Delhi District Court
Cbi vs J.S Sehrawat Etc. on 18 December, 2013
CBI vs J.S Sehrawat etc.
IN THE COURT OF SH. GURVINDER PAL SINGH,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 24/12 (Old CC No. 37/10)
RC No. AC3/2010/A0003/CBI/ACUIII/ND.
U/S Section 120B IPC read with Section 7,12
and 13 (2) read with Section 13 (1)(d) of PC Act
CBI vs. Jaibeer Singh Sehrawat etc.
Unique ID No.: 02403R0325642010
Central Bureau of Investigation
vs.
1. Jaibeer Singh Sehrawat (A1) S/o Sh Sahab Singh
R/o Flat No. 61, Sangam Apartment, Pocket 24,
Sector24, Rohini, New Delhi110085
2. Virender Pal (A2) S/o Sh. Ram Kumar
R/o House No. 1632, Pana Mamurpur,
Gali Pandit Balkishan wali, Narela, Delhi110040
3. Bindeshwar Pandey (A3) S/o Sh. Bhaggi Pandey
R/oH. No. 23/34, 2nd Floor, Old Rajinder Nagar,
Near Ganga Ram Hospital, New Delhi60
Permanent resident of VPO Gospur, Distt. Sipole, Bihar.
4. Laxman Mandal (A4) S/o Sh. Uttam Lal Mandal
R/o H. No. 420, Gali No. 5, also known as Nandu Kachori
wali gali, Bapa Nagar, Karol Bagh, New Delhi5.
Permanant resident of VPO Thhuthhi Manuman Nagar,
P.S Chattapur, Tehsil and District Sipole, Bihar
RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 1/85
CBI vs J.S Sehrawat etc.
5. S.K Lakra (A5) S/o Sh. Satbir Singh
R/oHouse No. A2/274, Janakpuri, New Delhi110058.
Permanent resident of VPO Morkhedi, Tehsil & District
Rohtak, Haryana
Date of FIR : 17/02/2010
Date of filing of Chargesheet : 24/12/2010
Case received by transfer on : 05/07/2012
Arguments concluded on : 27/11/2013
Date of Judgment : 18/12/2013
Appearances
For prosecution : Sh V.K Ojha, Ld. Public Prosecutor for CBI.
For accused : Sh Anil Kumar, Ld. Counsel for A1 and A2.
Sh M.K Singh, Ld. Counsel for A3.
Sh Devender Hora, Ld. Counsel for A4.
Sh Javed Hashmi, Ld. Counsel for A5.
JUDGMENT
FACTS GERMANE TO REGISTRATION OF CASE AND CONCLUSION OF INVESTIGATION.
Allegedly, a preliminary inquiry was registered on 09/10/2009 against unknown officials of Municipal Corporation of Delhi, Building Department, Karol Bagh Zone, New Delhi and others. Commission of criminal offence was prima facie made out and accordingly regular case was registered by CBI on 17/02/2010 against the arraigned accused.
RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 2/85 CBI vs J.S Sehrawat etc.
2. Allegedly, property no. 16/5, measuring 277.3 sq. yards., WEA, Karol Bagh New Delhi was initially owned by Sh Bakshish Singh. Property was sold in March 2000 to Shri Ravinder Chadha. As per sanctioned building plan dated 23/06/2000, Basement, Ground, First and Second Floors were constructed in the property. In the year 2003, owner of property started construction of third floor unauthorizedly without sanctioned building plan. On 20/01/2009 Sh Ravinder Chadha sold the terrace of third floor to four persons namely A3, Sh Sushil Tiwari, Sh Kaminder Tiwari and Sh Ram Kumar Tiwari vide four separate sale deeds and each one purchased 1/4 th portion of the terrace. All the four purchasers unauthorizedly and without sanction of building plan constructed their respective portions on the fourth floor and the construction was completed in March 2009.
3. Allegedly, while unauthorized construction on the fourth floor was going on, A2 the then Beldar in Karol Bagh Zone, MCD, New Delhi, on behalf of A1 the then Junior Engineer, threatened A3 for demolishing the construction of the fourth floor or in alternative to pay bribe of Rs 4 lacs. For negotiating with MCD officials to reduce the bribe amount, A4 talked over telephone to A2 in February/March 2009 for settlement of bribe amount, on being approached by A3.
4. Special Unit of CBI with due approval of the competent authority recorded the telephonic conversations in respect of the mobile RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 3/85 CBI vs J.S Sehrawat etc. phones in use by A1 Junior Engineer, A2 Beldar and A5 Assistant Engineer. 16 calls were found relevant during investigation. Recorded telephonic conversations between accused persons indicated demand and acceptance of bribe by A1 through A2 which was paid by A4 on behalf of A3 for saving the unauthorized constructions of fourth floor of the property from demolition.
5. Allegedly, recorded conversation revealed that unauthorized construction was well within the knowledge of A5 the then Executive Engineer and he was fully aware that Beldar A2 had collected Rs 25,000/ from the owners of the property of fourth floor. A5 did not take any action for criminal misconduct either against Beldar A2 or against the property. Instead of taking the action, Executive Engineer A 5 advised Junior Engineer A1 not to be aggressive against Beldar A2 lest A2 may file a complaint against them. Allegedly, inaction on the part of A5 was part of the conspiracy between A1 Junior Engineer, Beldar A2 and Executive Engineer A5. Allegedly, the procedure provided under DMC Act for booking of unauthorized constructions of property by registration of FIR, issuing show cause notices in respect of demolition and sealing of unauthorized constructions was not followed by the public servant accused persons.
6. During investigation, the voices of A1, A2, A3 and A5 were identified by the witnesses and their specimen voices were taken.
RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 4/85 CBI vs J.S Sehrawat etc. A4 refused to give sample voice. Questioned conversation between accused persons and their specimen voices were sent to CFSL. Vide report dated 10/08/2011, Senior Scientific Officer GRII, CFSL, CBI, New Delhi opined that the questioned recorded conversation was found in the voices of arraigned accused A1, A2, A3 and A5 after comparison and examination of their voices.
7. Sanction for prosecution was requested by CBI against A1, A2 and A5 and competent authorities granted the same.
8. On completion of the investigation, chargesheet was filed by the investigating agency on 24/12/2010. Cognizance was taken on 12/01/2011 by my Ld. Predecessor and accused were summoned. On appearance accused persons were enlarged on bail. Copies were supplied to the accused persons and requirements u/s 207 Cr. PC were complied with.
CHARGE
9. Charge for offences under Sections 120 B read with Section 7,12 and 13 (2) read with Section 13 (1)(d) of Prevention of Corruption Act,1988 was framed on 24/03/2012 by my Ld. Predecessor in terms of Order dated 03/03/2012 against arraigned accused to which they pleaded not guilty and claimed trial.
RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 5/85 CBI vs J.S Sehrawat etc. PROSECUTION EVIDENCE
10. To connect arraigned accused with the offences charged, prosecution has examined in all 41 witnesses namely Sh K.S Mehra (PW1); Deputy SP M.C Kashyap (PW2); Sh Kaptan Singh (PW3); Sh Amar Nath (PW4); Sh Mahipal Singh (PW5); Sh U.B Tripathi (PW6); Sh B.P Sharma (PW7); Sh. Pawan Kumar (PW8); Sh Raj Bhushan (PW9); Sh Anuj Bhatia (PW10); Sh Manoj Kumar Verma (PW11); Sh Rakesh Soni (PW12); Sh Kavinder Tiwari (PW13); Sh Sushil Tiwari (PW14); Sh T. Nagesh (PW15); Sh B.L Jindal (PW16); Sh S.L Bairwa (PW17); Sh Chander Kumar Grover (PW18); Sh Sher Singh Mittal (PW19); Sh R.K Vohra (PW20); Sh K. Raja (PW21); Sh Subhash Chand (PW22); Sh Bijender Singh (PW23); Sh V.M. Mittal (PW24); Smt Shabnam (PW25); Sh Yogesh Anand (PW26); Sh Vishal Gaurav (PW27); Sh Rajender Chadha (PW28); Sh Ravinder Chadha (PW29); Sh Ram Kumar (PW30); Sh S. Ingarsal (PW31); Sh P.K Gottam (PW32); Sh Rajender Singh (PW33); Sh Anil Kumar Tiwari (PW34); Sh Ram Kumar Tiwari (PW35); Sh Upendra Rawat (PW36); Inspector Satender Singh (PW37); Sh Kishor Kumar (PW38); Sh Bharat Bhushan Sharma (PW39); the then Inspector P.C Yadav (PW40) and Sh Amitosh Kumar (PW41).
STATEMENT OF ACCUSED
11. Thereafter accused persons were examined under Section 313 Cr. P.C. All incriminating material in evidence was put to the RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 6/85 CBI vs J.S Sehrawat etc. accused persons. Accused persons pleaded innocence and false implication.
12. A1 stated that the the sanction was granted mechanically without application of mind by the incompetent authority; it is an invalid sanction. A1 further stated that mobile phone instrument Nokia 2760 and Sim number 9818802431 belonged to Sunil Khatri (DW1) and he (A1) never used it while the CD Ex Q1 and documents about it were fabricated. A1 further stated that the booking of unauthorized construction was carried out under the provisions of DMC Act and Rules and Circulars issued from time to time; however, the JE concerned was not required to visit his area on daily basis and his visits to the area depended upon the workload and the Wards under his charge and other facts and circumstances. A1 further stated that IO PW 40 had recorded incorrect statements to make out a false case and had carried out biased and perfunctory investigation to falsely implicate him (A1). A1 further stated that report Ex PW 41/A was incorrect.
13. A2 stated that the sanction for his (A2) prosecution was invalid being given mechanically without application of mind. A2 stated that the mobile number 9968493939 belonged to his (A2) mother and it was never used by him (A2); the documents and the CDs were fabricated. A2 stated that the IO of CBI had taken him to his parents house at Nizampur, Delhi and had taken possession of the mobile phone RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 7/85 CBI vs J.S Sehrawat etc. from his mother; since, the mobile phone was taken over by the CBI, hence, he (A2) could not return the phone to his parents and he (A2) had never used this mobile phone. A2 stated that IO PW 40 had recorded incorrect statements to make out a false case and had carried out biased and perfunctory investigation to falsely implicate him (A2). A2 stated that no examination was carried out by the expert and report of expert is incorrect.
14. A3 stated that the constructed area in question on the fourth floor was purchased by PW14. A3 stated that the illegal search was conducted at wee hours at around 5 am in the morning and his Nokia mobile phone was taken ; however, inspite of his insistence to seal the same before him (A3), they refused to do so. A3 stated that his voice sample was never taken in the CBI office. A3 stated that the constructed portion on the fourth floor was purchased by him (A3) and not the terrace of third floor; registry was not being done for the fourth floor as stated to him (A3) by the draughtsman in the Registrar Office that is why the registration as terrace of third floor was made. A3 stated that the video recording of the fourth floor of the premises took place; however, the CDs were not sealed before him (A3). A3 further stated that the portion of the said property purchased by him (A3) was a constructed property and tenants of the builder/owner were residing in it when he (A3) purchased the said property; after the purchase of the property, he had been using it for the residence of his staff; no RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 8/85 CBI vs J.S Sehrawat etc. unauthorized or illegal construction or any construction had been carried out by him on the terrace of third floor i.e., the fourth floor.
15. A4 stated that the mobile no. 9899430880 was his but he had never talked to any of the coaccused till date and he (A4) met them for the first time only in the Court. A4 further stated that the CDs and connected documents were false and fabricated. A4 further stated that he had nothing to do with the property bearing No. 16/5, WEA, Karol Bagh, New Delhi; he had never refused to give any voice sample; however, the investigating officer forcibly took his thumb impression on paper on 23/12/2010 and has falsely implicated him in the present case.
16. A5 stated that Mr. K.S. Mehra (PW1) had the authority to grant sanction but he (PW1) did not apply his mind nor appreciated the material on record properly for granting sanction and it was passed on the basis of the draft sent by CBI. A5 stated the duty of AE starts when JE puts up the FIR before AE for unauthorized construction. A5 stated that he did not give any voice sample in CBI office and the proceedings Ex. PW 20/C (D85) were fabricated. A5 further stated that PW 40 had recorded the false statements of witnesses regarding identification of voice. A5 further stated that transcript Ex PW40/J (D48) was false and fabricated; report Ex PW41/A was incorrect which was based upon wrong and fabricated facts. A5 further stated that he had not given any voice sample. A5 further stated that in fact, a search was conducted in RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 9/85 CBI vs J.S Sehrawat etc. his house on 21/05/2009 and nothing incriminating was found and he (A
5) had handed over his official mobile cell with number 9717788359 during search and no call has been found to be made in the alleged taped conversation.
DEFENCE EVIDENCE
17. A1 entered into his defence and examined Sh. Sunil Khatri as DW1. Other accused i.e., A2, A3, A4 and A5 denied to lead defence evidence.
18. DW 1 deposed that mobile phone number 9818802431 was used by him and was in his name, which he had got in year 2007. As per DW 1 he left the instrument containing SIM No. 9818802431 by mistake at residence of A1 on 20/05/2009 where he had gone to pay monthly rent of Rs. 8,000/ in cash to Smt. Rita wife of A1 and her landlady since DW 1 was tenant under her in respect of premises Flat no. 223, Sangam Apartments, Sector24, Pocket24, Rohini, Delhi since year 2008 and was residing in said tenanted premises. DW 1 further deposed that when he had gone on the morning of 21/05/2009 to take back his aforesaid mobile phone, upon ringing the door bell the two persons who came out told him that they were of CBI and DW 1 was not permitted to go inside the residence of A1 and was even not given his aforesaid mobile phone despite demand. DW 1 also deposed that in the evening of 21/05/2009 when he had gone to residence of A1 again, then A1 told RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 10/85 CBI vs J.S Sehrawat etc. him that his mobile phone make NOKIA 2760 having aforesaid SIM was taken by CBI officials and he can take back his mobile phone from CBI officials only. As per DW 1 after 15/20 days, when he was called by CBI officials, he had gone to office of CBI and explained aforesaid facts but was told by CBI officials that he could get back his mobile phone from Court only. DW 1 got stopped the functioning of mobile SIM by moving appropriate application but since the cost of the mobile phone instrument was around Rs. 2,500/ or Rs. 3,000/ only he did not move any application in Court to obtain his said mobile phone instrument on account of requirement of engaging a lawyer and spending time as well as money in the procedure.
ARGUMENTS
19. I have heard the arguments of Sh V.K Ojha, Ld. Public Prosecutor for CBI; Sh Anil Kumar, Ld. Counsel for A1 and A2; Sh M.K Singh, Ld. Counsel for A3; Sh Devender Hora, Ld. Counsel for A4; Sh Javed Hashmi, Ld. Counsel for A5; accused persons and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
20. Ld. PP for CBI had argued that by the documentary evidence, recordings of the 16 call conversations, transcripts of such call conversations and the deposition of prosecution witnesses, the prosecution has been able to prove that A1, A2 and A5 being public RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 11/85 CBI vs J.S Sehrawat etc. servants entered into criminal conspiracy with private persons namely A 3 and A4; pursuant thereto demanded and accepted the bribe to show the undue favour in allowing and not to demolish the unauthorized construction in the property no. 16/5 WEA, Karol Bagh, New Delhi at its 4th floor; also pursuant thereto A2 accepted Rs. 25,000/ from as part payment of bribe of Rs. 4,00,000/ from owners of said property, while said sum of Rs. 25,000/ was received by A1 from A2 and A5 was fully aware that A2 had accepted aforesaid sum of Rs. 25,000/ as bribe from owners of said property despite which he took no action either against A1 or A2 for their such misconduct. It was also argued that arraigned accused thus, entered into criminal conspiracy and did elicited acts pursuant thereto with common object for allowing illegal construction at 4th floor and not to demolish such illegal constructions at 4th floor in property no. 16/5 WEA, Karol Bagh, New Delhi. Ld. PP for CBI has relied upon the following precedents praying for conviction of the arraigned accused for the charged offence u/s 120B r/w Sections 7,12, 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 since prosecution has proved its case beyond reasonable doubt:
1. R.M. Malkani vs State of Maharashtra, 1973 Cri.L.J 228 (SC);
2. Yusufalli vs State of Maharashtra, 1968 Cri.L.J 103 (SC);
3. Shivanarayan vs State of Maharashtra, 1968 Cri.L.J 388 (SC);
4. C.S.Krishnamurthy vs State of Karnataka, 2005 Cri.L.J 2145 (SC);
5. Dhaneshwar vs Delhi Administration, 1962 (1) Cri.L.J 203 (SC) and
6. R. Jankiraman vs. State, 2006 Cri.L.J 1232 (SC).
RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 12/85 CBI vs J.S Sehrawat etc.
21. Ld. Counsel for A1 & A2 argued that on the basis of evidence on record, the charge framed is not substantiated by the prosecution even by the degree of preponderance of probability though it was required of prosecution to prove its case beyond reasonable doubt. It was argued that the allegation of demand and acceptance of illegal gratification of any sum by any of arraigned accused including A1 and A2 is not borne out of evidence on record. It was argued that no trap was laid by officers of investigating agency to apprehend any of the arraigned accused red handed and to recover case property from such accused despite the fact that the officers of investigating agency were in the knowledge of alleged recorded call conversations of the 16 calls in question. Also was argued that in the evidence on record there is no fact proved of any unauthorized construction at 4 th floor of property in question having taken place in connivance with or in the knowledge of A1 and A2; besides that no prosecution witness deposed about the period of such unauthorized construction, if any, on the 4 th floor of property in question. Also was argued that prosecution witnesses PW 13, PW 14, PW 22, PW 25 and PW 35 deposed contrary to case of prosecution and stated that since no registration was possible regarding the built up portion at 4th floor of property in question, the transactions of sale and purchase of portions of 4 th floor vide sale deeds D38, D39, D 40, D41, D42 were got registered with the mention of the property under transaction to be "terrace portion of 3 rd floor" of property in question despite the fact that these witnesses had purchased / sold built RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 13/85 CBI vs J.S Sehrawat etc. up portions on 4th floor of property in question vide elicited sale deeds. Also was argued that no evidence was adduced in trial as to in which Ward of MCD, the property in question was situated at the relevant time and whether arraigned accused were at all concerned of the area where such property in question was situated. Also was argued that the complaints finding mention in D7 were not linked to the arraigned accused and document D14 was not proved in accordance with law and such complaints were not brought on record nor had even been investigated upon. Also was argued that the CD Ex. Q1 containing questioned conversations was fabricated and inadmissible in evidence since it was not proved on record that all precautions were taken at the time of recording of the conversations, transfer of the conversations from the hard disk of the computer system in Special Unit of CBI to CD Ex. Q1 to vouchsafe for its accuracy and genuineness to rule out tampering, editing, additions, deletions, manipulations, etc. Also was argued that mandatory provisions of Section 5(2) of Indian Telegraph Act, 1885 and Rule 419(a) of Indian Telegraphic Rules, 1951 were neither complied not matter of surveillance in question was placed before Review Committee, which was mandatory. Also was argued that hard disk in which the questioned conversations were originally recorded were neither seized nor sealed nor got examined from any expert. It was also argued that there was no admissible and substantive evidence on record that the voices in questioned CD Ex. Q1 belonged to arraigned accused. Also was argued that it has not been proved as to how, in which manner the 16 RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 14/85 CBI vs J.S Sehrawat etc. calls in question containing questioned conversations in CD Ex. Q1 were segregated from thousands of calls from the computer system of Special Unit of CBI; how CD Ex. Q1 was prepared; no recorded proceedings were produced in trial showing such segregation of calls; there being no mention of certificate u/s 65 B of Indian Evidence Act in seizure memo D69 dated 09/04/2010; which certificate was manipulated and filed antedated on record. It was also argued that no independent witness was joined in such segregation of calls, no record was produced nor proved as to how the Orders were obtained from Ministry of Home Affairs for surveillance of mobile phone numbers 9818802431 and 9968493939, while Sh. Madhukar Gupta the then Secretary Home of MHA who allegedly issued such Orders for surveillance of said mobile numbers was neither cited nor examined as a prosecution witness despite admitted availability and such Orders of surveillance of these mobile phones were fabricated to suit the case of CBI. Also was argued that the seal with which the questioned CD Ex. Q1 was allegedly sealed was not produced during the trial. Also was argued that transcript Ex. PW 40/J (D48) was inadmissible in evidence as it did not contain date of its preparation, signatures / initials of its maker or anyone nor it was prepared in the presence of any independent witness, while IO PW 40 claimed to have prepared it alone but did not elucidate as to how he identified voices contained in the conversations recorded in the questioned CD Ex. Q1 in absence of any assistance of any person(s) for identifying voices of arraigned accused by any person(s) acquainted with RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 15/85 CBI vs J.S Sehrawat etc. the voices of arraigned accused. Also was argued that despite the fact that the period of the call conversations in 16 calls in CD Ex. Q1 was alleged to be prior to the date of registration of FIR, there was no mention of such conversations in the FIR putting cloud of doubt over genesis of prosecution case and authenticity / genuineness of the such call conversations in CD Ex. Q1. Also was argued that even at the face value, the stated call conversations in CD Ex. Q1 were not specific but instead were vague and do not lead to any logical conclusion of guilt of arraigned accused for offence charged. Also was argued that DW 1 Sunil Khatri deposed that mobile phone number 9818802431 belonged to him (DW1) and used by him but when he had gone to the premises of A1 to make payment of rent of premises let out to him, he had inadvertently left the mobile instrument containing said number at premises of accused, which he even told to officers of investigating agency during investigation but no heed was paid to his such assertion. It was also argued that even PW 39 in his crossexamination deposed that A1 had told officers of investigating agency during search at his residence that mobile phone make NOKIA (containing SIM No. 9818802431) was not belonging to him (A1). Also was argued that there is no legal admissible evidence on record to prove that mobile phone number 9968493939 was ever used by A2 and per contra to said fact PW 30 deposed of said mobile phone number being used by several of his family members but excluding A2, while said mobile phone number was in the name of Mrs. Kanta Devi, mother of A2. Also was argued that mobile phone RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 16/85 CBI vs J.S Sehrawat etc. instruments containing SIM numbers 9818802431 and 9968493939 were allegedly seized on different dates and time but none amongst them were sealed at the time of seizure or later due to which there was every possibility of their tampering and manipulation, fabrication, additions, deletions of the digital data contained in it. Also was argued that the call detail records (CDRs) of mobile phone number 9818802431 (D33) and 9810709008 (D35) produced during trial were not accompanied by mandatory certificates u/s 65 B of Indian Evidence Act due to which there remained serious doubt about their authenticity and genuineness. Also was argued that no call detail records (CDRs) of mobile phone numbers 9999920606 and 9899430880 were filed on record by the investigating agency nor proved by prosecution. Also was argued that even PW 20 witness to taking of alleged voice sample of arraigned accused wrongly identified A2 as A3 and it was despite the fact that PW 20 had acted as witness in more than 100 cases of CBI and was a stock witness of CBI. Also was argued that seal used after obtaining sample voices of arraigned accused was not produced during trial and even no permission was obtained from the Court for taking of sample voices. Also was argued that the evidence of PW 41 established that PW 41 was not an expert at all though he himself claimed himself to be voice expert and his report filed on record is an incorrect report. Also was argued that the sanction accorded for arraigned accused were invalid sanctions granted by incompetent authorities without application of mind. Also was argued that though the case of the prosecution is alleged RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 17/85 CBI vs J.S Sehrawat etc. to be of beginning of year 2009, yet the technical inspection of property in question reported in Ex. PW 7/B (D25) of MCD and the video recording of questioned property was done on 27/04/2010 and thus, after about a period of one year and so is of no help of case of prosecution since it contained the details of the construction in the property in question as it was in April 2010 and not in the period in question of start of year 2009. Also was argued that IO PW 40 did not examine all the occupants of property in question to ascertain the period of construction of 4th floor of property in question nor did PW 40 investigate about the unauthorized construction on the 1 st , 2nd and 3rd floors of property in question nor did PW 40 examine records of MCD to ascertain as to when construction including at 4th floor in property in question was done or whether it was so done in the tenure of arraigned accused. It was also argued that A2 was only the Beldar and was not having any power to book any property for unauthorized construction. Ld. Counsel for A1 & A2 has relied upon the following precedents praying for acquittal of A1 & A2 for the charges framed:
1. Dharambir vs CBI, 148 (2008) DLT 289;
2. Mahabir Prasad Verma vs. Dr. Surinder Kaur, AIR 1982 SC 1043;
3. Nilesh Dinkar Paradkar vs. State of Maharashtra, JT 2011 (3) SC 429;
4. People's Union for Civil Liberties vs. Union of India & Anr. , (1997) 1 SCC 301;
5. Hukum Chand Shyam Lal vs. Union of India & Ors. (1976) 2 SCC 128 and
6. State of Gujarat through CBI vs. Kumudchandra Pranjivan Shah, 1995 Cri.L.J. 3623 (SC).
22. In addition to the arguments advanced by Ld. Counsel for A1 & A2, Ld. Counsel for A3 supplemented in his arguments that RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 18/85 CBI vs J.S Sehrawat etc. though the prosecution has not proved the relied upon four complaints detailed in document D7 yet, for the sake of arguments, if these are seen then it reveals that three out of four such complaints do not mention the floor of property in question for any construction nor is there any mention of name and whereabouts of complainants nor any evidence or witness have been brought to prove such complaints nor the fate of the such complaint has been proved on record nor it has been proved that such complaints were assigned to any of the arraigned public servant co accused. Also was argued that no supplier of building material nor contractor for any alleged unauthorized construction in property in question in period in question was either cited or examined in trial by prosecution. Also was argued that the documents sale deed Ex. PW 22/B (D38) dated 02/02/2009 is in respect of the property purchased by PW 35 in February 2009 and sale deed Ex. PW 22/C (D39) dated 21/12/2009 is in respect of the same property sold by PW 35 in December 2009 and both of them find mention "terrace portion of 3 rd floor of Property no. 16/5 WEA, Karol Bagh, New Delhi" as subject matter of sale of said documents, while PW 35 deposed of having purchased built up portion on 4 th floor of Property no. 16/5 WEA, Karol Bagh, New Delhi vide Ex. PW 22/B and sold it vide Ex. PW 22/C in December 2009; which deposition negates put forth version of prosecution that the said terrace portion at the 4 th floor was built after its purchase in February 2009. Also was argued that even PW 22 deposed that the portion purchased by his wife PW 25 vide sale deed Ex. PW RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 19/85 CBI vs J.S Sehrawat etc. 22/C (D39) was built up about five years prior to its purchase. It was also argued that if prosecution case is believed on the basis of documentary evidence of sale deeds dated 02/02/2009 and 21/12/2009 then no construction was raised on terrace portion of 3 rd floor of property no. 16/5, WEA, Karol Bagh, New Delhi, the subject matter of aforesaid sale deeds Ex. PW 22/B and Ex. PW 22/C. Also was argued that mobile phone number 9810709008 on seizure was not sealed and there was every possibility of tampering, manipulation and fabrication of digital data contained therein and the call detail records (CDRs) of mobile phone numbers produced during trial were not accompanied by mandatory certificates u/s 65 B of Indian Evidence Act casting serious doubts about their authenticity and genuineness. Ld. Counsel for A3 has prayed for acquittal of A3 submitting prosecution has failed to proved its case against A3 beyond reasonable doubts.
23. In addition to the arguments advanced by Ld. Counsel for A1 & A2, Ld. Counsel for A4 supplemented in his arguments that only one day before filing of chargesheet on 24/12/2010 i.e. on 23/12/2010 the date of chargesheet, thumb impression of A4 was obtained on Ex. PW 21/A (D89) dated 23/12/2010, which was fabricated as refusal of A 4 for giving voice sample despite the fact that IO PW 40 admittedly sent on 30/11/2010 other voice samples taken previously for obtaining opinion of forensic expert. It was also argued that mobile phone of A4, a private person, was never seized nor call detail records (CDRs) of mobile RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 20/85 CBI vs J.S Sehrawat etc. phone number of A4 were obtained from the service provider of such mobile phone number nor his voice sample was ever taken and in the entire led prosecution evidence no witness identified voice of A4 from amongst recorded conversations contained in CD Ex. Q1. It was also argued that neither A4 was owner of the property in question nor was in any way connected with the property in question as owner / builder / occupier. It was also argued that no legal admissible evidence is on record to connect A4 with the crime charged and it has been prayed that A4 be acquitted since prosecution has failed to prove its case against A 4 beyond reasonable doubt.
24. In addition to the arguments advanced by Ld. Counsel for A1 & A2, Ld. Counsel for A5 supplemented in his arguments that A5 was holding the charge of Executive Engineer (Building) from 08/11/2008 to 15/01/2009 as per document D18, while sale deeds D38, D40, D41 and D42 of 4 th floor of property no. 16/5, WEA, Karol Bagh, New Delhi came into existence on 02/02/2009. It was also argued that prosecution has failed to prove that A5 was at all concerned with the area in which the questioned property was situated at the relevant time / period. It was also argued that alleged complaints mentioned in D7 are not linked to A5 by any admissible evidence nor they have been proved as per law nor any investigation about them has been done. It was also argued that even as per PW 17 in the case of receipt of complaint for unauthorized construction of any property then it is marked in routine to RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 21/85 CBI vs J.S Sehrawat etc. Area JE concerned for necessary action after verification and the duty / role of Assistant Engineer (A5) only starts when the concerned JE puts FIR after its registration before him (A5), while in the matter in hand there is no evidence that any booking of property in question by FIR registered by Area JE concerned was put up before him (A5) in his afore elicited tenure to make him (A5) accountable / responsible for inaction for any such unauthorized construction carried out by the owner / builder / occupier of property in question, as even in terms of document D12 AE (B) / EE (B) were not responsible / accountable for unauthorized construction which are being carried out by owner / builder due to ignorance of JE (B) prior to booking the unauthorized construction. It was also argued that as per PW 3 and PW 11, Beldar comes under direct supervision of Office Incharge [OI (B)] and not under the direct supervision of AE(B) i.e. A5. Also was argued that as per PW 11 as per Master Plan 2021, part of Karol Bagh came under Special Area for which no punitive action can be taken for three years from 07/02/2007 and the property no. 16/5, WEA, Karol Bagh, New Delhi fell in Special Area as described in Master Plan 2021. Also was argued that the alleged phone no. 9999920606 was not found registered in the name of A5 nor the instrument containing SIM No. 9999920606 was recovered or seized from A5 nor call detail records (CDRs) of said mobile number 9999920606 were procured and proved in prosecution evidence nor there is any oral or documentary evidence to show the said mobile phone number 9999920606 was used by A5. Ld. Counsel for A5 has relied RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 22/85 CBI vs J.S Sehrawat etc. upon the following precedents praying for acquittal of A5 for the charge framed:
1. People's Union for Civil Liberties vs. Union of India & Anr. , (1997) 1 SCC 301;
2. Hukum Chand Shyam Lal vs. Union of India & Ors. (1976) 2 SCC 128;
3. Smt. K.L.D. Nagasree vs. Government of India & Ors. AIR 2007 Andhra Pradesh 102;
4. Nilesh Dinkar Paradkar vs. State of Maharashtra, JT 2011 (3) SC 429;
5. Mahabir Prasad Verma vs. Dr. Surinder Kaur, (1982) 2 SCC 258;
6. K.R. Purushothaman vs.State of Kerala, 2005 (4) Crimes 191 (SC) and
7. A.K. Ganju vs. CBI, Crl. M.C. 2384/2011 and Crl. M.A. 8693/2011 decided by Hon'ble Mr. Justice Suresh Kait (DHC) on 22/11/2013.
25. The core question that needs to be seen is as to whether there is sufficient legal evidence on record for the prosecution to prove its case beyond reasonable doubt against arraigned accused for the offence charged.
26. PW1 Sh K.S Mehra, Commissioner, MCD, Town Hall deposed that he was the competent authority for grant of sanction for prosecution of officials of the rank of Beldar and Assistant Engineer (AE). PW1 stated that he had accorded sanction Ex PW1/A dated 19/12/2010 for prosecution against A2, Beldar and sanction Ex PW1/B dated 19/12/2010 for prosecution against A5, Assistant Engineer after perusal and considered opinion on report of investigation by CBI, statements of witnesses and other material sent by CBI.
27. PW4 Sh. Amar Nath, the then Special Officer, Delhi Urban RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 23/85 CBI vs J.S Sehrawat etc. Shelter Improvement Board, Government of NCT of Delhi deposed that in December 2010 he was competent to remove A1 [presently JE (Civil) under suspension in Delhi Urban Shelter Improvement Board, Government of NCT of Delhi] and had accorded sanction Ex PW4/A of prosecution of A1 under Section 19 of the Prevention of Corruption Act, 1988 after perusal of report and other documents received from CBI and application of mind.
28. In the case of C.S.Krishnamurthy (Supra) it was held that the sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself than the satisfaction of the sanctioning authority is apparent by reading the order.
29. Hon'ble Mr. Justice Deepak Mishra held in case of State of Maharashtra through C.B.I. v. Mahesh G. Jain, 2013 CRI L.J. 3092 as follows:
"13. From the aforesaid authorities the following principles can be culled out:
(a) 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.
(b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 24/85 CBI vs J.S Sehrawat etc. prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.
(d) 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.
(e) 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.
(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
(g) The order of sanction is a prerequisite as it is intended to provide a safeguard to 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".
30. In the fact of the mater, from the testimonies of the sanctioning authorities PW 1 and PW 4, it is culled out that only after being satisfied that a case for sanction was made out, PW 1 and PW 4 accorded the elicited sanctions, which is also borne out of the sanction orders Ex. PW 1/A, Ex. PW 1/B and Ex. PW 4/A that the material placed before such sanctioning authorities were perused and considered. There is no fact borne out of testimonies of PW 1 and PW 4 that they were incompetent to accord sanctions elicited or accorded sanctions were invalid on any count nor to prove any such defence, any defence RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 25/85 CBI vs J.S Sehrawat etc. evidence was led. In terms of law laid in the case of Mahesh G. Jain (Supra), it is proved on record that the sanctioning authorities prima facie reached the satisfaction that relevant facts constituted the offence in question. Adequacy of material placed before the sanctioning authority cannot be gone into by this Court since this Court is not sitting in appeal over the sanction orders. Also sanction orders are not to be construed either in pedantic manner or by any hypertechnical approach to test their validity. It is proved on record that the sanction orders Ex. PW 1/A, Ex. PW 1/B and Ex. PW 4/A were valid.
31. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 26/85 CBI vs J.S Sehrawat etc. between two or more persons which may be express or implied or partly express or partly implied. Even Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the co conspirators.
32. In "Shivanarayan v. State of Maharashtra", AIR 1980 Supreme Court 439, it was held that "It is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design."
33. While speaking for the Bench it is held by Hon'ble Mr. Justice P.Venkatarama Reddi in State (NCT of Delhi) vs. Navjot Sandhu, AIR 2005 SUPREME COURT 3820 as follows:
"We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 27/85 CBI vs J.S Sehrawat etc. or by extension of a common law principle."
34. In the case of State of Maharashtra and Others vs Som Nath Thapa and Others, (1996) 4 SCC 659, it was held that "To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."
35. In the case of K.R. Purushothaman (Supra), it was held by the Apex Court that to constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means was primary condition and mere knowledge, even discussion, of plan by an accused would not perse constitute conspiracy. It was also held that although, the agreement among the conspirators can be inferred by necessary implication, the inference can only be drawn on the parameters in the manner of proved facts, in the nature of circumstantial evidence and whatever be the incriminating circumstance, it must be clearly established by reliable evidence and they must form the full chain whereby a conclusion about the guilt of the accused can be safely drawn.
RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 28/85 CBI vs J.S Sehrawat etc.
36. The essential ingredients of Section 7 of Prevention of Corruption Act 1988 are that (i) the accused was a public servant; (ii) accused accepted or obtained the gratification for himself or for any other person; (iii) the said gratification was a motive or reward (a) for doing or forbearing to do any official act or (b) for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person.
37. The essential ingredients of Section 12 of Prevention of Corruption Act 1988 are that accused abets offence punishable under (a) Section 7 of Prevention of Corruption Act 1988 or (b) Section 11 of Prevention of Corruption Act 1988 irrespective of the fact whether or not such offence is committed in consequence of such abetment.
38. The essential ingredients of Section 11 of Prevention of Corruption Act 1988 are that (i) accused was a public servant; (ii) accused accepted or obtained or agreed to accept or obtain a valuable thing without consideration or for an inadequate consideration knowing it to be inadequate; (iii) the person giving the thing must be a person concerned or interested in or related to the person concerned in any proceeding or business transacted by such public servant, or having any RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 29/85 CBI vs J.S Sehrawat etc. connection with the official function of such public servant or of any public servant to whom such public servant is subordinate and (iv) accused must have the knowledge that the person giving the thing is so concerned or interested or related.
39. The essential ingredients of Section 13 (1) (d) of Prevention of Corruption Act 1988 are (i) the accused was a public servant; (ii) accused used corrupt or illegal means or otherwise abused his position as such public servant and (iii) accused obtained valuable thing(s) or pecuniary advantage for himself or for any other person.
40. In Section 13(1) (d) of Prevention of Corruption Act 1988, the word used is 'obtained'. The Apex Court in the case of C.K. Damodaran Nair v Govt. of India [(1997) 9 SCC 477] had the occasion to consider the word 'obtained' used in Section 5 of Prevention of Corruption Act 1947, which is now Section 13(1)(d) of Prevention of Corruption Act 1988. It was held in para 12 thus:
"12. The position will, however, be different so far as an offence under Section 5 (1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused `obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b) and not under Section 5(1)(c), (d) or (e) of the Act. `Obtain' means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1) RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 30/85 CBI vs J.S Sehrawat etc.
(d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be,established by proof of either `acceptance' or `obtainment' ".
41. In the case of Dhaneshwar (Supra), it was held that to constitute the offence under section 5(2) r/w section 5(1)(d) of Prevention of Corruption Act 1947, it is not necessary that the public servant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It was also held that it is equally wrong to say that if a public servant were to take money from a third person, by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant, without there being any question of his misconducting himself in discharge of his own duty, he has not committed an offence under section 5(1)(d). It was also held that it is also erroneous to hold that the essence of an offence under section 5(2), read with section 5(1)(d), is that the public servant should do something in the discharge of his own duty and thereby obtain a valuable thing or pecuniary advantage.
42. In Krishna Bai vs. Appasaheb, AIR 1979 SC 1880, the Apex Court observed that when there is a dispute in regard to the true character of a writing, evidence dehors the document can be led to show that the writing was not the real nature of the transaction, but was only an illusory, fictitious and colourable device which cloaked something else, and that the apparent state of affairs was not the real state of affairs.
RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 31/85 CBI vs J.S Sehrawat etc.
43. In the case of Parvinder Singh Vs. Renu Gautam, 2004 (4) SCC 794, the Apex Court observed that "The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction."
44. In the case of R.Janakiraman (Supra), it was held by the Apex Court that "11.6 We may cull out the principles relating to section 92 of the Evidence Act, thus:
i) Section 92 is supplementary to section 91 and corollary to the rule contained in section 91.
ii) The rule contained in section 92 will apply only to the parties to the instrument or their successorsininterest. Strangers to the contract (which would include the prosecution in a criminal proceeding) are not barred from establishing a contemporaneous oral agreement contradicting or varying the terms of the instrument. On the other hand, section 91 may apply to stranger also.
iii) The bar under section 92 would apply when a party to the instrument, relying on the instrument, seeks to prove that the terms of the transaction covered by the instrument are different from what is contained in the instrument. It will not apply where anyone, including a party to the instrument, seeks to establish that the transaction itself is different from what it purports to be. To put it differently, the bar is to oral evidence to disprove the terms of a contract, and not to disprove the contract itself, or to prove that the document was not intended to be acted upon and that intention was totally different.
Applying the aforesaid principles, it is clear that the bar with section 92 will apply to a proceeding interparties to a document and not to a RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 32/85 CBI vs J.S Sehrawat etc. criminal proceeding, where the prosecution is trying to prove that a particular document or set of documents are fictitious documents created to offer an explanation for disproportionate wealth. Oral evidence can always be led to show that a transaction under a particular document or set of documents is sham or fictitious or nominal, not intended to be acted upon."
45. In the case of Kumudchandra Pranjivan Shah (Supra) wherein initially when the panch witness was examined the prosecution tried to suppress the fact of said witness acting as police witness in number of cases and only when on recall of such witness for further examination such witness was confronted with materials procured to establish of his having acted as panch witness in several other cases, therein the Apex Court appreciated evidence of such witness as an untrustworthy witness and held that conviction could not be based on his evidence.
46. PW 3 Sh Kaptan Singh the then AE (Building), West Zone, MCD deposed that JE (Building) of MCD has to inspect the building as to whether it is as per plan sanctioned, if the building under construction is being so constructed without plan sanctioned then said JE is to get FIR registered and issue show cause notice to owner/builder of the said building and then to book the building; show cause notice is issued by JE; said show cause notice is signed by concerned JE and AE; after issue of show cause notice and unauthorized construction is booked then their details are mentioned in register called Misalband Register which is RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 33/85 CBI vs J.S Sehrawat etc. maintained by OI Building; said register is kept in the Zone; JE concerned served the show cause notice for such unauthorized construction; Beldar assist JE in serving such notice; in case at site owner of building is not found then such show cause notice is pasted by concerned JE; if such notice is served personally then it is got signed by the recipient; there is Building Watch Register in the Zone in which the unauthorized construction is detailed; there is a register maintained in OI Building in which action plan is mentioned which is in respect of demolition of unauthorized construction; concerned JE (Building) is also having duty to visit his area daily or on alternative days to check and see as to whether any unauthorized constructed is being raised; in case no reply is received of aforesaid show cause notice given at first ocassion then after three days, concerned JE will put up matter before concerned AE and concerned AE will issue second notice and in case of no reply to second notice after six days of its service then demolition order will be passed by concerned AE. PW3 also stated that the Building Watch Register in the zone is maintained by JE Building, concerned; Beldar does the work of demolition; Beldar is taken by the JE concerned; in the office Beldar remains with OI Building; JE and Beldar also remained at the site of sealing. PW3 proved on record office Order Ex PW3/A (D
78), dated 12/09/08 embodying the duties of JE, AE, EE, Zonal SE (B) of MCD in respect of the unauthorized construction and encroachment. PW3 stated that file maintained in the office for unauthorized construction remained in OI Building which is prepared by JE, Building RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 34/85 CBI vs J.S Sehrawat etc. and then the file is put before the AE Building for necessary action and then the file is put before Executive Engineer for further action and whatever action is ordered, the concerned JE Building will take the required action; after taking action JE Building will make the entries in the demolition register retained by him; action taken report is forwarded by the JE to AE concerned who in turn forwards it to the Executive Engineer concerned, the Executive Engineer concerned forwards it to Superintending Engineer concerned and the Superintending Engineer concerned forwards it to Deputy Commissioner, who forwards it to Additional Commissioner; in case, the Commissioner wants, the file is sent to him. PW 3 also deposed that property no. 16/5, WEA, Karol Bagh, New Delhi was situated in Special Zone / Special Area and in such area no punitive action can be taken including demolition, sealing when the unauthorized construction relates back prior to 07/02/2007. Also PW 3 elicited that JE(Building) will book only those properties in respect of which the unauthorized construction comes to his notice. Also was stated by PW 3 that the duty of AE(Building)(i.e. A5) starts when JE (Building)(i.e. A1) puts report before him (AE) regarding any unauthorized construction and JE(Building) is to get the show cause notice for unauthorized construction served.
47. PW 17 Sh. S.L. Bairwa, the then Executive Engineer (Building) Karol Bagh Zone of MCD deposed that the Area JE concerned is responsible for detection of unauthorized construction in his RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 35/85 CBI vs J.S Sehrawat etc. area; Area JE concerned is under duty to carry out routine inspection i.e. daily in his area for detection of unauthorized construction in his area; Area Assistant Engineer concerned is under duty to test check perhaps 40 per cent of the booked properties for taking action of sealing/demolition. PW17 also stated that complaints about unauthorized construction or deviations from sanctioned building plan in course of construction of building were received from various corners, which were in routine marked to area JE concerned for taking necessary action after verification. PW17 further deposed that there was a "Monthly Demolition Plan" prepared every month by Executive Engineer (Building) for demolition of the booked properties; there was a priority already fixed for taking action on the booked properties; last booked property was taken first and the property which was having specific Court Order for demolition was also taken first; in case, fresh properties were not booked, then action will be taken on the properties which were left for taking of action in the previous "Monthly Demolition Plan". PW17 stated that a manual of instructions on unauthorized construction, photocopy Ex. PW 8/B (colly) (part of D15), dated 16/12/03 (M 662/10/1) was issued by their Commissioner prescribing the duties of JE/AE/EE and procedures to be followed by them. PW17 stated that the Special Area has been described in detail in Master Plan 2021 and the Master Plan was notified by DDA under approval of Ministry of Urban Development; entire area of Karol Bagh ward comes under the Special Area. As per PW 17 in terms of office order Ex. PW 17/DA dated RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 36/85 CBI vs J.S Sehrawat etc. 20/08/2001 of Office of Commissioner MCD, the time limit fixed for inspection in area for JE was increased from 3 days to 7 days.
48. PW11 Sh. Manoj Kumar deposed that while he was working as Executive Engineer (B) Karol Bagh Zone MCD from 15/01/09 to 28/07/09 A1 was working as JE, and A5 was working as AE there. PW11 deposed that the JE used to lodge the FIR initially as per proforma and as per Section 343 & 344 of DMC Act; thereafter, JE puts up the case before the AE who used to sign the show cause notice, mark the file back to JE for executing the show cause notice to owner/builder and if reply was received from owner/builder, the same is to be examined and opportunity of being heard is also to be given before AE and in case no reply is received or unsatisfactory reply is received then show cause notice for demolition order is issued against owner/builder either to demolish himself the unauthorized construction withing six days or otherwise MCD will demolish the same at the cost of the owner/builder; after demolition order was passed, file was marked to OI(B) by AE for keeping in record and issuing to the JE at the time of the demolition action as per priority; monthly demolition programme was prepared by the Executive Engineer in consultation with OI and accordingly demolition action was taken; normally, AE and JE concerned go to the site for taking the demolition action; in case AE was busy somewhere, then JE concerned will go to the site for such action, after taking the police protection from area police station; after taking the demolition RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 37/85 CBI vs J.S Sehrawat etc. action, the detail of demolition action taken was duly mentioned in the booking file known as Unauthorized Construction File (UC File). As per PW11, it was the duty of the JE of ward to inspect his area at least weekly for checking the unauthorized construction, if any; many complaints, which were received from various corners in respect of unauthorized construction were also marked to concerned JE of area for appropriate action. PW11 stated that in case, owner/builder himself demolished the unauthorized construction raised after receiving the notice, then no further action was taken against such person and the file was closed, after inspection of the such construction. PW11 further deposed that guidelines Ex. PW 8/B (colly) (D15) dated 16/12/03 were issued by MCD Head Quarters and followed in their office. PW11 stated that after demolition order is passed, if after requisition police force is not made available then it is mentioned in the file concerned that for want of police force demolition action could not be taken; this remark is mentioned in the UC file; again as per turn, in respect of such unauthorized construction action was taken. PW11 stated that entries are made in demolition register in respect of demolition action taken; Misal Band Register was a register which contained the record of unauthorized booked properties and was maintained by OI but it was seen by Executive Engineer also and who signed it. PW11 deposed that Deputy Commissioner of concerned Zone of MCD issued the show cause notice to the owner/builder as per DMC Act before sealing action; after passing of the order of sealing after complying the prerequisite of procedure as RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 38/85 CBI vs J.S Sehrawat etc. per DMC Act, the file was marked to SE, then to Executive Engineer, then to AE and then to JE; JE goes to the site for sealing action; AE or even SE do not go to the site for sealing action normally but yet AE can go for said purpose; action taken was reported back accordingly to senior officers. As per PW 11, Dak Register was maintained for complaints received and marked. PW11 stated that he being Executive Engineer of the building department, used to daily see and close the Misal Band Register, which was used to be brought by OI to him; 20 per cent of the booked properties were required to be checked by the Executive Engineer as per the guidelines; 40 per cent of the booked properties were required to be checked by the Assistant Engineer as per the guidelines; 100 per cent of the booked properties were required to be checked by the Junior Engineer as per the guidelines. PW11 deposed that file D2 [later Ex PW15/C (colly)] contained plans sanctioned of basement, ground, first and second floor of property bearing no. 16/05, WEA, Karol Bagh Zone and there was no plan sanctioned for third and fourth floor of said property. PW 11 also stated that as per the Master Plan 2012 (2021), part of Karol Bagh comes under Special Area for which no punitive action is taken for three years from 07.02.2007 or till proper facility is provided by the Government, in terms thereof. As per PW 11 property no. 16/05, WEA Karol Bagh fell in aforesaid Special Area. As per PW 11, as per Master Plan 2021 part of Karol Bagh comes under Special Area for which no punitive action is taken for three years from 07/02/2007 or till proper facility is provided by the Government in terms thereof. Master RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 39/85 CBI vs J.S Sehrawat etc. Plan Delhi 2021 inter alia provides of Special Area Regulations in provision 16.2. In terms thereof, owners in Special Area are required to be registered with the local bodies within next 6 months of the date of the enforcement of the Master Plan and have to submit a certificate of structural safety by a qualified engineers and such owners of property beyond 15 meter height may bring the prescribed structure within prescribed height by 30/06/2009 till when no punitive action is to be taken for these structures beyond 15 meter height. As per PW 11, JE of the area will book only that property which comes in his notice during inspection and the duty of AE starts only when JE concerned registers FIR and puts it before AE. Also PW 11 elicited that Beldars (i.e. A2) report to Office Incharge (OI) and are not under the supervision of AE directly.
49. PW 15 Sh. T. Nagesh deposed that he was earlier holding the charge of Record Keeper of the Building Section of Karol Bagh Zone of MCD and vide production cum seizure memo Ex PW15/A (D66), dated 05/03/2010 he had handed over the documents (1) sanctioned building plan file M286/10 Ex. PW15/C (colly) (D2); (2) unauthorized construction file M287/10 Ex. PW15/D (colly)(D6); (3) unauthorized construction file M288/10 Ex PW15/E (colly) (D5);(4) unauthorized construction file M289/10 Ex PW15/F (colly) (D4); (5) the sealing action file M290/10 Ex PW15/G (colly) (D3) from his office records to PW40 IO Inspector P.C Yadav; which all documents were in respect of RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 40/85 CBI vs J.S Sehrawat etc. property no. 16/5, WEA, Karol Bagh. PW15 also stated that vide production cum seizure memo Ex PW15/B (D74), dated 08/06/2010 he had handed over from office records the documents detailed therein. As per PW15, he gave register whose photocopies in respect of entries in the Diary Receipt Register are Ex. PW15/H (colly) (D7), which were made by MCD officials of Building Department, Karol Bagh Zone from 30/01/2009 to 27/04/2009. PW15 stated that letter Ex. PW 15/J (D8), dated 02/11/10 was signed by Sh. SK Chauhan, Executive Engineer (Building) Karol Bagh Zone and initials of PW15 are at point B. As per Ex. PW 15/J, as per record maintained there was no regularization file in respect of the property no. 16/5, WEA, Karol Bagh New Delhi. PW15 stated that photocopies Ex. PW15/K (colly) (D10) were of register regarding rejected/pending cases of regularization of unauthorized construction in Karol Bagh Zone maintained in their office. PW15 also stated that vide letter Ex. PW 15/L (D11), dated 04/11/10 of Superintendent Engineer, Karol Bagh Zone, the document Ex PW15/M (D12) containing duty/responsibilities of JE,AE and EE (B) was given to CBI. Ex. PW 15/M embodied that weekly certificates were to be submitted by Junior Engineers(B) of MCD to bring into the notice of higher officers of MCD and monitoring committee about unauthorized constructions that are taking place in the area and the JE(B) and AE(B) are to work under direct supervision of EE(B) and under superintendence of concerned SE of area and under overall supervision and control of the Deputy Commissioner of the Zone. Ex. PW 15/D (colly) (D6) contains RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 41/85 CBI vs J.S Sehrawat etc. FIR dated 12/10/2000, show cause notice dated 12/10/2000, note for issuance of demolition notice, demolition notice and office note with respect to deviations / excess coverage i.e. 100 % coverage at basement and ground floor of property number 16/5, WEA, Karol Bagh, New Delhi and also projection on Municipal Land. Ex. PW 15/E (colly) (D5) contains FIR dated 04/12/2000, show cause notice dated 04/12/2000, note for issuance of demolition notice, demolition notice and office note with respect to deviations / excess coverage i.e. 100 % coverage at first floor and second floor of property number 16/5, WEA, Karol Bagh, New Delhi and also projection on Municipal Land. It also finds mention of previous booking of said property. Ex. PW 15/F (colly) (D4) contains FIR dated 03/11/2003, show cause notice dated 03/11/2003, note for issuance of demolition notice, demolition notice and office note dated 30/10/2003 with respect to unauthorized construction of third floor, hundred percent coverage and projection on MPL in property no. 16/5, WEA, Karol Bagh, New Delhi.
50. PW8 Sh. Pawan Kumar deposed that vide production cum seizure memo Ex. PW 8/A (D63), dated 23/10/2010 he had handed over (1) attested copies of Office Order Ex. PW8/B(colly) (D15), dated 16/12/03 containing guidelines/instructions with regard to the unauthorized construction bearing attestation of Sh. S.K. Chauhan, the then Executive Engineer (Building) Karol Bagh Zone, MCD: (2) the attested copies of monthly statement certificate Ex PW8/E (colly) (D17) RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 42/85 CBI vs J.S Sehrawat etc. given by A1 for the months of February 2009 to April 2009 bearing the attestation of Sh. S.K. Chauhan; (3) the detail of the officers i.e. EE/AE/JE's Ex. PW 8/D (D18) and their tenure ward wise w.e.f. January 2005 to April 2009 running into 10 pages bearing the signatures of Sh. Parmanand, the then OI (B), Karol Bagh Zone and of Sh. S.K. Chauhan, the then Executive Engineer to CBI Official i.e., PW40 Inspector P.C Yadav, which documents were handed over along with letter Ex PW8/C (D16), dated 21/10/2010 of Sh. S.K. Chauhan, Executive Engineer (B) Karol Bagh Zone. PW 8 deposed that he did not knew what was the area assigned to A1. As per Ex. PW 8/D (D18), the Wards of the MCD were delimited w.e.f 01/06/2007 and thereafter, in Ward No. 92 (Dev Nagar) the tenure of A1 as JE was for the period from 05/12/2008 to 30/04/2009 and the tenure of A5 as EE for said Ward was for the period from 12/11/2008 to 30/04/2009. Certificates Ex. PW 8/E (colly) (D17) inter alia embodied in printed form "Name of JEJS Sehrawatwith signatureWard No. 92 Zone:Karol Bagh Zone." Ex. PW 8/E (colly) of the period from February 2009 to April 2009 find no mention of any reported action taken in respect of any unauthorized construction at property number 16/5, WEA, Karol Bagh, New Delhi.
51. Ld. PP for CBI had also argued that entries at serial numbers (1) 1605 of date 09/03/2009; (2) 1746 of date 13/03/2009; (3) 1833 of date 17/03/2009; (4) 1989 of date 19/03/2009 in the daily receipt register of complaints, copies Ex. PW 15/H (colly) (D7) contained the mention RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 43/85 CBI vs J.S Sehrawat etc. of unauthorized construction at 16/5, WEA, Karol Bagh, New Delhi, while amongst them the first entry at serial number 1605 aforesaid also finds mention of the unauthorized construction at the fourth floor of 16/5, WEA, Karol Bagh, New Delhi. Also was argued that despite receipt of aforesaid complaints detailed in aforesaid entries A1 did not take any action for booking of the property by registering the FIR, preparing the show cause notice or putting it before his superiors for further necessary action for such unauthorized construction as per the law, procedure and practice applicable. PW 15 elicited that he was never holding any charge or any seat under the Office Incharge (OI) in first four months in year 2009 and there was no entry in his writing in entire document Ex. PW 15/H (colly) (D7). PW 15 further elicited that even the files Ex. PW 15/C (colly); Ex. PW 15/G (colly); Ex. PW 15/F (colly); Ex. PW 15/E (colly) and Ex. PW 15/D (colly) do not bear his writings anywhere and he had simply given them from his office records to CBI officials. The person(s) who scribed aforesaid four entries i.e. at serial numbers (1) 1605 of date 09/03/2009; (2) 1746 of date 13/03/2009; (3) 1833 of date 17/03/2009; (4) 1989 of date 19/03/2009 in the daily receipt register, copies Ex. PW 15/H (colly) (D7) about complaints received or who handed them to any official including A1 have not been cited nor examined as prosecution witness(es) to prove receipt of said four complaints regarding the unauthorized construction allegedly at 16/5, WEA, Karol Bagh, New Delhi nor by any documentary or oral evidence it has been proved on record as to what was the follow up action taken on RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 44/85 CBI vs J.S Sehrawat etc. such four complaints or as to what was their fate at the end as to whether the said complaints were found having any element of truth or were fictitious or false complaints.
52. PW7 Sh. B.P. Sharma, the then Assistant Engineer (Building) in MCD, Town Hall, Delhi deposed that vide office order Mark P7/3 dated 14/07/2010 the inspection team including himself were directed to carryout technical evaluation of property no. 16/5, WEA, Karol Bagh, New Delhi. As per PW 7 they had gone to the site of said property for inspection for seven consecutive days approximately prior to 07/10/2010, during inspection no memorandum or any other proceedings were drawn. Also as per PW 7, all deviations and violations from sanctioned plan noticed at the time of inspection at aforesaid property were detailed in comparison report Ex. PW 7/B and PW 19 Contract Architect Sher Singh and Draughtsman Pawan Kumar also accompanied the inspection team. As per PW 7, at the time of inspection of the said property it was fully occupied from basement floor to fourth floor and no construction activity was in progress. PW 7 further deposed that they cannot ascertain the age of the building existing at property no. 16/5, WEA, Karol Bagh, New Delhi. As per PW 16 Sh. B.L. Jindal Executive Engineer, member of aforesaid inspection team they had inspected the aforesaid property on 10/08/2010 when PW 19 prepared rough drawing after taking measurements of all accommodations of each floor then existing, for about 45 days. As per PW 19, member of the aforesaid RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 45/85 CBI vs J.S Sehrawat etc. inspection team, they had done the inspection of the aforesaid property on 16/09/2010, 17/09/2010 and 27/09/2010 and had taken measurements thereof. Irrespective of the fact that aforesaid witnesses PW 7, PW 16 and PW 19 are narrating different dates of inspection of same property, fact remains that the construction of said property no. 16/5, WEA, Karol Bagh, New Delhi as it was existing in August / September / October 2010 but not prior to August 2010, has been revealed in the comparison report Ex. PW 7/B in respect of which none of the prosecution witnesses could say about the age of the construction of the said property.
53. PW 13 Kavinder Tiwari stated that he was illiterate and only able to sign. As per PW 13, he had purchased a built up portion in fourth floor of property no. 16/5, WEA, Karol Bagh, New Delhi vide sale deed Ex. PW 13/B (D41) dated 02/02/2009 and before execution of the said document he had remained in the said portion as a tenant for about 4 years. As per PW 13, after he had purchased the built up portion, he had got walls plastered and got floor tiles affixed in the purchased portion. PW 13 denied to have simply got rights of terrace portion of third floor in terms of sale deed Ex. PW 13/B (D41) and plan annexed to it. PW 13 was crossexamined at length by Ld. PP for CBI after he resiled but to no avail and PW 13 did not support the case of prosecution. As per PW 13 since no registration was being done regarding any portion built up at fourth floor so sale deed Ex. PW 13/B (D41) was got executed in respect of terrace portion of third floor of said property. PW 13 also elicited that RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 46/85 CBI vs J.S Sehrawat etc. he did not know either A2 or A4.
54. PW 14 Sushil Tiwari stated that he was educated till class 2 nd only. As per PW 14, he had purchased a built up portion in fourth floor of property no. 16/5, WEA, Karol Bagh, New Delhi vide sale deed Ex. PW 14/B (D42) dated 02/02/2009 and before execution of the said document he was residing in said portion previously built up. PW 14 denied to have simply got rights of terrace portion of third floor in terms of sale deed Ex. PW 14/B (D42) and plan annexed to it. PW 14 was crossexamined at length by Ld. PP for CBI after he resiled but to no avail and PW 14 did not support the case of prosecution. PW 14 also elicited that he did not know either A2 or A4. As per PW 14, he had not got any construction done in portion purchased by him.
55. PW 22 Subhash Chand stated that he was educated till class 7th only. As per PW 22, he had purchased a built up portion in fourth floor of property no. 16/5, WEA, Karol Bagh, New Delhi vide sale deed Ex. PW 22/C (D39) dated 21/12/2009, in the name of his wife Smt. Shabnam (PW 25). PW 22 also stated that vide memo Ex. PW 22/A (D
62) he had delivered documents to IO including sale deed Ex. PW 22/B (D38) dated 02/02/2009 in favour of PW 35 Ram Kumar Tiwari, which was in respect of the portion of property purchased by PW 22 in the name of his wife. On resiling of PW 22, he was crossexamined by Ld. PP for CBI and in the crossexamination of Ld. PP for CBI suggestion RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 47/85 CBI vs J.S Sehrawat etc. contrary to prosecution case was given. It was suggested to PW 22 by Ld. PP for CBI that he (PW 22) had purchased the terrace portion at third floor of the said property and not any built up portion to which PW 22 denied. By such suggestion of Ld. PP for CBI, it has been infact suggested that in December 2009 when sale deed Ex. PW 22/C was executed in the name of PW 25 then the portion purchased was terrace portion of third floor of property no. 16/5, WEA, Karol Bagh, New Delhi and not a built up portion and in the period from 02/02/2009 to 21/12/2009 there was no construction raised in the said portion of property. PW 22 also stated that he was not knowing either A2 or A4. Also as per PW 22 the aforesaid portion purchased in name of his wife was so built up about 5 years prior to its purchase as he had seen it while walking through the street. PW 25 Smt. Shabnam wife of PW 22 stated that she was housewife and educated till class 8 th and she had purchased built up portion at fourth floor vide sale deed Ex. PW 22/C. Both PWs 22 and 25 categorically denied of having purchased the terrace portion of third floor only of property no. 16/5, WEA, Karol Bagh, New Delhi in terms of sale deed Ex. PW 22/C.
56. PW 35 Sh. Ram Kumar Tiwari deposed that he was educated till class 5th. As per PW 35, he had purchased built up portion at fourth floor of property number 16/5, WEA, Karol Bagh, New Delhi vide sale deed Ex. PW 22/B (D38) dated 02/02/2009 and when they had gone for registration of the documents he was told that the sale deed for built RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 48/85 CBI vs J.S Sehrawat etc. up portion on fourth floor of said property cannot be registered and if the registration is to be got done then it is required to be mentioned in the documents of sale that the portion under sale was terrace portion over the third floor of said property no. 16/5, WEA, Karol Bagh, New Delhi. As per PW 35, the entire property no. 16/5, WEA, Karol Bagh, New Delhi was built up prior to year 2005 as when he came to stay in said property in year 2005 it was fully built up. Also PW 35 stated that he had not raised any unauthorized construction at the property purchased by him and that no official / officer of MCD visited his purchased property nor any notice / demolition order was served upon him nor pasted on the said property. PW 35 was crossexamined at length by Ld. PP for CBI after he resiled and did not support the case of prosecution but to no avail. PW 35 also stated that vide sale deed Ex. PW 22/C (D39) dated 21/12/2009 he had sold the portion of aforesaid property purchased by him to wife of PW Subhash (PW 22) i.e. PW 25 Smt. Shabnam. Per contra to case of CBI, PW 35 was also suggested by Ld. PP for CBI that he (PW 35) had purchased (vide sale deed Ex. PW 22/B dated 02/02/2009) as well as sold (vide sale deed Ex. PW 22/C dated 21/12/2009) the portion of the terrace on the third floor of the property no. 16/5, WEA, Karol Bagh, New Delhi as was mentioned in the said deeds Ex. PW 22/B and Ex. PW 22/C to which suggestion PW 35 denied. As per the aforesaid suggestion of Ld. PP for CBI, it is propounded that in the period from 02/02/2009 till 21/12/2009 no construction was raised in the terrace portion purportedly purchased by PW 35 vide Ex. PW 22/B RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 49/85 CBI vs J.S Sehrawat etc. on 02/02/2009 and sold vide Ex. PW 22/C on 21/12/2009. Such suggestion infact in a way demolishes prosecution case.
57. PW 28 Rajender Chaddha deposed of being partner of M/s Chaddha Construction, which concern had purchased in year 1999 old built up property no. 16/5, WEA, Karol Bagh, New Delhi from its owner Bakshish Singh vide Power of Attorney in favour of PW 29 Ravinder Chaddha. As per PW 28, old built up property was demolished and new plan for construction of basement, ground floor, first floor and second floor was got sanctioned. Said property was constructed upto second floor in year 2000 with some deviations from sanctioned plan. As per PW 28, in year 2003 or 2004 they constructed third floor of said property for which no plan was got sanctioned and portions of said third floor was sold to 5 or 6 purchasers in year 2003 or 2004 itself. As per PW 28, terrace of third floor was also sold in year 2008 or 2009 to four persons of which some were perhaps PW 13 Kavinder Tiwari, A3 and Ram Kumar. PW 29 Ravinder Chaddha deposed that he executed sale deeds Ex. PW 22/B (D38); Ex. PW 26/A (D40) (dated 02/02/2009 in favour of A3); Ex. PW 13/B (D41) and Ex. PW 14/B (D42) as attorney of Bakshish Singh in favour of the purchasers in respect of the terrace portions of third floor of property no. 16/5, WEA, Karol Bagh, New Delhi as detailed therein. PW 29 also stated that third floor of aforesaid property was built up in year 2003 approximately without getting any plan sanctioned for which no notice was received from MCD and said RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 50/85 CBI vs J.S Sehrawat etc. constructed portions of third floor of said property were sold in year 2003 itself. Both PWs 28 and 29 denied to have sold built up portions on fourth floor of property no. 16/5, WEA, Karol Bagh, New Delhi. PW 26 Sh. Yogesh Anand is the witness of the sale deeds Ex. PW 22/B (D38); Ex. PW 26/A (D40); Ex. PW 13/B (D41) and Ex. PW 14/B (D42) and also elicited that at the time of execution of these sale deeds, he had not seen the properties, which were subject matter of said sale deeds.
TAPE RECORDED CONVERSATION
58. In the case of Yusufalli (Supra), on the question regarding admissibility of the tape recorded conversation, the Supreme Court observed that the contemporaneous taperecord of a conversation formed part of the res gestae and is relevant fact and admissible under Section 8 of Indian Evidence Act. The recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice, and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing, the taperecord. It was also therein observed that since the tape records are prone to tampering, the time, place and accuracy of the recording must be proved by a competent witness. It is necessary that such evidence must be received with caution. The Court must be satisfied, beyond reasonable doubt that the record has not been tampered with.
RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 51/85 CBI vs J.S Sehrawat etc.
59. In the case of Ziyauddin Burhanuddin Bukhari AIR 1975 SC 1788, Supreme Court held that the taperecords of speeches were admissible in evidence on satisfying the following conditions :
"(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subjectmatter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act."
60. In the case of People's Union for Civil Liberties (Supra), it was directed that an order for telephone tapping in terms of Section 5 (2) of Indian Telegraph Act, 1885 is to be issued by the authorities designated there and its copy is to be sent to the Review Committee concerned within one week of passing of such order; procedural safeguards were laid and the Review Committee within two months is to investigate whether there is a relevant order under Section 5 (2) of said Act and/or whether there has been any contravention of Section 5 (2) of said Act and in case of any such contravention of said provision the said committee will set aside said order under scrutiny and direct destruction of copies of intercepted material while in case of no contravention a finding to that effect shall be recorded by the Review Committee.
RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 52/85 CBI vs J.S Sehrawat etc.
61. In the case of Hukum Chand Shyam Lal (Supra), it was held that the appropriate authority has to form an opinion with regard to occurrence of a 'public emergency' with a view to take further action under Section 5 (1) of Telegraph Act, 1885.
62. In the case of Smt K.L.D. Nagasree (Supra), it was held that compliance with procedural safeguards provided Rule 419A of Telegraph Rules 1951, containing procedural safeguards in terms of pronouncement in case of People's Union for Civil Liberties (Supra), was mandatory, particularly since violation of said provisions would result in infraction of right to privacy of an individual which is part of right guaranteed under Act 21 of Constitution; in event of non compliance, whatever information is obtained pursuant to that order cannot be taken into consideration for any purpose whatsoever.
63. In case of Dharambir Khattar vs Union of India & Anr in W.P. (Crl) 1582/2007 it was held by Hon'ble Mr Justice Badar Durrez Ahmed on 21/11/2012 that "It is apparent that the Supreme Court categorically held that the question of admissibility of a tape recorded conversation illegally collected or obtained was no longer in issue in view of the decision in R.M. Malkani (supra), where the Supreme Court held that a contemporaneous tape record of a relevant conversation was a relevant fact and was admissible. The Supreme Court clearly held that the noncompliance or inadequate compliance with the provisions of the said Telegraph Act did not per se affect the admissibility.
45. Therefore, without going into the issue of whether there was non RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 53/85 CBI vs J.S Sehrawat etc. compliance of the provisions of Section 5(2) or of Rule 419A, it is clear that even if there was, in fact, no compliance, the evidence gathered thereupon would still be admissible.
"
64. So without going into the issue of whether there was non compliance of the provisions of Section 5(2) the Telegraph Act or of Rule 419A the Telegraph Rules, it is clear that even if there was, in fact, no compliance, the evidence gathered thereupon would still be admissible.
65. In R. M. Malkani (Supra) Supreme Court laid down the essential conditions which, if fulfilled or satisfied, would make a tape recorded statement admissible otherwise not; and observed thus :
"Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record."(Emphasis supplied)
66. In the case of R.M Malkani (Supra), it was also held that the telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to the imperiled by permitting RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 54/85 CBI vs J.S Sehrawat etc. the police to proceed by unlawful or irregular methods.
67. In Ram Singh vs. Col. Ram Singh, AIR 1986 SC 3 the Supreme Court has observed that:
"A tape recorded statement is admissible in evidence subject to the following conditions:
(1) The voice of the speaker must be identified by the maker of the record or other persons recognising his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
(2) The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Possibility of tampering with or erasure of any part of the tape recorded statement must be totally excluded.
(4) The tape recorded statement must be relevant.
(5) The recorded cassette must be sealed and must be kept in safe of official custody.
(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances."
68. In the case of Dharambir vs. CBI, 148 (2008) DLT 289, it was inter alia held that "(i) As long as nothing at all is written on to a hard disc and it is subjected to no change, it will be a mere electronic storage device like any other hardware of the computer. However, once a hard disc is subject to any change, then even if it is restored to the original position by reversing that change, the information concerning the two steps, viz., the change and its reversal will be stored in the subcutaneous RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 55/85 CBI vs J.S Sehrawat etc. memory of the hard disc and can be retrieved by using software designed for that purpose. Therefore, a hard disc that is once written upon or subjected to any change is itself an electronic record even if does not contain any accessible information at present. In addition there could be active information available on the hard disc which is accessible and convertible into other forms of data and transferable to other electronic devices. The active information would also constitute an electronic record.
(ii) Given the wide definition of the words 'document' and 'evidence' in the amended Section 3 the EA, read with Sections 2 (o) and (t) IT Act, a Hard Disc which at any time has been subject to a change of any kind is an electronic record would therefore be a document within the meaning of Section 3 EA.
(iii) The further conclusion is that the hard disc in the instant cases are themselves documents because admittedly they have been subject to changes with their having been used for recording telephonic conversations and then again subject to a change by certain of those files being copied on to CDs. They are electronic records for both their latent and patent characteristics."
69. It was also held in aforesaid case that the accused therein had a right of inspection of the hard disc since making mirror image copies of entire hard discs was uncalled for; it was also directed that the four hard discs be brought back from the forensic laboratory and be kept in either Cyber Crime Section of CBI or any other similar convenient place but under the control of the Special Judge CBI and original recorded conversations of relevant intercepted telephone calls relied upon by CBI in these four hard discs were to be played before the Special Judge CBI in the presence of accused or their representatives, the Counsel for the parties subject to the directions of Special Judge CBI.
RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 56/85 CBI vs J.S Sehrawat etc.
70. In the case of Mahabir Prasad Verma (Supra), it was held that tape recorded conversations can only be relied upon as corroborated evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape recorded conversation is indeed no proper evidence and cannot be relied upon.
71. The conditions laid for admissibility of tape recorded statement in evidence in the cases of Ram Singh (Supra) and Mahabir Prasad Verma (Supra) found approval of the Supreme Court in the case Nilesh Dinkar Paradkar (Supra).
72. It is to be seen, whether the recorded conversation of the 16 relevant telephone calls detailed in transcript Ex PW 40/J (D48) of the period from 21/02/2009 to 07/03/2009 was properly recorded, kept, preserved, transferred in CD Ex Q1, sealed and not tampered with at any stage.
73. PW 31 Sh. S. Ingarsal, Senior Scientific Officer GradeII at CFSL, CBI deposed that in the month of November 2010, he had recorded sample voices of (1) A3 vide memorandum Ex. PW 20/A (D
83); (2) A2 vide memorandum Ex. PW 20/B (D84); (3) A5 vide memorandum Ex. PW 20/C (D85) and (4) A1 vide memorandum Ex.
RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 57/85 CBI vs J.S Sehrawat etc. PW 20/D (D86). PW 20 Sh. R.K. Vohra, Assistant General Manager in Punjab National Bank is witness to recording of said sample voices.
74. As per IO PW 40, PW 21 Sh. K. Raja and PW 38 Sh.
Kishore, A4 refused for recording of his sample voice vide Ex. PW 21/A (D89) dated 23/12/2010. PW 40 had sent sample voices of other accused obtained much earlier in November 2010 for expert opinion from CFSL. Recording of Ex. PW 21/A (D89) on 23/12/2010 the date when charge sheet was also signed (though presented on next day i.e., 24/12/2010 in the Court), appears to be a tool to fill up the lacuna for not recording of sample voice of A4 well in time before sending of other sample voices for expert opinion from CFSL.
75. PW2 Deputy Superintendent M.C Kashyap, CBI deposed that he was posted in Special Unit of CBI and in year 2010 certain telelphones were put on surveillance after obtaining orders Ex PW2/DA (D57), dated 06/02/2009 of Secretary to Government of India MHA the mobile numbers mentioned in said order i.e., numbers 9818802431 and 9968493939, were put under surveillance in 2009. PW 2 elicited that after receipt of Orders for such surveillance, requests were made to Airtel and MTNL viz the service providers of these mobile phone numbers, to extend parallel connectivity of these mobile phone numbers. On record no such correspondences done with such service providers have been filed nor proved as per law nor such correspondences were given to the RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 58/85 CBI vs J.S Sehrawat etc. IO PW 40 by PW 2. As per PW 2 he had obtained the call detail records (CDRs) of aforesaid mobile number put under surveillance, from aforesaid service providers but PW 2 had not given the CDRs to the IO. PW 2 deposed that he was the System Administrator so was competent to issue certificate Ex. PW 2/1 (part of D70). Ex. PW 2/1 (part of D70) finds no mention of PW 2 being the System Administrator as alleged by PW 2. Ex. PW 2/1 finds mention of the fact that PW 2 was having lawful control over the use of the computer system, which was used regularly to record intercepted telephonic communications for the period from 21/02/2009 to 07/03/2009. Neither Ex. PW 2/1 finds mention of the fact that said computer system having the voice logger system was under the exclusive control of PW 2 or no other official of CBI was having any access to said computer system having the voice logger system in the period from 21/02/2009 till the date of transfer of the call conversations in 16 voice files from voice logger system to CD Ex. Q1. Also Ex. PW 2/1 finds no mention nor it has been deposed by PW 2 that for the period later to 07/03/2009 till transfer of data of call conversations in 16 voice files from voice logger system to CD Ex. Q1, PW 2 was in exclusive control of the computer system having the voice logger system aforesaid or no other official of CBI had any access to it. As per PW 2, the telephonic surveillance of these numbers were done using voice logger which is an electronic computerized machine which intercepts and records communications of telephone number under surveillance automatically and without human intervention 24X7 hours/days. No RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 59/85 CBI vs J.S Sehrawat etc. document for transfer of 16 recorded calls information files from said voice logger system to CD Ex. Q1 was prepared by PW 2 nor these facts were brought in notice of any Court. Interception of these calls were allegedly done in the period from 21/02/2009 to 07/03/2009 i.e. prior to registration of the FIR in this case on date 17/02/2010. Strangely enough the FIR dated 17/02/2010 Ex. PW 40/A finds no mention of aforesaid fact. No independent witness was joined in the proceedings of transfer of data from the voice logger system to CD Ex. Q1. PW 2 also deposed that the CD Ex. Q1 was sealed and the seal was retained in their office, which seal was neither produced in Court nor given to any independent witness. As per PW 2, these communications were heard and it was found that A1 and others were indulging in illegal and undesirable activities. PW 2 could not elicit in the course of crossexamination the date, month and year when he had heard such conversations. Also PW 2 stated that as per practice, after hearing such conversations, he had briefed his SP but for that he had not prepared any kind of report for noticed illegal and / or undesirable activities. PW 2 further stated that on receipt of information that a case has been registered in CBI, the relevant calls pertaining to the facts of this case in respect of A1 and others were copied in a CD Ex Q1 which along with recorded call information report Ex PW2/3 (part of D70) was handed over by PW2 to PW 40 IO of the case, which were seized vide seizure memo PW40/G (D69). PW 2 deposed that he also gave a certificate Ex.PW2/1 (part of D70) under Section 65 B of Indian Evidence Act to PW 40 IO which was RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 60/85 CBI vs J.S Sehrawat etc. accompanied by the Annexure A Ex PW2/2 (part of D70) having details of the recorded call file, date and time of recording on the computer system and intercepted telephone numbers. PW 2 further deposed that he also gave the recorded calls information report Ex PW2/3 in two sheets along with CD Ex Q1 to PW 40 IO. Ex. PW 40/G (D69) finds no mention of handing over of certificate Ex. PW 2/1 (D70). Ex. PW 2/1 finds mention of handing over of two sets of CDs on 09/04/2010 by PW 2 to IO PW 40. Call detail records (CDRs) of mobile phone number 9818802431 of period from 21/02/2009 to 07/03/2009 are part of D36 Mark P27/2 (colly) obtained by investigating agency and placed on record and it reflects hundreds of calls made from or received at mobile phone number 9818802431. Call detail records (CDRs) of mobile phone number 9810709008 of period from 21/02/2009 to 07/03/2009 are part of D37 Mark P27/4 (colly) obtained by investigating agency and placed on record and it reflects hundreds of calls made from or received at mobile phone number 9810709008. Call detail records (CDRs) of mobile phone number 9968493939 of period from 22/02/2009 to 26/02/2009 are part of D28 Ex. PW 12/C (colly) obtained by investigating agency and placed on record and it reflects more than hundred calls made from or received at mobile phone number 9968493939. Call detail records of 21/02/2009 and of the period from 27/02/2009 to 07/03/2009 of mobile phone number 9968493939 were neither filed nor proved. Even the CDRs part of D28 Ex. PW 12/C (colly) of mobile phone number 9968493939 elicited above are not in correct sequence of time. Neither in RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 61/85 CBI vs J.S Sehrawat etc. certificate Ex. PW 2/1 nor in his deposition PW 2 could elicit any fact about the manner and mode of his selection of the elicited 16 voice files of call conversations from voice logger system and their copy to CD Ex. Q1. Ex. PW 2/1 simply finds mention that these aforesaid 16 calls were reproduced on a compact disk and two sets of the same were prepared. PW 2 stated that he delivered Ex. PW 2/1 to IO PW 40 on 09/04/2010. Neither in any document including certificate Ex. PW 2/1, AnnexureA Ex. PW 2/2, recorded calls information report Ex. PW 2/3, seizure memo Ex. PW 40/G nor in deposition of PW 2 there is any mention of the fact of date of copying of the call content of the 16 calls depicted in Ex. PW 2/2 and Ex. PW 2/3 to CD Ex. Q1 from the computer system of Special Unit of CBI, wherein initially said 16 calls were recorded by use of voice logger system. There is no explanation in any document or in deposition of PW 2, PW 40 or otherwise as to once the hard disk of computer system of Special Unit of CBI was written upon i.e. subjected to change by recording of aforesaid hundreds of calls, which were made from or received on mobile phone numbers 9818802431 and 9968493939 within the period from 21/02/2009 to 07/03/2009 and in the period later thereto, when the hard disk of the computer system of Special Unit of CBI was again subjected to change by manual selection of data of 16 calls detailed in Ex. PW 2/2 and Ex. PW 2/3 and the copy of the data in the Compact Disk Ex. Q1, there was no tampering or eraser or deletion or addition or manipulation of data or any part there of the recorded conversations of the calls. Seal after use was not handed over to any independent person / RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 62/85 CBI vs J.S Sehrawat etc. witness. No independent witness was joined in the proceedings of transfer of data from computer system of Special Unit of CBI to CD Ex. Q1 by PW 2. PW 2 did not depose that in the period from 21/02/2009 to 07/03/2009 and / or in the period from 07/03/2009 to the date of transfer of data of 16 voice files of call conversations from voice logger system to CD Ex. Q1 and upto the date of handing over of the CD Ex. Q1 to IO PW 40, the data of the recorded calls was not tampered in any way within the computer system of Special Unit of CBI or in the CD Ex. Q1. It is admitted fact that prior to and later to the selected 16 voice files of call conversations there were several calls made from and received at the mobile phone numbers 9818802431 and 9968493939, which could have contained the backdrop and aftermath of the conversations so recorded in the previous or later calls and cannot be perse termed as irrelevant but they were not selected nor copied in any compact disk nor produced in Court for their hearing. Most important condition of identifying the voices of selected 16 voice files of call conversations contained in CD Ex. Q1 depicted in Ex. PW 2/2 and Ex. PW 2/3 has not been satisfied in this case and PW 5, PW 8, PW 11, PW 15, PW 17, PW 22, PW 23, PW 33 and PW 34 have not identified the voices contained therein to be of any of the arraigned accused. PW 40 in the course of his examination admitted that he had himself prepared transcript Ex. PW 40/J with the assistance of Stenographer of ACUIII branch of CBI. PW 40 did not whisper of any any assistance taken from any of the persons acquainted with the voices of arraigned accused to identify the voices contained in RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 63/85 CBI vs J.S Sehrawat etc. 16 voice files of call conversations in CD Ex. Q1 for the purposes of preparation of transcript Ex. PW 40/J (D48). How could IO PW 40 attribute alleged dialogues to arraigned accused from amongst dialogues in transcript Ex. PW 40/J (D48), has been left to imagination and by no stretch of imagination it could be ascertained or proved as to how IO PW 40 could attribute such alleged dialogues to be in voices of the accused specified in transcript Ex. PW 40/J (D48).
76. My attention has been drawn by Ld. Counsel for A1 and A 2 to the differences, detailed in table below, in call time and in the duration of the calls in questioned calls detailed in Ex PW 2/3 (part of D
70) read along with forensic voice examination report Ex. PW 41/A on its comparison with the call detail records in documents D36 (in respect of 9818802431 alleged to be used by A1); D37(in respect of 9810709008) and D28 (in respect of 9968493939 alleged to be used by A2), as provided by the service providers. The date and time of modifications of audio files were seen from CD Ex. Q1 at the time of its display in the course of final arguments on 26/11/2013 and 27/11/2013.
RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 64/85
CBI vs J.S Sehrawat etc.
Sr. Call Call Time Date & time Duration of call in
No. of Date of seconds
call in modification
D70 In Ex. In D36/ of audio file In Ex. PW In D36/
PW 2/3 D37/ 41/A D37/D28
as per CD
(part of D28 (Forensic
D70)
Ex. Q1 Voice
Examination
Report)
1 21/02/09 17:30:55 17:34:59 21022009 087 081
(in D36) 18:02 (in D36)
2 21/02/09 17:32:27 17:36:57 21022009 070 039
(in D36) 18:03 (in D36)
3 21/02/09 17:39:10 17:43:16 21022009 313 305
(in D36) 18:14 (in D36)
4 21/02/09 17:41:33 17:45:36 21022009 224 219
(in D37) 18:15 (in D37)
5 21/02/09 19:55:00 19:59:10 21022009 204 192
(in D37) 20:28 (in D37)
6 22/02/09 10:28:26 10:32:33 22022009 234 226
(in D37) 11:02 (in D37)
7 23/02/09 08:59:20 09:03:41 23022009 194 172
(in D36) 09:32 (in D36)
8 24/02/09 13:50:01 13:54:06 24022009 337 333
(in D37) 14:25 (in D37)
12 26/02/09 12:43:57 12:48:13 26022009 180 165
(in D28) 13:17 (in D28)
13 26/02/09 13:11:32 1:15:46 26022009 109 96
(in D28) 13:43 (in D28)
77. Also was argued by the Ld. Counsel for A1 and A2 that the calls at S.No. 9, 11 and 14 as detailed in Ex. PW 2/3 (part of D70) in respect of 9968493939 were not reflected in the call details records Ex.
RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 65/85 CBI vs J.S Sehrawat etc. PW 12/C (colly) (D28) and similarly, the calls at S.No. 10, 15 and 16 as detailed in Ex. PW 2/3 (part of D70) in respect of 9810709008 were not reflected in call details records D37 [Mark P27/4 (colly)]. Also was argued that no call detail records were procured for mobile phone number 9968493939 for 03/03/2009 and 07/03/2009. Also it was submitted that call details records Ex. PW 12/C (colly) (D28) were not in correct sequence of time. Also was submitted that no call detail records were filed nor proved in respect of mobile phone numbers 9899430880 and 9999920606.
78. Ld. PP for CBI argued that as per the call detail records (CDRs) provided by the service provider, the duration of call in seconds, was in respect of the period of the billed calls and excluded the duration of the calling ring tone, while the duration of the call detailed in Forensic Voice Examination Report Ex. PW 41/A included the period of ring tone as well. Such arguments find no foundation either in any document including call detail records (CDRs), report Ex. PW 41/A, Ex. PW 2/1, Ex. PW 2/2, Ex. PW 2/3 or in any oral evidence including that of any official of service provider of the relevant mobile phone numbers, PW 2, PW 40 and PW 41. IO PW 40 candidly admitted he did not investigate the matter in respect of discrepancy in duration of time mentioned in the recorded calls and the call detail records (CDRs) of the calls in question. Investigating agency through concerned officers had bounden duty to furnish the reasonable explanation for afore elicited differences in call RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 66/85 CBI vs J.S Sehrawat etc. time and call duration of the cited 16 relevant calls in Ex. PW 2/2, Ex. PW 2/3, Ex. PW 41/A on its comparison with call detail records (CDRs) Ex. PW 12/C (colly) (D28); part of D36 [Mark P27/2 (colly)] and D 37 [Mark P27/4 (colly)] as well as on the aspect of date and time of modification of audio files in CD Ex. Q1 being at variance with the time of receipt of these calls and their simultaneous recordings in voice logger system of computer system of Special Unit of CBI since all these documents were the relied documents of the investigating agency and such reasonable explanation was required to be duly proved in the course of prosecution evidence, which was not done. Of course, prosecution case has to stand upon its own legs. There is no mention of (1) the date of copy of data in CD Ex Q1 from the computer system of Special Branch of CBI ; (2) handing of seal to anyone after sealing of CD Ex. Q1; (3) mode and manner of selection of 16 calls detailed in Ex PW 2/2, Ex. PW 2/3 from amongst hundreds of recorded calls of period from 21/02/2009 to 07/03/2009 in computer system in either certificate Ex PW 2/1 or in deposition of PW 2. Recorded Calls Information Report Ex PW2/3 (part of D70) per se reveals calls detailed there at serial number 2, 3, 7 to have been intercepted on mobile phone number 9818802431 (alleged to be of A1) and the calls at serial number 1, 4, 5, 6, 8 to 16 to have been intercepted on mobile phone number 9968493939 (alleged to be of A2). In terms of order order Ex PW2/DA (D57), dated 06/02/2009 of Sh Madhukar Gupta, the then Secretary, Ministry of Home Affairs, which order was in force for a period not exceeding 60 days from 06/02/2009, RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 67/85 CBI vs J.S Sehrawat etc. the Special Unit of CBI kept mobile phone numbers 9818802431 and 9968493939 under surveillance/observation. In terms of certificate Ex PW 2/1 the computer system of Special Unit of CBI recorded intercepted telephonic communications of different cases simultaneously and recorded therein. Accordingly, calls made from or received at a particular mobile number were so recorded automatically in tandem in the computer system of Special Unit of CBI as and when they were so made or received. Selection of afore elicited calls in Ex. PW 2/3 detailed at serial number 2, 3, 7 stated to have been intercepted on mobile phone number 9818802431 (alleged to be of A1) and the calls at serial number 1, 4, 5, 6, 8 to 16 stated to have been intercepted on mobile phone number 9968493939 (alleged to be of A2) and their copy at such serial number of call conversations in 16 voice files in CD Ex. Q1 depicts that the selection and copying process of such 16 intercepted calls of two mobile phone numbers from amongst hundreds of calls in computer system stored at atleast two different locations (as per mobile phone numbers intercepted) required human intervention, manual selection and it was not only improbable but infact impossible that such 16 call conversations were selected or copied automatically by the computer system of Special Unit of CBI. Also there is no mention in his deposition by PW 2 of the fact that there was no change (manipulations/editing/deletions/additions) in call contents of relevant calls detailed in Ex PW 2/2 and Ex. PW 2/3 contained in CD Ex. Q1 pursuant to their recordings, in the period it remained in the computer RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 68/85 CBI vs J.S Sehrawat etc. system of Special Branch of CBI and in course of copy of their data in CD Ex Q1 and another CD and in the period till such CD Ex Q1 was sealed and retained by PW 2. Fact also remains that there exist differences in call time and duration of the calls as reflected in comparison of such details in document Ex PW 41/A and Ex. PW 12/C (colly) (D28); part of D36 [Mark P27/2 (colly)] and D37 [Mark P 27/4 (colly)] and is elicited in table herein above. Besides that there exists difference / variance in respect of time of modification of audio files in CD Ex. Q1 from the time of receipt of said calls, elicited in table hereinabove. IO PW 40 candidly admitted that he did not investigate the aspect when any call is recorded in hard disk of computer, a distinct file number is created and if there is any interpolation in that file / call, a separate file is created and on examination of hard disk this interpolation can be ascertained but if the interpolated call is transferred in CD and only the CD is examined, such interpolation cannot be ascertained. The original hard disk of the computer system of Special Unit of CBI was neither seized in the course of investigation nor sent for forensic opinion of expert to vouchsafe for authenticity and ruling out possibility of tampering or erasure of any part of the recorded call conversation of the 16 calls detailed in Ex PW 41/A and Ex. PW 12/C (colly) (D28); part of D36 [Mark P27/2 (colly)] and D37 [Mark P27/4 (colly)] as they were recorded in the CD Ex Q1 by examination of its data. There was no impediment for the concerned officers of CBI for sending the said original hard disk of computer system of Special Unit of CBI for forensic RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 69/85 CBI vs J.S Sehrawat etc. opinion of the expert to rule out manipulations, tampering or erasure of part or whole of the recorded call conversations in it or in the CD Ex Q 1, the stated copy of such data. PW 5, PW 8, PW 11, PW 15, PW 17, PW 22, PW 23, PW 33 and PW 34 have not identified the voices contained in CD Ex. Q1 to be of any of the arraigned accused. PW 33 even stated that audio file 1016245300920090307105305.wav i.e. the listed call no. 16 in Ex. PW 2/3 and the listed call no. 10 in transcript Ex. PW 40/J (D48) was not having his voice though in transcript Ex. PW 40/J (D48) the dialogues at portions B are attributed to PW 33 Rajender Singh. None of the examined prosecution witnesses identified any voices of the 16 audio files in CD Ex. Q1 to be of any of the arraigned accused persons. Arraigned accused persons at all stages of trial, during prosecution evidence, at the time of recording of their statements under Section 313 Cr.P.C as well as in the course of arguments themselves and through Counsel flatly denied of call conversations in CD Ex Q1 to be containing their voices.
79. PW 41 Sh Amitosh Kumar, Senior Scientific Officer Grade II - cum - Assistant Chemical Examiner to the Government of India CFSL: CBI: New Delhi had examined the aforesaid 16 relevant calls and has proved his report Ex PW 41/A but in the course of his examination admitted that in the requisition of the CBI, the details of the questioned voices and specimen voices were given and it was also given as to they were of which specified person/accused. In the report Ex PW 41/A the RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 70/85 CBI vs J.S Sehrawat etc. auditory, phonetic and linguistic features in the questioned voices and specimen voices are not mentioned. PW41 also admitted that his laboratory came under the administrative control of CBI. The voice file no. 1016245300420090225152816.wav as depicted at S.No. 10 in recorded calls information report Ex. PW2/3 and as call no. 13 in transcript Ex. PW 40/J (D48) is alleged to be containing conversations in voice of A2 at portions "A" and of A3 at portions "B" therein. In the course of final arguments, CD Ex.Q1 was displayed and heard in the open Court by all present including the undersigned, the Ld. PP for CBI, Ld. Defence Counsels present for accused persons on 26/11/2013 and 27/11/2013 and it was unanimously observed that the aforesaid voice file no.1016245300420090225152816.wav was containing voice at portions "B", depicted in transcript Ex. PW 40/J (D48), appearing to be the voice similar to voice attributed to A4 (Laxman Mandal) in other voice files depicted in transcript Ex. PW 40/J (D48) at call numbers 3, 6, 9, 11, 12 and 16. Per contra, in transcript Ex. PW 40/J (D48) aforesaid voice at "B" in file no. 1016245300420090225152816.wav was attributed to A3 (Bindeshwar Pandey) and even in the Forensic Voice Examination Report Ex. PW41/A the said voice, marked therein as Ex. Q1(13)(A), was termed as probable voice of A3 (Bindeshwar Pandey) as per result of examination given there in para 8 (1) at page no. 19. Incorrectness in the report Ex.PW41/A is writ large on the face of record.
80. Also was argued that hash value of each of the audio files of RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 71/85 CBI vs J.S Sehrawat etc. 16 relevant calls in computer system of Special Unit of CBI and in the CD Ex Q1 was neither obtained at any stage nor requisite certificate to that effect was filed nor proved to rule out tampering and prove genuineness/accuracy and originality of its data. Cumulative effect of elicited aforesaid facts bring into fore every reasonable possibility of chances of tampering, editing, additions, deletions, manipulation of datas of the recorded 16 call conversations in question detailed above and necessary precautions were neither taken at the end of concerned officers of investigating agency nor made vivid in their deposition in Court bringing the authenticity/genuineness/accuracy of content of the recorded call conversation of 16 calls detailed in Ex PW 2/2 and Ex. PW 2/3 and contained in CD Ex Q1 under the cloud of doubt. Besides that no prosecution witness in evidence has identified nor attributed any voices in the relevant 16 audio files in CD Ex. Q1 to be of any of the arraigned accused. Forwarding letter Ex. PW 40/B (D87) dated 24/11/2010 of SP CBI to Director CFSL, CBI, New Delhi interalia finds mention of the fact of forwarding of the sealed parcel containing compact disc (Ex. Q1) having various recorded calls between arraigned accused persons A1, A 2, A3 and A5 intercepted by Special Unit CBI, New Delhi during 21/02/2010 to 07/03/2010 after taking permission from the competent authority, which were received by CBI from Special Unit CBI on 09/04/2010 during the investigation. Said fact in itself casts cloud of doubt over the period of interception of the 16 calls in question as in the led prosecution evidence it has remained unexplained about elicited RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 72/85 CBI vs J.S Sehrawat etc. contradiction in respect of period of interception of said calls detailed in Ex. PW 40/B as to what has been mentioned in Ex. PW 2/1, Ex. PW 2/2 and Ex. PW 2/3 and deposed by PW 2 and IO PW 40. In this fact of the matter, the tainted tape recorded conversations in question cannot be used as corroborative piece of evidence.
81. PW 10 Anuj Bhatia, Nodal Officer, Vodafone Mobile Services Limited inter alia deposed that the call detail records (CDRs) of mobile phone numbers (1) 9999920606, which was in the name of Sanjeet Kumar and (2) 9899430880, which was in the name of Laxman Mandal (A4) were not delivered to IO of CBI since they could not be retrieved as search period was more than one year old.
82. PW 24 Sh. V.M. Mittal, the then Inspector in CBI, ACUI Branch deposed that on 21/05/2009 he conducted search at residence of A1 and inter alia seized mobile phone Ex. M24/A NOKIA 2760 vide search list Mark P24/1 (later Ex PW36/A) (D54). Also PW 24 stated that on 26/05/2009 on production he seized mobile phone Ex. M24/B NOKIA 6060 from A2 vide memo Ex. PW 24/A (D53). PW 24 admitted that at the time of seizure of these mobile phones Ex. M24/A and M24/B these were not sealed. PW 36 Sh. Upendra Rawat and PW39 Sh Bharat Bhushan Sharma are witnesses of such search and seizure from the residence of A1. As per PW 39, A1 had told CBI officers at the time of search of his residence that mobile make NOKIA (Ex. M RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 73/85 CBI vs J.S Sehrawat etc. 24/A) was not belonging to him.
83. PW18 Sh. Chander Kumar Grover, Manager, Syndicate Bank deposed that he was witness of search conducted by PW37 Inspector Satender Singh in the residence of A3 on 16/07/2010 and seizure of mobile phone make Nokia 7210 Ex PW18/B with SIM from there vide search list Ex PW18/A (D55).
84. PW 30 Ram Kumar deposed that his wife Smt. Kanta Devi, mother of A2 was illiterate, seriously ill, confined to bed, even needed assistance of a person round the clock for even the call of nature and thus not in a position to appear and depose and earlier she in case of need appended her thumb impression wherever it was needed. As per PW 30, Customer Application Form (CAF) Ex. PW 12/B (D27) had photograph of his wife Smt. Kanta at portion X in terms of which mobile phone number 9968493939 was in name of Smt. Kanta, which was used by several of his family members but excluding A2. PW 30 also deposed that A2 left his residence of Village Nizampur, New Delhi in 1993 and since then later thereto resided at the place of his maternal grandfather Sh. Maman Singh at Village Narela since nature and behavior of A2 was not matching theirs. As per PW 30, in May 2009 A2 with another person of CBI had taken aforesaid mobile phone from him and even at that time his other sons declined to give said mobile and only on the persuasion of A2 and recommendation of his wife Kanta Devi, PW 30 gave said RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 74/85 CBI vs J.S Sehrawat etc. mobile phone to A2.
85. PW 24 Inspector V.M. Mittal and PW 37 Inspector Satender Singh candidly admitted in the course of his examination that on seizures mobile phones Ex. M24/B NOKIA 6060; Ex. M24/A NOKIA 2760 and Ex. PW 18/B NOKIA 7210 were not sealed. Hash value of the digital evidence was not obtained nor certified by the officers seizing aforesaid mobile phones so as to authenticate the integrity of the digital evidence contained therein. Accordingly, there was every reasonable possibility to manipulate the contents and data of the mobile phones Ex. M24/B NOKIA 6060; Ex. M24/A NOKIA 2760 and Ex. PW 18/B NOKIA 7210 pursuant to their seizures.
86. PW 32 Sh. P.K. Gottam, SSOII in photo division of CFSL, New Delhi deposed that he had done videography of approximately 18 minutes recording of premises no. 16/5, WEA, Karol Bagh, New Delhi on 27/04/2010 which was recorded in video cassette Ex PW32/B regarding which Memorandum Ex PW32/A (D72) was drawn and prepared by IO PW40. Ex. PW 32/B simply depicted the construction of premises no. 16/5, WEA, Karol Bagh, New Delhi as it was existing on 27/04/2010. No witness of prosecution could elicit or prove by any cogent, admissible evidence or even otherwise as to on which date or in which month or in which year the depicted construction in cassette Ex. PW 32/B was raised nor it could be proved that the construction depicted RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 75/85 CBI vs J.S Sehrawat etc. at fourth floor of 16/5, WEA, Karol Bagh, New Delhi was so unauthorizedly raised in the tenure of postings of A1, A5 or even A2 in the zone where said premises was situated.
87. IO PW 40 candidly admitted that he did not examine any or all the occupants of 16/5, WEA, Karol Bagh, New Delhi to ascertain the period of construction of fourth floor of said property but simply examined A3, PW 14, PW 35 and Kamlender Tiwari. Besides that IO PW 40 also elicited that he did not investigate about unauthorized construction, if any, on the first floor, second floor and the third floor of property no. 16/5, WEA, Karol Bagh, New Delhi nor did he examine any JE / AE of MCD during whose tenure any such unauthorized construction took place. PW 40 specifically stated that he did not examine any staff of MCD of Karol Bagh Zone, who were deputed in the period starting from year 2000 to year 2007, nor examined records of MCD of said period so as to ascertain as to when construction including the fourth floor in property no. 16/5, WEA, Karol Bagh, New Delhi took place. IO PW 40 also stated that at no point of time, in the course of investigation, he had inquired from any employee of MCD regarding the alleged unauthorized construction including fourth floor in property no. 16/5, WEA, Karol Bagh, New Delhi and in the same breath stated that he examined JE of MCD and Beldar of MCD who were posted in MCD during year 2009 and checked the records of MCD of year 2009 in respect of any unauthorized construction including fourth floor in 16/5, RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 76/85 CBI vs J.S Sehrawat etc. WEA, Karol Bagh, New Delhi but did not find any record of any unauthorized construction in said property in the year 2009. IO PW 40 also stated that no statement of witness u/s 161 Cr. PC depicted that construction at fourth floor of property no. 16/5, WEA, Karol Bagh, New Delhi was done in tenure of A1 and A2 but stated that he collected documents showing said facts. No such documents depicting that construction at fourth floor of property no. 16/5, WEA, Karol Bagh, New Delhi was done in tenure of A1 and A2 were proved as per law. Scribe(s) of complaints as well as receiver official(s) of complaints as well as scribes of entries elicited at serial numbers (1) 1605 of date 09/03/2009; (2) 1746 of date 13/03/2009; (3) 1833 of date 17/03/2009; (4) 1989 of date 19/03/2009 in the daily receipt register of complaints, copies Ex. PW 15/H (colly) (D7) have neither been examined in investigation nor their statements were recorded in investigation nor they were cited nor examined as prosecution witnesses so as to prove in any manner, of course in terms of law, that these were the complaints concerning unauthorized construction at fourth floor in property no. 16/5, WEA, Karol Bagh, New Delhi or said complaints had any semblance of truth, genuineness or correctness. IO PW 40 candidly admitted that he did not place on record with chargesheet, the preliminary inquiry report. IO PW 40 also elicited that A4 was neither owner nor contractor of property no. 16/5, WEA, Karol Bagh, New Delhi.
88. In the case of State of Haryana vs Ram Singh, 2002 (1) RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 77/85 CBI vs J.S Sehrawat etc. JCC 385, it was inter alia held that the evidence tendered by the defence witness is entitled to equal treatment and equal respect as that of the prosecution and cannot always be termed to be a tainted one and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution.
89. In the case of Prem Singh Yadav vs. Central Bureau of Investigation, 178 (2011) DLT 529, it was held that where it is possible to have both the views, one in favour of the prosecution and the other in favour of the accused, the latter should prevail. Pronouncements in case of Dilip v. State of M.P., 1 (2007)CCR 354 (SC)=II (2007) SLT 60=[2009] 1 SCC 450 and Gagan Kanejia v. State of Punjab, I (2007)CCR 89 (SC)= IX (2006) SLT 406=[2006] 13 SCC 516 were relied. Prosecution is required to travel the distance from 'may be true' to 'must be true' which in the present case, the prosecution has failed to cover. No one can be convicted merely on the basis of preponderance of probabilities. To the contrary, the accused can prove from evidence, prosecution evidence or defence evidence, that his defence is probable on the basis of preponderance of probabilities.
90. In view of elicited evidence of DW1, the defence version regarding ownership of mobile phone number 9818802431 of DW 1 and its use also by him appears to be more probable since the prosecution on RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 78/85 CBI vs J.S Sehrawat etc. this count has not been able to stand on its own legs as (1) said mobile phone was not sealed at the time of its seizure so as to authenticate the integrity of the digital evidence contained therein for being vouch safed by expert opinion; (2) hash value of the digital evidence contained in said mobile was neither obtained nor certified by officers seizing it nor said mobile phone was sent for expert opinion qua the hash value of digital evidence contained therein; (3) there was every reasonable possibility to manipulate the contents and data of the mobile phone Ex. M24/A NOKIA 2760 pursuant to its seizure and (4) no scientific investigation was done in context of ascertaining tower locations of the mobile phone number 9818802431 in respect of its use (a) in odd hours to be in vicinity of residence of A1 and (b) in office hours to be in vicinity of office of A1 so as to prove its use by A1 by circumstantial clinching evidence. Tenancy of DW 1 under the landlady viz wife of A1 has not been disputed by the prosecution. To err / forget is human. Version of DW 1 elicited in earlier part of the judgment in respect of having forgotten his mobile phone no. 9818802431 on 20/05/2009 at the residence of A1, where he had gone to pay rent to his landlady, is per se probable and by no figment of imagination can be termed as either impossible or improbable. Motives cannot be attributed to DW 1 without any basis simplicitor on account of his relationship of tenant with the wife of A1. Per contra, in this material world, plethora of litigation is seen on account of relationship of landlord and tenant. Of course, converse can be true, but fact remains anything is possible. Testimony of RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 79/85 CBI vs J.S Sehrawat etc. DW 1 cannot be termed as untruthful, unreliable or tainted due to categorical deposition of DW 1 on record and his having not faltered in piercing crossexamination effected by the learned Prosecutor. There are no proceedings interparties to the sale deeds Ex. PW 22/B (D38); Ex. PW 26/A (D40); Ex. PW 13/B (D41) and Ex. PW 14/B (D42) under adjudication in this lis wherein arraigned accused have faced trial on charge framed for criminal offence. So in terms of law laid in the case of R. Janakiraman (Supra) elicited here in before in this judgment, bar under Section 92 of Evidence Act will not apply to the present matter. Also there are two possible views on record, one in favour of prosecution as per version of PW 28 and PW 29 that as on 02/02/2009 when sale deeds Ex. PW 22/B (D38); Ex. PW 26/A (D40); Ex. PW 13/B (D41) and Ex. PW 14/B (D42) were executed in favour of the purchasers, there was no construction existing at the terrace portions of 3 rd floor of property no. 16/5, WEA, Karol Bagh, New Delhi. Second view is in favour of defence, as per PW 13, PW 14, PW 22, PW 25 and PW 35 that at the time of execution of the aforesaid sale deeds, portions were built up at 4th floor of aforesaid property and on account of constraints for registration of sale of 4th floor portions, in sale deeds aforesaid instead of built up portions at 4th floor, terrace floor portions were so mentioned. In terms of law laid in the case of Prem Singh Yadav (Supra), the latter view in favour of defence / accused shall prevail.
91. There is no fact proved by legally admissible evidence, oral RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 80/85 CBI vs J.S Sehrawat etc. or documentary, direct or circumstantial in nature, independent of sources which are likely to be tainted, of the arraigned accused having any meeting of minds for doing any illegal act or an act by illegal means or any amongst them having taken any active part in the commission of any conspiratorial acts in respect of any demand, acceptance / obtainment of any bribe sum by any of arraigned public servant accused from any of the private person accused or any accused having abetted it or for such acts it was so agreed amongst public servant accused persons of MCD for not taking any action for illegal construction of fourth floor of property no. 16/5, WEA, Karol Bagh, New Delhi or not to demolish such illegal construction or showing any favour in that regard. None of the examined prosecution witnesses identified any voices of the 16 audio files in CD Ex Q1 to be of any of the arraigned accused persons. The tainted tape recorded conversations in question cannot be used as corroborative piece of evidence, as per discussion above. Genesis of the crime has been suppressed. Fact, however, remains that in any criminal matter, prosecution is duty bound to prove its case to the hilt and beyond shadow of doubt. Prosecution is required to travel the distance from 'may be true' to 'must be true' which in the present case, the prosecution has failed to cover. No one can be convicted merely on the basis of preponderance of probabilities. The substratum of the prosecution case has several holes which cannot be plugged. No new story can be reconstructed by this Court. The elicited intrinsic circumstances speak volumes against the prosecution case and raise considerable amount of RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 81/85 CBI vs J.S Sehrawat etc. suspicion in mind regarding the complicity of arraigned accused in the commission of the offence charged.
92. Investigation in this matter has not been up to the mark nor as expected upto the high standards of the premier investigating agency i.e. the Central Bureau of Investigation. Neither the Investigating Officer PW 40 nor his supervisory officers paid any heed in examination / recording of statements(s) of official(s) of office of Office Incharge (OI) of Building Department of Karol Bagh Zone of Municipal Corporation of Delhi who recorded the entries of complaints elicited at serial numbers (1) 1605 of date 09/03/2009; (2) 1746 of date 13/03/2009; (3) 1833 of date 17/03/2009; (4) 1989 of date 19/03/2009 in the daily receipt register of complaints, copies Ex. PW 15/H (colly) (D7) or of those official(s) who marked / handed over said complaints allegedly to A1 nor seized nor made any efforts to seize the referred complaints / their copies nor ascertained their fate, in the course of investigation. Investigating Agency by concluding the investigation in its wisdom found it fit not to arrest any of the arraigned accused and / or not to seek police custody remand for recovery of any of the afore elicited four complaints / their copies or proceedings, if any, done in that regard by any or more of the arraigned accused to collect incriminating documentary evidence against any of them. Besides that other disturbing features of the matter had been (1) non taking of appropriate measures by concerned officers of investigating agency to vouch safe for authenticity of data of call RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 82/85 CBI vs J.S Sehrawat etc. conversation of intercepted 16 calls and to rule out possibility of tampering or eraser of or additions to any part of taperecorded call conversations; (2) non sealing of mobile phone instruments seized; (3) non sending of mobile phone instruments in question for obtaining forensic expert opinion on digital evidence contained therein; (4) non seizure of the hard disk of computer system of Special Unit of CBI and non sending of the same for forensic opinion to vouch safe for authenticity and genuineness of recorded data in respect of the relevant 16 calls in question to rule out any kind of tampering, additions or deletions thereof on comparison with the copy of the data in the Compact Disc Q1; (5) the incorrectness of report Ex. PW 41/A since in transcript Ex. PW 40/J (D48), conversations at portions "B" in file no. 10162453 00420090225152816.wav were attributed to A3 (Bindeshwar Pandey) and even in the Forensic Voice Examination Report Ex. PW 41/A the said voice, marked therein as Ex. Q1(13)(A), was termed as probable voice of A3 (Bindeshwar Pandey) as per result of examination given there in para 8 (1) at page no. 19 but on hearing the conversation of said audio file in CD Ex. Q1, portions depicted at "B" in transcript Ex. PW 40/J (D48) appeared to be in the voice similar to voice attributed to A4 (Laxman Mandal) in other voice files depicted in transcript Ex. PW 40/J (D48) at call numbers 3, 6, 9, 11, 12 and 16. Appropriate and effective investigation may have yielded positive results for the investigating agency and may have changed the fate of the case.
RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 83/85 CBI vs J.S Sehrawat etc.
93. In the case of A.K. Ganju (Supra), Hon'ble High Court quashed the FIR (RC) under section 120B IPC r/w section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988, the chargesheet and Order of Charge dated 21/05/2011 of the Special Judge for framing of charge for said offences. It was interalia held:
"107. CBI is a creation of the Special Statute and bound by the provisions of the same. By Section 3 of DSPE Act, the Central Government may by notification in the official gazette specify the offences or class of offences which are to be investigated by the Delhi Special Police Establishment. It is only when such a notification is made by the Central Government that the Delhi Special Police Establishment is empowered to investigate the specified offences.
108. It is not in dispute that under Section 3 of DSPE Act, offences committed under the MCD (DMC) Act are not included.
...............................................
111. The MCD (DMC) Act is a separate and special Code which deals with the offences committed under the MCD (DMC) Act, 1957. Sections 343345 of the DMC Act deal with unauthorized construction, orders of demolition, orders of stoppage of building work and power of the Commissioner to require alteration of works. Section 345A of DMC Act provides for powers to deal unauthorized constructions. Any violation of the provisions of the DMC Act provides for prosecution and Section 467 of DMC Act prohibits and bars any other Court to take cognizance of or proceed with trial except on a complaint from the Commissioner or anyone authorized by him. Section 468 of the DMC Act provides that the said offences under the DMC Act are compoundable. Accordingly, MCD (DMC) Code is a complete Code in itself and bars any other agency or Court from taking cognizance of any violation of the MCD (DMC) Code. Therefore, the CBI or any Authority has no power to usurp the functions of the petitioners under the DMC Act and to investigate the matter of unauthorized construction in violation of MCD Byelaws, unless it is notified by the Central Government."
RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 84/85 CBI vs J.S Sehrawat etc.
94. Considered conclusion on entire aforesaid discussion is that the prosecution has failed to prove its case against arraigned accused persons beyond reasonable doubt. Accordingly, arraigned accused persons are held not guilty and acquitted for the offence charged. Their bail bonds are cancelled. Sureties are discharged.
95. A copy of judgment be given to the Central Bureau of Investigation.
96. Ahlmad is directed to page and bookmark the file so as to enable digitization of the entire record.
97. File be consigned to record room.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 18/12/2013 Patiala House Court, New Delhi. Pawan RC No. AC3/2010/A0003/CBI/ACUIII/ND CC No. 24/12 85/85