Indian Kanoon - Search engine for Indian Law

Delhi District Court

N. Sri Rama Reddy vs Sh. V. V. Giri In Reference To A Tape on 12 May, 2014

    IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
                P.C. ACT (CBI­09), CENTRAL DISTRICT, 
                        TIS HAZARI: DELHI 


CC No. 92/2011
R.C. No. 48(A)/04
Case I.D No.02401R0622762007


Central Bureau of Investigation


                   Versus
Shri Vijay Pal
S/o Sh. Ved Prakash Sharma
R/o Village & Post Office Bhadhani,
District Jhajjar, Haryana.


Date of Institution                  :  29.06.2007
Date of reserving Judgment  :  29.10.2013
Date of Pronouncement                :  19.04.2014


JUDGEMENT 

PRELIMINARY The accused in this case was sent up for trial for having committed offences punishable under Section 7 and under Section 13(2) read with Section 13(1)(d) of the Prevention of C.C. No. 92/11 Corruption Act, 1988, while he was posted as Constable in the Excise Department of GNCT of Delhi on deputation from Delhi Police, after getting the sanction for his prosecution under Section 19 of the Prevention of Corruption Act from the competent authority.

BRIEF FACTS

2. The allegations in this case are that the complainant Sh. Chetan Prakash S/o Sh. Babu Lal had videographed several officials of Delhi Police and Excise Department of GNCT of Delhi taking bribe from bootleggers selling liquor illegally operating in the areas under the jurisdiction of Police Station Uttam Nagar and adjacent police stations in order to expose their corrupt practices.

3. The complainant Sh. Chetan Prakash had approached the Hon'ble High Court through a criminal Writ Petition no.367/04 seeking protection and also directions for investigation by CBI C.C. No. 92/11 into the matter. He had submitted with the Hon'ble High Court five Hi 8 video cassettes and one VHS video cassette. On the directions of the Court, CBI had registered cases RC 48(A)/04, RC 49(A)/04 and RC 50(A)/04. The instant case arises from RC 48(A)/04 in respect of the incidents falling under the territorial jurisdiction of P.S Uttam Nagar.

4. According to the allegations complainant Sh. Chetan Prakash had prepared a video film clandestinely in front of the residential premises of Mahipal Sansi during the year 2003 at J.J Colony, Uttam Nagar, New Delhi where Mahipal Sansi and his wife used to sell liquor illegally. In the process had caught accused Const. Vijay Pal in camera receiving at least one hundred rupee currency note from Smt. Krishna Sansi at her above residence. In the video clipping the accused was seen in plain clothes and in conversation with Smt. Krishna Sansi haggling for giving more money than being offered by Smt. Krishna Sansi.

C.C. No. 92/11

5. The Hi 8 cassette in question was sent for forensic examination and according to the report received from CFSL, Chandigarh the opinion was given that the video recording was camera original meaning thereby it had not been edited or tampered with.

6. During the investigation the accused Vijay Pal was identified by Sh. Chetan Prakash as well as one Dhirender Nath Sharma Inspector of Excise Department, GNCT of Delhi in the questioned video scene.

CHARGE

7. On the basis of the allegations, the charge under Section 7 and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 was framed against the accused to which the accused pleaded not guilty and claimed trial.

C.C. No. 92/11 PROSECUTION EVIDENCE

8. Witness PW1 Sh. Jia Lal Sawhney had deposed that in the year 2004 as ACP (Vigilance) with Delhi Police he was entrusted with a complaint of Sh. Chetan Prakash for inquiry. This complaint of Sh. Chetan Prakash was referred to Delhi Police for action by the Hon'ble High Court. During the course of the inquiry he had recorded the statement of the complainant; played video cassette before Sh. Chetan Prakash as well as other officials of Delhi Police and had got identified the suspected police officials/excise officials, who were seen therein accepting bribe from various bootleggers. He had also got prepared still digital photographs from the above video cassette and also transcripts of the recorded conversation therein relating to the various scenes.

9. He had further deposed that during the inquiry he had collected relevant documents from various police stations/offices where the suspect police officials were posted during the C.C. No. 92/11 relevant period. At the end he had prepared the report dated 10.09.2004, Ex.PW1/A and submitted to his Sr. Officers. As per his inquiry report the accused Const. Vijay Pal had been identified and mentioned at Sr. No.18 in his inquiry report under heading "Identification of Defaulter Staff".

10. Witness PW2 Sh. Chetan Prakash is the complainant. He in his testimony had given the background, how by the force of circumstances he got into the act of videographing the officials of Delhi Police and that of Excise Department accepting bribe from bootleggers. He had also narrated that as to how in a raid being conducted by one ACP Rajbir Singh, his video cassettes with said recordings had been taken away from his residence and he too was illegally detained. Though all his recordings had been taken away, but he was still left with 2­3 cassettes which he had kept on the loft (tand) in his house and could not be located by the police staff who had raided his house. As per his testimony, after his release on bail though he continued to remain in hiding but still even during that period he continued to C.C. No. 92/11 videograph the police officials of Delhi Police and Excise Department visiting the Addas of different Sansis who were in the business of selling illicit liquor including that of Mahipal Sansi.

11. Ultimately he had contacted one Advocate and handed over all the video cassettes to her and also narrated entire sequence to her. He had handed over five video cassettes to her to be deposited with the Hon'ble High Court. She had accordingly deposited the same with the Registry of the Hon'ble High Court in the course of the proceedings on a Writ Petition being filed by him before the Hon'ble High Court. He had identified the Writ Petition as well as the application for permitting to deposit the said original video cassettes in the safe custody of Hon'ble High Court as Ex.PW2/A1, Ex.PW2/A2 and Ex.PW2/A3 respectively.

12. As per his testimony during the investigation he had identified the police officials appearing in the said video C.C. No. 92/11 cassettes including the location where the said videos were shot. He had identified the memo Ex.PW2/B1 which was prepared in this respect. The scene related to this case was at Sr. No.15 in this memo wherein the accused Sh. Vijay Pal was seen accepting bribe from the wife of Mahipal Sansi. He had deposed that this scene he had shot from the first floor of the house of Mahipal Sansi using a Handycam of SONY make on Hi 8 cassette.

13. He had also identified the memo Ex.PW2/B2 prepared by the Investigating Officer from the same exercise i.e. of identifying the Police officials and officials of Excise Department from the CDs which were prepared by CFSL, Chandigarh for the purpose of investigation. The witness had identified the scene relating to this case described in the said memo. The witness had also identified the Hi 8 cassette which was played in the Court and also described the scene relating to this matter therein. The witness had also described that as to how he had visited the residence of Mahipal Sansi a day before he had shot C.C. No. 92/11 this video and met Mahipal Sansi and his wife who already knew about his activities of videographing the police officials while taking bribe from Sansis. He had suggested that he would make film of the police officials who visit them for taking money. They agreed to it because they did not want to do this job but they were forced by the police officials to do it so that the police officials could earn money from them. Whenever they use to stop selling liquor, the police officials used to implicate them in false cases. They had given him a place to sit on the first floor of the house inside the kitchen from the window of which the spot was clearly visible where they used to sell liquor and police officials used to visit them.

14. On the next day accordingly he had visited their residence and sat in the kitchen on the first floor with his video camera and had shot the video while the accused Const. Vijay Pal was taking money from the wife of Mahipal Sansi. At that time neither he nor Mahipal Sansi or his wife knew the name of the accused. On the next day again he had visited their residence, C.C. No. 92/11 but they had refused to give him permission to shoot because they felt threatened that in case they would allow him to shot video accepting money by the police officials, they would implicate them in cases under Punjab Excise Act. As per his testimony Mahipal Sansi and his wife Smt. Krishna Sansi had also informed the complainant that accused Const. Vijay Pal used to visit them regularly every month for taking money so that they could sell liquor illegally.

15. Witness PW3 Sh. Ajay Kumar who was posted as DCP (PCR), Delhi Police had deposed that after going through the relevant material and applying his mind he had given the sanction Ex.PW3/1 for the prosecution of the accused Const. Vijay Pal. He had also stated that he was competent to remove the accused from service.

16. Witness PW4 Const. Harjinder Singh had deposed that he was on deputation in the Excise Department of Delhi Government from the year 2002 to December, 2003. He had C.C. No. 92/11 stated that he did not know either about the facts of the case or accused Sh. Vijay Pal. As per his testimony, he had visited the CBI office and was interrogated. Compact Discs were played before him, but he could not be seen in those video clippings.

17. Witness PW5 Sh. Mukesh Kumar Inspector was the first Investigating Officer of this case. He had deposed that after the registration of this case the investigation of this case was handed over to him. He had recorded the statement of the complainant and other witnesses. He had also taken specimen voice of Const. Vijay Pal, the accused in this case.

18. Inspector Mukesh Kumar in his testimony had identified the FIR Ex.PW5/A bearing the signatures of Sh. D.C Jain who had registered the FIR, VHS Video Cassette, audio cassette in which the specimen voice of the accused was recorded and also the memo Ex.PW5/B relating to the recording of the specimen voice of the accused.

C.C. No. 92/11

19. Witness PW6 Dr. C. P Singh who was posted as Jr. Scientific Officer (Physics) at CFSL, Chandigarh in the year 2006 had deposed about the Hi 8 cassettes being received at CFSL, Chandigarh and being assigned to him for forensic examination. He had deposed that on examining the cassettes by using scientific tools, he had found that the video clippings in the said Hi 8 video cassettes were camera originals and not copy of original master copy, meaning thereby that they had not been edited or tampered with. He had identified the report Ex.PW6/A which he had prepared with regard to his examination. He had also identified the video cassettes and the CDs he had prepared as per the request received from CBI for the purpose of investigation.

20. Witness PW7 Sh. Dhirender Sharma had deposed that he knew Const. Vijay Pal as he had also been posted in the Excise Department during the relevant period. As per his testimony no one in Delhi can sell the liquor without the proper license. C.C. No. 92/11

21. Witness PW8 Inspector D. K. Thakur, is second investigating officer, he had deposed that after the investigation of this case was assigned to him, he had sent five Hi 8 cassettes connected with different RC numbers, recorded by the complainant, to CFSL, Chandigarh in order to obtain the expert opinion as to whether the recordings in the cassettes were genuine, authentic and not tampered with. A positive expert opinion was received from CFSL, Chandigarh to the effect that these video cassettes were not tampered with. The CFSL, Chandigarh had also forwarded two sets of CDs prepared from the Hi 8 cassettes for the purpose of investigation.

22. As per his testimony during the investigation he with the help of some officials of Delhi Police and complainant Chetan Prakash had identified the people/police officials and places visible in the respective video clippings. He had then prepared one Video Identification Memo (VHS cassette having the clippings copied from Hi 8 Cassettes) and one CD Identification memo (CDs prepared from the Hi 8 Cassettes by CFSL C.C. No. 92/11 Chandigarh) wherein the people/police officials and places of respective video scenes, duration of each clipping and what could seen in the said clippings was recorded. He had identified those memo i.e. Video Identification Memo and CD Identification Memo as Ex.PW2/B1 and Ex.PW2/B2. He had identified the scene which related to this matter recorded in the Video Identification Memo as well as CD Identification Memo.

23. He had also stated that during the investigation he had taken the samples of other accused also involved in this matter. As far as the accused Const. Vijay Pal was concerned, his voice sample had already been taken by Inspector Mukesh Kumar. He had forwarded these samples i.e. specimen voice for spectrographic analysis along with the questioned voice in the clippings for forensic examination. Finally based on the expert opinion received from the CFSL, New Delhi and also opinion from CFSL, Chandigarh and also the oral evidences collected by him and after getting the sanction for prosecution, he had submitted the charge sheets including the present charge sheet. C.C. No. 92/11 He had identified the letter Ex.PW8/A along with the sanction which was received for the prosecution of the accused Const. Vijay Pal and the same having been marked to him by the then S.P., CBI Sh. S.K. Palsania. He had also identified the sanction order received along with the said letter Ex.PW3/A. STATEMENT UNDER SECTION 313 CR.P.C.

24. All the incriminating evidence which had come on record was put to the accused and his statement under Section 313 Cr.P.C had been recorded.

ARGUMENTS

25. I have heard the Ld. Public Prosecutor for the CBI and also Ld. Defence Counsel. I have gone through the record of this case and also the written submissions which have been submitted on behalf of the prosecution as well as defence. C.C. No. 92/11 SILENT WITNESS THEORY

26. A photograph and a video clipping are the category of documents which though silent but speak for themselves or one may say they are despite being silent "worth thousand words". More often than not in case of a videography the words and the acts of the accused herself/ himself speak for themselves. The impact of such an evidence is such that it leaves nothing for imagination. In a trial usually a court depends on the account of events which had taken place in the commission of an offence narrated by a person who may have seen the same. When, however, a videography or a video clipping of an event related to commission of offence is presented before the court, the court may not have been present at the time the offence was committed but it is as good as the court having seen the commission of the offence with "its own eyes". Thus, not necessarily dependent on what witnesses have to say about it. 1 In R M Malkani' s case Hon'ble Supreme Court had described 1 R M Malkani V State of Maharashtra 1973 AIR 157, 1973 SCR (2) 417 C.C. No. 92/11 a tape recorded evidence as " real evidence". It was stated "

When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine."

27. There is another factor may be referred here that human memory may fail and the visual impressions on the human mind of an event may fade over a period of time, thereby bringing in some elements of assumptions when the same event is recounted in the court after a long period of time. The advantage of a video clipping or a videograph is such that it would remain the same always (provided it is not damaged for external reasons). Thus can be said to be superior to the statements of witness who are asked to recount what s/he may have seen or heard at some point of time.

28. I am of the view this evidence is not only substantive evidence but can be also a preferred evidence in case of difference in the testimony of a witness have may claim to have C.C. No. 92/11 seen an incident and the a videograph showing the said event. It is submitted once it is admitted in evidence it can standalone even in the absence of any other substantive or corroborative evidence. It was laid down by the Hon'ble Supreme Court in Sh. 1 N. Sri Rama Reddy Vs Sh. V. V. Giri in reference to a tape recorded conversation, while approving the decision in one 2 Scottish case " From the above decision it is apparent that the tape itself is primary and direct evidence admissible as to what has been said and picked up by the recorder." What is true of tape record is certainly true of a video tape. Indeed in this age of surveillance cameras it is not uncommon to find where "camera" is the only witness and video footage may be the only piece of evidence.

29. This "silent witness" though is "worth thousand words" but still cannot be subjected to cross­examination. Thus the only way it can be defeated is to question its admissibility and relevancy.

1 1971 AIR SC 1162 2 Hope & Another V H M Advocate (1) Scots Law Times 264 C.C. No. 92/11

30. American jurisprudence would define it as " Silent Witness 1 Theory" . In brief it means " A theory or Rule in the Law of Evidence: Photographic evidence (as photograph or videotapes) produced by a process whose reliability is established may be admitted as substantive evidence of what it depicts without the need for an eyewitness of what it depicts without the need for an eyewitness to verify the accuracy of its depiction." One can find the elaboration of this rule and its applicability in the American Jurisprudence in the Opinion delivered on December 8,1982 by the Arkansas Court of Appeals in Thelma Marie Fisher v State 2 of Arkansas [ 7 Ark. App. 1 (1982)] . The relevant part of the Judgment reads as under:

"The admissibility of photographic evidence is based on two different theories. One theory is the "pictorial testimony" theory. Under this theory, the photographic evidence is merely illustrative of a witness' testimony and it only becomes admissible when a sponsoring witness can testify that it is a fair and accurate representation of the subject matter, based on that witness' personal observation. Obviously, the photographic evidence in this case is 1 dictionary.findlaw.com/definition/silent­witness­theory.html 2 http://opinions.aoc.arkansas.gov/WebLink8/0/doc/89190/Electronic.aspx C.C. No. 92/11 not admissible under such a theory, since no person could verify that the video tape accurately represented what occurred at the store, based on personal observation. A second theory under which photographic evidence may be admissible is the "silent witness" theory. Under that theory, the photo­ graphic evidence is a "silent witness' which speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness. See, 2 C. Scott, Photographic Evidence § 1021 (2d ed. Supp. 1980); 3 J. Wigmore, Evidence § 790 (Chadbourn rev. 1970).

In Arkansas, photographic evidence is admissible under the "pictorial testimony" theory, when a sponsoring witness testifies that it is a fair and accurate representation of the subject matter. Martin v. State, 258 Ark. 529, 527 S.W.2d 903 (1975); Ballew v. State, 246 Ark. 1191, 441 S.W.2d 453 (1969); Gross v. State, 246 Ark. 909, 440 S.W. 2d 543 (1969); Lillard v. State, 236 Ark. 74, 365 S.W.2d 144 (1963); Hays v. State, 230 Ark. 731, 324 S.W.2d 520 (1959); Reaves v. State, 229 Ark.

453, 316 S.W.2d 824 (1958), cert. denied, 359 U.S. 944, 79 S. Ct. 723, 3 L.Ed.2d 676 (1959); Grays v. State, 219 Ark. 367, 242 S.W.2d 701 (1951);

Simmons v. State, 184 Ark. 373, 42 S.W.2d 549 (1931); Sellers v. State, 93 Ark. 313, 124 S.W. 770 (1910) C.C. No. 92/11 The question presented on this appeal has never been answered in Arkansas. A video tape recording and a film produced by an automatic camera have been admitted into evidence in two cases. However, the precise objection made in the case at bar was not raised in either case. See, French v. State, 271 Ark. 445, 609 S.W.2d 42 (1980); Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978).

This case presents the question of whether photographic evidence may be admitted as substantive evidence under the "silent witness"

theory. We hold that the trial court correctly ruled that the video tape recording was admissible.

The Uniform Rules of Evidence, Rule 901 (a), Ark. Stat. Ann. § 28­1001 (Repl. 1979), provides that authentication is a condition precedent to the admissibility of evidence and that this requirement is met by a showing of evidence sufficient to support a finding that the matter in question is what its proponent claims. Section (b) lists various illustrations, showing methods of authentication or identification. The Uniform Rules of Evidence, Rule 1001 (2), Ark. Stat. Ann. § 28­1001 (Repl. 1979), provides that "photographs" includes photographs, x­ray films, video tapes, and motion pictures.

C.C. No. 92/11

X­ray films are admissible in Arkansas, subject to proper authentication. Oxford v. Villines, 232 Ark. 103, 334 S.W.2d 660 (1960); Arkansas Amusement Corporation v. Ward, 204 Ark. 130, 161 S.W.2d 178 (1942); Prescott & N .W .R. Co. v. Franks, 111 Ark.

83, 163 S.W. 180 (1914); Miller v. Minturn, 73 Ark. 183,83 S.W. 918 (1904). Obviously, it is impossible for a witness to testify that an x­ray film is a fair and accurate representation of the subject matter, based on that witness' personal observation. Therefore, x­ rays could never be admissible under the "pictorial testimony" theory. 3 C. Scott, Photographic Evidence § 1262 (2d ed.1969). Every jurisdiction admits x­ray films as substantive evidence upon a sufficient showing of authentication, thus utilizing the silent witness theory, even if unintentionally. We note that Rule 1001 (2) treats x­rays, photographs, video tapes, and motion pictures, as one and the same.

Photographic evidence is the best available means of preserving the appearance of a scene at a given time. It is superior to eyewitness testimony in certain respects. Eye­ witness testimony is subject to errors in perception, memory lapse, and a witness' problem of adequately expressing what he observed in language so that the trier of fact can understand. See, 1 C. Scott, Photographic Evidence § 41­54 (2d ed.1969). Photographic evidence can C.C. No. 92/11 observe a scene in detail without interpreting it, preserve the scene in a permanent manner, and transmit its message more clearly than the spoken word.

We hold that photographic evidence is admissible where its authenticity can be sufficiently established in view of the of the context in which it is sought to be admitted. Obviously, the foundational requirements for the admissibility of photographic evidence under the "silent witness" theory are fundamentally different from the foundational requirements under the "pictorial testimony" theory. It is neither possible nor wise to establish specific foundational requirements for the admissibility of photographic evidence under the "silent witness theory". Since, the context in which the photographic evidence was obtained and its intended use at trial will be different in virtually every case. It is enough to say that adequate foundational facts must be presented to the trial court, so that the trial court can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims. The trial court determines the preliminary questions regarding the admissibility of evidence, and the appellate court reviews those determinations only for an abuse of discretion." C.C. No. 92/11 The reflection of the Rule in the Indian Law

31. As it may seem the expression " silent witness theory" in this form or any other form does not find reference in the Indian Jurisprudence but the expression like " Real Evidence" in R M Malkani (supra) and expression like "primary and direct evidence" in Sh. N. Rama Reddy vs V. V. Giri (supra) take us in the same direction.

32. One may also note here times have changed and so has the technology. It is, therefore, necessary to move along with the times even in terms of appreciation of such evidences. It is true that the technology has made it easier to doctor or morph 1 video material but it is not necessary to view it with unusual suspicion. If the technology is available to doctor or morph video tapes than the technology is also available to detect the same.

33. I am of the view by and large there are only two factors one which a Court need to seek while admitting a video in 1 Court of Its Own Motion v State WP (CRL.) NO. 796/2007 Judgment of Delhi High Court dated 21 August 2008 Para 129 C.C. No. 92/11 evidence. One, that it is relevant and the other that it is genuine and not tempered with.

34. It was laid down by the Hon'ble Supreme Court in R. M. Malkani as under:

"Just as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. The Court will take care in two directions in admitting such evidences. First, the Court will find out that it is genuine and free from tampering or mutiliation. Secondly, the Court may also secure scrupulous conduct and behaviour on behalf of the police. The reason is that the Police Officer more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the judge."

35. As one would notice the main focus is on inquiry being directed towards finding out as to whether the tape recorded conversation is "free form tampering and mutiliation". Second C.C. No. 92/11 aspect is more for putting the investigating officer on notice that the evidence not collected properly would lead the court to view it with "care and caution".

36. I would like to make reference to the Judgment of the Hon'ble High Court of Delhi in the case Deepak Kumar Vs State Crl. Appeal No. 1315 of 2011 decided on 09.01.2012 wherein the previous judgments on the subject had been referred and following conditions were laid down by the Hon'ble High Court for admitting a tape recorded conversation in evidence:

a) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice.

Where the maker has denied the voice it will require very strict proof to determine whether or not it was really the voice of the speaker.

b) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.

C.C. No. 92/11

c) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

d) The statement must be relevant according to the rules of Evidence Act.

e) The recorded cassette must be carefully sealed and kept in safe or official custody.

f) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbance.

37. The above conditions can be broadly divided in two parts. Conditions (a), (d) and (f) relate to relevancy for unless the voice is identified and is audible or intelligible the tape recorded conversation or voice is meaningless in so far the relevancy is concerned. The other conditions (b) (c) and (e) relate to the integrity of the recording. With the advent of the new technologies the above objective can be achieved by forensic examination. In specific reference to videotapes it can be done C.C. No. 92/11 by resorting i.e. speaker identification by conducting spectrography analysis and other auditory examinations to determine the voice of the speaker and by examination of videotapes by using VISAR tool, Vectorscope and waveform monitor to determine that a videotape is genuine and not tempered with.

Integrity of shots in the five Hi 8 Audio Video Cassette

38. As one would note from above that there were five Hi 8 Cassettes which were submitted by the Complainant Chetan Prakash with the Hon'ble High Court in a writ petition filed by him on which the direction had been given to CBI to register cases and investigate the matter. These Hi 8 cassettes were sealed in the registry of the Hon'ble High Court and passed on to CBI. During the investigation these Hi 8 Cassettes were sent to CFSL Chandigarh for forensic examination. It was deposed by the witness PW8 Inspector Sh. D K Thakur the investigation office as follows:

C.C. No. 92/11

" This case involved 5 Hi 8 cassettes which were recorded by one Shri Chetan Prakash wherein some officials of Delhi Police and Excise Department were seen demanding and accepting money from Sh. Jasbir sansi and others for permitting them to carry on their illegal liquor selling business from their residential premises. I had forwarded these video cassettes to CFSL Chandigarh in order to obtain expert opinion as to whether the recordings were genuine, authentic and not tempered with."

39. At CFSL Chandigarh the said cassettes had been examined by Dr. C. P. Singh examined as PW 6. He had deposed:

"On the last date in my testimony I had stated that I had received a parcel from CBI. The same was marked to me. I had found the seals on it to be intact. The same was opened by me. In the parcel I had found five video cassettes of SONY Hi 8. These were marked by me as Ex. 1 to 5 in the laboratory. As per the forwarding letter received along with the parcel, the CBI had asked for examination and the opinion of CFSL on the following:

C.C. No. 92/11

1.Whether the video recorded on video cassettes Mark Ex. 1 to 5 (marked by me) are in continuity or otherwise:

2.Whether video recorded in the video cassettes were edited or otherwise; and

3.Whether the video recorded in the video cassettes were original master copy or copy of master copy.

CFSL was also asked by the said letter to prepare two working copies by way of CDs from the said cassettes."

40. When he was asked about how he had examined the cassettes and what was his opinion, he had deposed :

" Q. How did you examine the above cassettes and what was your opinion?

A. I had examined the above cassettes by using VISAR tool, Vectorscope and Waveform Monitor. After examination, my findings on the above queries were as follows:­

(a) I had found all the shots (video) in all the cassettes in continuity;

C.C. No. 92/11

(b) The above finding also indicate that there was no indication of editing of the said cassettes; and

(c) As there was no evidence of second Generation deterioration in the image quality and there was significant evidence to support the contention that video recordings were camera originals, I had concluded that the said video cassettes were original Master copy and no copy of Master copy."

41. The report of Dr. C. P. Singh Ex PW 6/B would show that he had one parcel sealed with the seal of "High Court Registrar Delhi" and it was found to be intact. On opening he had found five Hi 8 cassettes. He had marked them Ex. 1 to Ex 5. (Ex 1 which was exhibited as Ex P1 during the trial is relevant for our case).

42. One would find this report is composite in respect of all the five cassettes and also in respect all the video shots found in each of the cassette. These shots are of different durations and shot at different times. After co­relating with the Ex PW2/ B2 (Scene No 1 of CD Ex 1) and also testimony of the witness C.C. No. 92/11 PW 2 Shri Chetan Prakash one can say that it is shot no. 20 in the cassette Ex P1 (marked in CFSL Laboratory as Ex 1 by witness Dr. C. P. Singh) which relates to this case and the same is of 46 seconds shot at 4.45 PM on 30/03/2003.

43. This witness was not cross­examined on behalf of the defence challenging the findings of expert Dr. C. P. Singh as to the integrity of the video cassette Ex P1 or the video shot in question.

44. One may note in the cross­examination of the witness PW­ 2 Sh. Chetan Prakash one of the suggestions given was that this witness had collected the photographs of the police officials from various places and then morphed them on video clipping. It was obvious;y denied by the witness. But this is a question which could be appropriately answered by the expert witness PW­6 Dr. C.P. Singh who had examined the cassette in question and deposed that all the shots therein were camera original and master copy and not copy of master copy. C.C. No. 92/11

45. I am of the view there is nothing to doubt shots in all the above cassettes including the shot related to this case in cassette Ex. 1 given by Dr. C. P. Singh (Ex P1 given to the same cassette in Court) are camera original and not tempered with. In other words integrity of the shot in question is not in doubt and the same can be admitted in evidence as such. Identity of the Accused in the video shot

46. The shot in question in cassette Ex P1 was played in the Court. I had watched it, others had watched. There is no manner of doubt that the Accused was in there in the said shot. It has also not been seriously disputed by the defence also. As the above discussion would show he was considering the "photograph" of the accused being morphed on the video shot, which would mean not really disputing that one of the persons visible is none other then the accused. In para 26 of the written submission though he has tried to say that the transaction between the accused and one lady seen therein cannot be C.C. No. 92/11 termed as accepting bribe but really not disputing that the person being seen the video shot is accused only. Description of what could be seen and heard in the recording.

47. I am reproducing herein below the description of what could seen and heard in the Court after the video clipping was played in the Court during the testimony of the Complainant Chetan Prakash.

48. Description what could be heard by Complainant is as under:

Q. Listen to the conversation which is going on between the lady, in the video clipping, and Sh. Vijay Pal and inform if the transcript just been shown to you matches with the conversation which is taking place in the video clipping being shown to you?

"A. As far as I could hear the conversation from the side of the accused is concerned that is C.C. No. 92/11 completely inaudible and nothing can be made out from it. Form what lady was saying I could make out the following:

"Kaam nahin, dahanda nahin, jo they de diya.....sau repey hi toh kam de rahi hoon....jyada kam thoede hi hain.... le ja.....agli baar sau pachas kam diya.....nahin koi baat nahi chaar sau.....sau rupey badi baat toh nahin.....agli baar le liyo......sau rupey meri taraf reh gaya hain agli baar le liyo....."

49. It may be submitted here that it is easier to comprehend the conversation between two persons but it is an extremely difficult task to reduce the same into writing word by word specially when the audio quality is poor. Especially in this case where what was being said by the accused was completely inaudible. I had asked the Ld. Prosecutor and Ld. Defence counsel to note down as to what they could hear from the conversation. I had also made a note of what could be heard.

50. What Ld. Defence counsel could hear is as under:­ C.C. No. 92/11 "Kaam nahin, dhanda nahin kahan se doon.....sau rupey hi kam kiye hain....jyada kam......kaun nahin agli baar......char sau repey badi baat toh nahin....."

51. What Ld. Prosecutor could hear as under:­ "Kaam nahin, dhanda nahin.....sau to kam kiye jyada toh nahi kiye.....sau rupey toh badi baat nahin....le ja...."

52. What I could hear as under:

"Kaam nahin, dhanda nahin kahan se de doon....sau rupey hi toh kam hain....jyada nahin.....agli baar.....chaar sau....koi baa nahin....agli baaar le liyo...."

53. From the above conversation, it is definitely clear that she was complaining to the accused that she had no work and from where she would pay and also that she had reduced the amount only by Rs. 100/­ and it was not a big deal and next time he could collect Rs. 400/­.

C.C. No. 92/11

54. The scene which was appearing in the video shot were described in the testimony of PW­2 Chetan Prakash complainant as under:­ "1. In the first frame one can only see a male having money in his hand and there is a lady sitting on a 'takhat' is in animated conversation.

2. The male is trying to return the money which the lady appears to be refusing to take back and pushing the hand of the male as if to keep the money. The male tries to return the money again, but the lady refuses to take it back and finally the male keeps the money in his pocket. The currency notes visible in the video clipping are of Rs. 100/­. It cannot be made out, however, as to how many currency notes are there, but they appear to be more than one. The male returns thereafter facing the camera. The person appearing in the picture appear to be the accused in the Court. At the time when the money is kept in the pocket his face was not visible. His face becomes visible only after he comes out of the shed where this conversation was taking place."

C.C. No. 92/11

55. He had further narrated the events of the previous day when he had met one Mahipal Sansi and his wife for persuading them to allow his shoot the video of the police officials visiting them for collecting bribe. His deposition is under:

" Before the videography of the above film I had visited the spot which is the residence of Sh. Mahipal Sansi, on the previous day, where I had met Sh. Mahipal Sansi and his wife who is the lady appearing in the above video clipping. When I had met her she was selling liquor illegally wile sitting on the same 'takhat' visible in the video clipping. Sh. Mahipal Sansi as well as his wife knew me even before. They knew about this fact that I was making film of the police officials taking bribe from bootleggers. I had thereafter suggested them that if they wanted they could also get a film made of the police officials who have been taking money from them. This I had suggested because they had informed me that they did not want to do this job of selling liquor illegally, but they were forced to do this job by the police officials so that they could earn money from them. When ever they stop selling liquor, the police officials implicate them in false cases. After my suggestion Mahipal Sansi as well as his wife had agreed to the fact that I may C.C. No. 92/11 videograph the film of the police officials taking money from them. They had given me a place to sit on the first floor of the house inside the kitchen from the window of the said kitchen the spot was visible where they used to sell liquor and the police officials used to visit them for taking money. On the next day accordingly I had visited their residence and sat in the kitchen with my video camera. I had thereafter shot this video while the accused present in the Court was taking money from the wife of Mahipal Sansi. On that day she was selling liquor from the morning and I could also see that the men were buying liquor from her and leaving her residence. I had seen then one man i.e. the accused present in the Court, coming to the spot where the lady was selling liquor just outside her house under a shed. I had then captured the accused demanding the money from the wife of Mahipal Sansi and accepting money from her".

56. There are a few more things which become clear from the cross­examination of the witness.

a. There is no frame in which the accused is seen actually taking the money from lady appearing in the video clipping. It is a different matter he is trying to return the money which lady is not taking back andultimately he keeps the money in his pocket. C.C. No. 92/11 b. His face is not visible so long as he has the money in his hand (he is not facing the camera.) His face becomes visible as he comes out of the shed facing the camera.

c. There is no liquor bottle or pouch visible in the clipping. The lady is not seen as selling liquor. She is seen drinking tea from a glass in her hand.

d. The man in the clipping is in plain cloths and not wearing any name plate.

57. I would like to note here that it may be so that at the time of keeping the money in his pocket his face is not visible. But it is unmistakable that it is the same person who comes out of the shed after keeping the money in his pocket. This entire shot is one, it has already been concluded that the integrity of this shot is not in doubt.

C.C. No. 92/11 Combined effect of what could heard and seen

58. The combined effect of what could be heard and seen is that accused had visited the wife of Mahipal Sansi to collect money from her and collected money from her which on the face of it cannot be termed as legal remuneration. Presumption under section 20 of the Prevention of Corruption Act and commission of offence under section 7 of the Act Presumption under section 20 of PC Act

59. Once the conclusion is reached that the Accused had accepted the money which was not legal remuneration, I am of the view that presumption under section 20 of the Prevention of Corruption Act gets attracted which is a presumption of Law and not Fact, which would mean it cannot be wished away by offering some explanation but would be required to be rebutted by proving to the contrary by some evidence on record. The C.C. No. 92/11 expression used in section 20 if "unless the contrary is proved"

and unless contrary is explained." It was laid down by the Hon'ble Supreme Court, in Dhanvantrai Balwantrai Desai v.

1

State of Maharashtra" , as under:

"In the case before us, however, the presumption arises not under S. 114 of the Evidence Act but under S. 4(1) of the Prevention of Corruption Act. It is well to bear in mind that whereas under S. 114 of the Evidence Act it is open to the Court to draw or not to draw a presumption as to the existence of one fact from the proof of another fact and it is not obligatory upon the court to draw such presumption, under sub­sec. (1) of S. 4, however, if a certain fact is proved, that is, where any gratification (other than legal gratification) or any valuable thing is proved to have been received by an accused person the court is required to draw a presumption that the person received that thing as a motive of reward such as is mentioned in S. 161, IPC. Therefore, the Court has no choice in the matter, once it is established that the accused person had received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal 1AIR 1964 SUPREME COURT 575 C.C. No. 92/11 remuneration it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S. 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible . A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. ( Emphasis supplied) [Section 161 IPC before being repealed was same as section 7 of P C Act, 1988 and section 4 (1) of the earlier P C Act, 1947 was the same as section 20 of the P C Act, 1988] C.C. No. 92/11

60. There is no separate evidence which has been led on behalf of the Accused to rebut the presumption under section 20 of the Act. As already stated before there was a question put to the Complainant that he had morphed the picture of the Accused on the video clipping and the Accused had never visited the house of Mahipal Sansi. The relevant part of the testimony of the Complainant reads as under:

" It is incorrect to suggest that I had collected the photographs of the police officials from various places and had morphed them in the video clipping. It is incorrect to suggest that the accused had never visited the house of Mahipal Sansi."

61. The prosecution had examined Dr. C. P. Singh as PW 6 only for this purpose. As already stated this is a question which should have been put to him who could have explained as to how he had reached the conclusion that the clippings/ video shots in the Hi Cassette Ex 1 (Ex P1 in Court) were camera original and not tempered with. This has also been noted before that the testimony of this witness has gone unrebutted. Just on C.C. No. 92/11 the basis of a single suggestion given to the complainant that it cannot be said that the Accused has been able to discharge the burden to rebut the presumption under Section 20 "that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section or, as the case may be, without consideration or for a consideration which he knows to be inadequate". In other words Accused can be said to have committed offence under section 7 of the Act. Commission of offence Under section 13 (1)(d)

62. After looking at the video and the conversion which could be heard it is evident why was the accused there. The facts would show in no uncertain terms that the accused who is a police official was there to take money from the lady and lady had reluctantly paid him the money. It is a clear case where the accused abused his position and took money from the lady. Thus committed an offence under section 13(1)(d) of the Act. C.C. No. 92/11 Defence of Accused Not hearing of conversation

63. It has already come what was being said by the Accused was not audible. It is may be noted that a crime can be committed without speaking a word and can still be seen committing the crime. In a large number of cases in fact the person committing the crime would make an effort there is no noise to avoid being caught at the time of committing the crime. In the present case the Accused could clearly be seen as taking money from the lady in the picture. Apart from what stands communicated by the visuals which may by itself be sufficient to reach the above conclusion, I may also add a partially audible or intelligible conversation is by itself not a bar for admissibility of such a cassette in evidence provided the Court is not required 1 to speculate as to the inaudible or unintelligible portions. 1 RECORDINGS, TRANSCRIPTS, AND TRANSLATIONS AS EVIDENCE By Clifford S. Fishman Washington Law Review Vol. 81:473, 2006 ­ page 483 " As a rule, partial inaudibility or unintelligibility in not a bar to admissibility if the Court is satisfied that jury would not be forced to speculate about the contents of the inaudible or unintelligible portion."

Internet Source: http://digital.law.washington.edu/dspace­ C.C. No. 92/11

64. After hearing the portion which was audible and intelligible it is fairly certain what is being talked about and for what purpose the Accused had been there.

Effect of non­ examination of lady in the video shot identified by complainant Chetan Prakash as wife of Mahipal Sansi.

65. It has been submitted that the said lady identified as Krishna w/o Mahipal Sansi has not been examined in this case to support what has been alleged against the Accused and in the absence of her testimony. It has already been discussed above that 'a video' once held to be admissible in evidence can stand alone as to the testimony to the events unfolding at the scene of the crime, without the aid of any other testimony including the persons who may be visible in the video. I am of the view this evidence would still hold good even if she had appeared and not supported the case of the prosecution. I accordingly conclude that absence of her being cited as the law/bitstream/handle/1773.1/272/81washlrev473.pdf?sequence=1 C.C. No. 92/11 witness would not adversely impact the conclusion in this case. Nothing to show in the video that lady (Krishna) was selling liquor.

66. I am of the view it is of no consequence. It was not necessary for Accused to have demanded the money while she was selling liquor illegally from her premises. To attract Section 7 of the Act it was only necessary to show that he had accepted the money which was not legal remuneration. Rest could be presumed with the aid of section 20 of the Act and to attract section 13(1)(d) of the Act, the video is sufficient to show he being a police official had visited the lady and taken the money form her which she was reluctant to give. It is not case of the Accused that he was there at her premises for any other purpose.

No site plan - no identification of the place

67. It is submitted that there is nothing on record to show that the said video was shot at the residence of Sh. Mahipal Sansi C.C. No. 92/11 and merely on the basis of the statement of the complainant it cannot be ascertained that the lady in the video was Krishna Sansi and that the video was shot at the residence of Mahipal Sansi. The investigating officer had neither prepared a site plan nor site identification memo.

68. One may note that a site plan is nothing but one of the methods of documenting the scene of the crime. Its importance in a large number of cases cannot be overemphasized. At the same time it may also be noted its importance can vary from case to case and also that it is not the only method of documenting the scene of the crime. Photographs and video taping are also the tools employed to document the scene of the crime. It is an exercise which is undertaken post the commission of the crime to reconstruct as to how the crime may have been committed or to pick up pieces of evidence form the scene of the crime. But what can be better then having the crime itself being captured as it was committed. It not only documents the scene of the crime but also the crime. In the present case I am C.C. No. 92/11 of the view preparation of site plan would have been nothing but a formality not likely to serve any purpose.

69. For the time being let us ignore the testimony of the Complainant Chetan Prakash altogether and examine that if in the absence of unidentifiable victim can the crime of acceptance of bribe be committed. There is not one but umpteen circumstances where the victim may remain unidentified. For example in the case of traffic inspector accepting a bribe for letting off a drive of a two wheeler scooter for jumping red light, who may have moved on after paying the bribe or a municipal inspector who may have accepted bribe from a street vendor who may have left the spot soon after but all these acts having being captured on surveillance camera on the street or at the particular traffic light. Will it possible to say that in these cases no offence has been committed just because victim could not be identified? Neither section 7 nor section 13 makes any distinction in the bribe being accepted from a person who could be identified or who could not identified.

C.C. No. 92/11

70. Before coming to the other question of the place not being identified or that simply on the basis of the testimony of the complainant it cannot be believed that he had shot the video at the residence of Mahipal Sansi in the absence either Mahipal Sansi or his wife having been examined, I would like to examine the question can it believed that Chetan Prakash had shot this video for if it could be believed that he shot this video then it also can be believed that was at the place where the video was shot.

71. One can take a judicial notice of the fact that this is not the only video claimed to have been shot by the complainant. If one were to go by his statement he had shot not one but large number of official of Delhi Police and Excise department accepting bribe from bootleggers operating in different areas of Delhi. He had gone to the extent of filing a writ petition before the Hon'ble High Court on the basis of those recordings. There were cases registered on the basis of his Writ Petition,. There C.C. No. 92/11 was also a detailed vigilance inquiry conducted into these recordings. I would also like to note that it was inherently a risky enterprise going after so many police officials. In the normal course of the human conduct no one would take such a risk for another person. To put it other words if the Accused claims that he shot these videos, considering the risk involved, it can be presumed under section 114 of the Indian Evidence Act that he had shot these videos himself. Necessary corollary would be :

(1) that he had visited the spot and therefore in a position to identify the place visible in the video clipping and (2) and that he had also witnessed this entire incident with his own eyes through the camera. Thus when witness states that this place is the residence of Mahipal Sansi he can be believed. Accused has no defense to it except to say that his picture has been morphed in the video. It has already been concluded above that the video clipping is camera original and cannot be said to be morphed or tempered with.

C.C. No. 92/11

Camera not sealed and sent to CFSL

72. It has been stated that the Video Camera used was not sealed by the investigating officer and sent to CFSL to get the opinion that as to whether the Hi 8 cassettes were prepared from the same camera or not. It has not been explained as to how it was material.

73. It is really very difficult for me to make out as to what difference would have it made. According to me what is material is what is recorded in the Hi 8 Cassettes and not what camera was used for making the recording.

Complainant was a BC (Bad Character) of P S Dabri and there are cases pending against him in different police stations and motive to prepare videos was malafide.

74. It has been submitted that the complainant is declared BC of P.S. Dabri. He himself was in the business of supply of illicit liquor. There are cases pending against him. It is stated " Delhi C.C. No. 92/11 Police had closed his business of illicit liquor due to which he wants to take revenge from police department and excise department. His motive of preparing video clippings of police officials is malafide." It is added " His testimony cannot be relied upon in absence of any other corroborative evidence."

75. Complainant himself has revealed that there are cases pending against him and he had also been declared BC. His explanation, however, is that those cases are false and he was being harassed by police which ultimately led him to take this step to expose their collusion with the bootleggers. These allegation are not being tested here, they had also not been investigated. The facts also remains that what is being alleged by the defence has also been not proved. This, however, cannot be denied that the complainant is an interest witness in the sense he is surely interested in the outcome of this case and if his statement is accepted then there should be corroboration in material particulars.

C.C. No. 92/11

76. As has already been submitted above the video clipping is an independent evidence in itself. It may be noted that material part of his testimony is nothing what he had narrated after having watched the video clipping. That being the so the question of corroboration or no corroboration has no meaning. As far as the material part of the allegation is concerned, I would go by what could be seen and heard in the video clipping and not necessarily what is stated by the complainant in the Court. Therefore the question of looking for corroboration of what had been deposed by the complainant with regard to the core allegation is superfluous.

Specimen voice of the Accused

77. It has been submitted that specimen voice of the Accused had been taken by Inspector Mukesh Kumar in the presence of independent witnesses as per voice recording memo Ex PW5/B. There is nothing on record to show that they were not sent to CFSL for voice spectrography. There is no report filed on record C.C. No. 92/11 as what report had been received from CFSL. The names of independent witness do not find mention in the list witnesses. It creates a doubt the fairness of investigation in this case.

78. I would like to point out that witness Inspector Mukesh Kumar did depose in the court that he had sent the said specimen voice of spectographic examination to CFSL along with the VHS cassette ( the cassette in which the Complainant had copied material from all the Hi 8 cassettes). He, however, did not speak of the CFSL report being received during the period the investigation was with him. According to him the case thereafter was transferred to Inspector D. K. Thakur. Inspector D. K. Thakur has not deposed that he had received any report form CFSL. The said CFSL report is not part of the record as already stated above. This is a question which has also not been explored from the side of the Accused as to what happened to that report why was it not filed. C.C. No. 92/11

79. This is a question which is really speaking has no meaning. One may note, it has already come on record that the in video recording the voice of the Accused was completely inaudible. If it was not audible then there was no question of any speaker identification. This explains why there is no report on record of the CFSL relating to speaker identification. Report of Sh. Jia Lal Sawhany, ACP Vigilance, Delhi Police

80. Sh. Jia Lal Sawhany was examined as PW1 in this case. As per the testimony of this witness he was entrusted with a complaint of Chetan Prakash, which was referred to Delhi Police for action by the Hon'ble High Court. This complaint related to bribes being taken by the officials of Delhi police and Excise department from various bootleggers indulging in the sale of liquors. He had video­graphed several scenes in which these officials could be seen demanding and accepting bribe. He had then deposed about as to how the inquiry was conducted by him. Though in the course of inquiry he had found the Accused herein to be one of the defaulting staff.

C.C. No. 92/11

81. It has been inter­alia submitted by the defence that the cassette used during the inquiry was a VHS cassette which was prepared by the Complainant by copying material from the other Hi 8 cassettes, thus VHS cassette was a secondary evidence; the said VHS cassette was not played in the Court etc.

82. I am of the view that conclusion reached by Sh. J L Sawhany are not binding on this Court. It was only a fact finding inquiry. If I go a step further it can be said that there would not be binding even on an Inquiry Authority appointed under the service rules for conducting regular department inquiry initiated on the basis of the said fact inquiry.

83. The report, therefore, in my view can be ignored. Difference in the contents of CD identification memo and CD identification memo.

84. It has been submitted, 5 Hi 8 cassettes were copied to VHS cassette and thereafter 2 CDs were prepared from VHS C.C. No. 92/11 cassette. It means the contents of the video identification memo should be similar to CD identification memo but the bare reading of the two memos would show that they are not similar. It is further stated that the reading of the two memos would show that they are not similar. Some of the scenes described in video identification memo were not there in the CD identification memo.

85. I am the view that this argument has been built by the learned defence counsel on a wrong premise. Video identification memo Ex PW2/ B1 does not relate to the Hi 8 Cassettes but to a VHS cassette, wherein according to the complainant, he had copied material from various Hi 8 cassettes and it is not the case of the prosecution that complainant had not copied the scenes in any particular sequence. CD memo Ex PW2/ B2 , however, is different. The CDs herein were prepared from the Hi 8 cassettes by CFSL Chandigarh at the request of the investigating officer. There were five CDs prepared each corresponding to five Hi 8 cassettes. If there is a difference C.C. No. 92/11 between them in terms of sequence of scenes being depicted in the said two memos really is a non­issue. I would like to add here that the approach of the investigate officer had been to ensure that the the original cassettes are not opened by them and the process of identification is carried out on the basis of the copies available with them. The video identification memo from VHS cassettes already available with them on 28/11/2006 and the CD identification memo was had been prepared on 11/01/2007 after the CFSL report from CSFL dated 19/12/2006 had been received.

Sanction Order

86. It is alleged that the sanction in this case has been accorded without the application of mind and hence not valid. Since the sanction is not valid, therefore, the entire trial stands vitiated. The reference was made to the judgment of the Supreme Court in cases­ Mansukhlal Vithaldas Chauhan Vs. State of Gujrat ( 7 SCC 622), Bhisham Kumar V State (1999 III C.C. No. 92/11 AD 177) and Mohd. Iqbal Ahmed Vs. State of A.P. ( AIR 1979 SC 677).

87. To illustrate that the sanction has been without the application of mind he has pointed out:

a)In the sanction order one would find that in para no. 3 it is not the name of the accused herein but of one Constable Prahlad Singh has been mentioned for whom the sanction had been granted by one S.B.S Tyagi.

b)He had not watched the video clipping in question.

c)He had stated that he had gone through the report of JL Sahani and evidence collected by the IO. On examination one would find that in the scene described related to the Accused herein in the said report is some other scene then the scene described in the Video Identification memo and the CD identification memo .

C.C. No. 92/11

d)Statement of Chetan Prakash under section 161 is of general nature and not referring specifically to the accused herein. He has not identified the accused in the scene related to him in the Video identification memo and the CD identification memo.

e)CFSL report does not relate to this case i.e R C 48(A)/04 but RC 49(A)/04.

Name of Ct. Prahlad in the Sanction Order

88. I could find that in para no. 3 of the sanction order indeed the name of Ct. Prahlad Singh appears. The question is, will it be appropriate to jump to the conclusion that the sanction was granted without the application of mind. There was, however, no question put to the witness PW 3 Ajay Kumar competent authority when he was examined in the Court to get clarification. He was the best person to have explained as to how this mistake occurred and have given some material for the Court to C.C. No. 92/11 make an assessment if on account this inadvertence the conclusion could be reached that the sanction accorded was without the application of mind. I am of the view in the absence of any cross­examination on this line and any explanation being sought from the witness it would be unfair to jump to the conclusion he had accorded sanction without application of mind.

According Sanction without watching Video

89. It has been submitted that the sanctioning authority had not admittedly watched the video clipping before according the sanction for prosecution. The Ld. Defence Counsel questioned that as to how the sanction could be granted by the sanctioning authority without having gone through the video clipping in question in a case where the sole basis for building the case against the accused is nothing but a video recording. C.C. No. 92/11

90. There is no dispute with the proposition that Sanctioning Authority is required to apply its own independent mind as to the facts of the case before reaching the conclusion to accord or not to accord sanction of the prosecution and to not to allow its independent judgment to be fettered the dictates of any other authority is evident from the Judgment of the Hon'ble Supreme Court by the Ld. defence Counsel in Mansukhlal's case. This judgment would also make it clear that according sanction is an administrative act and the court's jurisdiction to examine it limited to well settled principles of administrative law. It may noted that the Court while examining an administrative order like this does not sit in appeal and, therefore, it would be more concerned with the decision making process and so much as the decision and also it will not go into the question of sufficient material available with it to reach such a conclusion so long as it is possible to say that on the basis of material such a decision could be reached as to be not called perverse. One may here not the observation of the Hon'ble Madras High Court in (WA 69 of 2010) M. S.Vijayakumar vs. The Chairman And Managing C.C. No. 92/11 Director, Indian Overseas Bank decided on 12 March, 2012:­ "28.While dealing with the same Section 6(1) of the Prevention of Corruption Act, 1947 in Mansukhlal Vithaldas Chauhan V. State of Gujarat, (1997) 7 SCC 622, the Hon'ble Supreme Court, while referring to the hierarchy of the judgments on granting of sanction, has held that grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servants against frivolous prosecutions. The Hon'ble Supreme Court in that case has held that the grant of sanction is based on the application of mind and the materials and evidence collected during investigation and it was also further held that the High Court by exercising its power under Article 226 of the Constitution of India is entitled to take a decision if the Sanctioning Authority has not made its decision on the materials. Of course, it is not the sufficiency of materials which has to be considered by the High Court, but the availability of the materials that have been considered to the satisfaction of the Sanctioning Authority. It is not the decision making process, which can be the subject matter under Article 226 of the Constitution of C.C. No. 92/11 India. The categoric pronouncement of the judgment by the Hon'ble Apex Court is reflected in the following paragraphs. From a perusal of Section 6, it would appear that the Central or the State Government or any other authority (depending upon the category of the public servant) has the right to consider the facts of each case and to decide whether that public servant is to be prosecuted or not. Since the section clearly prohibits the courts from taking cognizance of the offences specified therein, it envisages that the Central or the State Government or the other authority has not only the right to consider the question of grant of sanction, it has also the discretion to grant or not to grant sanction.

91. It may be noted that while examining a matter for according the sanction the sanctioning authority is only required to 'satisfy' itself that as to if on the basis of the material produced it should accord the sanction and not necessarily examine the matter from the angle if the case is put to trial whether it would result in the conviction of the public servant. Once the sanctioning authority has deposed in the Court that it was satisfied from the material before him that it was a case C.C. No. 92/11 where sanction could be accorded there can be no reason to disbelieve him. PW­3 Shri Ajay Kumar competent authority had stated that he had gone through the FIR, inquiry report of Jia Lal Sawhney, ACP Vigilance, Delhi Police, and evidence collected by the Investigating officer of the CBI before according the sanction. Once he had said so, in my opinion it cannot be said that on the basis of the said material he could not have accorded sanction for the prosecution of the accused, despite the fact that he had not viewed the video clipping in question for he had before him the description of the relevant scenes before him and also the report of the CFSL.

In the report of J. L Sawhney the some other person had been identified as Ct. Vijay Pal.

92. It is also correct that in report of Sh. J L Sahani the scene in which the name of Ct. Vijay Pal has been given is not the same which has been referred to in Video Identification memo and the CD identification referred to in this case. I can take notice of the fact. In the scene referred to in the report of Shri. J. C.C. No. 92/11 L. Sahani there are two person who could be seen, in which one of them has been identified as H/C Meghraj and the other as Ct. Vijaypal. In respect of the same scene there is another case before this Court CC No. 89/11 wherein apart from H/C Meghraj there is one another accused named Ct. Ram Kumar. The person being referred to as Ct. Vijay Pal is in fact Ct. Ram Kumar. It is not difficult to make out that it is a case mistaken identity so far as the report of the Sh. J L Sahani is concerned. In any case video clipping in question was viewed in Court and there is no manner of doubt that person in the clipping was none other than the accused himself and no one else. Complainant Chetan Prakash not identified the Accused during investigation.

93. The question that at the time of making the CD identification memo and Video Identification memo the Complainant had not identified the accused needs to seen in the light of the fact, that in so far as identification of the accused by C.C. No. 92/11 name is concerned is not so material but what is material is if he is the same person who could be seen in the video clipping. As has already been noted above that the Accused could be seen in the video clipping played in the Court. There is one more issue which one may refer here. According to the complainant this exercise of capturing the official of Delhi police and officials from excise department was not undertaken by him in reference to any particular official, therefore, he was not expected to know the names of each and every official who may come in the frame while accepting the bribe from bootleggers. He had deposed in the Court:

"At that time when I was making the film I was simply making the film of the events which were taking place where ever the money transactions were there not knowing at that time what is the name of the men who were taking money from her. After they had left I had informed Mahipal Sansi and also his wife that in the video I had captured two men taking money from the wife of Mahipal Sansi. They had seen the video clip from my camera and identified the persons who had taken the money C.C. No. 92/11 from her. They did not know the names of the persons taking the money, but they informed that they were the police officials. They had also explained to me that the police officials those who come to their premises do not disclose their names".

CSFL Report in 49(A)/ 2004 and not in 48(A)/2004

94. As far as the question of number on the CSFL report is concerned that in the report the case number has been given as 49(A)/2004 and the number of this case is 48(A)/2004. I am of the view that this issue has been unnecessarily stretched. Following part of the testimony of the witness Investigating Officer Sh. D K Thakur PW 8 explains the same adequately:

"There were three cases registered on the directions of the Hon'ble High Court viz. RC 48, RC 49 and RC 50 of 2004. Though the cases were of similar nature involving similar evidence but there were three cases registered on the basis of the territorial jurisdiction of the incidents. The incidents related to three police stations namely P.S. Uttam Nagar, P.S. Nangloi and P.S. Rohini.

C.C. No. 92/11

The video cassettes were received from the Hon'ble High Court in one single sealed envelope. The video clippings in the said video cassettes five in number related to all the three FIRs. The five cassettes were sent to CFSL, Chandigarh to obtain expert opinion to know the authenticity of the contents of the said cassettes in FIR No. RC 49/2004 by S.P. Sh. N.M. Singh and accordingly report was also received in the said FIR. Since the cassettes were related to all the FIRs registered, the same report was utilized in the investigation of all the FIRs registered during the FIR related to the present case i.e. FIR no. 48(A)/2004. One would therefore find that in the report of CFSL from Chandigarh the FIR number noted is 49/2004 and not 48(A)/2004 or 50(A)/2004. As I have explained that the report received giving the FIR number as 49/2004 also relates to the cassette/video clipping which is the subject matter of this case".

Order

95. In view of the forgoing discussion and the facts and circumstances of the case I am of the view that the prosecution has been able to prove that the accused had committed the C.C. No. 92/11 offence punishable under Section 7 and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988. I hold the Accused guilty as charged and convict him accordingly.

Announced in the Open Court                        ( L. K. GAUR )
on 19  of April, 2014                         Special Judge, P.C. Act  
       th


                                           (CBI­09), Central District, 
                                                      Delhi.




C.C. No. 92/11

IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE P.C. ACT (CBI­09), CENTRAL DISTRICT, TIS HAZARI: DELHI CC No. 92/2011 R.C. No. 48(A)/04 Case I.D No.02401R0622762007 Central Bureau of Investigation Versus Shri Vijay Pal S/o Sh. Ved Prakash Sharma R/o Village & Post Office Bhadhani, District Jhajjar, Haryana.

Date of Institution              :  29.06.2007
Date of reserving Order          :  10.05.2014
Date of Pronouncement            :  12.05.2014


ORDER ON SENTENCE


Preliminary 

1. Convict Vijay Pal, who was posted as Constable with Excise Department of Govt. of NCT of Delhi on deputation from Delhi Police, has been convicted for having committed offences C.C. No. 92/11 under section 7 and section 13(1)(d) punishable under section 13(2) of the prevention of corruption Act, 1988. Hearing

2. I have heard Ld Defence Counsel for the convict as well as Ld. Public Prosecutor for CBI and have gone through the record of this case.

Guidelines of Sentencing

3. The broad guidelines for sentencing can be found in Rule 1 of Chapter 19 of Volume 3 of Delhi High Court Rules and Orders. The same reads as under:

"The award of suitable sentence depends on a variety of considerations-- The determination of appropriate punishment after the conviction of an offender is often a question of great difficulty and always requires careful consideration. The law prescribes the nature and the limit of the punishment permissible for an offence, but the Court has to determine in each case a sentence C.C. No. 92/11 suited to the offence and the offender. The maximum punishment prescribed by the law for any offence is intended for the gravest of its kind and it is rarely necessary in practice to go up to the maximum. The measure of punishment in any particular instance depends upon a variety of considerations such as the motive for the crime, its gravity, the character of the offender, his age, antecedents and other extenuating or aggravating circumstances, such as sudden temptation, previous convictions, and so forth, which have all to be carefully weighed by the Court in passing the sentence."

Extenuating Circumstances

4. The following extenuating circumstances have been pointed on behalf of the defence:­

(i) The convict is a sole bread earner of his family. He has two children and both of them are still studying. He has an aged mother, aged about 73 years, who suffers from backache for last many years and, therefore, she requires constant medical attention.

C.C. No. 92/11

(iii) The amount involved in the bribe is only Rs. 100/­. Aggravating circumstance

5. Ld. Public Prosecutor for CBI on the other side has made a submission that the convict is an official of police and the nature of offence he has committed does not deserves any leniency and he should be awarded sufficient deterrent punishment.

Sentence of imprisonment

6. The Convict is stated to be the sole bread earner of the family and has family responsibilities. As per the submissions th made his daughter is studying in 11 standard and his son is a student in a college (BBA). In my view punishment of long incarceration of the convict in the jail will have an adverse impact on his family. The amount of bribe involved also is on the lower side and thus the convict cannot be said to deserve punishment on the higher side.

C.C. No. 92/11

7. At the same time, it cannot be lost sight that the convict was posted as Constable with Delhi Police. It was his duty to prevent to commission of such offences for which he has accepted the money. The way the convict had visited the lady to take money from her is certainly a factor which would suggest that the punishment to be awarded to the convict should be on higher side.

8. The maximum punishment which has been provided in terms of imprisonment under section 7 of the Act is five years and the maximum punishment provided in terms of imprisonment under section 13(2) of the Act is seven years. It may be kept in view that this punishment which has been provided is even for the cases where highest level of Government functionaries are involved and amount involved may run into crores of rupees. If I have to balance the extenuating and aggravating circumstances and also take into account the maximum punishment provided for the above offences, in my view the ends of justice would be met if the C.C. No. 92/11 convict is sentenced to rigorous imprisonment for a period of three years for the offence under section 7 of the P.C. Act and also to rigorous imprisonment for the same number of years for the offence under section 13(2) read with section 13(1)(d) of the Act with a direction that both the sentences shall run concurrently.

Sentence of Fine

9. Sentence of fine is an integral part of section 7 as well as section 13(2) of the Act. Imposition of fine is one of the effective ways of punishment in the economic offences. It can be meant to make the convict realise that earning through illegal means would not pay. However, while imposing the fine the Court also can not be oblivious of the fact that the fine to be imposed may ultimately not turn out to be having a ruinous effect on his family. At the same time the fine to be imposed should have correlation not only with the money earned by the illegal means but also the position the public servant was holding. I want to add that in C.C. No. 92/11 such cases while imposing the fine, I am in favour of actually recovering the fine from the convict and not to just get away by suffering imprisonment in default of payment of fine.

10. In the light of foregoing discussion and the facts and circumstances of the case in my opinion imposing a fine of Rs. 25,000/­ for having committed offence under section 7 of P.C. Act and imposition of fine of Rs. 25,000/­ for having committed offence under section 13(2) read with section 13(1)(d) of the P.C. Act would serve the ends of justice.

Sentence

11. In the light of above discussion, I am sentencing the convict to undergo rigorous imprisonment for a period of Three years alongwith fine of Rs. 25,000/­ for having committed the offence under section 7 of the P.C. Act and to further undergo rigorous imprisonment for a period of Three years alongwith a fine of Rs. 25,000/­ for having committed the offence under section 13(2) read with section 13(1)(d) of the P.C. Act. C.C. No. 92/11

12. The sentences imposed shall run concurrently. It is noted that the convict had not remained in jail at any point of time in this case.

13. The Convict will have time of three weeks to make the payment of fine. In case of his failure to pay the fine during the said period steps would be taken for the recovery of fine in accordance with Section 421 of the Code of Criminal Procedure, 1973.

Ordered accordingly.

Announced in the Open Court                          ( L. K. GAUR )
on 12  of May, 2014                            Special Judge, P.C. Act  
        th


                                             (CBI­09), Central District, 
                                                        Delhi.




C.C. No. 92/11