Delhi District Court
2 vs K.G. Tyagi Etc. Page 2 Of 22 on 2 March, 2017
1
IN THE COURT OF MS.HEMANI MALHOTRA/SPECIAL JUDGE
(PC ACT)(ACB)/CENTRAL05/TIS HAZARI COURTS/DELHI
CC NO: 18/2010
FIR NO: 34/2008
PS Anti Corruption Branch
Under Sections 7/8/13(1)(d) of PC Act
and Sections 388/389/384 r/w 120B IPC
STATE
Versus
1. Krishan Gopal Tyagi (K.G. Tyagi)
S/o late D.P. Tyagi
2. Mukesh Kumar Singh S/o Ravinder Singh
3. Rajbir Singh S/o Hoshiyar Singh
4. Ravinder Chadha S/o C.L. Chadha
Date of institution : 01.04.2009
Date of receiving by this Court : 21.11.2015
Date of reservation of Order : 17.02.2017
Date of pronouncement of Order : 02.03.2017
ORDER
1. Accused Krishan Gopal Tyagi, Mukesh Kumar Singh, Rajbir Singh and Ravinder Chadha have been chargesheeted for commission of offences under Sections 7/8/13(1)(a)(d), 13(2) of Prevention of Corruption Act (hereinafter referred to as 'PC Act') and Sections 384/120B/34 IPC. During the course of arguments on charge, the facts which emerged are as follows:
FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 1 of 222
2. The instant case i.e. FIR No.34/08 was registered at PS Anti Corruption Branch, GNCT of Delhi u/ss 7/8/13(1)(d) of POC Act r/w Secs.384/120B/34 IPC on a complaint made by Abhinav Krishan Aggarwal alleging that Insp. K.G. Tyagi of Crime Branch Delhi Police is running a racket of extortion along with his associates including one Advocate Ravindra Chadha and that he was forced to succumb to his extortion demand. Accordingly, he gave Rs.27 lakhs which were collected through his conduits and associate Ravindra Chadha. It was further alleged that one Vijay Singh Yadav @ Vijji was a notified bad character of PS Hauz Qazi and was murdered on 29.09.2007 near his office, which falls in the same area. The information of this incident was given by his father/applicant to the police control room. The local police during investigation made some enquiries from him as well as his father/applicant but the case was transferred to the Crime Branch, Chanakya Puri, New Delhi. Thereafter, Insp. K.G. Tyagi of Crime Branch called him and his father/applicant Gopal Krishan Aggarwal several times to the police station and finally detained his father on 06.12.2007. On 07.12.2007, when he met accused No.1/ Insp. K.G. Tyagi and requested for the release of his father/applicant, he demanded bribe of Rs.8 lakhs which was delivered to him on 08.12.2007. Despite the receipt of extortion money of Rs.8 lakhs, accused No.1/ Insp. K.G. Tyagi arrested his father/applicant. When he went to enquire from him, Insp. K.G. Tyagi told him to engage accused No.4/ Advocate Ravindra Chadha as his counsel, who also demanded Rs.2 lakhs from him which was also paid. Thereafter, modus operandi of an unending and systematic extortion was adopted by accused No.1/ Insp. K.G. Tyagi through accused No.4/Ravindra Chadha, Advocate. He then secretly FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 2 of 22 3 started audiovideo recording of the conversation and demands of accused No.1/ Insp. K.G. Tyagi and accused No.4/Ravindra Chadha, Advocate. It was also alleged that accused No.2/SI Mukesh and accused No.3/ASI Rajbir Singh attached to accused No.1/Insp. K.G. Tyagi also used to contact him telephonically and meet him frequently and on various occasions, tried to mediate the issue of bribe to be given to accused No.1/ Insp. K.G. Tyagi. In this manner, accused No.1 and 4 extorted Rs.2627 lakhs from him. During investigation, accused No.1/ Insp. K.G. Tyagi was arrested on 17.10.2008. However, since the chargesheet could not be filed within the stipulated period of 60 days i.e. by 16.12.2008 accused No.1 was granted bail as mandated by provisions of Sec. 167(2)(ii) Cr.P.C. After investigation, chargesheet was filed u/ss 7/8/13(1)(a)(d) r/w Sec. 13(2) PC Act and Secs. 384/120B/34 IPC.
3. After filing of the chargesheet, the then Learned Predecessor of this Court took cognizance of offences u/ss 7/13(1)(d) PC Act vide order dated 22.04.2009 which on an application moved by accused Ravinder Chadha were revisited and accordingly, the Learned Predecessor vide order dated 19.07.2010 took cognizance of offences u/ss 7/8/13(1)(d) r/w Sec. 13(2) PC Act and Sec.384/120B/34 IPC. Subsequently, on an application moved by the accused persons, vide order dated 30.07.2012 the then learned Predecessor of this Court held the Sanction for prosecution to be invalid and discharged the applicants for the offences u/s 7/13(1)(d) PC Act and listed the matter for consideration on the point of charge w.r.t. offences under Sec. 8 PC Act which does not require sanction and Sec. 384/34 IPC r/w Sec. 120B IPC.
FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 3 of 224
4. Subsequently, vide order dated 18.05.2013, the learned Predecessor directed framing of charge against all the accused persons u/s 384 IPC r/w Sec. 120B IPC, u/s 8 PC Act against all the accused except Insp. K.G. Tyagi. The learned Predecessor also framed charge u/ss 388/389 IPC against accused K.G. Tyagi and started conducting trial qua them. In the meantime, accused Ravinder Chadha (Advocate/private person) challenged the order dated 18.05.2013 vide SLP before the Hon'ble Supreme Court and as per the directions of Hon'ble Supreme Court, proceedings in the case qua accused Ravinder Chadha were directed to be stayed till further orders. In compliance of the order of Hon'ble Supreme Court, the Learned Predecessor stayed the entire trial as proceedings qua accused Ravinder Chadha could not be segregated.
5. Since the Sanction dated 09.02.2009 qua offences u/s 7/13(1)(a)(d) PC Act w.r.t. the applicants/public servants was held to be invalid, the prosecution obtained fresh sanction dated 18.07.2014 u/s 19 PC Act against the three public servants accused in relation to the aforesaid offences and filed supplementary chargesheet dated 18.09.2014.
6. It is also pertinent to note that the order dated 18.05.2013 was also challenged by the accused public servants before the Hon'ble High Court of Delhi vide W.P. (Crl.) No.1240/2013. Vide order dated 26.07.2016, the Hon'ble High Court of Delhi remanded the matter back to this Court to hear the arguments afresh on the question of framing of charge.
7. The accused persons also moved separate applications u/s 19 of the POC Act bringing on record objections to the Sanction Order dated 18.07.2014.
FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 4 of 225
8. Lengthy arguments on charge as well as applications were addressed by learned Senior Counsel Sh. Hariharan for accused K.G. Tyagi, Sh. Riyaz A. Bhatt for accused Mukesh Kumar Singh and Sh.Anupam Sharma for accused Rajbir Singh on the one hand on several dates. Sh. Atul Kumar Shrivastava, learned Addl.PP for the State also made his submissions.
SANCTION U/S 19 PC ACT
9. The fresh sanction dated 18.07.2014 accorded by Sh.Ashok Chand (IPS), Addl. Commissioner of Police, Delhi has been challenged primarily on two counts:
a) That the said sanction has not been granted in accordance with law but at the dictate of Sh.Narottam Kaushal, learned Predecessor of this Court and at the command of Chief Secretary, GNCT of Delhi;
b) That the entire relevant material was not placed before the Sanctioning Authority and therefore, the sanction dated 18.07.2014 was without application of mind and a replica of the previous sanction order dated 09.02.2009.
10.Needless to say, the learned counsels for the accused persons relied upon a plethora of judgments to substantiate their arguments.
11.To show that the sanction dated 18.07.2014 was a result of dictate and nonapplication of mind, reliance was placed upon the proceeding sheets authored by Sh.Narottam Kaushal, learned Predecessor of this Court and correspondence between the office of ACB, Directorate of Vigilance and Office of Commissioner of Police. It was very vehemently argued by learned Counsels for the accused persons that after the order FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 5 of 22 6 dated 30.07.2012 passed by Hon'ble Ms. Justice Sangita Dhingra Sehgal, the then learned Special Judge and Predecessor of this Court, the Director of Prosecution vide communication dated 30.08.2012 was of the opinion that this case was not fit for appeal/ revision for various reasons and thus, the prosecution was of the opinion that seeking fresh sanction against the accused persons would be a exercise in futility. It was only at the instance of Sh. Narottam Kaushal, the then learned Special Judge, that status report was sought from Addl. Commissioner, PS ACB w.r.t. the fresh sanction u/s 19 PC Act that the procedure for obtaining fresh sanction was initiated. Sh.Narottam Kaushal, according to the learned Counsels, directed the Addl. Commissioner, PS ACB to apply for fresh sanction from the Sanctioning Authority and so it was at the behest of Learned Predecessor of this Court that he initiated the procedure for obtaining fresh prosecution sanction. As there was no formal request from Anti Corruption Branch, Dy.Commissioner of Police/Vigilance sought a formal request from Anti Corruption Branch for issue of fresh sanction against the accused/applicants. Thereafter, many communications were exchanged between the Anti Corruption Branch, Dy.Commissioner of Police/Vigilance and Joint Commissioner of Police/Crime w.r.t. the issue of sanction. Eventually, vide communication dated 31.07.2013, Anti Corruption Branch requested the Addl.Commissioner of Police/Crime Branch for fresh sanction for prosecution and enclosed the copies of all relied upon documents. Thereafter, the Sanctioning Authority vide a number of communications requested Anti Corruption Branch to provide additional documents which were relevant for according sanction. As the incriminating audio video recording of conversations between the complainant and accused persons were transferred into two DVDs, the Sanctioning Authority FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 6 of 22 7 insisted that it be supplied with the DVDs to proceed further in the matter. However, despite the directions of the Sanctioning Authority, the DVDs were not supplied. Rather, it was informed by Anti Corruption Branch vide communication dated 09.07.2014 that "DVDs are seized and deposited in the Malkhana of PS Civil Lines. Copies of DVDs are not available in this office. However, the certified copy of transcription i.e. contents of DVDs already provided to your office. At this stage, copies of DVDs cannot be provided." It was argued that despite the demand of DVDs by the Sanctioning Authority, same was not supplied and instead this, authority was commanded by Director of Vigilance vide communication dated 14.07.2014 stating that:
"It has been reported by Addl.CP, AntiCorruption Branch that the requisite prosecution sanction(s) is/are still awaited from your Department/Organization. The Chief Secretary, being CVO of Govt. of NCT of Delhi has expressed serious concern about the delay of grant of prosecution sanction.
In this connection, kindly refer to the decision of Hon'ble Supreme Court in the case of Vineet Narain, in which it was directed that the competent authority has to convey the decision regarding grant of prosecution sanction within a period of three months. You are, therefore, requested to kindly take appropriate action in the matter of grant of prosecution sanction in respect of above mentioned officials(s) immediately, and furnish the action taken report to this Directorate within 15 days, so that Chief Secretary could be apprised of the position."
It was vehemently argued that it was consequent upon receipt of this communication dated 14.07.2014, that the Sanctioning Authority Sh.Ashok Chand (IPS), Addl. Commissioner of Police accorded fresh sanction dated 18.07.2014 without taking into consideration the relevant material (DVD).
12.To buttress their arguments, learned counsels for the accused cited following judgments of Hon'ble Supreme Court and Hon'ble High Court:
FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 7 of 228
1. P.L. Tatwal Vs. State of Madhya Pradesh; Crl. Appeal No.456 of 2014
2. Mansukhlal Vithaldas Chauhan Vs. State of Gujarat decided on 03.09.1997
3. Gokulchand Dwarkadas orarka Vs. The King, AIR (35) 1948 PC82
4. Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke and others; Crl.Appeal No. 97 of 2015
5. C.K. Sathianathan Vs. CBI; WP(C) No.1329 of 2010
6. M.S. Vijayakumar Vs. The Chairman and Managing Director/Indian Overseas Bank; W.A. No. 69 of 2010
7. Dr. Jaswinder Kaur Vs. State of Punjab and Anr decided on
13.02.2001
8. Sunil Vs. State of Maharashtra, 2006(3) ALL MR (Cri) 3085
9. State of Kerala Vs. Sudhir; 2003(2) RCR (Criminal) 454
10. State of Rajasthan Vs. Ashok Anand and Ors, 2001 W.L.C. 11
11. Ram Chandra Rath Vs. State of Orissa, Cri. Rev. No.915 of 2010
12. Prabhulal Gaur Vs. State of Rajsthan, 2000(1) Crimes 56 However, special reliance was placed upon one of the most celebrated judgments of Hon'ble Supreme Court titled as MANSUKHLAL VITTHALDAS CHAUHAN VS. STATE OF GUJARAT reported as AIR 1997 SC 3400 wherein, it was observed as under:
"19. Since the validity of 'Sanction' depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."
13.Taking into consideration the first communication referred to by learned Counsel for the accused, there is no doubt that the Director of FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 8 of 22 9 Prosecution was of the opinion that this case is not fit for appeal/revision. However, to my mind, the words "this case is not fit for appeal/revision" has been wrongly interpreted by the learned counsels for the accused persons. Admittedly, there is no explanation on the record regarding the context in which the words in Question were used. According to me, the Director of Prosecution simply opined that the order dated 30.07.2012 passed by the then learned Special Judge, was not fit for appeal/revision as admittedly, all the relevant documents had not been placed before the Sanctioning Authority. So far as the alleged dictate by Sh. Narottam Kaushal, learned Predecessor of this Court is concerned, he was merely asking for the status report qua fresh sanction which cannot to my mind be termed as a mandamus or a dictate. The same is evident from the proceeding sheet dated 15.07.2013 of the learned Predecessor wherein he has specifically recorded, "Sh. Dwivedi (Addl. Commissioner) submits that a reminder shall be issued to the Special Commissioner, on this aspect requesting him to take a decision for grant or refusal of sanction within 15 days from today." The direction to file status report was only to know if the Sanctioning Authority had decided to refuse or grant sanction. It is pertinent to mention here that it was only when the learned Predecessor of this Court called for the status report that the Dy.Commissioner of Police/Vigilance and Anti Corruption Branch woke up from their deep slumber and started acting upon question of the issuance of fresh sanction. Considering the nature of case FIR No.34/08, the Court could not have ignored the fact that vide order dated 30.07.2012 the investigating agency was granted liberty to file a fresh chargesheet after getting fresh sanction and thus, called for status report. Similarly, the communication dated 14.07.2014 vide which Sh.Kailash Chandra, Secretary/Directorate of Vigilance FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 9 of 22 10 expressed his serious concern about the delay in grant of prosecution sanction reflects that he wanted strict compliance of the decision of Hon'ble Supreme Court rendered in the case of Vineet Narain as per which Sanctioning Authority is bound to convey its decision regarding grant or refusal of sanction for prosecution within a period of 3 months.
14.In view of the aforesaid circumstances, I find myself unable to agree with the arguments of learned Counsels for accused persons that fresh sanction dated 18.07.2014 was accorded on dictation of the learned Predecessor of this Court and/or Sh. Kailash Chandra, Secretary/Directorate of Vigilance.
15.Secondly, it was argued that since all the relevant material especially the copies of DVDs which is the foundation of the case were not provided to the Sanctioning Authority, the Sanction Order dated 18.07.2014 cannot stand the scrutiny of law.
16.No doubt, the grant of sanction as held in catena of judgments is a serious exercise of power by the competent authority and that 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. As held in the case titled as P.L. TATWAL VS. STATE OF MADHYA PRADESH (CRL. APPEAL NO.456 OF 2015) decided by Hon'ble Supreme Court of India on 19.02.2014, which is also relied upon by the accused persons elaborate discussion in this regard is not necessary. Decision making on relevant materials should be reflected in the order and if not, it should be capable of proof before the court.
FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 10 of 2211
17.The Sanction Order dated 18.07.2014, in my opinion, reflects that the Sanctioning Authority after carefully and fully examining the material i.e. FIR, Memos, Statement of witnesses, CFSL report, transcriptions and other documents collected during investigation considered the accused persons liable for prosecution. He also categorically considered the report of Andhra Pradesh FSL as per which it was opined that the contents of the DVDs were continuous and were not tampered with.
18.In the Tatwal's judgment cited above, the Hon'ble Supreme Court referred to case titled as STATE OF MAHARASHTRA THROUGH CBI VS. MAHESH G.JAIN (2013) 8 SCC 119 wherein seven principles qua the parameters of sanction were culled out which are as follows:
"14.1 It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. 14.2 The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3 The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4 Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence. 14.5 The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6 If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7 The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity."
19.Admittedly, no further investigation or material was collected by Anti FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 11 of 22 12 Corruption Branch after grant of sanction dated 14.07.2014. Therefore, assuming that adequate material was not placed before the Sanctioning Authority, in view of the principle laid down by the Hon'ble Supreme Court in the case of MAHESH G.JAIN (SUPRA), the adequacy of material placed before the Sanctioning Authority cannot be gone into by the court as it does not sit in appeal over the sanction order. Also, as held in STATE OF BIHAR AND OTHERS VS. RAJMANGAL RAM decided on 31.03.2014 in CRL. APPEAL NO.708 OF 2014 by the Hon'ble Supreme Court; a more appropriate stage for reaching the conclusion that the sanction order was passed mechanically and without consideration of the relevant facts on record would be only after evidence has been led on the issue in question.
20.In view of the aforesaid discussion, I am of the considered opinion that valid sanction u/s 19 of PC Act has been granted by the Sanctioning Authority for prosecution of the delinquent police officials.
Sanction U/s 197 Cr.P.C.
21.It was also argued by learned counsels for accused K.G. Tyagi, Mukesh Kumar Singh and Rajbir Singh that since the accused persons at the relevant time were discharging official duty, therefore, by virtue of Section 197 of Cr.P.C., sanction was also required to be obtained under the said provision. Also that, in the absence of the mandatory requirement of sanction u/s 197 Cr.P.C., charge u/s 384/120B/34 IPC against accused persons must fail. This argument also deserves to be rejected as use of expression "Official Duty" implies that the act or omission must have been done by the public servant in the course of his FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 12 of 22 13 service and that it should have been in discharge of his duty.
22.In a recent judgment of Hon'ble Supreme Court titled as SURINDERJIT SINGH MAND & ANR. VS. STATE OF PUNJAB & ANR. decided on 5th July, 2016 in CRL. APPEAL NO. 565 OF 2016, the Hon'ble Supreme Court has dealt with the applicability of Section 197 Cr.P.C. in detail. In the aforecited judgment, the Hon'ble Supreme Court also referred to the judgment of R. BALAKRISHNA PILLAI VS. STATE OF KERALA, (1996) 1 SCC 478 wherein it was observed as under:
"The next question is whether the offence alleged against the appellant can be said to have been committed by him while acting or purporting to act in the discharge of his official duty. It was contended by the learned counsel for the State that the charge of conspiracy would not attract Section 197 of the Code for the simple reason that it is no part of the duty of a Minister while discharging his official duties to enter into a criminal conspiracy. In support of his contention, he placed strong reliance on the decision of this Court in Harihar Prasad v. State of Bihar, (1972) 3 SCC 89. He drew our attention to the observations in paragraph 74 of the judgment where the Court, while considering the question whether the acts complained of were directly concerned with the official duties of the public servants concerned, observed that it was no duty of a public servant to enter into a criminal conspiracy and hence want of sanction under Section 197 of the Code was no bar to the prosecution. The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the public servant concerned would depend on the facts of each case. There can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant in or out of office the bar of Section 197(1) of the Code would have no application. Such a view would render Section 197(1) of the Code specious. Therefore, the question would have to be examined in the facts of each case. The observations were made by the Court in the special facts of that case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted. It must also be remembered that the said decision was rendered keeping in view Section 197(1), as it then stood, but we do not base our decision on that distinction. Our attention was next invited to a threeJudge decision in B. Saha v. M.S. Kochar, (1979) 4 SCC 177. The relevant observations relied upon are to be found in paragraph 17 of the judgment. It is pointed out that the words "any offence alleged to have been committed by him while acting or purporting to act in FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 13 of 22 14 the discharge of his official duty" employed Section 197(1) of the code, are capable of both a narrow and a wide interpretation but their Lordships pointed out that if they were construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be".
At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed. The right approach, it was pointed out, was to see that the meaning of this expression lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important, and if it falls within the scope of the aforequoted words, the protection of Section 197 will have to be extended to the public servant concerned. This decision, therefore, points out what approach the Court should adopt while construing Section 197(1) of the Code and its application to the facts of the case on hand."(Emphasis supplied) The Hon'ble Supreme Court in SURINDERJIT SINGH MAND (SUPRA) also referred to the judgment of P.K. PRADHAN VS. STATE OF SIKKIM, (2001) 6 SCC 704 wherein it was observed as following:
"The legislative mandate engrafted in sub section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government, touches the jurisdiction of the court itself. It is a prohibition imposed by the Statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code, "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty." The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 14 of 22 15 the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of situation.
xxx xxx xxx Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required."(Emphasis supplied)
23.Applying the tests laid down above to the facts of the present case, it is more than evident that the acts of accused persons attracting the offences under Sections 384/120B/34 IPC were neither integrally connected with nor attached to the discharge of the official duties of the accused persons.
24.Therefore, I am of the view that no sanction as mandated u/s 197 Cr.P.C. was required in the instant case.
Admissibility of Electronic Evidence
25.The second limb of arguments of learned counsels for accused persons pertained to the electronic evidence provided by the complainant Abhinav Krishan Aggarwal on 16.10.2008 to H.P.S. Sodhi, the then ACP/ACB Delhi in the shape of two DVDs containing audiovideo recordings. It was very strenuously argued by learned counsels for accused persons that the only basis for supporting the allegations against the accused persons is the conversation that is said to have been recorded by the complainant Abhinav Krishan Aggarwal with the help of FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 15 of 22 16
(i) MP3 player, (ii) Pen camera and (iii) Mobile phone Nokia E90. Since none of these devices were handed over to Anti Corruption Branch and consequently were not subjected to analysis, the secondary evidence in the shape of DVDs in the absence of certificate u/s 65B of Indian Evidence Act is inadmissible.
26.It is not in dispute that the complainant in his statement u/s 161 Cr.P.C.
had categorically stated that the original instruments (MP3 player, Pen camera, Mobile phone Nokia E90) which were used to record the audio video of the conversations were not handed over by him to Anti Corruption Branch as the same had been either destroyed or returned. He had also stated that the entire data relating to sting operation was transferred by him in the CDs which he has handed over to ACB. It is also the admitted case of the prosecution that no certificate u/s 65B of Indian Evidence Act was given by the complainant at the time of handing over the said CDs.
27.The law regarding the admissibility of electronic evidence has been laid down in the celebrated judgment of ANWAR P.V. VS. P.K. BASHEER reported as (2014) 10 SCC 473 wherein it has been held by the Hon'ble Supreme Court that:
"The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 16 of 22 17 record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. 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."
28.The only inevitable conclusion qua the electronic evidence produced by the complainant which can thus be arrived at is that the same is inadmissible in law and cannot be looked into even at the stage of framing of charge.
Disciplinary Enquiry
29.The next limb of argument which was adopted by learned counsels for the accused persons was that the accused persons have already been exonerated in Departmental proceedings and hence, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue as higher standard of proof in criminal cases is required. In support of their arguments, the learned counsels for the accused persons relied upon the judgment of RADHEYSHYAM KEJRIWAL VS. STATE OF WEST BENGAL & ANR. decided on 18.02.2011 by the Hon'ble Supreme Court of India in CRL. APPEAL NO.1097 OF 2003 and K. NAGESHWAR RAO VS. DELHI ESTABLISHMENT POLICE decided on 19.03.2015 in CRL. APPEAL NO. 1918 OF 2011 which are the judgments rendered by two Judges Bench.
30.I am afraid there is no force in the contention of the learned Counsels for the accused persons as in STATE OF NCT OF DELHI VS. AJAY KUMAR TYAGI decided by three Judges Bench of Hon'ble Supreme Court on 31.08.2012 in CRL. APPEAL NO.1334 OF 2012, it has been held that:
FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 17 of 2218 "We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result into quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further, they are not in the same hierarchy."
In the aforesaid judgment of AJAY KUMAR TYAGI (SUPRA) the Hon'ble Supreme Court had also relied upon the judgment of CENTRAL BUREAU OF INVESTIGATION VS. V.K. BHUTIANI reported as (2009) 10 SCC 674 wherein it was held as under:
"In our opinion, the reliance of the High Court on the ruling of P.S. Rajya was totally uncalled for as the factual situation in that case was entirely different than the one prevalent here in this case. Therefore, in our opinion, the High Court quashed the prosecution on total misreading of the judgment in the case of P.S. Rajya (Supra). In fact, there are precedents, to which we have referred to above speak eloquently a contrary view i.e. exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view commends us. It is well settled that the standard of proof in department proceeding is lower than that of criminal prosecution.
It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced herein and the criminal case cannot be rejected on the basis of the evidence in the departmental proceeding or the report of the Inquiry Officer based on those evidence."
31.In the said facts and circumstances, exoneration of the accused persons in departmental proceedings are of no consequence and the same does not stand in the way to proceed with the criminal trial.
Facts of the Case
32.Now adverting to the complaint filed by Abhinav Krishan Aggarwal and FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 18 of 22 19 the evidence collected during the investigation sans the electronic evidence and the transcriptions; the only allegation against accused SI Mukesh and ASI Rajbir Singh as per the complaint are that they used to contact the complainant telephonically and meet him frequently. Also, that they even tried to mediate the issue of bribe already given to Insp. K.G. Tyagi. The material placed on record reflects that except for this bald allegation against SI Mukesh and ASI Rajbir Singh, neither the complainant provided their mobile/telephone numbers nor any call detail record was collected by the IO to substantiate these allegations. The allegation; "They even tried to mediate the issue of bribe already given to Insp. K.G. Tyagi" is extremely vague and nonexplanatory. No elaboration was given by the complainant so as to infer commission of any offence by them under Prevention of Corruption Act or the provisions of IPC.
33.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 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 FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 19 of 22 20 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 discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."
(emphasis supplied)
34.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 case 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 FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 20 of 22 21 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 truncate the proceedings at this stage."
35.Qua accused SI Mukesh and ASI Rajbir Singh, therefore, I am of the view that there is no material on the record from which they can be suspected of committing any offence, leave alone existence of strong suspicion. Hence, both accused persons are hereby discharged.
36.With respect to accused K.G. Tyagi, it was very specifically alleged by the complainant that accused K.G. Tyagi had extorted an amount of Rs.2627 lakhs from him. Out of which Rs.8 lakhs were extorted directly from him on 08.12.2007 and the remaining amount was extorted through accused Advocate Ravinder Chadha (private person). According to the allegations of the complainant, accused K.G. Tyagi had asked him to deliver the said money at his residence at Shahdara, however, after arranging Rs.8 lakhs when the complainant went to the residence of accused K.G. Tyagi, he was informed that Insp. K.G. Tyagi FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 21 of 22 22 was at City Hospital, Pusa Road where his brotherinlaw was admitted. Consequently, he delivered the amount of Rs.8 lakhs to accused K.G. Tyagi at City Hospital, Karol Bagh. The allegations of the complainant regarding the said extortion of Rs.8 lakhs on 08.12.2007 are prima facie supported by the call detail records of accused K.G. Tyagi and the complainant which reveal that at the relevant time accused K.G. Tyagi was in the area of Karol Bagh (City Hospital Cell ID). During investigation, documents pertaining to hospitalization of Jagdish Tyagi (brotherinlaw of accused K.G. Tyagi) were also collected which also corroborated the aforesaid fact. It was also specifically alleged by the complainant Abhinav Krishan Aggarwal that Insp. K.G. Tyagi threatened him and his father that if they do not pay a further sum of Rs.25 lakhs to Insp. K.G. Tyagi, he would get his father falsely implicated in some other case. When complainant and his father refused to pay the amount to Insp. K.G. Tyagi and his associate Adv. Ravinder Chadha, Insp. K.G. Tyagi threatened them to face the consequences and on 01.08.2008, a case under MCOCA was got registered against his father in PS Hauz Qazi.
37.In view of the said material on record, I am of the opinion that there is existence of strong suspicion which inculpates accused K.G. Tyagi for commission of offences punishable u/ss 7/13(1)(d) of PC Act read with Sections 383, 389, 120B IPC.
Announced and singed in the open Court on 2nd March, 2017 (Hemani Malhotra) Spl.Judge (PC Act)(ACB)/C Tis Hazari Courts/Delhi FIR No. 34/08, PS ACB; State Vs. K.G. Tyagi etc. Page 22 of 22