the alleged incident. This in my opinion was recorded only to fill up the lacunae in the previous statements of the complainant which did not incriminate the accused persons in any manner.
25.The law regarding the material to be considered for framing of charge has been reiterated in a catena of decisions rendered by the Hon'ble Supreme Order on Charge in case FIR No.33/08; PS ACB Page No. 10 of 13 -11- Court as well as the Hon'ble High Courts. In the landmark judgment of Sajjan Kumar and Ors. Vs. Central Bureau of Investigation decided on 20th September 2010, judgments of Union of India Vs. Prafulla Kumar Samal & Anr. reported as (1979) 3 SCC IV and Dilawar Balu Kurane Vs. State of Maharashtra reported as (2002) 2 SCC 135 in reference to framing of charge were discussed by the Hon'ble Supreme Court and it was observed as under:
"On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principle emerged:
(1) The Judge while considering the question of framing of charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(2) Where the materials placed before the Court disclosed grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(4) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(5) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing of charge, the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(6) At the stage of Sections 227 and 228, the court is required to evaluate the materials and evidence on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to commonsense or the broad probabilities of the case.
(7) If two view are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial court will be empowered to Order on Charge in case FIR No.33/08; PS ACB Page No. 11 of 13 -12- discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."
(emphasis supplied)
26.From the bare reading of the aforesaid decision(s) of the Hon'ble Supreme Court, it is thus more than manifestly clear that to frame charges against accused not just mere suspicion but existence of grave suspicion is an essential prerequisite. In a judgment of the Hon'ble High Court of Delhi relied upon by the learned Counsel for the accused titled as Shri Sukhram Vs. CBI reported as 2001(1) CC cases (HC) 398, the Hon'ble High Court in respect of Practice and Procedure regarding framing of charges observed that: "While sifting the material put up for the purposes of framing of charges, the Courts, should desist from approaching the subject with suspicion and with a negative attitude. A court is required to examine the material without any preconceived notion, positively and objectively. The material placed before it must speak for itself giving rise to grave suspicion. No presumption can be drawn unless there is cause to do so based on the material being examined.
I do not find any material to support the charges framed. A Court is bound by the material placed before it and not what is in the mind of the prosecution. Over the time Supreme Court has made us wise on how to deal with these matters. In Satish Mehra Vs. Delhi Administration and another (1996) 9 SCC 766 the Supreme Court has elaborately dealt with what the Courts should take into consideration while framing charge. If two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. Valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. I am certain that the trial would only be an exercise in futility or a sheer waste of time. I, therefore, find it a fit case to turncate the proceedings at this stage."
27.Considering the fact that there is no mention of demand of illegal gratification in the first undated statement of the complainant which was recorded immediately after the alleged incident of demand and acceptance and the subsequent statements of complainant on the record, only a mere suspicion and not a strong suspicion is raised against the Order on Charge in case FIR No.33/08; PS ACB Page No. 12 of 13 -13- accused Chandeshwar Yadav and Ram Sakal Yadav (both private persons) which in my opinion, is insufficient to frame charge against them.
28.Resultantly, accused Chandeshwar Yadav and Ram Sakal Yadav are hereby discharged.
File be consigned to Record Room.
Announced in the open Court on 6th July, 2017 (Hemani Malhotra) Spl.Judge/PC Act/ACB/C Tis Hazari Courts/Delhi Order on Charge in case FIR No.33/08; PS ACB Page No. 13 of 13