Delhi District Court
State vs . Jasbir Singh on 31 January, 2011
IN THE COURT OF SH. RAKESH SIDDHARTHA,
SPECIAL JUDGE (PCACT)06, TIS HAZARI, DELHI
Case ID No. 02401R1154922005
CC No. 170/09
STATE Vs. JASBIR SINGH
S/o Sh. Suraj Bhan
R/o Vill. Koblana, PS & Distt. Jhajjar,
Haryana.
FIR No. 07/05
U/S 7, 9, 13 (1) (d) & 13 (2) of POC Act
Date of Institution : 13.12.2005
Judgment reserved on : 29.01.2011
Judgment delivered on : 31.01.2011
JUDGMENT
1. On 6.5.2002, one Anup Kumar lodged a complaint with Inspector Sohan Lal, Raid Officer at AC Branch in the presence of V. K. Gupta panch witness against one Jasbir Singh, a traffic constable in Delhi Police for demanding a bribe of Rs.800/ for permitting the complainant to park his bus at ISBT.
2. The complainant produced one GC notes of Rs.500/ and three GC notes of Rs.100/ each before the Raid officer who recorded the numbers State Vs Jasbir Singh Page No. 1/20 of the same in preraid report. After getting the same checked by panch witness, phenolphthalein powder was applied on the GC notes and right hand of panch witness was touched to the tainted GC notes and thereafter right hand wash of panch witness was taken in colorless solution of sodium carbonate which turned pink. The characteristics of phenolphthalein powder was explained to the complainant and panch witness.
3. The complainant was instructed to keep the panch witness close to him and to talk and transact with accused in such a manner so that panch witness would be able to overhear and see the transaction. The complainant was further instructed to give the bribe money to the accused only on his specific demand.
4. The panch witness was instructed to remain close to the complainant and overhear the conversation between complainant and accused and also observe the incident and after the demand and acceptance of money by the accused, he should give a signal to the raiding party by moving his right hand twice over his head.
5. Thereafter Raid officer, in the presence of panch witness, handed over the tainted GC notes to the complainant who kept the same in the left pocket of his shirt. Thereafter, hands of panch witness were got washed with the soap and water and the solution was thrown away. The RO recorded pre State Vs Jasbir Singh Page No. 2/20 raid proceedings.
6. At about 11:15am, complainant alongwith panch witness, Raid Officer Insp. Sohan Lal, IO Insp. S. N. Pandey and other members of raiding party left AC Branch in a Government vehicle for the spot and reached Ring Road, Near ISBT at about 11:40 pm. The Government vehicle was parked on one side of Ring Road and IO Inspector SN. Pandey and driver remained in the vehicle.
7. The complainant and panch witness were again briefed about the instructions. They reached near Ritz Cinema at about 11:50 am while members of the raiding party followed them keeping reasonable distance. Complainant thereafter started talking with a person who was wearing black colored jacket.
8. At about 11:55 am, the panch witness gave the preassigned signal and the raiding party reached the spot. The panch witness pointed towards one person and told the RO that he had obtained the tainted amount with his left hand after demanding the same from the complainant.
9. The Raid Officer disclosed his identity as an AC Branch official to the accused Jasbir Singh and challenged him that he had accepted Rs.800/ as bribe from the complainant. The Raid officer also offered the accused to State Vs Jasbir Singh Page No. 3/20 take search of the members of raiding party including himself (Raid Officer) before taking his search but the accused declined.
10. Thereafter, on the instruction of the Raid officer, panch witness recovered the bribe money of Rs. 800/ from the left hand of the accused Jasbir Singh. The numbers of the recovered GC notes were tallied with the serial numbers recorded in pre raid report. Thereafter, the recovered GC notes were taken in possession vide seizure memo.
11. The left hand wash of accused was taken in the colorless solution of sodium carbonate which turned pink. The same was transferred into two clean glass bottles and sealed with the seal of SL.
12. Sealed bottles containing left hand wash of accused were taken in possession vide seizure memo. Accused Jasbir Singh was arrested. Thereafter Raid Officer prepared post raid report.
13. IO Insp. SN Pandey was called to the spot and exhibits / case property as well as accused Jasbir Singh, copy of raid report and related documents were handed over to him for investigation.
14. The case was registered and chargesheet filed and charges were framed.
State Vs Jasbir Singh Page No. 4/20
15. As per the charge, On 20.01.2011, at patri opposite shop at Kashmere gate, accused Jasbir Singh being posted as Traffic Constable in Delhi Police as such being a public servant demanded and accepted Rs. 800/ as a bribe from complainant Anup Kumar for permitting the complainant to park his bus at ISBT Kashmere Gate and thereby he committed an offence punishable u/s 7 of the Prevention of Corruption Act, 1988.
16. Alternatively, on the above said date, time and place, accused Jasbir Sing being posted as Traffic Constable, Delhi Police and accepted Rs. 800/ as bribe from complainant Anup Kumar for permitting the complainant to park his bus at ISBT Kashmere Gate and not getting the bus impounded through Zonal Officer, Traffic ISBT area by using his personal influence with Zonal Officer of that area and thereby he committed an offence punishable u/s 9 of the Prevention of Corruption Act, 1988.
17. Secondly, on the abovesaid date, time and place, accused Jasbir Singh being employed as above public servant obtained Rs. 800/ from the above complainant as a pecuniary advantage for himself by corrupt or illegal means or otherwise by abusing his position as such public servant and thereby he committed an offence of criminal misconduct as specified u/s 13(i) (d) and punishable u/s 13 (2) of the Prevention of Corruption Act, 1988.
State Vs Jasbir Singh Page No. 5/20
18. Accused pleaded not guilty and claimed trial.
19. In evidence, the prosecution examined thirteen witnesses to substantiate the charge.
20. I have heard the arguments on behalf of prosecution wherein Sh.Abdul Aleem, Ld. Additional PP for the State has contended that prosecution has been successful in proving the case wherein the complainant himself has stated that he had handed over the amount to the traffic official, whose identity has been fixed by the panch witness. Furthermore, the accused was apprehended subsequent to the acceptance of bribe raising the presumption that he had demanded the said amount by way of illegal gratification.
21. Ld. Counsel Sandeep Sharma on the other hand has denied the very fact that the person who had made a demand of bribe and furthermore had accepted any amount was the accused. Ld. Counsel has also challenged the very procedure of the raid wherein he states that the entire raid proceedings were sham in as much as the documents were prepared at the AC Branch as well as the fact the chemical evidence was also procured at the AC Branch creating a great doubt in the entire procedure as per the established law, the accused is entitled to acquittal.
State Vs Jasbir Singh Page No. 6/20
22. Before we delve into the culpability of the accused it is imperative to determine whether the prosecution had obtained the pre requisite sanction under the provision of Section 19 POC Act which is imperatively required lest the entire prosecution becomes non est.
23. The law in regard to grant of sanction to prosecute the accused should not be taken very lightly as the question of career of the accused is involved. The law as in enunciated in Mohd. Iqbal Ahmad Vs. State of Andhra Pradesh, AIR 1979 SC 677, wherein it has been maintained :
"the grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must, therefore, be strictly complied with before any prosecution can be launched against the public servant concerned."
24. The bare reading of section 19 would indicate that it aims at preventing harassment and vexatious prosecution of a public servant. It assures that an honest public servant, not in a position to oblige everyone, may incur displeasure of many of them. This displeasure may even result in vexation and malicious prosecution for offence relating to discharge of his official duties. The legislation therefore in its sagacity of providing a reasonable protection to public servant in the discharge of his official duties so that they can continue performing their duties and obligations undeterred State Vs Jasbir Singh Page No. 7/20 by vexation and unnecessary prosecution (Jaswant Singh Vs. State of Punjab, 1958 Supreme Court, AIR Page no. 124).
25. The grant of proper sanction by a competent authority is a sine quo non for taking cognizance of the offence. It is desirable that the question, as regards sanction, be determined at an early stage. It is also not within the jurisdiction of this court to require sanction by the prosecution but it only prosecutes after the sanction has been accorded and in the absence of the same, it cannot call for one.
26. For the said purpose, Sh. HPS. Virk, DCP Traffic, Northern Range has been examined, as PW1, who has testified that on 21.3.2005, a letter was received from DCP AC Branch alongwith copy of FIR, copy of raid report, copy of statements of PWs, seizure memo, site plan for consideration for according sanction to prosecute accused Jasbir Singh No. 325/T under FIR No. 7/05 U/S 7 & 13 of POC Act. The witness had gone through the aforesaid documents and was of the opinion that Jasbir Singh S/o Suraj Bhan Singh while posted as Constable in Civil Lines Traffic Circle and performing his duties as public servant, demanded, accepted and obtained Rs. 800/ as bribe from the complainant Sh. Anup Kumar. The witness accorded the sanction for prosecution of accused u/s 7 & 13 of POC Act, being a competent authority to remove the accused from service, the same is Ex.PW1/A which bears the signature at point A. State Vs Jasbir Singh Page No. 8/20
27. The witness was cross examined by the accused wherein the competence and authority of the witness was challenged in according sanction. The fact that the sanction lacked due application of mind and had concealed material facts therefrom. It is correct that PW1/A does not give details of fact relating to FIR no. 7/05. It is however, denied that Ex.PW1/A was invalid in law. The law requires that the sanctioning authority before according sanction has to delve into the documents that are placed before him and on due application of mind, if he is of the opinion that the dereliction of the public servant is such that the sanction should be accorded, he shall do so. In the instant case, PW1 had delved into relevant documents and after perusal and due application of mind, had accorded sanction which, under law, is tenable and a valid sanction.
28. The case was initiated at the instance of PW2 Anup Kumar who in the year 2005 was plying a bus on route no. 182 between Sukhbir Nagar and ISBT. It is testified by PW2 that traffic officials would demand bribe for permitting the bus in their area. The witness is unsure of the name of the person demanding money from the witness. It is further testified that on 20.1.2005, 23 traffic police officials whose names the witness is not aware of were demanding Rs. 800/ per month for permitting the vehicle inside their area. A complaint in this regard was lodged in AC Branch which is Ex.PW2/A on which the signature of the witness is appended at point A. State Vs Jasbir Singh Page No. 9/20
29. The witness/complainant was called at 12:30 pm at Kashmiri Gate on 20.1.2005. It is testified that no writing work was done at the AC Branch. Rs.800/ in denomination of Rs.500/ and Rs.100/ were handed over to the Insp. AC branch. Powder was applied. It is, however, denied that any private person was present at that time. Raid was constituted.
30. It is also testified that 45 persons reached Kashmere Gate at about 1.00 pm where the gypsy was parked at some distance and all the officials went to the ISBT where the traffic police officials were found present. It is testified that one of them enquired as to how much the witness was willing to pay for permitting his vehicle to enter ISBT building. To which, the witness replied that he had Rs.800/ which was accepted by the said police official. Immediately thereafter, the Inspector from the AC Branch apprehended the traffic police official and recovered the GC notes from the right hand of the traffic police. All the people including the accused returned to AC Branch. Writing work was done and complainant was made to sign seizure memo of GC note Ex.PW2/B, seizure memo of hand wash bottles Ex.PW2/C and the seal Ex.PW2/D, the personal search of the accused Ex.PW2/E and the preraid report Ex.PW2/F and the raid report Ex.PW2/G which bear the signature of the complainant. The GC notes have also been identified. Thereafter, the complainant has denied the entire sequence of raid or the demand made by accused Jasbir Singh alongwith his State Vs Jasbir Singh Page No. 10/20 other associates posted at ISBT.
31. The fact that the complainant despite his denial of writing of the complaint has admitted that a complaint had been lodged which is Ex.PW2/A and his signature thereon, there is little which can be said about the remaining testimony. The evidence is required to be sought aliunde. For the said purpose, PW3 VK Gupta was examined who, on 20.01.2005, was performing his duties as panch witness in AC Branch. He has testified that Anup Kumar came to the AC Branch and gave a complaint Ex.PW2/A on which the signature of the witness appear at point B. the complaint was read over by Insp. Sohan Lal to the witness which was in regard to a demand of illegal gratification by Ct. Jasbir Singh and his colleagues at the bus terminus for permitting bus to be parked. The signatures of Insp. Sohan Lal appears at point C. It was further testified that the demand was for Rs.800/ which was handed over to the Insp. in denomination of Rs.500/ and Rs. 100/. The numbers of the GC notes were noted in the raid report Ex.PW2/F. Thereafter, phenolphthalein powder was applied and the witness PW3 was apprised of the purpose and consequence of touching the phenolphthalein coated GC notes. Instructions were given to observe the transaction and give the bribe amount only on specific demand.
32.. The raiding team left AC Branch and reached ISBT at about 11.40am in front of Ritz cinema. It is testified that the complainant PW2 State Vs Jasbir Singh Page No. 11/20 and the panch witness PW3 approached the accused and then the complainant started talking with the accused. After query was made as to the identity of the panch witness who was stated to be a relative, the accused demanded sum of Rs.1000/ from the complainant but the complainant had stated that he had brought only Rs.800/ which was taken out from left pocket of his shirt and handed over to the accused. The preassigned signal was given. Insp. Sohan Lal came to the spot and challenged the accused that he had accepted bribe amount and on the directions of the raid officer the witness PW3 retrieved Rs. 800/ from the left fist of the accused and tallied the number with preraid report. The same were found to be identical. It was taken in possession vide seizure memo Ex.PW2/D. Hand wash of the accused was taken which tested positive of handling phenolphthalein coated GC notes, the residue were sealed, preserved and identified. The same has been identified by the accused. The incident was narrated to the Raid officer and accordingly the accused was arrested. The GC notes have been identified.
33. In the cross examination the witness has admitted that he had been panch witness in 7 to 8 cases prior to the present case. But on the other hand the witness has admitted that he had participated only in two traps in all implying thereby that he had been assigned duty as panch witness 7 to 8 times but had been utilized as panch witness only in two cases. No substantial challenge has been made as regards the raid and the recovery.
State Vs Jasbir Singh Page No. 12/20 However, it has been extricated from the witness PW3 that Ex.PW2/B, Ex.PW2/C and Ex.PW2/D were complete in all respect and the number of FIR at portion X was written from afore and it was thereafter the witness had appended his signatures.
34. The evidence that has come on the record through PW3 is that there was a specific demand made by the accused from the complainant and in consequence thereof the complainant handed over Rs.800/ stating that he had only that amount. The hand wash and the pocket wash taken of the accused also tested positive of the presence of phenolphthalein. This fact even though has been challenged by the counsel for the accused yet it is the legality of the raid on which the fervency has been shown by the counsel in his challenge.
35. PW6 ACP SN Pandey who was inspector on the relevant date and was associated with the raid has testified that he was called to the spot at about 2.30pm through const. Yogesh where the raid officer handed over 1 GC note of Rs.500/ and 3 GC note of Rs.100/ each, sealed bottle with label LHWI and LHWII, sample seal and the raid report. The witness prepared Ex.PW6/A, the site plan and after recording the statement of the witnesses arrested accused Jasbir Singh and his personal search was taken vide Ex.PW2/E. State Vs Jasbir Singh Page No. 13/20
36. In view of the fact that all the relevant documents prepared by the RO bear the number of the FIR. The witness has been challenged but he has denied that the documents including raid report etc. were not prepared at the spot.
37. PW7 Const. Yogesh has been examined to verify the fact that the FIR had been recorded much prior to that preparation of the documents. It is testified that the witness was sent to the AC Branch with the rukka at about 2.30 pm for getting the case registered. But in the testimony of IO, he had been summoned to the spot by the RO at about 2:30pm., that is to say, that the FIR was lodged sometime subsequent to 2:30pm. In consequence, it is nigh impossible that the FIR would have been lodged and the IO was summoned to the spot at that very time. It is evident that FIR was lodged contemporaneously with the writing of the seizure memo inclusive of seizure memo of the GC notes Ex.PW2/B. The seizure memo of LHWI and LHW II Ex.PW2/C. The handing over of the sample seal vide Ex.PW2/D and such documents have the writing of FIR which is ante timed. As per the said documents and the suggestion given by the accused that the said documents were prepared at the AC Branch, this assertion finds favour as per the circumstance. Accordingly, after applying Pyare Lal Vs. State, I (2008) DMC 806, where Hon'ble High Court of Delhi was pleased to hold that the preparation of documents at the AC Branch create a grave dent to the prosecution case and furthermore following the enunciation of the Hon'ble State Vs Jasbir Singh Page No. 14/20 Supreme Court where it was held that : "Learned Additional Public Prosecutor also contended that since the version of the complainant that he had kept the tainted money in the diary lying on the table on the asking of the accused is duly corroborated also by the evidence of the Panchwitness PW3 Kailash Chand who was an independent witness the prosecution case cannot be viewed with any suspicion. There is no doubt that the Panchwitness had also deposed that the complainant had kept the tainted notes in the appellant's diary on the asking of the appellantaccused but his testimony cannot be said to be that of an independent witness since in crossexamination he had admitted that he had been deputed in the anti corruption branch on 17 or 18 dates and also that he had joined three such raids during that period. For this view I am fortified by a decision of the Hon'ble Supreme Court in GV Nanjundiah vs. State, 1987 (Supp.) SCC 266, which was also a case of bribery and one of the Panchwitnesses in that case had been associated in traps organized by the CBI on three or four occasions and because of that fact he was not considered to be an independent witness by the Hon'ble Supreme Court."
"This panch witness, in fact, has caused a dent in the prosecution case instead of advancing it further on the way to success by State Vs Jasbir Singh Page No. 15/20 claiming in his evidence that all the writing work after the raid was carried out at the office of the AC Branch."
38. The Hon'ble Andhra High Court in C. Sivakumar Reddy Vrs State of A.P. had held that:
"Even the trap proceedings goes to show that PW1 went to the office of the Mandal Revenue Officer. There, he found the accused, but the accused did not accept bribe in the M.R.O. Office. The accused went away from the M.R.O. Office and was going towards agricultural Market Committee Check Post. It is the evidence of the mediator PW2 and D.S.P. PW13 that from 200 meters away, they were able to saw stretching of hands by the accuse and PW1. But, it is the case of the accused that money was thrusted into his pocket and he never demanded and accepted the bribe. Even the accused officer was not subjected to any test at the spot and he was taken to the police station and at the police station only all the formalities of phenolphthalein tests were conducted. There is no explanation by the prosecution that as to why the left hand fingers of the accused were found positive and three is no allegation that he touched the tainted money with left hand fingers. Therefore, this aspect also creates doubt about the method and manner in which the Anti State Vs Jasbir Singh Page No. 16/20 Corruption Bureau trapped the accused officer. In the instance case, the complaint made against the accused was enquired and was found baseless and the accused himself and a complaint against the fowl play that is going to be played against him by his rival candidate Rajagopal Reddy who was not successful to get the post of Village Administrative Officer and an appeal is pending and to succeed in the appeal, he has been making untenable complaints against him. The accused was not at all competent or empowered either or recommend tor to do any act for grant of lase in respect of Kalva Poramboke and even according to the revenue authorities.
PW1 is not entitled to get Kalva Poramboke as he was pattedar of Ac. 8.45 cents and he is not a small farmer. Therefore, it is difficult to believe that that accused demanded and accepted the bribe.
39. RCR (Crl.) similar view was In Ramji Singh vs. State 2000 (4) taken where also the seizure memo, personal search memo bore the number of FIR in the same ink and handwriting indicating that all the documents were prepared at the same time. On the failure of prosecution to explain as to how the numbers appeared on the said documents raises a doubt as to the veracity of the raid.
State Vs Jasbir Singh Page No. 17/20
40. The complainant has buried the factual matrix of the case in the abysmal depth of his memory and was unable to retrieve enough to inculpate the accused. Simply denying the identity of the accused does not absolve the witness of his duty. Is this sufficient evidence to implicate accused with the demand? The legal prudence does not permit so, as howsoever minuscule it may be but ,nevertheless once there is a doubt, no conviction can be based on it.
41. The evidence of the Raid Officer becomes all the more suspect when the panch witness and the complainant are at variance with the case of the prosecution despite the fact the prosecution case has been based on their complaint and are the foundational witnesses. The raid officer not being an ocular witness cannot be relied upon. The raid officer has not been able to testify with any amount of certainty.
42. As per Sunil Kumar Sharma Vs. State CBI Delhi 2007(2) JCC 1315, the Hon'ble High Court of Delhi has held that :
"it is the duty of the trial court to ensure that the essential pre requisite of corruption case have been complied with. Where the independent witness associated with raid has not supported the prosecution version, nor has the acceptance of bribe been proven beyond reasonable doubt. It cannot be said that the case under prevention of corruption State Vs Jasbir Singh Page No. 18/20 Act has been established."
39. Further, the Hon'ble High Court has held that:
"the essential prerequisites of a corruption case i.e. demand and acceptance have to be proven beyond doubt and where the prosecution has failed to prove the same, the accused is entitled to acquittal. The only deviation in the case in hand and the cited case is that no tainted money was recovered from the accused but in the present case GC notes were recovered from the accused and his hand wash was also positive then presumption u/s 20 of POC Act would be called for but again the provision is that there has to be a demand from which he obtains for himself of for any other person any gratification that is to say once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the State Vs Jasbir Singh Page No. 19/20 presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to be public servant who received it".
43. Notwithstanding, the testimony of PW3, the procedure of the raid, that procurement of documents, the chemical evidence and the preparation of documents, it cannot be stated with certainty that they had been prepared at the spot because the testimony of PW1 as well as the accused stating in his statement under section 313 Cr.PC that the documents and the evidence were procured at the AC Branch and furthermore the mention of the number of the FIR in the document which were prepared ante time to that of lodging of the FIR probablizes diverse view as where there are two logical views available, the one favouring the accused shall be taken recourse to. Accused is therefore entitled to benefit of doubt. He is acquitted. His surety discharged.
File be consigned to record room.
Announced in the open court today on 31st January, 2011. (RAKESH SIDDHARTHA) SPECIAL JUDGE (PCACT)06 TIS HAZARI, DELHI State Vs Jasbir Singh Page No. 20/20