Delhi District Court
Cbi vs . 1 Puran Singh, Inspector, on 29 February, 2012
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
CC No. 08/2011
RC SIB 2004 E0003
U/s 120B IPC r/w Sec 7,12, 13 (1) (d) r/w Sec. (13) (2)/12 of PC Act
CBI Vs. 1 Puran Singh, Inspector,
Son of Khanda Singh,
Resident of B-33, Moti Bagh-I,
New Delhi.
2 Narender Singh,
Son of late Khan Chand,
Resident of 52/85, 2nd Floor,
Chitranjan Park, New Delhi.
3 Om Prakash, Head Constable,
Son of Mahipal Singh,
Resident of H. No. 111,
Mahalian Mohalla, Ghonda,
Near Seelam Pur, Usmanpur,
PO Mouzpur, Delhi.
4 Ratan Singh, Constable,
Son of late Shish Ram,
Resident of C-531, Nathupura,
Delhi-84.
5 Sanjay Bajad, Constable,
Son of Vijay Pal Singh,
Resident of 141-A, Bank Colony,
Mandoli, Delhi-93.
Date of Institution : 31.01.2005
Date of framing of charge : 22.05.2007
Date on which case was received on
Transfer by this Court : 26.09.2011
Date of conclusion of arguments : 22.02.2012
Date of Judgment : 29.02.2012
CC No. 08/2011 CBI Vs. Puran Singh etc. Page 1 of 40
Memo of Appearance
Sh. S.K. Saxena, Special PP for CBI
Sh. Vivek Sood, counsel for Accused Puran Singh
Sh. V. P Singh, counsel for Accused Narender Singh
Sh. Pawan Kumar, counsel for remaining three accused
JUDGMENT
1 All the five accused persons have been sent up to face trial by CBI for commission of offences as under:
(i) Accused Narender Singh for offences under Sections 120-B IPC r/w Section 7, 12, 13 (1) (d) r/w Section 13 (2) of Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act) and substantive offence under Section 12 of PC Act.
(ii) Accused Puran Singh for offences under Section 120-
B IPC r/w Section 7, 12, 13 (1) (d) r/w Section 13 (2) of PC Act and substantive offences under Sections 7, 13 (1) (d) r/w Section 13 (2) of PC Act.
(iii) Accused Om Prakash, Ratan Singh and Sanjay Bajad for offences under Section 120-B IPC r/w Section 7, 13 (1) (d) r/w Section 13 (2) of PC Act.
2 For the sake of convenience, accused Puran Singh would be referred to as A-1, Narender Singh as A-2, Om Prakash as A-3, Ratan Singh as A-4 and Sanjay Bajad as A-5 in this judgment.
BRIEF FACTS 3 A-1 was investigating officer of case FIR No. 803/99 PS Defence Colony. He was posted in District Crime Cell (South District).
CC No. 08/2011 CBI Vs. Puran Singh etc. Page 2 of 40Said case, being linked with Abdul Karim Telgi, related to investigation of counterfeit stamps. While investigating aforesaid case, as per CBI, A-1 entered into criminal conspiracy with SI Gaurav Aggarwal and also with said Abdul Karim Telgi, the object of which was to sell counterfeit stamps of Government of India as genuine stamps to various business houses and to deliberately keep Abdul Karim Telgi out of purview of investigation.
4 It would be noteworthy to mention here that present case does not directly deal with the aspect of counterfeit stamps or Abdul Karim Telgi as such.
5 According to the case of prosecution, while investigating said case FIR No. 803/99, PS Defence Colony, A-1 visited office of M/s Ranbaxy Laboratory Limited, Devika Tower, Nehru Place on 07.12.2000 and seized some documents from there and thereafter on 08.12.2000, A-1 caught one Prahlad Singh, delivery boy of M/s Blue Star Services, and consequent thereto, one more case was registered i.e. case FIR No. 878/00 PS Kalkaji, New Delhi.
6 It would be important to point out here that as per prosecution, said M/s Blue Star Services was owned by A-2.
7 A-2 surrendered before the court on 05.01.2001 in connection with the investigation related to case FIR No. 878/00 PS Kalkaji. His police remand was taken by A-1 and he was taken to Mumbai for investigation. A-3, A-4 & A-5 had also accompanied A-1. Such police custody was to expire on 10.01.2001. It seems that transit remand till 12.01.2001 from Mumbai court was obtained and police team brought A-2 back to Delhi on 10.01.2001.
CC No. 08/2011 CBI Vs. Puran Singh etc. Page 3 of 408 Now comes the real issue of concern.
9 While A-2 was in police custody, conspiracy was hatched by all the public servants i.e. A-1, A-3, A-4 & A-5 in connivance with A-2 and in furtherance of such criminal conspiracy, A-2 was taken to Corporation Bank, CGO Complex Branch, Lodhi Road, New Delhi on 11.01.2001 where he withdrew a total sum of Rs. 8,55,000/- and such amount was received by all the public servants-accused as illegal gratification. It was paid voluntarily by A-2 so that M/s Blue Star Services was spared and was not indicted in said case FIR No. 872/00 PS Kalkaji. Thus, the motive for illegal gratification was not to implicate A-2 in the fake stamp case. As per investigation, said amount was personally withdrawn by A-2 on 11.01.2001 from CGO Complex Branch of Corporation Bank when he was in police custody but daily diary entry never revealed so. On the other hand, in terms of conspiracy and as a fall out of consensual bribe, A-2 was given full liberty and was permitted to move freely and even permitted to stay at his residence during some period of police custody.
10 It would be also pertinent to mention that A-2 had moved an application on 11.08.2004 praying therein that he wanted to disclose certain facts and wanted to make statement under Section 164 Cr.P.C. His confessional statement was recorded in which he claimed that A-1 had asked for money from him threatening that else there would be serious consequences. He also disclosed that on 11.01.2001, in desperation, he had withdrawn a sum of Rs. 8.55 lacs which was paid to A-1 at his office in Nehru Place and also that he was never kept in lockup or in any other confinement and was permitted to roam freely.
CC No. 08/2011 CBI Vs. Puran Singh etc. Page 4 of 4011 It is in these circumstances that all the accused persons have been sent up to face trial.
12 Charge sheet was filed in the court on 31.01.2005 and cognizance was taken on 16.05.2005.
CHARGE 13 Vide order dated 15.5.2007, all the accused were ordered to the charged for offences u/s 120 B r/w 7/12, 13 (1)(d) r/w 13 (2) of PC Act and A1 was also charged for the substantive offences u/s 7, 13 (1) (d) r/w 13 (1) (2) of PC Act and A2 was charged for substantive offence u/s 12 of PC Act. All of them pleaded not guilty and claimed trial.
PROSECUTION WITNESSES 14 Prosecution was directed to adduce evidence and has examined 15 witnesses. Witnesses can be classified, category-wise as under:-
A. Bank Officials (1) PW1 Sh. A. Ratnakar Pai (2) PW2 Sh. Virender Kumar Aggarwal (3) PW8 Sh. Naresh Kumar Doshi (4) PW13 Sh. K. R. Narayana Bhat (B) CBI Officials (1) PW3 Inspector B. S. Jha (2) PW15 Sh. Vijay Kumar Shukla, Dy. S P, CBI (C) Sanctioning Authority and Ld. Magistrate (1) PW14 Ms. Kanwaljit Deol, Presently, Director General of CC No. 08/2011 CBI Vs. Puran Singh etc. Page 5 of 40 Police, Arunachal Pradesh who accorded sanction for prosecution (2) PW9 Sh. Sunil Kumar Aggarwal, Presently, Ld. Additional District Judge, Tis Hazari, Delhi who had recorded confessional statement u/s 164 Cr.P.C.
(D) Private witnesses/ Expert (1)PW4 Sh. Satish Kumar (Relative of A-2) (2)PW5 Sh. Pradeep Kumar Grover( Witness to specimen Handwriting) (3)PW6 Sh. S. L. Mukhi (Handwriting Expert) (E) Witnesses for proving postings and DD entries (1)PW7 Sh. Mohan Singh, ACP (Retired) (2) PW10 Constable Ravinder Sharma, (3)PW11 ASI Rajbir Singh, (4)PW12 Inspector Rajiv Kumar, STAND OF ACCUSED U/S 313 CR.P.C.
15 Statements of accused u/s 313 Cr. P.C. were recorded by the court.
16 As far as A-1 is concerned, he admitted that he was posted in District Crime Cell during the relevant period and he also admitted that he was investigating officer of case FIR no. 878/2000 PS Kalkaji. He has also admitted that PC remand of A-2 was taken and he along with his other co accused had left DCC office for Mumbai for investigation on 6.1.2001 vide DD no. 27. He also does not dispute that they returned from Mumbai on 10.1.2001 vide DD no. 24. As regards CC No. 08/2011 CBI Vs. Puran Singh etc. Page 6 of 40 withdrawal of money by A2 from Corporation Bank, it has been claimed by A1 that A2 was never let off nor taken out nor allowed to be taken out during the custody period and rather senior officers were visiting Crime Cell for making inquiry in PS Kalkaji's case. Regarding the bank documents and cheques, he has come up with the answer that all these are manipulated. He claimed that he had been falsely implicated. According to him, the investigation conducted by him revealed that there was a separate network of fake stamps running parallel to Telgi in which one Hemant Dubey was king pin and CBI, instead, hushed up the scam unearthed by him. He also desired to lead evidence in his defence and examined three witnesses in his defence.
17 DW1 Rajat Avasthi is from the Corporation Bank and he has produced the certified copy of account opening form of bank account of Hemant Dubey. DW2 Inspector Ashok Kumar has come from the office of sanctioning authority with the relevant record pertaining to sanction and DW3 Nikhlesh Partap Singh is Ahlmad in the court of Sh. Sanjay Sharma, ACMM where another case pertaining to FIR no. 878/2000 PS Kalkaji now re-numbered as RC no. SIB-2004 E 0003 is pending disposal.
18 In his statement u/s 313 Cr.P.C., A2 admits that he had surrendered and was taken to Mumbai and was brought back from Mumbai. He also admitted that the total amount of Rs.8.55 lacs was withdrawn from the bank account on 11.1.2001. According to him, that day, he was sent to bank by A-1 and one unknown constable had accompanied him. None of the accused had accompanied him to the bank and according to him, he had been pressurized/forced to give money to Puran Singh. He did not choose to lead any evidence in CC No. 08/2011 CBI Vs. Puran Singh etc. Page 7 of 40 defence.
19 Stand of remaining three accused is similar but somewhat atypical as they have out rightly denied that they had ever gone to Mumbai along with A1 while A2 was in police custody and have pleaded their ignorance regarding withdrawal of any money by A2. They have not examined anyone in their defence.
CONTENTIONS OF CBI 20 Sh. Saxena has argued that prosecution has been able to prove its case to the hilt. According to Sh. Saxena, A2 was owner of M/s Blue Star Services and A1 had caught one Prahlad Singh who was employee of M/s Blue Star Services and consequently FIR no.878/2000 PS Kalkaji was registered which was investigated by A1. According to him, A2 had surrendered before the court and his PC was obtained and he was taken to Mumbai by all his co accused and he was not kept in any sort of confinement there and was given complete freedom and when he was brought back to Delhi, he, willingly and gladly, withdrew Rs.8.55 lacs from the bank accounts being maintained at Corporation Bank, CGO Complex, New Delhi and handed over such amount to his co-accused. At that time, A2 was in police custody and keeping in mind the DD entries, statements of bank officers and the evidence led by the prosecution, the only inference which can be legitimately drawn is that A-2 had withdrawn that money and had given such money to his co accused so that he is shown favour in case FIR no. 878/2000 PS Kalkaji. It has also been argued that if intention of A-2 was genuine and above-board, he would not have acceded to the request of A1. It has also been argued that it is not made clear by A2 as to why he had chosen to keep mum for such a long period. According to Sh. Saxena, when A2 CC No. 08/2011 CBI Vs. Puran Singh etc. Page 8 of 40 learnt that case had been transferred to CBI, he had no option but to admit that he had made payment to his co accused but he tried to distort the version. According to Sh. Saxena, there is nothing on record which may even remotely suggest that A2 had given that amount of Rs.8.55 lacs to his co-accused under any sort of threat, fear or coercion. He has also claimed that the direct and circumstantial evidence appearing on record clearly indicates involvement of all the accused persons and it stands proved that they all were co-conspirators. According to Sh. Saxena, the part-hostile testimony of PW3 Inspector B. S. Jha or of PW5 Satish does not cause any dent to the case of the prosecution DEFENCE CONTENTIONS 21 Sh. V. P. Singh has defended A2. According to him, A2 is rather a victim and sufferer who was first implicated in a false case and then threatened and pressurized by police and was made to part with Rs.8.55 lacs. According to Sh. Singh, as long as the case remained with Delhi Police, A2 could not muster any courage to come up with truth but when he was summoned by CBI, he felt that premier investigating agency was upright and fair and, therefore, he, for the first time, revealed all these crucial facts to CBI and the present case came to be lodged on the basis of revelation made by him. According to him, if no disclosure had been made by A2, there would not have been any such case. According to Sh. Singh, it was a plain case of extortion of money and A2 was made to pay to A1 under compelling circumstances. He was never willing to pay any bribe and didn't seek any favour. He was only apprehensive that in case he did not oblige A1 then A1 would further implicate him. Sh. Singh has also contended that it is not a case of conspiracy, abetment or instigation. Rather, earlier a false case was cooked up by A1 with the connivance of Abdul Karim Telgi so that A-2 CC No. 08/2011 CBI Vs. Puran Singh etc. Page 9 of 40 who was dealing in genuine stamps is forced to close down his business and thereby the business of forged stamps being run by Telgi flourishes further. Written submissions have also been furnished by A-2.
22 Sh. Pawan Kumar has addressed arguments on behalf of A3, A4 and A5. According to him, there is no evidence whatsoever on record which may suggest that these three accused had, in fact, gone to Mumbai along with A1 and A2. According to him, there is no legally admissible evidence on record to such effect and even the DD entries have not been proved in accordance with law and his clients cannot be indicted on the basis of statements of co-accused. He has also relied upon various judgments on this score which I would deal with at appropriate stage.
23 Sh. Vivek Sood has vehemently defended A-1. According to him, a strong prejudice has been created in the mind of court by CBI and A-2. According to Sh. Sood, A-1 was very much fair, lawful, unbiased and impartial while investigating the matter and rather the scam unearthed by him was hushed up by CBI and in order to lend support to his such contention, he has taken me through the evidence of complainant Jha. He has also argued that CBI has deliberately held back Case Diary of Kalkaji's case, Duty officer of DIU cell, one ct. Rajender Singh and key bank officials. He has also expressed his surprise as to how the senior bank officials were able to recall that A-2 had come to the bank personally when they had no business to deal with the customers directly for the purposes of encashment of cheques. It has also been contended that A-2 was, all along, kept at DIU office at Nehru Place and was never brought out. Alleged confessional statement of A-2 has also been attacked on the ground that his such highly belated application, not even CC No. 08/2011 CBI Vs. Puran Singh etc. Page 10 of 40 sponsored by CBI, should not have been entertained and also that such statement was even otherwise inadmissible in evidence. According to him, A-2 was harbouring grudge against A-1 as his business had been virtually ruined as his criminal activities were brought to the forefront and, therefore, A-2 joined hands with CBI and has tried to implicate him. He has also revealed his astonishment as to how the alleged amount became Rs. 8.55 lacs from initial alleged amount of Rs. 2.95 lacs. Sanction has also been labelled as mechanical and without application of mind. He has finally argued that A-1 cannot be held guilty on the basis of statement made by A-2 u/s 313 Cr.P.C. A-1 has also filed written submissions.
24 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record and scrutinized the testimony of all the witnesses including defence witnesses.
25 Let me go step by step.
WHETHER A-1 WAS INVESTIGATING OFFICER OF CASE FIR NO.803/99 PS DEFENCE COUNSEL AND LATER ON OF CASE FIR NO. 878/00 PS KALKAJI 26 There does not seem to be any dispute with respect to aforesaid fact. When statement of A-1 under Section 313 Cr.P.C. was recorded, he admitted that he was entrusted with investigation of case FIR No. 803/99 PS Defence Colony and then when he had laid trap and caught one Prahlad Singh, another FIR No. 878/00 PS Kalkaji dated 08.12.2000 was also registered. Other accused persons have pleaded their ignorance about such fact as is apparent from their respective CC No. 08/2011 CBI Vs. Puran Singh etc. Page 11 of 40 answers given whilst under examination u/s 313 Cr.P.C. Fact remains that PW3 Sh. B.S. Jha, Inspector CBI has also categorically deposed that said case FIR No. 878/00 PS Kalkaji was earlier being investigated by A-1. He also admitted that previous case i.e. case FIR No. 803/99 PS Defence Colony was also being investigated by A-1. Thus, there is no qualm about said basic fact.
WHETHER A-2 WAS TAKEN TO MUMBAI ON POLICE REMAND BY HIS CO-ACCUSED.
27 As per case of prosecution, A-2 had surrendered before the Court on 05.01.2001 and his police custody was taken and pursuant to such police custody remand, he was taken to Mumbai and duration of police custody was from 05.01.2001 to 10.01.2001.
28 Startlingly, investigating agency did not consider it prudent to place on record copy of remand application and also copy of the order passed by learned Court granting police custody remand. Fortunately, such fact has not been disputed by A-1 and A-2. A-1 has admitted in his examination under Section 313 Cr.P.C. that A-2 had surrendered on 05.01.2001 and that vide DD No. 27 dated 06.01.2001 made by him in DD Register, all the accused left DIU office for Mumbai for investigation of case FIR No. 878/00 PS Kalkaji.
29 DD Register has been proved by PW12 Insp. Rajiv Sharma. He remained posted in DIU (South) during March, 2003 to February, 2004 and he has deposed that CBI official had met him in connection with the present case and had demanded daily diaries and pursuant to that he had handed over Daily Diary Register for the period 08.12.2000 to 31.01.2001. Such register has been proved as Ex. PW12/A. CC No. 08/2011 CBI Vs. Puran Singh etc. Page 12 of 40 Testimony of PW12 Insp. Rajiv is unrebutted and uncontroverted and no objection was taken with respect to exhibition of register or the entries contained therein and no question or suggestion was put to this witness by anyone.
30 A-2 has also admitted that he was taken to Mumbai pursuant to police custody remand.
31 It would be useful to reproduce DD No. 27 dated 06.01.2001 (Ex. PW12/A3). Such DD entry is in the hand of A-1 and bears his signatures also. It reads as under:
"Departure to Mumbai:
7.10 PM. It is submitted that I along with HC Om Prakash, Ct. Ratan Singh 1233/SD and Ct. Sanjay No. 2021/SD along with accused Narinder Singh Thakur have left the office for Mumbai etc. for investigation of case FIR No. 878/00 u/s 258,259,260,120B IPC PS Kalkaji. Along with AK-47 and a pistol have been taken from PS Kalkaji. The accused is in PC till 10.01.01.
Permission for outstation has been obtained from DCP/SD."
32 Names of A-3, A-4 & A-5 have been specifically mentioned in such DD.
33 For the reason best known to these three accused persons, they have out-rightly denied such fact. According to them, it was wrong that they had gone to Mumbai in connection with the aforesaid investigation or returned from Mumbai. Sh. Pawan Kumar has argued that there is no legally admissible evidence on record to the effect that all CC No. 08/2011 CBI Vs. Puran Singh etc. Page 13 of 40 these three accused had left for Mumbai. He has also argued that DDs have not been properly proved as the maker has not entered into witness box. He has also contended that admission or confession made by one accused cannot bind the other. In this regard he has placed his reliance upon various judgments which are as under:
(i) Ramji Dayawala & Sons (P) Ltd. Vs. Invest Import: AIR 1981 SC 2085.
(ii) Alamelu & Anr. Vs. State represented by Inspector of Police AIR 2011 SC 715.
(iii) Deorao Vs. The State of Maharashtra (2008) 110 BOMLR 2132.
(iv) Sitaram Vs. State of MP 2010 (3) MPHT 460.
(v) Fitzee Ltd. Vs. Brilliant Tutorials (P) Ltd. CS (OS) No. 661/2005.(DOD 28.02.2011) Delhi High Court
(vi) M. Rama Naidu & Anr. Vs. B. Srinivasulu Naidu:
1993 (2) ALT 471.
(vii) Hari Charan Kurmi Vs. State of Bihar AIR 1964 SC 1184.
34 He has also argued that answer given by one accused u/s 313 Cr.P.C. cannot adversely affect and bind other accused and in this regard also, he has placed his reliance upon following judgments:
(i) Narayan Swami Vs. State of Maharashtra AIR 1968 SC 609.
(ii) J. Selvaraj Vs. D.K.P. Vardharajan & Other: 1996 CriLJ 4370.
(iii) Bishnu Prasad Sinha & Anr. Vs. State of Assam: AIR 2007 SC 848.
(iv) State of UP Vs. Lakhmi: AIR 1998 SC 1007.
35 I have carefully gone through all the aforesaid judgments and there is no doubt that any document is required to be proved in accordance with law and mere production and exhibition of document CC No. 08/2011 CBI Vs. Puran Singh etc. Page 14 of 40 cannot be held to be proof of its contents. Execution of any document has to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue. Naturally, in most of the cases, document has to be proved by the maker of the document. However, Sh. Pawan Kumar has lost sight of one important aspect of the case. Though A-3, A-4 & A-5 are accused in the present case yet they are public servants also at the same time. Things would have been different had they pleaded their ignorance or had tried to avoid answers by claiming that they did not know about entries. Here, they are coming up with very specific and definite answers. According to them, they had never gone to Mumbai or returned from Mumbai in connection with any police custody remand. It is not a question of there being any evidence to that effect or not. They are taking up an unambiguous stand before a criminal court. Answers given by them under Section 313 Cr.P.C. have some legal relevance as well and not of illusory value. They are not to take such questions casually. Public servants are expected to reveal the truth, at least, with respect to their official duties. Moreover, in the present case, the maker of the DD entry is none other than A-1. Such DD is in his hand and bears his signatures. He has no dispute over such fact. When DD Register was produced before the Court, such DD entries were also proved by PW12 Insp. Rajiv and no question or suggestion was put to him by any of these three accused persons as testimony of PW12 Insp. Rajiv is completely unrebutted and uncontroverted.
36 I am conscious of the aforesaid judgments cited by Sh. Pawan Kumar on the point of effect of statement of one accused over the other.
CC No. 08/2011 CBI Vs. Puran Singh etc. Page 15 of 4037 Section 30 Evidence Act provides that when more person than one are tried jointly for same offence, and confession is made by one of such persons affecting himself and his co-accused in the same case, the Court may take into consideration such confession as against the maker as well as against such co-accused. The basic principle behind this provision is that if a person makes a confession implicating himself, it would demonstrate that maker of confession is coming up with truth.
38 Indubitably, it is also required to be borne in mind that Section 30 Evidence Act merely provides that confession of co-accused can be taken into consideration but scope of such consideration is not unlimited. It is rather very limited. If a confession is made by one person implicating himself as well as his co-accused, such confession can only be used to lend assurance to the other evidence against the co-accused. If there is no other legally admissible evidence against such co-accused, such co-accused cannot be convicted merely on the basis of confessional statement coming from the mouth of his accomplice. Though, Section 30 provides that the Court may take the confession into consideration yet very clearly, there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. Reliance in this regard be made to Hari Chand Kurmi Vs. State of Bihar AIR 1964 SC 1184 (supra).
39 In Haroom Haji v. State of Maharashtra AIR 1968 Supreme Court 832, it has been observed that a confession intended to be used against a co-accused stands on a lower level than accomplice evidence because the latter is at least tested by cross-examination whilst CC No. 08/2011 CBI Vs. Puran Singh etc. Page 16 of 40 the former is not. The confessions of co-accused are not evidence but if there is other evidence on which a conviction can be based, they can be referred to as lending some assurance to the verdict.
40 Reference be also made to one another judgment of Apex Court titled as Kashmira Singh Vs. State of Madhya Pradesh AIR 1952 Supreme Court 159. In said judgment also, it has been observed that confession coming from the mouth of another accused cannot be made foundation of conviction and can only be used in support of other evidence. Thus translating these principles into concrete terms, the proper way to approach a case of this kind would be to first marshall the evidence against the accused excluding the confession altogether from consideration and to see whether, if it is believed, a conviction could safely be based on it. If it is so capable independently of the confession, then naturally it is not obligatory to seek support of such confession. But where court is not entirely convinced from such other material, it can call in aid the confession and use it to lend assurance to the other evidence and thus fortify itself in believing what without the aid of the confession it would not have been prepared to accept.
41 By virtue of entries contained in Ex PW 12/A, A-1 is not making any sort of admission or confession. These are rather affirmation of official act. Moreover, A-3, A-4 & A-5 have nowhere specified as to if that they had not gone to Mumbai, where were they? They are simply taking shelter behind the fact that there is no legally admissible evidence on record and, therefore, they are justified in out- rightly denying the fact of their being part of police team. Such answer was least expected from them. If they claim that they had not gone to Mumbai and that official entries are wrong, onus shifts on to them and CC No. 08/2011 CBI Vs. Puran Singh etc. Page 17 of 40 they are supposed to reveal as to where were they at that time? Such fact has to be, then, in their special knowledge. Their cursory denial does not serve any purpose at all. Keeping in mind the fact that maker has not disputed the aforesaid entry, unrebutted testimony of PW12 and the fact that no material has been produced by A-3, A-4 & A-5 showing that they were in Delhi and had not gone to Mumbai, it would not be possible, by any stretch of imagination, to hold that they had not gone to Mumbai.
42 As I have already noticed above, perhaps the remand given by the Court at Delhi was till 10.01.2001. I am using work 'perhaps' because application seeking remand and order of court have not been placed on record. It seems that transit remand/journey remand was sought from Mumbai Court and Court at Mumbai had given journey remand till 12.01.2001. Again, CBI did not find any necessity of placing on record such order or the application moved by A-1 in this regard or copy thereof. Fortunately, this fact is also not in dispute as A-1 has categorically admitted that they had returned from Mumbai on 10.01.2001 and then DD No. 24 was recorded on 10.01.2001 at 9.30 PM and such DD has been proved as Ex. PW12/A4. It is also in the hand of A-1 and signed by him. It reads as under:
Arrival from Mumbai and information regarding arrest of accused:
Time 9.30 PM. In ref to DD No. 27 dt. 6.01.001, I have come back from Mumbai after investigation of the case FIR No. 878/00 u/s 258 IPC etc. PS Kalkaji along with the staff and accused Narinder Singh already arrested in the case, whose journey remand was obtained till 12.01.001. During investigation of the case, another accused Jai CC No. 08/2011 CBI Vs. Puran Singh etc. Page 18 of 40 Kishan Singh @ Bangali s/o Ram Parshad Singh R/o 1916, Maharashtra Housing Colony, Saatpur, Nasik was also arrested on 9.1.2001 at 11.45 AM. His personal search and arrest memo was prepared. His wife Savita was informed through Crime Branch Inspector Desmukh of Nasik who is also one I.O. Of the case already registered against this accused Jai Kishan Singh @ Bangali at Nasik. Personal search items have been deposited at PS Kalkaji. He was produced before Sh. B.L. Waghamore MM Mumbai who was pleased to give journey cum police remand of the accused till 13.1.001. The accused was arrested from the area of police post Wadla with the help of local police.
Detailed investigation will be mentioned in the CDs. Both the accused have been kept in DCC office in the supervision of HC Om Prakash and Ct. Sanjay, Ratan Singh and Rajinder Singh. Sr. Officers have already been informed of the arrest of accused Bangali. Further investigation is continued.
43 I may reiterate that factum of taking away of A-2 by police team to Mumbai and returning back to Delhi is not really in issue.
44 We are concerned as to what had happened on 11.01.2001.
45 Needless to say that since transit/journey remand was upto 12.01.2001, even on 11.01.2001 A-2 was in custody of police. He had not been bailed out by any court.
WHETHER A-2 WENT TO BANK ON 11.01.2001 AND HAD WITHDRAWN RS. 8.55 LACS.
46 This fact has been sought to be proved by CBI through bank officials. I have seen the testimony of PW1 Sh. A. Ratnakar Pai and PW2 Sh. Virender Kumar Aggarwal. PW1 A. Ratnakar Pai was manager with Corporation Bank, CGO Complex Branch at the relevant time.
CC No. 08/2011 CBI Vs. Puran Singh etc. Page 19 of 40According to him, he recognized those persons by name and face who were regular customers and having their accounts in his aforesaid bank. M/s Blue Star Ltd. also had an account in CGO Complex Branch and accused Narinder Singh i.e. A-2 was operating that account. He also identified A-1 claiming that A-1 had come to the bank for getting account of M/s Blue Star frozen and on the request of A-1, he had frozen account of M/s Blue Star. As regards 11.01.2001, he has deposed that he was on duty at Corporation Bank branch and that day, accused Narender Singh i.e. A-2 had come to the bank and met him also.
47 It would be pertinent to mention that according to prosecution, five cheques were presented in the bank and total amount of Rs. 8.55 lacs was given to A-2 towards the aforesaid cheques. Details of these cheques are as under:
Date Cheque No. Amount From the Account of Exhibit Number 11.01.2001 590113 Rs. 1,40,000/- Narinder Singh PW1/15 11.01.2001 524046 Rs.70,000/- PW4 Satish Kumar PW1/16 11.01.2001 618688 Rs. 50,000/- Narinder Singh PW1/17 11.01.2001 524025 Rs. 35,000/- PW4 Satish Kumar PW1/18 11.01.2001 637944 Rs. 5,60,000/- Khan Chand (Father of A-2) PW1/19
48 All these cheques are self cheques and the amount under such cheques were received by A-2. On first cheque, his signatures are there on reverse at Q11 and Q12. Similarly, on other cheques also, his signatures are there on Q13, Q15, Q16, Q17 & Q18. Such signatures acknowledge receipt of amount under respective cheques.
49 A-2 himself admits such fact.
CC No. 08/2011 CBI Vs. Puran Singh etc. Page 20 of 4050 In his statement under Section 313 Cr.P.C. he admitted that he had gone to the bank and had presented such cheques and had collected the payment. All the cheques were presented together as common token no. i.e. Token No. 35 was given under which all the five cheques were presented and, therefore, only on all such five cheques, T-35/5 is mentioned in front. PW1 Sh. A. Ratnakar Pai has also thrown light on this aspect and has deposed that endorsement T-35/5 meant that Token No. 35 had been jointly issued for all such five cheques. He has also deposed that payment of Rs. 8.55 lacs was received by accused Narender Singh himself. This is very important but surprisingly, other three accused i.e. A-3, A-4 & A-5 did not confront this witness with respect to presence of A-2 in the bank. Presence of A-2 at Corporation Bank, CGO Complex Branch was unaccounted and apparently unauthorized. There is no official record/entry showing that on 11.01.2001 he was brought to Corporation Bank or was permitted to go to Corporation Bank to withdraw the money. He was all along under the police custody and he, therefore, must have been taken to bank by the officials who were having his custody or with their consent.
51 I have seen testimony of PW2 V.K. Aggarwal also. He has also deposed that he had seen Narender Singh i.e. A-2 on 11.01.2001 in the bank who had wished him. Again, counsel for A-3, A-4 & A-5 did not put any question to this witness either which means that they do not dispute the fact that A-2 had come to the bank that day for withdrawing money.
52 Sh. Sood has contended that it would be hardly believable that senior ranked officer would be distinctly remembering the fact that A-2 had come that day to collect the payment. According to him, CC No. 08/2011 CBI Vs. Puran Singh etc. Page 21 of 40 concerned cashier, who had disbursed the payment, was the best witness but for reason best known to investigating agency, such cashier has neither been cited nor called as witness.
53 I am, however, of the view that non-examination of cashier does not create any sort of adverse impact over the case of CBI. The situation of present case is somewhat typical as one other account of A-2 had already been frozen as per instructions of A-1 and when A-2 had come to the bank, he had met PW1. PW1 has deposed that he had also telephonically apprised A-1 that A-2 had come for withdrawal of the cheques and he (A-1) had replied that such payment should be made. Thus, the payment was not going to be made without the consent of senior bank officials. Rather all the cheques were finally cleared by the senior bank officials. Cashier would not have been able to throw desired light qua the identity of receiver of payment. A-2 admits his signatures on the reverse of cheques. Such fact has also been scientifically established as is apparent from the report of handwriting expert.
54 Handwriting expert has entered into witness box. I have seen testimony of PW6 Sh. S.L. Mukhi very carefully. His testimony is again unrebutted and uncontroverted and as per his testimony and report, he came to the conclusion that handwriting evidence pointed that writer of specimen handwriting and signatures Mark S41 to S110 being the person responsible for writing the questioned writing and signatures Marked Q5 to Q18. S41 to S110 contain specimen handwriting of A-2 Narender Singh proved as Ex. PW5/1 to Ex. PW5/70. Such specimen handwritings had been taken in the presence of PW5 Pradeep Grover and testimony of PW5 Pradeep Grover is again unrebutted and uncontroverted. I need not remind myself that Q5 to Q18 are the CC No. 08/2011 CBI Vs. Puran Singh etc. Page 22 of 40 handwritings and signatures appearing on the cheques and as per the case of prosecution, acknowledgment on the reverse is that of A-2.
55 Moreover, PW1 A. Ratnakar Pai has categorically claimed in his cross-examination dated 16.08.2007 that even if a self cheque is brought by a person for encashment/collecting payment and even if the signatures of account holder appear on the back of the cheque yet the person, who has to collect the amount under such cheque, is required to sign on the back of the cheque and cashier takes signatures of such person who collects the payment. Signatures of A-2 appear on the reverse of all the cheques. He himself also admits such fact. I am of the view that it really does not matter even if concerned cashier has not been cited as witness and it does not reflect any malafide on the part of investigating agency either.
56 Relevant documents pertaining to said account i.e. account opening form and statement of account etc. have also been duly proved. Bank record contains entries made in normal course of banking. There is no question of manipulation of these entries. No animosity has either been suggested to bank officials. Public servants/accused have not made it clear as to why such bank officials would depose falsely and would try to implicate them. Thus, it becomes very apparent from the testimony of bank officials PW1 A. Ratnakar Pai and PW2 V.K. Aggarwal that A-2 had come to the bank on 11.01.2001 and by virtue of presentation of aforesaid five cheques, he had withdrawn a total sum of Rs. 8.55 lacs.
57 Thus the presence of A-2 at bank on 11.01.2001 stands established.
CC No. 08/2011 CBI Vs. Puran Singh etc. Page 23 of 40WHETHER A-2 HAD GONE TO THE BANK ALONE.
58 Some facts can be proved by direct evidence. Some are to be deduced and deciphered from the attendant circumstances. Later is known as circumstantial evidence. There cannot be direct evidence for each and every fact in any criminal trial. It is very much apparent that A-2 was in police custody. He had been brought back to Delhi and must have been or should have been lodged in DIU office at Nehru Place and was supposed to be produced before the Court as early as possible. Nobody knows as to why he was not produced before the Court at Delhi on 11.01.2001. Merely because police was having transit remand up to 12.01.2001 does not mean that it could have kept the accused with it till 12.01.2001. Keeping any person in police custody is for a very limited purpose. This is to facilitate the investigation and for collection of evidence. It's nobody's case that A-2 was ever taken anywhere for any investigation or collection of evidence in Delhi and return from Mumbai and, therefore, there was no reason for not producing him before the Court on 11.01.2001 itself.
59 Be that as it may, fact remains that since there was transit remand, A-2 was supposed to be under the direct custody and supervision of A-1. I need not remind myself about the provision contained under Section 167 Cr.P.C. It is universally known fact that police custody remand is granted to a police official not below the rank of Sub-Inspector. Such provision has been made because official of a senior rank has better understanding and experience and it is expected that he would follow the rules as well. Remand from Delhi Court was sought by A-1, being in the rank of Inspector. His request was acceded to. He must have taken A-3, A-4 & A-5 with him to Mumbai but these other police officials had accompanied him for limited purpose i.e. for CC No. 08/2011 CBI Vs. Puran Singh etc. Page 24 of 40 escort and security. They were not supposed to participate actively in the investigation. Similarly, transit remand from Mumbai Court would have also been given on the request of A-1 who brought A-2 back to Delhi and it was his exclusive duty to keep A-2 under proper care and custody till he was produced before the Court. All the movements of A-2 were under the unswerving control of A-1. A-2 had no authority to be in motion except with the knowledge or consent of A-1. Even if it is assumed that he was left at DIU Cell at the mercy of A-3, A-4 & A-5 besides one Ct. Rajender Singh, the direct control over the movements of A-2 was of none other than A-1.
60 Presence of A-1 at the bank suggests that either he was brought to the bank by A-1 or A-1 permitted him to go to the bank.
61 PW1 Sh. A. Ratnakar Pai has categorically deposed that when A-2 had come for withdrawal of money, he had made a call to A-1 Puran Singh and told him about the visit of A-2 Narinder Singh who wanted to withdraw the money and then Puran Singh (A-1) told Sh. Pai that money be paid to him. A-1 was not taken by surprise when he was informed so by the bank manager. Rather he told the bank manager to permit withdrawal. Probably, all the liberties in the world had been given to A-2 which was in gross abuse of powers of the police officials and in utter violation of the orders of the Court. I do not have much evidence on this score but if I refer to the statement made by A-2 under Section 164 Cr.P.C., it would appear that police team had made a mockery of the order of grant of police custody. If such statement of A-2 is to be believed then A-2 was taken to Mumbai in Rajdhani Express by three constables only and A-1 himself landed Mumbai next day by air. These constables, naturally below the rank of Sub-Inspector, were totally CC No. 08/2011 CBI Vs. Puran Singh etc. Page 25 of 40 incompetent to take any person on police remand. As per A-2 Narender Singh, he was not taken anywhere in Mumbai and was rather set free to roam here and there in Mumbai. According to him, he was brought back to Delhi by A-1 by air and then he went to his home while Insp. Puran Singh (A-1) went his way. According to him, thereafter on 11.01.2001 he had withdrawn the money and such amount of Rs. 8.55 lacs in cash was paid by him to Insp. Puran Singh at his office in Nehru Place and he was never kept in lockup or in any other confinement and he was free to go anywhere.
62 There is nothing before me to indicate the exact mode of journey of all the members of the police team and accused but there has to be a proper streamlined system depicting complete transparency and accountability. Any such police team, having order of the court and custody of accused on police remand, is duty-bound to reveal and divulge complete details with respect to their visits, mode of transit, purchase of tickets, accommodation etc. Merely because police remand has been given does not mean that police is at liberty to do whatever it wants to do without giving any detail with respect to said aspects. After all, such remand is by virtue of the order passed by the Court and for all purposes, person, given to the police custody, is still considered to be under the supervision of the Court. I do not know whether such tickets- whether air-tickets or train-tickets were provided by the department or whether those were purchased by the police team and whether they had sought any reimbursement or not. But, the picture portrayed before me is very gloomy and ominous. There is pressing need of precision and transparency more so when any person is taken out on police custody. In many cases, atrocities CC No. 08/2011 CBI Vs. Puran Singh etc. Page 26 of 40 upon accused have been reported during the period of police custody only. In the garb of police custody, police officer cannot be allowed to do whatever he wants to do. His job is limited to the investigation and he is supposed to maintain complete control over such accused and to record all such details in case diary as well.
63 In order to find out clear-cut position, I had to call for aid of case-diary. It was prepared by A-1. It has, however, baffled me further. It, in fact, reveals that A-1 had gone to Mumbai by air separately and rest of the accused by Rajdhani. It also reveals that on 10.01.2001, A-3, A-4 and A-5 along with newly arrested accused Jai Kishan Bengali departed for Delhi by train leaving A-1 and A-2 in Mumbai. Then A-1 prayed for extension of PC for another two days from Mumbai court which he got. Case-diary dated 10.01.2001 nowhere shows that they had also left for Delhi that day. Rather Case-diary of 11.01.2001 depicts that it was on 11.01.2001 that they both had returned to Delhi and then they reached DIU office. This fact is certainly going to have great bearing over the alleged involvement of A-3, A-4 and A-5 64 Sh. Sood has contended that statement made by A-2 under Section 164 Cr.P.C. is motivated and, therefore, cannot be relied up. Even if I ignore such statement for a moment, would A-1 explain as to under what circumstances A-2 was found in the bank on 11.01.2001? His simple stand is that A-2 was not taken anywhere but the bank officials have deposed to the contrary and according to both the material bank officials, A-2 had himself had come to the bank and had met them. Thus, A-1 cannot run and shy away from shouldering his responsibility and it has to be necessarily inferred and held that A-2 had gone to the bank with the knowledge and consent of A-1 and it really does not matter CC No. 08/2011 CBI Vs. Puran Singh etc. Page 27 of 40 whether A-1 was physically accompanying him or not.
WHERE THAT AMOUNT HAS GONE 65 According to A-2, he had given that amount to A-1. This is the consistent stand which he took when he made statement under Section 164 Cr.P.C. and finally u/s 313 Cr.P.C.
66 Sh. Sood has contended that such statement made by co- accused cannot bind him.
67 I again refer to the deposition of said two material bank officials. They both have testified that A-1 had come to the bank personally. As per Sh. Pai, he had enquired from A-1 on phone whether such payment was to be made or not and as already discussed above, A-1 permitted withdrawal of such money. Thus, A-1 knew that A-2 had come to the bank for withdrawal of money. Keeping in mind the evidence of the bank official and the overall facts and circumstances, this Court can easily lend some sort of reassurance from the statement of A-2. Thus, money so withdrawn was pocketed by A-1 only.
WHETHER SUCH MONEY WAS GIVEN VOLUNTARILY OR WHETHER UNDER ANY SORT OF EXTORTION OR THREAT.
68 It has been argued by Sh. V.P. Singh that A-2 was rather a victim as he was threatened that if he did not oblige the police then he would be implicated in various other matters and, therefore, under such threat, A-2 had withdrawn money from the bank and had given the same to A-1. In this regard, it would be useful to see the application which A-2 had moved before the Court.
CC No. 08/2011 CBI Vs. Puran Singh etc. Page 28 of 4069 His such application has been proved as Ex. PW9/1. In his such application, he merely claimed that during PC, IO Insp. Puran Singh wanted him to pay bribe for not charge-sheeting him and for facilitating free life. He did not make even a whisper in such application that he had to give money under threat or force. It rather reaffirms that it was consensual bribe. Moreover, there is no reason offered by him as to why he held back such fact for so long. A-2 had gone to the bank and had withdrawn money on 11.01.2001 and gave the same to A-1 immediately. It was only on 11.08.2004 that he moved application praying for recording of his confessional statement. There is no elucidation as to why he did not reveal such a vital fact for three years. Sh. Singh has contended that he could not muster enough courage but when the case was transferred to CBI, he felt that there would be fair investigation and, therefore, disclosed the aforesaid fact for the first time. I am, however, not impressed with such contention. His keeping mum for three years rather shows that he was a willing bribe payer. He naturally expected that if he obliges A-1, there would be reciprocal favour and the cases against him would be closed or diluted.
70 Sh. Sood has, however, contended that a strong prejudice has been created in the mind of the Court by CBI and A-2. According to him, A-1 was investigating the matter lawfully and properly and rather the scam unearthed by him was illegally hushed up by CBI. According to him, CBI has turned the case upside down and has tried to fix A-1 and has projected that investigation conducted by Puran Singh was faulty. It has been argued that no favour was shown by A-1 to A-2 at any point of time which itself suggests and implies that no money was ever demanded or received. It has also been argued that on the other hand, A-2 had strong nexus with the bank officials and he had been able to CC No. 08/2011 CBI Vs. Puran Singh etc. Page 29 of 40 manipulate the bank record in order to take revenge.
71 Let me not go into insignificant detail with respect to the fact whether investigation earlier conducted by Puran Singh in Kalkaji's case was motivated or not. Such fact is practically beyond the scope of the present controversy. Suffice it to say that at the relevant time, A-1 was IO of the case of PS Kalkaji and was in position to show undue favour to A-2.
72 Sh. Singh has argued that a person who is coerced to pay bribe is not accomplice. In this regard he has relied upon one judgment cited as Kamini Kumar Deb Barma Vs. State AIR 1971 Tripura 26 and Dalpat Singh & Anr. Vs. State of Rajasthan 1969 AIR 1969 SC 17. There cannot be any issue with respect to said fact. However, in the present case, A-2 has not been shown as accomplice. He has not been cited as witness here. He is rather accused. Moreover, he has come up with a false story that money was extorted from him. His such stand was discarded by the investigating agency and he was, therefore, made accused as he was found to be willing bribe payer. In such a peculiar situation, defence cannot dig out any advantage from the aforesaid judgments 73 Undoubtedly, when FIR (Ex.15/1) was initially registered, it was mentioned in the FIR that Puran Singh had accepted illegal gratification and had abused his position as police officer to obtain wrongful gain to himself and had demanded and accepted Rs. 2,95,000/- from Narender Singh by allowing him to withdraw the amount by four cheques from the Corporation Bank. Sh. Sood has expressed his surprise as to how such amount stood converted from Rs. 2,95,000/- to CC No. 08/2011 CBI Vs. Puran Singh etc. Page 30 of 40 Rs. 8.55 lacs. I do not find any substantial reason to feel such astonishment. I need not remind myself that FIR is not supposed to be encyclopedia of the facts of the case. It is rather starting step of the investigation. As per initial investigation, case related to withdrawal of four cheques but during comprehensive investigation, it was learnt that there were total five cheques. One fifth cheque issued by Khan Chand (father of A-2) was not within the knowledge of the investigating agency at the time of lodging of FIR. I have already discussed above that all the cheques were presented together and the payment was released under one token no. i.e. T-35. Thus, defence cannot dig out any advantage out of aforesaid fact. Undoubtedly, Khan Chand has not been cited as witness but that does not mean that cheque issued by him has to be excluded from the scope of consideration. Bank record stands duly proved. Statements of bank officials also clearly speak about such fifth cheque issued by Khan Chand and moreover the statement of A-2 himself cannot be forgotten.
74 Sh. Sood has taken me through the exhaustive cross- examination of PW3 Insp. B.S. Jha who happens to be the complainant in the present case. He has also read out the testimony of PW15 Dy. SP Vijay Kumar Shukla who happens to be the final IO of the present case. He has made a contention before the Court that A-1 was very much sincere while investigating the case of Defence Colony and Kalkaji and did not yield to any sort of pressure and had rather unearthed a big scam showing that one Hemant Dubey was running a parallel scam of fake stamps. According to him, when A-2 was brought back from Mumbai and was lodged in the office of DIU at Nehru Place, several senior officers visited DIU office and made exhaustive interrogation from A-2 as well as one other accused i.e. Jai Kishan Bengali and it was not possible for CC No. 08/2011 CBI Vs. Puran Singh etc. Page 31 of 40 anyone to take out A-2 from DIU office on 11.01.2001. According to him, A-1 wanted to go to the root of the matter and wanted to nail down Hemant Dubey. However, such fact was hushed up by CBI as CBI never wanted so and, therefore, Hemant Dubey was cited as prosecution witness in RC No. 2/2003. According to him, no one had made any sort of complaint against alleged defective and malafide investigation conducted by A-1. According to him, on the other hand, A-2 was the real mastermind of manipulation and he had free access to the bank and had manipulated the bank record also. He has also contended that nexus between him and bank officials is manifest as one current account no. 1147 was opened in the name of Hemant Dubey by Prahlad Singh as on such account opening form, photo of Prahlad was pasted and such account had been introduced by Narinder Singh i.e. A-2 which clearly depicts the nexus between A-2, Prahlad and bank officials.
75 I do not find much force in such defence contention as such aspect is not having much bearing over the present case. I would also like to re-stress that when PW1 A. Ratnakar Pai had entered into witness box, he categorically deposed that he had met A-2 on 11.01.2001 in the bank. This fact was not sought to be disputed by the A-1 as no suggestion, to the contrary, was put to him. This rather indicates that even A-1 does not dispute that A-2 was found in the bank on 11.01.2001.
76 I am conscious of the fact that when complainant Insp. B.S. Jha entered into witness box and was grilled by defence, he, in his cross- examination dated 14.12.2009, revealed that A-2 i.e. Narinder Singh had told him that he was threatened and terrorized by Puran Singh (A-1) not to disclose the fact that he was forced by him to withdraw the money from the bank. Sh. Singh had attempted to dig out a huge mileage out of CC No. 08/2011 CBI Vs. Puran Singh etc. Page 32 of 40 the aforesaid fact. However, I have already discussed above that there is no explanation coming from the side of A-2 as to why did he sleep over the matter and did not disclose about his giving money to A-1. If at all he had been pressurized or forced to give bribe to A-1, it was expected that he would have spilled the beans at the earliest and would not have waited for three long years. However, nothing of that sort was done by him and he chose to relax merrily instead of reporting to anyone. It rather depicts that he had voluntarily and willing made payment to A-1 so that A-1 shows him undue favour. Naturally, A-1 was in a position to show him favour as he was at the helm of the affairs being IO of the case.
77 Defence has again tried to dig out some advantage from the hostile testimony of PW4 Satish Kumar. He happens to be cousin of A-2. He did not support the case of prosecution but fact remains that in his cross-examination, he admitted that accused Narinder Singh had told him that he had given money to the police personnel. Thus, it becomes very much apparent and manifest that amount so withdrawn by A-2 was voluntarily given by him to A-1.
WHETHER SANCTION IS VALID OR NOT 78 It has been argued that since the alleged confessional statement under Section 164 Cr.P.C. was never shown to the sanctioning authority, sanction has no validity. I have carefully gone through the testimony of PW14 Ms. Kanwal Jeet Deol. She has deposed that she had been posted in Delhi Police in various capacities including Joint Commissioner of Police, Delhi and she was competent authority to remove any officer up to the rank of Inspector while posted as aforesaid. She also claimed that DCP was competent authority to remove Head CC No. 08/2011 CBI Vs. Puran Singh etc. Page 33 of 40 Constables and Constables in Delhi and since Joint Commissioner of Police was an officer senior to DCP, she was competent to remove Head Constables and Constables too and thus could accord sanction against them also. She has proved sanction order (D-1) as Ex. PW14/A and has deposed that she had gone through the investigation file of CBI along with material documents like CD, statement of witnesses and after perusal of the same, she reached the conclusion that all such accused persons were liable to be prosecuted and, therefore, she accorded sanction. In her cross-examination, she deposed that statement of Narender Singh recorded under Section 164 Cr.P.C. was also produced before her. There is also reference of such statement in the sanction order.
79 Sh. Sood has contended that such statement was lying in sealed envelope and was never with the investigating agency and, therefore, there was no occasion for the sanctioning authority to see that. Admittedly, such confessional statement is on the basis of application moved by A-2 as no notice of such application was ever given to CBI and CBI did not come to know abut such confessional statement till the same had been recorded. However, PW15 Dy. SP Vijay Kumar Shukla (IO) has deposed that he had moved formal application for getting certified copy of such statement and Court permitted inspection. He did that somewhere in September, 2004. He also deposed that copy of proceedings under Section 164 Cr.P.C. prepared by him, during such inspection, was sent to the sanctioning authority and was shown to her as well. This clearly suggests that defence is not justified in raising the contention that sanctioning authority had no occasion to see or to examine such confessional statement.
CC No. 08/2011 CBI Vs. Puran Singh etc. Page 34 of 4080 Needless to say that sanction given by authority to prosecute an accused under the Prevention of Corruption Act is not mere formality and it has to be accorded after full satisfaction on the basis of the material and evidence made available with regard to the allegations made against the particular accused. Application of mind on the part of the sanctioning authority is imperative. Sanction order must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority.
81 Simultaneously, this provision does not intend that a public servant who is alleged to be guilty should escape the consequences of his criminal act by raising technical plea about invalidity of the sanction. This section safeguards the innocent but does not shield the guilty.
82 It has been contended that grant of sanction was without application of mind as draft sanction had been sent which has been copied ad verbatim. However, on careful perusal of sanction order and deposition of sanctioning Authority, I am of the considered opinion that such contention has no merit whatsoever. Merely, because, a draft sanction was sent to such sanctioning authority, it cannot be automatically inferred that there was no application of mind. In the case of DARSHAN LAL VS STATE, CRIMINAL APPEAL NO.73/2001 (DECIDED ON 31.07.2009), our own Hon'ble High Court has observed that it would be incorrect to conclude that simply because the sanctioning order was a virtual reproduction of the draft sanction, the same would be deemed to have been passed without any application of mind and that there was no necessary concomitant corollary between the two.
CC No. 08/2011 CBI Vs. Puran Singh etc. Page 35 of 40CONSPIRACY AND ABETMENT 83 In such type of intricate matters, it is very hard to decipher as to when the conspiracy was hatched. Conspiracy, itself, has also to be inferred from various circumstances.
84 In Kehar Singh Vs. State AIR 1988 SC 1883, it has been observed as under:
"...Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communications. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient."
85 Concurrence of co-conspirator can be inferred by various facts. I have already discussed above that it was sole and exclusive duty of A-1 to keep A-2 under his control and supervision. The other police officials i.e. A-3, A-4 & A-5 can be said to have accompanied for the purpose of escort and security. Going to Mumbai and coming back from there does not per se indicate any conspiracy. Moreover, as is borne out CC No. 08/2011 CBI Vs. Puran Singh etc. Page 36 of 40 from case-diary, A-3, A-4 and A-5 had left Mumbai with another accused Jai Kishan Bengali by train leaving A-1 and A-2 in Mumbai. Something must have transpired then between the two of them.
86 Sec 120-A of IPC defines criminal conspiracy as under :-
When two or more persons agree to do, or cause to be done,-
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy."
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof".
87 It has to be scrutinized and enquired whether two or more persons are independently pursuing the same end or they have come together with common unlawful object. The former does not render them co-conspirator but the latter does. It is, therefore, plain and manifest that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough.
88 A-3, A-4 and A-5 were merely escorting police officials for police remand and their job was more than over when they all returned to CC No. 08/2011 CBI Vs. Puran Singh etc. Page 37 of 40 Delhi leaving other two accused in Mumbai. There is no fact appearing on record suggesting their knowledge or involvement in withdrawal of money on 11.01.2001.
89 Section 107 defines abetment as under:-
A person abets the doing of a thing, who- First:-Instigates any person to do that thing; or Secondly:-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly:-Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation1:- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
90 Thus, a person may be charged of an offence of abetment if he instigates a person to commit an offence; or engages in a conspiracy to commit such an offence or intentionally aides a person to commit an offence. Such offence of abetment will be constituted, even when the person refuses to commit such an offence. Mens rea is an essential ingredient of a criminal offence unless the statues expressly or by necessary implication exclude the same.
91 Here, in the instant case, there is clear conspiracy between A-1 and A-2. A-2 wanted to seek undue favour from A-1 and thus abetted CC No. 08/2011 CBI Vs. Puran Singh etc. Page 38 of 40 commission of offence by voluntarily offering illegal gratification to him.
CONCLUSION 92 In view of my foregoing discussion, conclusion, which emerges out, is as under:
(i) A-2 was in police custody and was taken to Mumbai for investigation.
(ii) He was brought back to Delhi and was in extended police custody even on 11.01.2001 when he had contacted the bank officials and Manager i.e. PW1 A. Ratnakar Pai had even made call to A-1 and apprised him that A-2 had come for withdrawal of money.
(iii) A-1 did not raise his eye-brows. He was never taken by surprise by said call of bank manager. Rather, he tells him to make payment to A-2.
(iv) There is no reason or explanation offered by defence as to why bank officials would depose falsely more so when no animosity had been suggested to them by any of the accused.
(v) Presence of A-2 at bank was with clear approval, consent and knowledge of A-1. A-1 was not seen at the bank in flesh and blood but he was the one who was pulling the strings and thus having and exercising full control over A-2.
(vi) Keeping in mind the fact that A-1 had permitted bank officials to release the payment to A-2 coupled with fact that such amount was never recovered from the person of A-2 at any point of time, the only logical inference is that such amount was pocketed CC No. 08/2011 CBI Vs. Puran Singh etc. Page 39 of 40 by A-1.
(vii) Re-assurance with respect to such crucial fact of pocketing money can be taken from the confessional statement of A-2.
(viii) Such act of taking money was misconduct within the ambit of sec 13(1)(d) and amounted to taking gratification under sec 7 of Prevention of Corruption Act.
(ix) Presumption under sec 20 of Prevention of Corruption Act is also available as far as sec 7 is concerned.
(x) A-2 had made such payment out of selfish interest. He intended to seek favour from A-1.
He had made such payment to A-1 voluntarily and merrily and not out of any fear or threat.
Thus there was no extortion and it was consensual bribe.
93 In view of aforesaid, as far as A-3, A-4 & A-5 are concerned, they are acquitted of all the charges levelled against them in the present case. A-1 and A-2 are held guilty and convicted under Section 120-B of Indian Penal Code r/w Sections 7, 12, 13 (1)
(d) r/w Section 13 (2) of Prevention of Corruption Act, 1988. A-1 is also held guilty and convicted for substantive offences under Sections 7 & 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act 1988 and A-2 is also held guilty and convicted for substantive offence under Section 12 of Prevention of Corruption Act 1988. Announced in the open Court On this 29th day of February, 2012.
(MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Court: New Delhi CC No. 08/2011 CBI Vs. Puran Singh etc. Page 40 of 40 CC No. 08/2011 CBI Vs. Puran Singh etc. Monday, 05 March 2012 Present: Sh. S.K. Saxena, learned Special PP for CBI.
Convict Puran Singh with counsel Sh. Vivek Sood. Convict Narinder Singh with counsel Sh. V.P. Singh and Sh. Sandeep Rai.
(Remaining three accused persons who have already been acquitted are also present with counsel for submission of bonds under Section 437A Cr.P.C).
1 A-3, A-4 & A-5 who have already been acquitted have been asked to furnish personal bond and surety bond in a sum of Rs. 25,000/- each in compliance of Section 437A Cr.P.C. They have furnished the same. Accepted.
2 Heard arguments on sentence.
3 Learned Special Public Prosecutor has prayed for stern prison- term on the ground that corruption has reached phenomenal level and deterrent sentence would serve as eye-opener for convicts as well as for others.
4 Sh. V.P. Singh, on behalf of convict Narinder Singh, has prayed for showing compassion and leniency. He has reiterated that convict Narinder Singh had never made any payment of his own accord and volition. He was in vulnerable state as his co-convict had threatened him that in case he did not oblige him, he would face dire consequences and, therefore, he had no option but to bow down to his mandate and dictates.
CC No. 08/2011 CBI Vs. Puran Singh etc. Page 41 of 405 It has also been supplemented that it is a fit case where convict deserves to be released on probation. It has been apprised that he is a pass out from IIM Ahmadabad and is sole bread earner for his family which consists of two children of his deceased sister also.
6 Sh. Vivek Sood has contended that convict Puran Singh deserves maximum empathy. He has also reiterated that convict Narinder Singh was having strong nexus with bank officials and was made easy prey by CBI and CBI officials hushed up the scam unearthed by Puran Singh and in order to see to it that he keeps his mouth shut, a false case has been planted upon him by manipulating bank documents. It has also been contended that he is more than sixty five years of age and his wife and divorced daughter are totally dependent upon him. It has also been stated that while in Delhi Police, he had very efficiently handled some sensitive matters which should be considered a mitigating circumstance.
7 It has also been apprised that during investigation, A-1 remained in custody for approximately two months and A-2 for about one month.
8 I have given my thoughtful consideration to the rival contentions.
9 I understand somewhat precarious position of convict Narinder Singh as he was in police custody and his prime objective would have been to come out of the same as quickly as possible. But, then, even if he was in custody, he was not supposed to give in to the whims and fancies of convict Puran Singh. Narinder Singh was, unquestionably, eying his own interest and felt that in case he was able to gag the mouth of Puran Singh with money then he would be shown favour.
10 Corruption has to be eradicated from the country. Task is mammoth and enormous but not unattainable. To achieve that, man has to CC No. 08/2011 CBI Vs. Puran Singh etc. Page 42 of 40 rise above his self-seeking, egomaniacal and hoggish interest and to raise his moral standards. Persons from public have to show resistance to such illegitimate insistence and rather should act as whistle-blower. Time has come where selfish approach has to be sacrificed for the sake of the society. Eradication of corruption can be achieved with collective effort. It needs two to make a row and similarly for any act of corruption to take place, on most of the occasions, there are two parties. One is the bribe-giver and other is bribe- accepter. If bribe-giver withdraws himself completely and shuns the other, then dream of living in a corruption-free country would soon be a reality.
11 Keeping in mind the overall facts and circumstances, I do not find any reason to grant benefit of probation to convict Narinder Singh.
12 Be that as it may, I cannot be oblivious of the fact that incident is of 2001 and convicts have no bad antecedents and have already undergone agony of trial as well. Keeping in mind overall facts and circumstances of the case, both the convicts are sentenced as under:
Narinder Singh:
(i) Simple Imprisonment for six months for offence under Section 12 of Prevention of Corruption Act and fine of Rs. 10,000/- in default thereof he would undergo SI for a further period of one month.
(ii) Simple Imprisonment for one year and fine of Rs. 10,000/- in default thereof SI for a further period of one month for offence under Section 120B IPC read with Section 13 (1) (d) r/w Section 13 (2) of Prevention of Corruption.
(iii) Simple Imprisonment for six months and fine of Rs. 10,000/- in default SI for a further period of one month offence under Section 120B IPC r/w Section 7 of Prevention of Corruption Act.CC No. 08/2011 CBI Vs. Puran Singh etc. Page 43 of 40
(iv) Simple Imprisonment for six months and fine of Rs. 10,000/- in default SI for a further period of one month offence under Section 120B IPC r/w Section 12 of Prevention of Corruption Act.
13 All the sentences would run concurrently.
Puran Singh:
(i) Simple Imprisonment for a period of two years for offence Section 13 (1) (d) r/w Section 13 (2) of Prevention of Corruption Act and fine of Rs.
10,000/- in default thereof he would undergo SI for a further period of one month.
(ii) Simple Imprisonment for one year and fine of Rs. 10,000/- in default SI for a further period of one month offence under Section 7 of Prevention of Corruption Act.
(iii) Simple Imprisonment for two years and fine of Rs. 10,000/- in default SI for a further period of one month for offence under Section 120B IPC read with Section 13 (1) (d) r/w Section 13 (2) of Prevention of Corruption Act.
(iv) Simple Imprisonment for one year and fine of Rs. 10,000/- in default SI for a further period of one month offence under Section 120B IPC r/w Section 7 of Prevention of Corruption Act.
(v) Simple Imprisonment for one year and fine of Rs. 10,000/- in default SI for a further period of one month offence under Section 120B IPC r/w Section 12 of Prevention of Corruption Act.
14 All the sentences would run concurrently.
CC No. 08/2011 CBI Vs. Puran Singh etc. Page 44 of 4015 Needless to say, both the convicts would be entitled to benefit of Section 428 Cr.P.C.
16 A copy of judgment and order on sentence be given to both the convicts free of cost.
17 Let both the convicts be sent to jail under appropriate warrants.
18 Both the convicts have also been made aware about the fact that they have right to file appeal.
19 Ahlmad is directed to page and book-mark the file as per the latest circular so as to enable digitization of the entire record.
20 File be consigned to record Room.
Announced in the open Court on this 05th March, 2012 (MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC No. 08/2011 CBI Vs. Puran Singh etc. Page 45 of 40