Delhi District Court
Cbi vs . Gopal Singh on 8 June, 2023
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IN THE COURT OF MS. NAMRITA AGGARWAL : SPECIAL JUDGE
(PC ACT) CBI-21 : ROUSE AVENUE COURT : NEW DELHI.
CBI Vs. Gopal Singh
CBI No. 28/2019
RC No. DAI-2019-A-0001
CNR No. DLCT11-000063-2019
IN THE MATTER OF :
CBI
............................... Prosecution
VERSUS
Gopal Singh,
S/o Late Sh. Ranbir Singh,
R/o H.No. 405, Jatav Mohalla, Tuglakabad,
Delhi-110044.
..................... Accused
CBI No. : 28/2019
CNR No. : DLCT11-000063-2019
Date of institution : 02.04.2019
Date of conclusion of arguments : 30.05.2023
Date of judgment : 08.06.2023
JUDGMENT
1. "With Great Power Comes Great Responsibility" is an adage which though popularized by Marvel Comics and Films, became an arduous Code of Conduct specially for public servants. It means that power cannot be CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -2- enjoyed simply for its privileges alone but necessarily makes its holders morally responsible both for what they choose to do with it and what they fail to do with it. It is necessary that an person in authority should embrace it with humility and skepticism that the authority is'nt deserved or that it is their responsibility to honour the dignity of those under that authority.
2. Policing authority is one of the most ubiquitous organization of the society and the most visible representative of the government. Being public servants with vast powers at their disposition, police officers are expected to set a standard for the society by being accessible to public in case of need. They play a vital role in the protection of Right to Life, Liberty, Security etc enshrined in the Constitution of India. Thus, the need for police accountability is made evident by the great powers that police forces yield.
3. In the present case, aspersions have been levied against a police officer that he failed to live upto the expectations of the society and fulfill the onerous task bestowed upon him to uphold the values and the vision of the framers of our Constitution.
4. BRIEF FACTS 4.1 The present case bearing no. RC-DAI-2019-A-0001 was registered against SI Gopal Singh who was posted at P.S. Lodhi Colony, New Delhi on the complaint of Ms. Anita, wife of Sh. Naresh Kumar alleging that accused SI Gopal Singh had demanded bribe of Rs. 2 lakhs from her for CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -3- removing her name as well as the name of her husband from the complaint against them which was being investigated by him.
4.2 It is alleged that some people entered into the house of Ms. Anita and a quarrel took place between them and the family members of Ms. Anita on 25.12.2018 during evening hours due to which the husband of Ms. Anita was taken away by the police. The complainant received a call from SI Gopal Singh who asked her to meet him at P.S. Lodhi Colony next day at 11 a.m. When the complainant reached P.S. Lodhi Colony she received a call and was told by SI Gopal Singh that he was near Jor Bagh Metro Station. When the complainant met accused Gopal Singh, he informed her that there was a complaint against her, her husband as well as one Sh. Ashu Chauhan. The accused further demanded bribe of Rs. 2 lakhs from the complainant and also asked for sexual favours from her through video call on whatsapp to remove her name and the name of her husband from the said complaint. On this, complainant Ms. Anita filed a complaint against SI Gopal Singh on 28.12.2018 at CBI office upon which the complaint was registered and assigned to DSP Sh. Ran Vijay and SI Dinesh for verification on 28.12.2018 itself.
5. VERIFICATION PROCEEDINGS 5.1 Verification proceedings were conducted by Deputy SP Sh. Ran Vijay Singh and Inspector CMS Negi in the presence of Independent Witnesses on 28.12.2018, 31.12.2018 and 02.01.2019.
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5.2 On 28.12.2018, when Ms. Anita called SI Gopal Singh during
verification proceedings, he told her that he was out for work and also asked her to meet him on 31.12.2018. On 31.12.2018, the complainant visited CBI office and informed CBI officers that the accused visited the house of the complainant on 30.12.2018 and demanded bribe money for dropping charges against her and her husband. Subsequently, the complainant called accused on his mobile wherein the accused asked her to meet him at P.S. Lodhi Colony. The complainant met the accused at a tea stall near police station where conversation took place between the two. When the complainant told SI Gopal Singh that she could pay Rs. 80,000/- only as first installment as against Rs. 2 lakhs, the accused told her not to talk about it. The complainant kept talking about the money but the accused neither denied nor accepted it. In fact, he did not even scold her for offering any bribe money to him. The entire conversation was recorded in a SD card fixed in DVR which was carried by the complainant with her. Further, on 31.12.2018 the accused asked the complainant to meet him on 02.01.2019. Finding the inclination of accused to demand money from complainant, the verification proceedings were kept open so that the time and the place of handing over of the bribe money could be decided at the behest of the accused.
6. TRAP PROCEEDINGS 6.1 On 02.01.2019, after the time and place of meeting with the complainant was fixed by accused on phone, FIR was registered on the basis of verification proceedings against the accused SI Gopal Singh and a trap team CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -5- was constituted comprising of Inspector N.C. Nawal TLO as well as Independent Witnesses Sh. Amar Nath Prasad and Sh. Mukesh Kumar along- with other CBI officers. The complainant produced a sum of Rs. 80,000/- in the form of 40 GC notes of Rs. 2000/- each which were treated with phenolphthalein powder by Inspector Raman Kumar Shukla. The reaction of phenolphthalein powder with the solution of sodium carbonate was demonstrated to the trap team and phenolphthalein powder was applied to the GC notes produced by the complainant which was then put in the lady purse of the complainant by independent witness Sh. Amar Nath Prasad. The complainant was asked to hand over the same to accused only on his specific demand and also give signal to the CBI team after completion of transaction by rubbing her face or by giving a missed call on the mobile phone of TLO Inspector N.C. Nawal. Independent witness Sh. Mukesh Kumar was directed to act as a shadow witness in order to over hear and see the conversation as well as the likely transaction of bribe money.
6.2 After completion of pre trap proceedings, the trap team left CBI office in three vehicles and reached near P.S. Lodhi Colony. The DVR with SD card inserted in it was handed over to the complainant in the recording mode. The complainant went inside P.S. Lodhi Colony to meet SI Gopal Singh. After sometime she returned back and informed the trap team that SI Gopal Singh had gone outside the P.S and would return in some time. After sometime when SI Gopal Singh returned back, complainant again went inside with DVR which was kept in switched on mode in her inner garments, to meet CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -6- SI Gopal Singh. Subsequently, a missed call was received at the mobile phone of TLO from the complainant. On receiving the signal, the trap team rushed inside the P.S where they met the accused near the reception and the complainant standing in the corridor. TLO challenged the accused on which the accused got panicked and kept mum. The DVR was taken back from the complainant and switched off. Complainant informed the entire team that when she went inside the office room of SI Gopal Singh, he demanded bribe money by gestures and directed her to keep the bribe amount inside a file cover which was kept on his table. The said bribe money was later recovered by independent witness Sh. Amar Nath and on tallying the number of GC notes recovered from the file cover they were found to be the same as recorded in the Handing Over Memo. The file containing original complaint against the husband of the complainant was also recovered from the office of the accused.
6.3 Call Detail Records as well as Consumer Application Forms of the mobile phone of the complainant as well as the accused were collected by the IO. The transcript of the recorded conversations were prepared and the specimen voice of accused was taken. Sanction for prosecution of accused U/s 19 of Prevention of Corruption Act, 1988 was obtained from the competent authority and the charge-sheet was prepared.
6.4 Pursuant to the filing of the charge-sheet, Ld. Predecessor of this court took cognizance of the offence after perusing the same in light of the supporting documents and summoned the accused accordingly. Compliance of CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -7- the provisions of Section 207 Cr.P.C was done and the accused was supplied with the copy of the charge-sheet and the documents relied upon by the prosecution. Thereafter, charge under Section 7 P.C. Act, 1988 (as amended in 2018) was framed against the accused Gopal Singh.
7. PROSECUTION EVIDENCE 7.1. Prosecution was thereafter called upon to prove their case by examining the witnesses listed in the list of witnesses filed along-with the charge-sheet. Availing the said opportunity, the prosecution examined 17 witnesses.
7.2. The witnesses examined by the prosecution to substantiate their case can be broadly categorized into four categories.
7.3. The first category of witnesses consists of Material Witnesses relating to the incident i.e
a) PW-2 Ms. Poonam Rani.
b) PW-5 Ms. Anita, the complainant.
c) PW-6 Sh. Mukesh, Independent Witness.
d) PW-8 Sh. Amar Nath Prasad, Independent Witness.
7.4. The second category of witnesses are those witnesses who were involved in the investigation of the case at various stages and comprise of :
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a) PW-9 Sh. Raman Kumar Shukla, Inspector CBI.
b) PW-11 Sh. Ran Vijay Singh, Deputy SP CBI ACB.
c) PW-14 Sh. C.M.S. Negi, Inspector CBI ACB.
d) PW-16 Sh. N.C. Nawal, Inspector CBI ACB.
e) PW-17 Sh. Pramod Kumar Tanwar, Inspector ACB CBI.
7.5. The third category of witnesses consists of Official Witnesses who played an important role for smooth investigation of the case. They comprise of :
a) PW-4 Sh. Vikas Kumar, the then DCP, South Delhi (Sanctioning Authority).
b) PW-10 Sh. Ravi Shankar, SHO P.S. Lodhi Colony.
c) PW-12 Sh. V.B. Ramteke, Principal Scientific Officer (Chemistry) CFSL.
d) PW-13 Sh. S. Ingarsal, Principal Scientific Officer, CFSL, CBI.
e) PW-15 Sh. Mahesh Kumar Jain, Senior Scientific Officer II (Physics).
7.6. The fourth category of witnesses are the Miscellaneous Witnesses which comprise of :
a) PW-1 Sh. Saurabh Kumar.
b) PW-3 Sh. Surender Kumar.
c) PW-7 Ms. Deepti Vasishth.
7.7. Before proceeding further, it is pertinent to make a brief mention of the role and deposition of these prosecution witnesses category wise as referred herein above. The detail deposition of the witnesses is not being CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -9- adverted to, as the same shall be referred to while dealing with the necessary ingredients of the offences with which the accused has been charged viz-a-viz the rival contentions advanced by Ld. Special PP for CBI as well as Ld. Defence Counsel for the accused. Even the detailed cross examination of these witnesses is not being mentioned for the sake of brevity, but the same shall be referred to during the course of appreciating the legal as well as factual issues advanced by the parties.
7.8. MATERIAL WITNESSES
a) PW-2 Ms. Poonam Rani, sister-in-law of complainant Ms. Anita stated that she had made a complaint Ex.PW-2/C at P.S. Lodhi Colony regarding the quarrel which took place on 25.12.2018 and stated that she was informed by the complainant Ms. Anita that the accused Gopal Singh had demanded a bribe from the complainant. She also deposed that accused had asked her to make a video call to him after going to a washroom and also instructed her that if she would follow his instructions, the names of Ms. Anita and her husband would be removed from the case lodged at P.S. Lodhi Colony.
b) PW-5 Ms. Anita i.e the complainant in the present case identified the complaint filed by her sister-in-law Ms. Poonam Rani and stated that on 25.12.2018 she had received a call from Ms. Poonam Rani at about 7:30 p.m that a quarrel had taken place at her house and that some unknown persons were beating husband of the complainant and threatening to kill Ms. Anita as well. She further deposed that in the intervening night of 25/26.12.2018 she CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -10- had received a call from SI Gopal Singh from P.S. Lodhi Colony who asked her to meet him at P.S the next day. The next day SI Gopal Singh informed the complainant that a complaint has been lodged against her and her husband with respect to some money dispute by one person called Bunty at P.S. Lodhi Colony and that money has to be returned to Bunty. Further, this witness turned hostile to the extent that she deposed that 'I cannot state if SI Gopal was demanding this amount of Rs. 2 lakhs for himself or not'. She also identified her signatures on the complaint Ex.PW-2/B lodged by her before CBI against SI Gopal Singh wherein she stated that SI Gopal Singh was demanding illegal gratification from her for deleting her name from the complaint. This witness also proved the transcript of the conversation recorded during verification proceedings as Ex.PW-5/D, Ex.PW-5/I, Ex.PW-5/K, Ex.PW-5/P and Ex.PW- 5/W. She identified her signatures on the verification proceedings dated 31.12.2018 Ex.PW-5/L and verification proceedings dated 02.01.2019 Ex.PW- 5/R. She further proved the trap proceedings and stated that she kept the bribe amount in the file cover kept at the table of SI Gopal Singh on his asking which was recovered at her instance by the trap team. She identified her signatures on the trap proceedings Ex.PW-5/X and the site plan Ex.PW-5/Y. She also identified forty currency notes of the denomination of Rs. 2,000/- said to be recovered from the constructive possession of the accused as Ex.PW-5/Z (colly) and stated that the number of the said notes tallied with that recorded in the Handing Over Memo. She identified the file cover along-with the paper in which she had kept the alleged bribe amount as Ex.PW-5/Z2 (colly). This witness turned hostile during her testimony and thus was cross examined by CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -11- Ld. PP for CBI. During her cross examination she stated that at the time of giving her complaint Ex.PW-2/B to the CBI, she had stated that accused Gopal Singh was asking for bribe from her. She further admitted in her cross examination that the accused had demanded the bribe money from her through gestures.
c) PW-6 Sh. Mukesh, who was working as Assistant Section Officer in Ministry of Human Resource Development in 2019 acted as an independent witness in this case and stated that on 01.01.2019 he was instructed by his office to attend CBI duty. Consequently, on 02.01.2019 he became the part of the trap team wherein the complaint filed by Ms. Anita was shown and explained to him stating that the said trap was being laid over SI Gopal Singh as he had allegedly demanded Rs. 2 lakhs as bribe from the complainant. This witness proved the Handing Over Memo Ex.PW-6/A and stated that Ms. Anita had produced Rs. 80,000/- as the alleged bribe amount which was treated with phenolphthalein powder by Inspector Raman Kumar Shukla and the trap team was demonstrated with the use of phenolphthalein powder and its reaction with the solution of sodium carbonate and water. This witness further proved the trap proceedings stating that the entire trap team left the CBI office at around 3 p.m and after reaching P.S. Lodhi Colony the complainant was asked to hand over the bribe amount to Gopal Singh only on his asking and give signal to the team after completion of transaction either by rubbing her face with both her hands or by giving a missed call. He further stated that the TLO received the missed call from the complainant at 4:20 p.m CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -12- that day and immediately challenged the accused who got perplexed. Further, the tainted bribe amount was recovered from the file cover kept at the table of accused. Accused Gopal Singh was arrested. This witness also proved the seizure memo dated 02.01.2019 through which additional amount of Rs. 20,000/- was recovered from the table of accused as Ex.PW-6/E and also the search-cum-seizure memo dated 02.01.2019 of the articles recovered from the car search of the accused as Ex.PW-6/F. He also proved the arrest memo of accused Gopal Singh as Ex.PW-6/N.
d) PW-8 Sh. Amar Nath Prasad who was working as Inspector in Delhi Customs at the relevant point of time also acted as an independent witness and deposed in sync with PW-6 Sh. Mukesh. This witness also identified his introductory voice as well as the voice of complainant Ms. Anita and accused Gopal Singh in Q-1, Q-2, Q-3 and Q-4.
7.9. WITNESSES INVOLVED IN THE INVESTIGATION
a) PW-9 Sh. Raman Kumar Shukla, who was posted as Inspector in CBI ACB Delhi, deposed that he was the member of the trap team which was constituted to conduct trap proceedings on accused Gopal Singh for demanding bribe of Rs. 2 lakhs from the complainant. He also proved the entire trap proceedings conducted by CBI on 02.01.2019.
b) PW-11 Sh. Ran Vijay Singh stated that on 28.12.2018 while posted as SP CBI ACB Delhi the present complaint was marked to him for CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -13- verification purposes. He further stated that he along-with SI Dinesh Kumar arranged for an independent witness Sh. Amar Nath Prasad and also one new DVR along-with micro SD card for the purpose of verification. Thereafter, the conversation between complainant and accused was recorded in the SD card and verification memo dated 28.12.2018 Ex.PW-2/A was prepared. This witness also identified the transcript Ex.PW-5/D relating to conversation between complainant and accused on 28.12.2018.
c) PW-14 Sh. CMS Negi while posted as Inspector, CBI ACB was directed to carry out further investigation in the complaint of Ms. Anita on 31.12.2018 after the verification was kept open on 28.12.2018 by Sh. Ran Vijay Singh. He called the complainant as well as independent witness to CBI office on 31.12.2018 and also arranged for the DVR and a fresh memory card. As per this witness, the complainant informed him that on 30.12.2018 accused Gopal Singh had called her and made a demand of bribe money from her to clear her name and the name of her husband from the complaint. PW-14 thereafter conducted verification proceedings dated 31.12.2018 by visiting P.S. Lodhi Colony and asking the complainant to meet SI Gopal Singh along-with independent witness. The conversation held between the complainant and accused near the tea stall outside P.S. Lodhi Colony was recorded in the memory card with the help of DVR. After verification proceedings dated 31.12.2018, the verification memo Ex.PW-5/L was prepared which was proved by PW-14. PW-14 also participated in the trap proceedings dated 02.01.2019 and identified the pre-trap memo Ex.PW-5/R, Handing Over Memo Ex.PW-
CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -14- 6/A and the rough site plan Ex.PW-5/Y. This witness also identified the voice in recording dated 31.12.2018 and 02.01.2019 and the transcription of the same.
d) PW-16 Sh. N.C. Nawal while posted as Inspector CBI ACB was marked the FIR RC-1(A)/2019 CBI ACB Delhi Ex.PW-16/A (colly) registered on the complaint of Ms. Anita, for further investigation on 02.01.2019. On receipt of said FIR a trap team was prepared. This witness stated that the complainant produced Rs. 80,000/- comprising of 40 GC notes of Rs. 2,000/- each and the demonstration of the reaction of phenolphthalein powder with the solution of sodium carbonate and water was explained to the entire trap team by Sh. Raman Kuma Shukla. Thereafter, Handing Over Memo was prepared. As per this witness, the trap team left CBI office on 02.01.2019 at about 3 p.m in two government vehicles and one private vehicle of complainant for P.S. Lodhi Colony. The complainant was asked to hand over the treated currency notes to the accused only on his asking and give a signal to CBI team after completion of the transaction by rubbing her face or by giving a missed call. After the completion of the trap proceedings, this witness apprehended the accused Gopal Singh and challenged him. The tainted bribe amount was recovered from the file cover kept at the table of the accused at the instance of the complainant and all the exhibits recovered were sealed by CBI before sending them to CFSL for examination. This witness also identified his signatures on the recovery memo, search and seizure memo as well as various exhibits produced in this case.
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e) PW-17 Sh. Prabodh Kumar Tanwar, Inspector ACB CBI was
also assigned the investigation of this case. After receiving the complaint, verification memos etc from PW-16, this witness recorded the statement of various witnesses U/s 161 Cr.P.C and also collected the CAF, CDR of the mobile phones of the complainant and accused. Voice identification of the recorded conversation was also got done by this witness. He also obtained the sanction order for prosecution of the accused and thereafter filed the charge- sheet in this case Ex.PW-17/A. PW-17 further stated that he got prepared the transcription of the recorded conversation and obtained the CFSL report in this case.
7.10. OFFICIAL WITNESSES
a) PW-4 Sh. Vijay Kumar, who was posted as DCP South Delhi from September 2018 to August 2019, granted sanction for prosecution of accused vide sanction order Ex.PW-4/A. This witness also got exhibited the copy of the draft sanction order Ex.PW-4/DA and the SP report along-with the forwarding letter as Ex.PW-4/DB.
b) PW-10 Sh. Ravi Shankar, who was the SHO in P.S. Lodhi Colony at the relevant period of time deposed that on 02.01.2019 trap proceedings were conducted against SI Gopal Singh by CBI. As per this witness, the investigation of the case relating to quarrel in which complainant Ms. Anita was also involved was handed over to SI Gopal Singh. The said file CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -16- containing documents pertaining to the quarrel case were proved by this witness as Ex.PW-10/A (colly). PW-10 also identified the hard disc Ex.PW- 6/S which was handed over to CBI relating to CCTV footage of 02.01.2019 recorded at P.S. Lodhi Colony along-with the memorandum of extraction of CCTV footage Ex.PW-6/M. He also proved voice identification memo pertaining to Gopal Singh as Ex.PW-10/B and Ex.PW-10/C.
c) PW-12 Sh. V.B. Ramteke, Principal Scientific Officer (Chemistry)-cum-Ex-Officio Assistant Chemical Examiner to the Government of India examined the contents of the sealed glass bottle Ex.PW-6/D and filed his report Ex.PW-12/A.
d) PW-13 Sh. S. Ingarsal, Principal Scientific Officer, CFSL Delhi prepared three copies of Ex.Q-1, Q-2, Q-3, Q-4 and S-1 and handed over the same to CBI vide letter Ex.PW-13/A.
e) PW-15 Sh. Mahesh Kumar Jain, Senior Scientific Officer (Physics) CFSL received the exhibits of the present case for CFSL examination vide letter Ex.PW-15/A (colly) dated 08.02.2019 and prepared his report Ex.PW-15/B (colly) dated 02.09.2019. The said report was sent to ACB CBI through letter Ex.PW-15/C dated 06.09.2019.
7.11. MISCELLANEOUS WITNESSES
a) PW-1 Sh. Saurabh Aggarwal, Alternate Nodal Officer, Vodafone CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -17- Idea Ltd. provided Customer Application Form (CAF) Ex.PW-1/B, Call Data Record (CDR) Ex.PW-1/C, Location Chart of Delhi Circle Ex.PW-1/D and Certificate U/s 65B of Indian Evidence Act Ex.PW-1/E qua mobile no. 9990071189 in the name of accused Gopal Singh to CBI vide letter Ex.PW- 1/A.
b) PW-3 Sh. Surender Kumar, Nodal Officer, Bharti Airtel Ltd., provided Customer Application Form (CAF) Ex.PW-3/B, Call Data Record (CDR) Ex.PW-3/C and Certificate U/s 65B of Indian Evidence Act Ex.PW-3/D qua mobile no. 9717049409 in the name of complainant Ms. Anita Devi to CBI vide letter Ex.PW-3/A.
c) PW-7 Ms. Deepti Vasisthth, Programmer in the System Division of CBI stated that she was asked by CBI to extract the recording of two CCTV cameras installed at P.S. Lodhi Colony. She identified her signatures in the memo Ex.PW-6/M as well as the certificate U/s 65 B of Indian Evidence Act Ex.PW-7/A.
8. STATEMENT OF ACCUSED Statement of accused U/s 313 Cr.P.C was recorded wherein accused Gopal Singh denied all the incriminating evidence against him. He further submitted in his statement U/s 313 Cr.P.C that he has been falsely implicated by CBI in the present case and the FIR in this case was registered illegally without there being any specific recommendation in writing by any of CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -18- the Verifying Officers. He further stated that the alleged bribe amount was falsely planted upon him as nothing was recovered from his possession or at his instance. As per the accused, all the documents including the verification memos, pre trap and post trap proceedings and the FSL report have been falsely prepared and procured by the IO. Even the sanction order was received without application of mind by the sanctioning authority.
9. DEFENCE EVIDENCE 9.1 Ld. Defence Counsel appearing on behalf of accused Gopal Singh sought permission to examine three witnesses in his defence namely :
a) Sh. Himanshu Randhawa, JJA / Ahlmad in the court of Ld. MM NI Act-II, South East District.
b) Sh. Aman Kumar, Inspector (CBIC), CGST Division, Kamla Nagar.
c) Ms. Hema Ramchandani.
On being granted permission, all these witnesses were called in the witness box.
9.2 DW-1 Sh. Himanshu Randhawa, Ahlmad in the court of Sh. Nishat Bangarh, Ld. MM, NI Act, South East District brought with him the summoned record i.e file of complaint no. 10067/2019 titled as 'Hema Ramchandani Vs Rajan Kumar @ Aashu Chauhan' Ex.DW-1/A (colly). He also produced copy of cheque no. 000005 dated 01.01.2019 drawn on HDFC Bank, Vasant Kunj, New Delhi as Ex.DW-1/B. CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -19- 9.3 DW-2 Sh. Aman Kumar, Inspector (CBIC), CGST Division, Kamla Nagar brought with him the summoned record i.e RTI file pertaining to C.No. CGST/KND/Tech/RTI/109/2017/369 dated 15.06.2021 out of which copy of the application was taken on record as Ex.DW-2/A. The reply to the said application along-with the annexures was taken on record as Ex.DW-2/B (colly).
9.4 DW-3 Ms. Hema Ramchandani, sister of Sh. Manish Ramchandani @ Bunty stated in her deposition that she knew Sh. Ranjan Kumar @ Aashu Chauhan as he used to visit the restaurant run by brother Bunty and husband of DW-3 Sh. Lalit Kumar. As per this witness, Sh. Aashu Chauhan allured DW-3 and her family members to give money to him in return of allottment of flats and shops at Kidwai Nagar area in the name of the brother and husband of DW-3. Subsequently, DW-3 along-with her husband and brother handed over Rs. 70 lakhs to Aashu Chauhan who did not arrange for such flat or shop as promised by him and also failed to return the money handed over to him by DW-3. DW-3 further stated that on 25.12.2018 she along-with her brother and husband visited house of Ms. Anita along-with certain market persons. During the said meeting a quarrel took place between husband of Ms. Anita and husband of DW-3 on which a PCR call was made and two complaints dated 25.12.2018 were filed. This witness further deposed that on 27.12.2018 she again visited the police station along-with her brother and bhabhi when Ms. Anita was also present and the SHO told both the parties that they should settle the matter and arrive at an agreement. Subsequently, an CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -20- oral agreement was arrived at pursuant to which Ms. Anita handed over a cheque of Rs. 2 lakhs signed by Aashu Chauhan Ex.DW-1/B to DW-3. Ms. Anita further promised that she would hand over the balance amount in few days. As per DW-3, she again visited P.S. Lodhi Colony on 02.01.2019 where she met SI Gopal Singh. After sometime she was asked to leave the P.S due to some raid proceedings. DW-3 further deposed that she had presented the cheque Ex.DW-1/B in the bank which got dishonoured and for which complaint Ex.DW-1/A was filed. She also identified the photographs Mark D1 which were subsequently exhibited as Ex.DW-3/A (colly).
9.5 During cross examination this witness stated that she had handed over Rs. 70 lakhs to Ms. Anita and her husband as well as Aashu Chauhan in installments but no receipts were taken or issued in lieu of such payment. She further stated that the said amount was paid in cash out of her savings as well as the contributions made by her family members against which as well no receipts were issued. This witness further failed to produce in the court any record of payment received or made by her. DW-3 also admitted that she had not filed any separate case for recovery of Rs. 70 lakhs against the complainant, her husband or Aashu Chauhan except the cheque bouncing case under N.I Act for recovery of Rs. 2 lakhs.
9.6 Accused Gopal Singh did not examine any other witness in his defence and at the request of Ld. Defence Counsel appearing on behalf of accused Gopal Singh, the defence evidence was closed.
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9.7 I have heard the arguments advanced by Sh. Amjad Ali, Ld.
Special PP for CBI as well as Sh. Sanjay Gupta, Ld. Counsel appearing on behalf of accused Gopal Singh.
10. ARGUMENTS ON BEHALF OF CBI Ld. PP for CBI Sh. Amjad Ali briefed this court about the facts of this case and argued that accused Gopal Singh while posted as SI at P.S. Lodhi Colony demanded bribe of Rs. 2 lakhs from the complainant Ms. Anita for clearing her name and the name of her husband from a quarrel case being investigated by the accused SI Gopal Singh. Ld. PP further stated that the demand of bribe by the accused is proved through complaint Ex.PW-2/B as well as through verification proceedings dated 28.12.2018, 31.12.2018 and 02.01.2019. Acceptance of bribe money is proved through trap proceedings dated 02.01.2019. He also relied upon Handing Over Memo, recorded conversation as well as there transcripts, CFSL report and deposition of various witnesses to prove the guilt of the accused beyond reasonable doubt. Ld. PP vehemently argued that though the complainant Ms. Anita (PW-5) and her sister-in-law Ms. Poonam Rani (PW-2) turned partly hostile in their examination-in-chief but the case against the accused Gopal Singh still got proved on the basis of their admitted examination-in-chief and the supporting circumstantial evidence. He heavily relied upon the judgment titled as 'Neeraj Dutta Vs State (Government of GCT of Delhi) 2022 SCC Online SC 1724' along-with other judgments in support of his contentions.
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11. ARGUMENTS ON BEHALF OF THE ACCUSED Ld. Defence Counsel Sh. Sanjay Gupta has filed detailed written arguments on behalf of the accused challenging the contentions of Ld. PP for CBI. It is submitted that the accused is liable to be acquitted since the essential ingredients for conviction U/s 7 of the P.C. Act, 1988 (as amended in 2018) have not been established by the prosecution beyond reasonable doubt. Ld. Counsel has challenged the validity of the sanction order Ex.PW-4/A stating that the same was passed without application of mind and without consideration of all the relevant documents. He has also challenged the admissibility of the CFSL report Ex.PW-15/B, admissibility of the report submitted by the Chemical Examiner, CFSL Ex.PW-12/A as well as the authenticity of the tape recorded conversation relied upon by the prosecution. It is also contended by him that the FIR in the present case remained unproved as the same was filed without any recommendation from any of the Verifying Officers and the then SP who had given the endorsement on the complaint and had signed the FIR has not been examined by CBI. That even the independent witnesses PW-6 Sh. Mukesh and PW-8 Sh. Amarnath Prasad did not hear the conversation between the complainant and the accused and thus could not depose as eye witnesses to the incident. Ld. Counsel has also highlighted various contradictions in the testimony of witnesses regarding search proceedings, availability of laptop and printer, place of recording of sample voice, site plan, issuance of phenolphthalein powder etc. Ld. Defence Counsel has also laid emphasis on the fact that the complainant had turned hostile and CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -23- had also stated that accused Gopal Singh had demanded money only for the purpose of settlement of her matter with Bunty @ Manish Ramchandani. Ld. Defence Counsel has relied upon several judgments in support of his contentions.
12. I have heard the contentions of both the parties and have perused the record.
13. Foremost assault of the defence is upon the Sanction Order Ex.PW-4/A. The contention of Ld. Defence Counsel is that the sanction order was passed without application of mind as complete set documents were not supplied to the sanctioning authority by the prosecuting agency. It is also averred that a draft sanction Ex.PW-4/DA was sent by CBI to the sanctioning authority and the sanction order which has been passed is the verbatim reproduction of the said draft sanction order.
14. Before proceeding to advert upon the submissions advanced, it is pertinent to make mention of Section 19 of Prevention of Corruption Act.
Section 19 of Prevention of Corruption Act reads as under :
19. Previous sanction necessary for prosecution.--
(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,--
(a) in the case of a person who is employed in connection CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -24- with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -25- absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation.--For the purposes of this section,--
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
15. The importance of this provision and the obligation of the sanctioning authority was stated by the Hon'ble Apex Court in 'R.S. Nayak Vs A.R Antulay AIR 1984 SC 684' wherein it has been held that :
"In catina of decisions it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality, but a solemn and sacrosanct act which removes the umbrella of protection of government servants against frivolous prosecution and the aforesaid requirement must, therefore, be strictly complied with before any prosecution could be launched against a public servant."
16. The legal position regarding the importance of sanction U/s 19 of Prevention of Corruption Act is much too clear to admit equivocation. The object and character of this provision is evidently emanating from the non- obstante clause used in this section by the legislature which says 'No court shall take cognizance of such offence, except with the previous sanction'. The CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -26- use of words 'No' and 'shall' make it abundantly clear that the bar on the exercise of power of the court to take cognizance of an offence is absolute. As per Black's Law Dictionary, the word 'cognizance' means jurisdiction or the exercise of jurisdiction. In common parlance, it means 'taking notice of'. In view thereof, in absence of a valid sanction, the court is precluded from even taking notice of the offence or exercising its justification, with respect to a public servant.
17. In the present case, no aspersions have been cast about the competency of the sanctioning authority to grant sanction for prosecution of accused Gopal Singh. The only grievance is that the draft sanction order Ex.PW-4/DA was sent by CBI to the sanctioning authority and the sanction order Ex.PW-4/A is verbatim reproduction of the said draft sanction order. Ld. Defence Counsel has relied upon the judgment titled as 'Sri Anand Murlidhar Salvi Vs State of Maharashtra' Crl. Appeal no. 1107 of 2004 and 'Om Prakash Vs State' 2009 (3) RCR (Cr.) 293 Delhi in support of his contention. In both these judgments it has been held by the Hon'ble Court that the pre-requisite of sanction for prosecution of government servants is to provide a safeguard to them against frivolous and vexatious litigants. However, the order of sanction should not be construed in a pedantic manner and there should not be hyper technical approach to test its validity. In 'Anand Murlidhar Salvi' case (supra) the witness testified that he could not remember whether the draft sanction order sent to him was accompanied with the investigation papers or not. The Hon'ble Court clearly held that the CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -27- witness was vague regarding application of his mind before signing the sanction order. Similarly, in 'Om Prakash' case (supra) the sanctioning authority was not able to state as to what material was perused by it before granting sanction for the prosecution of the public servant.
18. The crux of these judgments is that the passing of sanction order is not an acrimonious job but is a solemn and a sacrosanct act which should be done only after due application of mind and after pepsing the material placed before it by the sanctioning authority. In the present case, PW-4 Sh. Vijay Kumar IPS, who was posted as DCP South at the time of grant of sanction has clearly stated in his testimony that he had perused the entire record sent by CBI i.e copy of FIR, recovery memo, seizure memo etc before according sanction for the prosecution of the accused and has also denied the suggestion that he had accorded sanction without application of mind or in a mechanical manner. Thus, from the testimony of PW-4 itself it is clear that the sanction order Ex.PW-4/A was passed after perusing all the documents sent by CBI to the sanctioning authority and the mere fact that the draft sanction order was sent along-with these documents does not mean that PW-4 had not considered the documents sent to him before passing the sanction order or that the sanction order was passed without application of mind.
19. Further, the contention of Ld. Defence Counsel that a SP report was sent along-with the sanction order and therefore the sanction order is invalid is also without any ground because the SP report was in fact an CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -28- essential piece of document containing the details of the case made out by CBI and thus the sending of SP report Ex.PW-4/DB cannot be said to be harmful for the validity of the sanction order.
20. The defence has also argued that the complete documents were not sent to the sanctioning authority i.e the copy of the recordings Q-1, Q-2, Q- 3, Q-4 and S-1 as well as the CCTV footage and the CFSL report of physics division and thus the sanction order Ex.PW-4/A is bad in law. Judgments titled 'CBI Vs Ashok Kumar Aggarwal' JT 2013 (15) SC 215 and 'State Vs Aamir Jaan' AIR 2008 SC 108 have been cited in support of the contention of the defence. In 'CBI Vs Ashok Kumar' (supra) CBI admitted before the Hon'ble Court that since the documents of the case were voluminous, they were not enclosed with the SPs report and that only list of documents and list of witnesses were sent to the sanctioning authority. Similarly, In 'Aamir Jaan case' (supra) the sanction was given only the basis of the report made by IG of police and nowhere has it been mentioned whether any document was annexed with the IG report or not.
21. This case is distinguishable on factual grounds itself from the cases relied upon by the defence as in the present case it has been clearly stated by PW-4 that all the documents were perused by him before granting sanction for prosecution of Gopal Singh. It is not the case of the prosecution that complete documents were not sent to the sanctioning authority for grant of sanction. The IO PW-17 admitted in his evidence that the voice examination CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -29- report (CFSL report Ex.PW-17/A) was not sent as the same was not received from CFSL till that date when all the documents were sent to the sanctioning authority. It is an admitted case that the transcript of the conversation was sent to the sanctioning authority along-with the letter requesting for grant of sanction in addition to several other documents relating to the case. The mere fact that the CFSL report was not sent would not make the sanction order bad specially in light of the fact that no suggestion was put to the witness as to whether his opinion would have changed regarding the grant of sanction had the said report been sent to him along-with the request. Moreover, the entire file of the sanctioning authority was summoned by the Ld. Defence Counsel for cross examination of PW-4 and it was duly produced in the court containing all relevant material, meaning thereby that the sanction order was passed after due application of mind and consideration of all the documents by the sanctioning authority. Thus, this court refrains itself from adopting a hyper technical approach and holds that the sanction order Ex.PW-4/A is valid and admissible.
22. Before delving into the next limb of the arguments of Ld. Defence Counsel regarding non fulfillment of the essential ingredients of Section 7 of Prevention of Corruption Act, 1988, it is essential to recapitulate Section 7 in verbatim of P.C Act which has been reproduced below :
Section 7 in The Prevention of Corruption Act, 1988 (as amended in 2018) reads as under :
7. Offence relating to public servant being bribed.--Any public servant who,--
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(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant;
or
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation 1.--For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.
Illustration.--A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.
Explanation 2.--For the purpose of this section,--
(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -31- abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.
23. The essential ingredients of Section 7 of P.C. Act 1988 are :
1) the accused must be a public servant or expecting to be a public servant ;
2) he should accept or obtain or agree to accept or attempt to obtain from any person ;
3) for himself or for any other person ;
4) any gratification other than legal remuneration ;
5) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour ;
24. In the present case it has nowhere been denied that accused Gopal Singh is a public servant being posted as Sub Inspector in Delhi Police. No arguments qua this aspect was ever raised in the court and thus the first ingredient stands proved.
25. In 'B. Jayaraj Vs State of A.P (2014) 13 SCC 55' it has been held by the Hon'ble Apex Court that mere possession and recovery of currency notes from the accused without proof of demand would not bring home the offence U/s 7 of P.C. Act (as amended in 2018). It was further observed that presumption U/s 20 of the Act could not be drawn in respect of an offence U/s CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -32- 7 of the Act. Such a presumption could have been drawn only if there was a proof of acceptance of illegal gratification for which proof of demand was a sine qua non.
26. Subsequently, in 'P. Satyanarayana Murthy Vs The District Inspector of Police, State of A.P (2015) 10 SCC 152', the Hon'ble Apex Court by placing reliance on B. Jayaraj (supra) observed that mere possession and recovery of currency notes from the accused without proof of demand would not establish an offence u/s 7 of the P.C. Act. This is because proof of demand is a sine qua non or an indispensable essentiality and a mandate for an offence U/s 7 of the act. The proof of acceptance of illegal gratification could follow only if there was a proof of demand. The proof of demand of illegal gratification is therefore the gravemen of the offence under Sections 7 of the Act and in the absence thereof, the charge would thereby fail.
27. Thus, mere acceptance of any amount by way of illegal gratification or recovery thereof dehors the proof of demand, ipso-facto would not be sufficient to bring home the charges U/s 7 of P.C. Act (as amended in 2018).
28. Recently, the Hon'ble Supreme Court of India clarifying the relevant provisions of law U/s 7 of P.C. Act in 'Neeraj Dutta Vs State (Government of GCT of Delhi) 2022 SCC Online SC 1724' held that :
"74. What emerges from the aforesaid discussion is summarised as under:
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(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1) (d)(i) and (ii) of the Act.
(b) In order to bring home the guilt of accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(I) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -34- of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (I) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act.
Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (I) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -35- rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal.
Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is a discretionary in nature."
(emphasis supplied) Further, paragraph 76 of the aforesaid judgment provided that :
"76. Accordingly, the question referred for consideration of this Constitution CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -36- Bench is answered as under:
In the absence of evidence of the complainant (direct/primary, oral/documentary evidence), it is permissible to draw an inferential deduction of culpability/guilt of a deduction of culpability/guilt of a public servant under Section 7 and Section (13)(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution."
(emphasis supplied)
29. In this case, it is vehemently argued by Ld. Defence Counsel that no demand on the part of the public servant was established in any of the verification proceedings dated 28.12.2018 Ex.PW-2/A, 31.12.2018 Ex.PW-5/L and 02.01.2019 Ex.PW-5/R and thus no case is made out against the accused. On the other hand, the prosecution has relied upon the verification proceedings dated 31.12.2018 and stated that the inclination of demand on part of the accused from the complainant Ms. Anita is clear from the conversation dated 31.12.2018 held between them. This fact is also stated by the Verification Officer in the verification memo Ex.PW-5/L. As per conversation held between the complainant and the accused near the tea stall on 31.12.2018, the transcript of which is Ex.PW-5/P, the accused nowhere denied the complainant to accept any illegal gratification from her nor did he snub her when she was repeatedly talking about illegal gratification with him. In fact, from the CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -37- conversation it was pellucid that the accused was taking abundant caution while he was referring to the bribe amount with the complainant.
30. Transcript Ex.PW-5/K which is duly proved by the complainant as the true version of actual conversation which took place between the complainant Ms. Anita and accused on 31.12.2018 reflects that when complainant asked accused 'uske paise dena hain ki nahi dena hain yeh bataa doh', the accused answered her by saying 'na, yeh toh koi baat hi na phone pe yeh sab baat mut kar'. Had accused been innocent or would have asked money only for settlement, then he would not have stopped the complainant from talking about settlement amount on phone or he would have scolded her for even offering any amount to him, which he didn't. Further, following extract of conversation dated 31.12.2018 between the complainant and accused clearly brings out that there was a specific demand by accused from the complainant for removing her name from the complaint made by Hema Ramchandani or her family members against the complainant, her husband and Ashu Chauhan :
"Anita : Phir paise aaj dene hain kal dene
hain nu bataa de bus seedhe.
Anita : Phir toh main free hoke jau aaj parso
milu.
Gopal Singh : Kuchh aaj kar le kuchh kal kar le
dono din kar le.
Anita : Chup Chap rakh ke chali jau.
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Spl. Judge (PC Act) CBI21/08.06.2023
-38-
Gopal Singh : Na na maem bataa dunga aaj hi ho
jayega phone kar ke.
Anita : Achha toh jab aap kahoge tab aau
lekar.
Gopal Singh : Aur apne paas rakho.
Anita : Paise main apne paas rakhu theek
hain."
In this conversation, there is a clear cut demand by Gopal Singh when he says 'kuchh aaj kar le kuchh kal kar le, dono din kar le'. An officer who is roguish enough to ask the complainant to make a video call to her will obviously not make any demand directly in unambiguous words as a matter of abundant caution. Moreover, in the entire conversation accused Gopal Singh kept asking the complainant not to tell all this to her husband Naresh and even not talk about it on phone. This clearly proves the malice on part of accused Gopal Singh while demanding money from the complainant.
31. Further, in their conversation dated 02.01.2019 which has also been admitted by the complainant to be true, again there is a clear inclination of demand by accused which is as below :
"Anita : Fir woh kaam karna hai ya nahi?
Gopal Singh : Haan, theek hai.
Anita : Kar du?
Gopal Singh : Haa
CBI No. 28/2019 (Namrita Aggarwal)
Spl. Judge (PC Act) CBI21/08.06.2023
-39-
Anita : Theek hai toh, wahi miloge aap? Thaane
mein hi .
Gopal Singh : Inke bayan ke liye, bayan ke liye hi aaya tha maen.
Anita : Achha achha, fir who intezam toh ho
gaya hain, maen le aau saath mein ya
nahi.
Gopal Singh : Ek minute hold....... Hello.
Anita : Haa, maen yeh keh rahi thi ki who
intezam toh ho gaya, saath lana hain yaa
nahi.
Gopal Singh : Arey maen yeh keh raha hu ki ...... haa theek hain aa jao tum."
Here also it can be safely deduced that the reference was about arrangement of money that was agreed to by accused Gopal Singh in conversation dated 31.12.2018.
32. Accused in his defence has, on the one hand, denied to had made any demand but on the other hand stated that he had asked money from the complainant only to settle the money dispute between complainant and her family members and Hema Ramchandani and her family members. Ld. Defence Counsel has relied upon the judgment titled as 'Neeraj Dutta Vs State (Government of GCT of Delhi) (supra) wherein it has been held that every demand made for money is not a demand for gratification.
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33. In order to establish his claim, prosecution examined DW-3 Ms. Hema Ramchandani, who testified before the court that Ms. Anita and her husband used to visit restaurant run by brother of DW-3 namely Sh. Manish Ramchandani @ Bunty along-with her husband. With the help of Ashu Chauhan, Ms. Anita and her husband deceived DW-3 along-with her family members and other people of the market by assuring them that he would get allotted shops and flats to them at Kidwai Nagar in return of Rs. 70 lakhs which was paid by DW-3 and her husband to Ms. Anita and her family members. Further, as per DW-3 when the fraud was revealed Ms. Anita, her husband as well as Ashu Chauhan refused to return back the amount. However, subsequently an oral agreement was arrived at between family members of DW-3 and Ms. Anita wherein Ms. Anita promised to return back the money. This witness also proved on record cheque Ex.-DW-1/B which was allegedly given by Ms. Anita to DW-3 saying that the remaining amount would be paid afterwards.
34. On being cross examined, this witness stated that Rs. 70 lakhs were paid by her to Ms. Anita by way of cash in installments but no receipt of the same was taken at any point of time. On being inquired about the source of said amount, DW-3 deposed that she had given that amount from her savings as well as from the contributions made by friends and family, for which no receipt was obtained. She further failed to file or prove the record of the payments received or made by her to Ms. Anita. A startling fact that CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -41- DW-3 testified was that despite all this she did not file any recovery suit against Ms. Anita or her family at any point of time. Only a Negotiable Instruments Act case was filed by her against one Ranjan Kumar when cheque of Rs. 2 lakhs Ex.DW-1/B which was issued by Ranjan Kumar on 01.01.2019 to DW-3 got dishonoured. In the said N.I. Act complaint Ex.DW-1/A, the name of issuer of cheque / accused is stated to be Ranjan Kumar @ Ashu Chauhan. This case was filed on 20.05.2019 i.e after the registration of present CBI case against Gopal Singh. No proof has been filed on record to show that Ashu Chauhan was also known or called as Ranjan Kumar. Thus, the possibility that the name of the issuer of the cheque i.e Ranjan Kumar has been deliberately wrongly mentioned in the N.I. Act case as @ Ashu Chauhan to create false evidence in this case, cannot be ruled out.
35. Even otherwise, it seems unbelievable that a person would pay back money without any written settlement and that also when she kept on denying to have any due from DW-3 or her family even on 02.01.2019 in front of accused when she had gone to meet him at P.S. Had the claim of defence been true then DW-3 would have atleast obtained a written receipt for giving such a hefty amount of Rs. 70 lakhs to Ms. Anita or would have proved the source of such amount. Thus, the story of defence seems to be a concocted one after the present CBI case was registered against accused Gopal Singh. Hence, the defence of accused regarding the purpose of demand from the complainant to be that for settlement could not be proved by them. Even PW- 10 denied in his testimony to have even asked Gopal Singh to get money CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -42- matter between these parties settled.
36. It is also argued by Ld. Defence Counsel that the complainant herself did not support the prosecution version due to which she was declared hostile by Ld. PP for CBI and was even cross examined by him. Ld. Counsel strenuously argued that when a specific question was put to the complainant that 'Is it correct that SI Gopal Singh had demanded a bribe of Rs. 2 lakhs from you on that day that he had come to your house', she replied that the accused Gopal Singh stated that she would have to pay back Rs. 2 lakhs to Bunty - 'paise toh tum ko dene hi padenge'.
37. Even another star witness of the prosecution i.e the sister-in-law of the complainant PW-2 Ms. Poonam Rani turned hostile and stated that no demand was ever made by accused in her presence from Ms. Anita.
38. However, perusal of the entire evidence of the complainant reveals that the complainant has completely supported the version of the prosecution except the fact that accused was demanding money only for getting her matter settled with Bunty. When the audio recording of the conversation between her and accused dated 28.12.2018, 31.12.2018 and 02.01.2019 was played in the court, she unambiguously identified her own voice and voice of accused in the said conversation and even testified the same to be the true recording of the conversation actually held between them. She also got the SD cards as well as the transcripts of conversation exhibited in the CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -43- court by admitting them to be correct. From the said conversation duly recorded in SD cards Ex.PW-5/J, Ex.PW-5/Q and Ex.PW-5/W, it is clear that in fact accused had made a demand from the complainant as illegal gratification. In 'Bhagwan Singh Vs State of Haryana', AIR 1976 SC 202, the Honb'le Supreme Court held that merely because the Court give permission to the Public Prosecutor to cross examine his own witness describing him as hostile does not completely efface his evidence. The evidence remains admissible in trial and there is no legal bar to base conviction upon the testimony of such a witness (Also relied is AIR 1977 SC 170 'Rabindra Kumar Dey Vs State of Orissa'). Moreover, complainant herself stated in her original complaint Ex.PW-2/B filed on 26.12.2018 before CBI that 'Vishay : Gopal Singh Upnirikshak SI Thana Lodhi Road Delhi Police ke dwara rishwat maangne hetu shikayat patra'. This complaint is in the handwriting of complainant and she proved her handwriting and signatures in the court on the said complaint Ex.PW-2/B. With respect to the use of word 'rishwat', complainant failed to give any plausible explanation as to why this word was used by her in the complaint. Complainant Ms. Anita is a literate female who is well aware about the word and it cannot be said that she must have used this word in ignorance or lightly while making complaint against Gopal Singh to CBI. Even otherwise, if the complaint was only with respect to the alleged pressure exerted by Gopal Singh on complainant to settle the matter with Bunty, then there would have been no occasion to make any complaint to CBI by the complainant.
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39. Hence, just because the complainant became hostile only with respect to the purpose of demand made by accused does not mean that the same could not be proved through other evidence by way of relevant incriminating portion of voice recording of verification proceedings and trap proceedings duly exhibited and admitted by complainant before the court. Mere fact that the Verifying Officer did not recommend registration of FIR on 31.12.2018 does not mean that there was no demand on behalf of accused that day. It has been clearly mentioned in verification proceedings dated 31.12.2018 that there was an inclination of demand on behalf of accused on 31.12.2018. However, since the date and place of handing over of bribe money was not settled between the parties that day therefore verification proceedings were kept open for 02.01.2019. As soon as the time and place was decided on mobile phone between the complainant and accused, FIR was got registered and trap proceedings were initiated.
40. ACCEPTANCE 40.1 Ld. Defence Counsel has also challenged acceptance of any illegal gratification by accused by bringing forth alleged contradiction in the testimony of various witnesses regarding portion DA to DA of Recovery Memo Ex.PW-5/X which is as under :
"The TLO made call on the mobile phone of the complainant and enquired about the transaction of bribe amount, on which she informed that she has handed over money to accused, but he has not counted the same."
He further stated that the alleged asking of accused to keep money on 'note CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -45- pad' and the second averment that the complainant kept the money inside the file cover on asking of the accused is enough to show that both these averments are contradictory to each other interse.
40.2 Perusal of Recovery Memo Ex.PW-5/X (colly) reveals that when TLO made a call to the complainant after receiving the pre-decided signal from her, she informed that she had handed over the bribe money to accused Gopal Singh which he has not counted. In continuation thereof, it has been stated in Ex.PW-5/X (colly) itself that after accused was apprehended, complainant informed the TLO that she had kept the amount in the file cover on the table of the accused. Even the recorded conversation between the accused and the complainant shows that instead of directly handing over the bribe money by complainant to accused, the same was handed over to him constructively by the complainant by placing it inside the file cover kept on his table.
40.3 Ld. Defence Counsel has also tried to bring out contradiction with respect to keeping the bribe amount on the table or inside the file cover. However, it cannot be lost sight of the fact that the complainant deposed in her testimony that the file cover was kept on the table of the accused meaning thereby that she had kept it on the table of the accused only.
40.4 When the complainant asked accused Gopal Singh where she should keep Rs. 80,000/- he did not stop her and in fact stated that :
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"Gopal Singh : Note par
Anita : File ke neeche theek hain.
Gopal Singh : Nikal aana do teen minute mein.
Anita : Aap ke saath aa jau.
Gopal Singh : Thodi der mein ....... maen yeh keh raha tha thodi der mein aa jaiyo.
Anita : Paise rakh kar aa jau..........
.
.
.
Anita : Par kaha par aana hain rakh kar.
Gopal Singh : Security par aao bilkul......
.
.
.
Anita : Rakh kar aa jau theek hain."
This conversation reveals that Gopal Singh did not respond directly to the complainant when she asked him where she should keep Rs. 80,000/- but kept talking about something else. He did not even ask her about what money she was talking about. Complainant specifically asked Gopal Singh whether she could go out of the room with him but he told her to wait for some minutes and thereafter go out to the security. All these dialogues between the complainant and accused go on to prove that the demand by accused was not for some legal purpose like settlement as he was continuously trying to hide that part of conversation and was acting fishy the whole time, which reasonably a prudent man would not do under normal circumstances. Contradiction regarding keeping the bribe amount on 'note par' or between the file can be explained by the fact that the complainant herself told CBI that SI CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -47- Gopal Singh demanded bribe money through gestures only asked her through gestures to keep it inside the file cover lying on the table of the accused.
40.5 In fact, Gopal Singh during this conversation also told Ms. Anita that Investigating Officer has immense powers and can remove the name of any person from the charge-sheet before filing it in the court. This bragging by the accused together with the fact that there were repeated conversation between the two regarding which names to delete on payment of money, proves beyond reasonable doubt that the demand as well as acceptance of money was done as illegal gratification for doing an unlawful act by the accused.
40.6 Even otherwise, Section 20 of P.C. Act, 1988 provides as under :
"20. Presumption where public servant accepts any undue advantage -
Where, in any trial of an offence punishable under section 7 or under section 11 it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under Section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under Section 11."
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40.7 Thus, Section 20 of the Act deals with presumption where public
servant accepts gratification other than legal remuneration. It uses the
expression 'shall be presumed' in sub-section (1) and sub-section (2) unless the contrary is proved. The said provision deals with a legal presumption which is in the nature of a command that it has to be presumed that the accused accepted gratification as a motive or reward for doing or for bearing to do any official act, if the condition envisaged in the former part of the section is satisfied. The only condition for drawing a legal presumption U/s 20 of the Act is that during trial, it should be proved that the accused had accepted or agreed to accept any gratification.
40.8 In 'State of Madras Vs A. Vaidyanatha Iyer AIR 1958 SC 61' it was observed that presumption U/s 20 of the Act would arise where illegal gratification has been accepted. The legislature has used the words 'shall presume' and not 'may presume' which means the presumption has to be raised as it is a presumption of law and therefore it is obligatory on the court to raise it. In the present case as well having proved that the accused had demanded as well as accepted illegal gratification from complainant which was subsequently recovered from the file cover kept on his table, a presumption U/s 20 of P.C. Act, 1988 (as amended in 2018) can be raised that the said illegal gratification was received by Gopal Singh for dishonestly performing his public duty in favour of complainant Ms. Anita.
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41. RECOVERY
41.1 Ld. Defence Counsel has raised doubts as to whether the table
from where the file cover containing bribe amount was recovered was kept in a room belonging to accused Gopal Singh exclusively or to 'Inspector Investigation". For this, Mr. Counsel referred to the deposition of PW-10 Sh. Ravi Shankar, the then SHO P.S. Lodhi Colony while deposing regarding trap proceedings conducted by CBI on 02.01.2019. PW-10 stated during his cross- examination that 'it is correct that the said room was allotted to Inspector Investigation. It is correct that all the IOs in the P.S used to use 2-3 common rooms on the first floor'. The defence tried to establish through this testimony that recovery was not effected from the room exclusively belonging to accused Gopal Singh, thus raising doubt regarding the same. However, as per the recovery memo Ex.PW-5/X (colly) not only the file cover and paper containing tainted bribe amount was recovered from that room of Inspector Investigation but also documents relevant to this case were recovered from there which were seized vide a separate search-cum-seizure memo Ex.PW-6/E. In Ex.PW-6/E, it is stated that original file related to complaint made by the complainant at P.S. Lodhi Colony was found from the said room which was later seized from the SHO by CBI and proved in the court as Ex.PW-10/A (colly). Had that room been used by some other IO, then the file in which accused himself was the IO would not have been on the table in that room.
41.2 Further, extraction of CCTV footage of P.S. Lodhi Colony of 02.01.2019 was also procured which was duly proved through PW-7. The said CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -50- CCTV footage was got played by the defence itself in the court wherein it was clearly visible that it was the accused Gopal Singh only who had entered into the said room of Inspector Investigation along-with complainant and later came out of that room only during the relevant time on 02.01.2019, proving thereby that the said room from where recovery was effected was in fact used by the accused only at the relevant time. Thus, recovery can be safely attributed from the constructive possession of accused Gopal Singh only.
41.3 The Independent Witness Sh. Amar Nath got recovered the tainted bribe amount from the file cover kept on the table of the room used by accused Gopal Singh on 02.01.2019 at the relevant time and the number of GC notes so recovered tallied with the number as recorded in Handing Over Memo Ex.PW- 6/A duly proved by the independent witnesses and the other trap team members in the court. The file cover and paper from which the bribe amount was recovered were rubbed with the help of piece of wet cloth and thereafter dipped in the solution of sodium carbonate. The said solution turned pink in colour and when sent to CFSL for chemical examination through letter Ex.PW-12/B, gave positive result for the presence of phenolphthalein powder on it through report Ex.PW-12/A. Rubbing cloth 'on' or 'over' the file cover does not mean that it was rubbed on the covering page of the file cover as alleged by defence. Cloth could have been rubbed 'on' or 'over' the inside side of the file cover as well.
41.4 Mere fact that the recovery was effected at the instance of
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complainant and not that of accused is of no consequence in light of the above discussion wherein presence of accused Gopal Singh in the room of Inspector Investigation at the relevant time on 02.01.2019 is duly proved.
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41.5 Moreover, defence raised objection with respect to the fact that
none of the independent witnesses were eye witness to the said demand or recovery and thus the same cannot be relied upon. However, in every case independent witness since cannot possibly be insisted upon to accompany the complainant at every single spot due to fear of suspicion and the mere fact that the independent witnesses completely supported the case of prosecution regarding verification and trap proceedings goes on to prove the admissibility and genuinety of these proceedings. No major discrepancy came out between the testimony of all the independent witnesses and other official witnesses. The defence on the other hand tried to bring about several discrepancies in the testimony of these witnesses, one of them being that PW-6 Sh. Mukesh introduced the theory of keeping tainted bribe money in a white envelope for the first time in the court which was never the case of the prosecution. No other witness supported this theory at the first instance. Defence also tried to bring forth several other minor discrepancies in the testimony of various witnesses relating to verification proceedings or trap proceedings. However, minor discrepancies in evidence which do not go to the root of the matter, specially when evidence is adduced by the witnesses after a long time from the date of incident, cannot be considered as material discrepancies. In this regard, it has been held in 'Harijana Thirupala Vs Public Prosecutor, High Court of A.P Hyderabad, AIR 2002 SC 2821' that :
"The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence, the approach of the court must be integrated not truncated or isolated. In other words, the impact of evidence in totality on the CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -53- prosecution case or innocence of accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching to a conclusion about the guilt of the accused, the court has to appreciate, analyze and access the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of the witnesses.' 41.6 The Hon'ble Court has further emphasized that if the discrepancies in the depositions are minor what is important is the nature of contradiction. Similarly, in 'Rammi @ Rameshwar Vs State of Madhya Pradesh' it was held that :
"The courts should bear in mind that it is only when the discrepancies in the evidence of the witnesses are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious of view to be adopted on mere variations falling in the narration of an incident is an unrealistic approach for judicial scrutiny".
Similarly, the contradictory version of complainant regarding place of meeting accused on 26.12.2018 does not go to the root of the matter as due to lapse of time and some amount of nervousness, the witness in all probability tends to get confused in the court regarding minor details of the series of incidents which took place in the past due to which these discrepancies are reflected. Thus, all the essential ingredients of Section 7 of P.C. Act, 1988 (as amended in 2018) stand duly proved.
42. Another limb of argument of Ld. Defence Counsel was regarding CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -54- the reliability and admissibility of CFSL Report (Chemistry Division) Ex.PW- 12/A and CFSL Report (Physics Division) Ex.PW-15/B.
43. For CFSL report Ex.PW-12/A, the defence of accused is that the expert did not mention as to how TLC and other tests were conducted nor mentioned the value of Retention Factor in the report. Even the silicon plate which was used for the purpose of tests was not produced in the court and thus the report Ex.PW-12/A is not admissible in evidence in the court. He also stated that since the worksheets Ex.PW-12/DB were filled in by the Assistant of the expert who was not examined in the court therefore the report remains unproved. In this regard, one cannot expect an expert who is conducting chemical tests in the lab using sensitive chemicals and devices to record the findings simultaneously by himself. Thus, the record being made by the assistant of the expert in his presence would not make the report of an expert unproved on unreliable in the court specially when it was duly signed by the expert himself. Moreover, Hon'ble High Court has time and again directed that a Hyper Technical approach should not be adopted while interpreting the report of an expert which otherwise has corroborative value and is admissible U/s 293 Cr.P.C which reads as under :
CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -55- "Section 293 in The Code Of Criminal Procedure, 1973 :
293. Reports of certain Government scientific experts. (1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject- matter of his report.
(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.
(4) This section applies to the following Government scientific experts, namely:-
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the Chief Inspector of- Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government.
44. Similarly, CFSL report Ex.PW-15/B was also challenged by Ld. CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -56- Defence Counsel to be inadmissible in the court on the following grounds :
a) CFSL was not notified U/s 79-A I.T. Act by the Central Government to act as an expert of electronic evidence.
b) PW-15 i.e the expert was not qualified to act as such as he is only B.Sc (PCM) & B.Ed. Linguistic and Phonetic were never his subjects even in the certificate course in Forensic pursued by him from DU.
c) The recordings are not substantive piece of evidence.
d) The Expert was never designated as Assistant Chemical Examiner to the Government of India.
e) There is discrepancy regarding the seal impression on the exhibits which were initially sent to CFSL, Photo Division for preparation of copies and later were sent to CFSL Physics Division.
f) No sample seal was sent to CFSL Physics Division by the CFSL, Photo Division though the said fact has been wrongly stated in the report Ex.PW- 15/B.
g) The DVR was not sent to CFSL.
h) Proper sample voice was not prepared by TLO as per rules.
i) The computerized markings on the voice gram / spectrograph were not taken from SSL.
45. Section 79A in The Information Technology Act, 2000 provides as under :
"[79A Central Government to notify Examiner of Electronic Evidence. -The Central Government may, for the purposes of providing expert opinion on CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -57- electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence. Explanation. -For the purposes of this section, "electronic form evidence" means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.]"
The use of word 'may' reflects that it is not a mandatory provision and thus it is not necessary that every CFSL lab should be certified U/s 79-A I.T. Act. Moreover, the report of an expert is admissible U/s 293 Cr.P.C as has already been explained above. The defence has also challenged the educational qualification of expert by saying that he did not have linguistic and phonetic as his subjects at any point of time. However, PW-15 himself stated that he had joined CFSL Physics Division in 1991 meaning thereby he has experience of more than 30 years. Even in the report Ex.PW-15/B it is mentioned that accused was promoted as Senior Scientific Assistant (Assistant) (which is duly recognized U/s 293 Cr.P.C) 2008 and has assisted in examination of about 600 cases related to Forensic Physical & Speech Identification Examination consisting of nearly 05,10,527 exhibits. He stated that he has 15 years of experience in the field of Voice Identification and Speaker Identification. Hence, this argument of the defence regarding pre-requisite qualification of the expert also does not hold much waters since experience speaks greater than academic knowledge. Acquiring experience of around 15 years in Voice Identification & Speaker Identification means the expert has vast knowledge CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -58- about that subject and has obtained mastery in it.
46. Coming to another aspect of alleged inadmissibility of report, the grievance of the defence is that when Exhibits Q-1, Q-2, Q-3, Q-4 and S-1 were sent to CFSL Photo Division for preparation of copies, they were received back with the seal impression of 'S INGRASAL PSO PHOTO DIVISION CFSL CBI NEW DELHI'. However, seal impression mentioned in the remarks column of forwarding letter Ex.PW-15/A is mentioned as 'CFSL NEW DELHI'. Perusal of the record shows that in the report Ex.PW-15/B, in the column 'Details of parcels & seals', the specimen seal impression on exhibits is described to be 'Photo Division CFSL / CBI/ New Delhi & S. INGARSAL PSO'. It is only the letter Ex.PW-15/A in which the abridged version of the said seal impression is mentioned as 'Seal of CFSL'. However, this was done only for the sake of brevity and this cannot be the ground of challenging the authenticity of the report. Defence has tried to pick and choose even the minutest of the discrepancies to support its case forgetting that the case was handled by human beings who are bound to act like this in natural course of events. This kind of perfection as expected would have been possible only when investigation was carried out by machines having a set software which even otherwise are liable to get corrupted sometimes. Thus, a Hyper Technical approach should not be adopted while relying upon the report of an expert and such a report definitely has a corroborative value more so in the light of the fact that the conversation has been duly admitted by the complainant herself who has got it exhibited in the form of transcripts.
CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -59- Moreover, the entire process by which the exhibits were sealed at the spot with the CBI seal and later sent to CFSL who after examining the exhibits, resealed them with the CFSL seal has been duly explained and noted down in the letters by which the case property / exhibits were sent for examination to CFSL and thereafter collected by the CBI officials. Since, the seal at all these interceptions have been found to be intact during deposition of the witnesses in the court, there was no separate requirement of examination of the witnesses who took the exhibits to CFSL or collected those exhibits from there.
47. It is also argued that PW-15 has wrongly mentioned in his report Ex.PW-15/B that the seal impressions on exhibits were compared with sample seal whereas he admitted in his testimony that no sample seal was provided to him of CFSL (Photo Division) as these are internal departments of CFSL and as a matter of practice the officials of these departments do not insists on the sample seal of the other department being completely aware of the seal impression of that department. Be it as it may, as PW-15 himself stated that he could identify the seal and even otherwise the seal being proved as above, just because this statement regarding supply of sample seal has been inadvertently mentioned in the report which the expert witness has clarified will not affect the authenticity of the report.
48. With regard to DVR, it is an admitted fact that the DVR was produced in the court in the sealed envelope and identified by the witnesses. In 'Anvar PV Vs P.K. Basheer & Ors., (2014) 10 SCC 473', Hon'ble Apex CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -60- Court has drawn clear distinction between the situation when the device used for recording is directly produced in the court as primary evidence and a situation when the incriminating material is recorded using other instruments which are fed in computer from which CDs are prepared and produced in evidence before the court. The relevant paragraph is :
"24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcement been duly got seized through the police or election commission and had the same been used as primary evidence, the High Court would have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirement of Section 65 B of Indian Evidence Act are not satisfied. It is clarified that not withstanding what we have stated herein in preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence U/s 62 of the Evidence Act, the same is admissible in evidence without compliance with the conditions in Section 65B of the Evidence Act."
Thus, even the CFSL report stands duly proved in the court.
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49. Ld. Defence Counsel has also challenged non compliance of pro- visions of CBI Crime Manual. He argued that as per "Rule 14.16" of CBI Crime Manual, a direction is mandated for the TLOs to take steps to get the pre & post trap proceedings photographed & videographed. However, none of the witnesses in the present case deposed regarding any photography or videography of the pre and post trap proceedings nor any record of the same was produced in the court. It was submitted that In 'Vineet Narayan Vs. State', AIR 1998 SC it has been held that:-
"12. The CBI Manual based on statutory provisions of the Cr.P.C. provides essential guidelines for the CBI's functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and ar- rests. Any deviation from the established procedure should be viewed seriously and severe disciplinary ac- tion taken against the concerned officials."
Ld counsel has also relied upon the judgment in 'SCN. Sukana Vs. State of AP', Crl. A.1355/2015 dated 14.10.2015 wherein it was observed that:-
"As far as possible, the crime scene, steps during the course of investigation such as pre- trap and post-trap proceedings, search proceedings should be photographed as well as videographed. The rule also provides the provision for preservation of such recording depending upon it being still or digital photography/videography. The rule also specifies the purpose of such recording in clear terms ; it being preventing the public witnesses from turning hostile during the course of trial."
CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -62- He also argued that other provisions of the CBI Manual as well as CVC Man- ual were not followed in letter and spirit during arrest documentation and re- lated evidence. Even the guidelines laid by Hon'ble Supreme Court in 'D.K. Basu Vs State', AIR 1977 SC 610 were not followed regarding filling up of the arrest memo and recovery memo and information of the arrest to be given to the family members of the accused person. It was further alleged that no search was offered to the accused in the present case before searching him and as such possibility of plantation cannot be ruled out.
50. The police manuals are prepared to generalize the rules and pro- cedures of the investigation with an idea of bringing in uniformity and reliabil- ity in the proceedings of the investigation. It is expected of the police officers to follow such instructions/ directions contained in the manuals. However, these manuals are not statutory documents; they are merely directory in na- ture. Non-compliance of the directions/ guidelines though should be avoided, it does not invalidate the proceedings completely. Such defaults in the prose- cution case at best can be termed as irregularities and not illegalities going to the root of the case. In so far as judgment in 'Vineet Narayan' (supra) is con- cerned, the judgment says that the consequence of not following the manual is disciplinary inquiry. The judgment does not say that such default would per se invalidate the investigation. Even in Sukana's case (supra), the court has not made the videography or recording mandatory. The words used are "as far as possible". The accused, therefore were to show how the non-recording of the proceedings has affected them adversely and have also to justify as to how would they have not been able to challenge the investigation if it was CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -63- recorded, when they are not admitting the existing recording of the conversa- tions. Moreover, the police officials are liable only for disciplinary action in case of non compliance of these provisions. The irregularities on the part of the CBI officials do not disprove the case of the prosecution, if otherwise proved beyond reasonable doubt.
51. Further, in the column of 'names and particulars of the person no- tified about arrest in the arrest memo Ex.PW-6/N the name of wife of accused Smt. Kavita has been specifically mentioned. Moreover, the accused was ar- rested in a police station and all the police officials present in the police station at that time were aware about his arrest.
52. It is also argued that as per CBI Crime Manual Rule 10.15 FIR should contain the time and date of commission of offence which in the present case has not been recorded. Further, there is no evidence on record that the copy of the FIR was received in the court of Ld. Special Judge within 24 hours of its registration. He also alleged that the FIR remained unproved in the present case as the Recording Officer was not got examined in the court by the prosecuting agency. Perusal of the record shows that IO PW-17 clearly de- posed regarding registration of FIR along-with other witnesses. In fact, PW- 14 Inspector CMS Negi stated during his examination that the verification conducted on 31.12.2018 had confirmed the inclination of SI Gopal with re- spect to the demand of bribe amount from the complainant. However, since the time and the place of meeting was not disclosed by the accused in the said verification proceeding, FIR was not recommended to be registered at that CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -64- time only and was kept open for 02.01.2019. It was only after the accused agreed to call the complainant to P.S on 02.01.2019 during telephonic conver- sation, the verification proceedings got completed. PW-14 deposed that he submitted his verification report to SP CBI ASB that day itself for necessary action on the basis of which FIR was registered. Just because there was no specific recommendation for registration of FIR does not mean that the FIR could be challenged in the court. The witness is clearly proving the registra- tion of FIR along-with the IO. Further, non proving of the fact that FIR was sent to Special Judge, P.C. Act or not is a mere irregularity. As far as the men- tioning of date and time of the commission of the offence in the FIR is con- cerned, this is not an error which would make the court disbelieve the FIR even if the Officer who has recorded the FIR has been examined as such.
53. Ld. Counsel for the accused averred that the CBI miserably failed to prove source of Rs. 80,000/- allegedly arranged by the complainant. How- ever, all the witnesses have stated that the complainant herself had produced Rs. 80,000/- on 02.01.2019 after this figure was agreed to by the accused dur- ing conversation dated 31.12.2018. Asking the complainant about the source of the said money or telling her to produce her bank statement in order to prove the source would have in fact put the complainant in the array of ac- cused and thus it was not correct for the CBI to ask such questions to the com- plainant at that point of time when the investigation in the complaint filed by the complainant herself was pending. The presence of the complainant during the entire post trap proceedings have also been challenged on the ground that as per CCTV footage Ex.PW-16/D2 the complainant remained inside the room CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -65- from 16:30:07 to 16:32:18 and thus all the post trap documents must have been signed by the complainant later. The possibility that the complainant came out of the room at 16:32:18 for some urgent work and could have re- turned back to the said room afterwards cannot be ruled out and this alone is no ground to challenge the authenticity of the post trap proceedings specially when all the trap team members have signed on the post trap memos prepared at the spot and have deposed qua their authenticity. The grievance of the de- fence goes to the extent that the local police present at P.S. Lodhi Colony were not joined in the trap proceedings. However, it cannot be lost sight of that there were around 10-12 trap team members who were already present in P.S. Lodhi Colony during trap proceedings and therefore a mere fact that some lo- cal police from the police station was not joined during the trap proceedings does not destroy the case of the prosecution.
54. CONCLUSION In Neeraj Dutta case (supra) it has been held that :
"55. It is trite law that in cases dependent on circumstan- tial evidence, inference of guilt can be made if all the in- criminating facts and circumstances are incompatible with the innocence of the accused or any other reasonable hy- potheses than that of his guilt, and provide a cogent and complete chain of events which leave no reasonable doubt in the judicial mind. When an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. If the com-
CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023 -66- bined effect of all the proven facts taken together in con- clusive in establishing the guilt of the accused, a convic- tion would be justified even though any one or more of those facts by itself is not decisive. (Sharad Birdhichand Sarda Vs State of Maharashtra (1984) 4 SCC 116 ("Sharad Birdhichand Sarda") as reiterated in Prakash Vs State of Rajasthan (2013) 4 SCC 668 ("Prakash")).
In view of the above discussion, it can be safely inferred that the complete chain of circumstances was established beyond reasonable doubt and without a snap, thus proving the guilt of the accused. Thus, accused Gopal Singh is convicted for offence U/s 7 of Prevention of Corruption Act, 1988 (as amended in 2018).
Dictated & Announced in the open court today dated 08.06.2023 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21 Rouse Avenue Courts Complex/New Delhi CBI No. 28/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/08.06.2023