Delhi District Court
Cbi vs . 1) Narender Kumar Mehta on 29 March, 2016
IN THE COURT OF SH. BRIJESH KUMAR GARG
SPECIAL JUDGE:CBI01: CENTRAL: TIS HAZARI, DELHI
CC No. : 03/2010
Case ID : 02401R0339792010
RC : 37(A)/2009
PS : CBI/ACB/New Delhi
U/s: Section 120B IPC and
Section 7 & 13(2),
r/w Sec. 13(1) (d) of
The Prevention of Corruption
Act 1988.
CBI Vs. 1) Narender Kumar Mehta
S/o Sh. Gajraj Singh,
R/o Village & Post Office Ramgarh,
District Rewari, Haryana.
2) Dr. S.K. Shakya
S/o Late Sh. Kishan Lal,
R/o B567, Green Field Colony,
Faridabad, Haryana.
Date of Institution : 02.08.2010
Judgment Reserved on : 10.03.2016
Judgment Delivered on : 29.03.2016
CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 1 of 105 Special Judge, CBI01, Central, Delhi
J U D G M E N T
1. The brief facts of the present case are that on 30.07.2009, complainant Durga Singh lodged a written complaint with the Superintendent of Police, CBI, Lodhi Road, New Delhi, wherein, he alleged that his younger brother Kapil Dev had appeared in the examination for the post of Head Constable (Ministerial) in BSF and he had passed the written test. Thereafter, he was required to undergo physical, typing and medical test and the result of the medical test was to be declared tomorrow. He further alleged that on 28.07.09, accused Narender Kumar Mehta visited his residence and told him that he was the head constable in BSF and further told him that his brother Kapil Dev was unfit in the medical test and Dr. S.K. Shakya had conducted his medical test and in case, they want him to pass the medical test, then a sum of Rs. 50,000/ has to be spent by them and the said amount was to be paid through him, to the said doctor. He further told the complainant that this was a golden chance and in case, the amount was not paid, then his brother shall be failed. The CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 2 of 105 Special Judge, CBI01, Central, Delhi accused asked the complainant to arrange the amount within one or two days and thereafter, the accused again visited his residence on 30.07.09 and asked him to confirm his consent by 11.00 a.m., so that the same may be disclosed to Dr. S.K. Shakya. The complainant has further stated that he was not willing to pay any amount to the accused and therefore, appropriate legal action may be taken against the accused.
2. On this complaint, case RC No. 37(A)/2009, was registered at the CBI office, on 30.07.09 at about 11.15 a.m., under Section 8 of The P.C. Act, 1988, and Inspector Anand Sarup was directed to lay the trap proceedings.
3. It has been stated in the chargesheet that accused Narender Kumar Mehta was working as head constable in the BSF Tigri Camp, Delhi, but, was not detailed for any duty / task, in conducting the written examination for the post of head constable (Ministerial), in March, 2008. However, coaccused Dr. S.K. CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 3 of 105 Special Judge, CBI01, Central, Delhi Shakya, CMO (SG), was detailed to conduct the medical examination of the candidates for the post of head constable (Ministerial), which were schedule to be held between 20.07.09 to 25.07.09.
4. It is further stated in the charge sheet that after registration of the FIR at about 11.30 a.m., a trap team consisting of Inspector Anand Sarup, Inspector Prem Nath, Inspector Anil Bisht, SI Manish Kumar Upadhayay, SI Yogesh Kumar and SI Vivek Prakash was constituted and one independent witness, Sunil Rawat, LDC from the office of Directorate of Education, Old Secretariat, Delhi, was also requisitioned.
5. It is further stated in the charge sheet that in order to verify the complaint of the complainant, the complainant was directed to make a phone call from his mobile phone No. 9910226583 to the mobile phone of accused Narender Kumar Mehta on his mobile phone No. 9718245959 and the conversation was heard by all CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 4 of 105 Special Judge, CBI01, Central, Delhi and was recorded simultaneously with the help of digital voice recorder. The said conversation revealed the demand on the part of accused Narender Kumar Mehta as well as his motive for asking the bribe.
6. It is further stated in the charge sheet that during the pretrap proceedings, another phone call was received by the complainant on his mobile phone from accused Narender Kumar Mehta, wherein, he asked the complainant to meet him before 15.00 hours and the said conversation was also recorded simultaneously, with the help of the digital voice recorder.
7. It is further stated in the charge sheet that during the pretrap proceedings, another independent witness, Ramesh Rawat, Assistant Manager (Personnel) from Airport Authority of India, Safdarjung Airport, New Delhi, was also requisitioned and the complainant was directed to produce the bribe amount, on which, he produced 20 GC notes of Rs.1000/ denomination each. The CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 5 of 105 Special Judge, CBI01, Central, Delhi said GC notes were treated with phenolphthalein powder and a demonstration was given by Inspector Prem Nath to explain the purpose and significance of the use of phenolphthalein powder and its chemical reaction with the colourless solution of sodium carbonate in water.
8. It is further stated in the charge sheet that the tainted bribe amount of Rs.20,000/ was put in the right side pant pocket of the complainant and he was directed, not to touch the said tainted bribe amount and was directed to hand over the same to the accused, on his specific demand, or on his specific direction, to some other person. The digital voice recorder was also handed over to the complainant, after explaining its functions and he was directed to switch on the same before entering into conversation with the accused.
9. It is further stated in the charge sheet that independent witness Sunil Rawat was asked to act as a shadow witness and to CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 6 of 105 Special Judge, CBI01, Central, Delhi remain close with the complainant to over hear the conversation and to see the transaction of bribe. He was also directed to give a signal by rubbing his face by his both hands, after the completion of the transaction. He was further directed that, in case, he fails to see the TLO or other team members, then he will give a missed call from his mobile phone to the mobile phone of the TLO Inspector Anand Sarup.
10. It is further stated in the charge sheet that the CBI team along with the complainant and the independent witnesses reached the predesignated place at Shadi Pur metro station at about 15.15 hours and the complainant and the shadow witness Sunil Rawat proceeded towards the residence of the complainant at H141, DTC Colony, Shadipur, New Delhi. The other team members got themselves positioned in and around the vicinity of the colony in a discrete manner. At about 16.30 hours, accused Narender Kumar Mehta was seen coming towards the house of the complainant and at about 16.45 hours, the TLO Inspector CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 7 of 105 Special Judge, CBI01, Central, Delhi Anand Sarup received a missed call on his mobile phone from the mobile phone of the shadow witness and thereafter, the CBI team with other independent witness Ramesh Rawat, rushed to the house of the complainant and the accused Narender Kumar Mehta was stopped by Inspector Prem Nath and Inspector Anand Sarup, while coming out of the house of the complainant. Thereafter, the accused was apprehended by Inspector Anand Sarup and Inspector Prem Nath and the identity of the team members was given to him and he was challenged that he had demanded and accepted a bribe of Rs.20,000/ from the complainant as part payment of the total demanded bribe amount of Rs.50,000/. Thereafter, the shadow witness Sunil Rawat was asked to narrate the sequence of transaction and the conversation between the accused and the complainant, which disclosed the demand of Rs.50,000/ and acceptance of the bribe amount of Rs.20,000/ by the accused from the complainant. The complainant was also asked to narrate the story and he corroborated the version of the shadow witness. CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 8 of 105 Special Judge, CBI01, Central, Delhi
11. It is further stated in the charge sheet that a colourless solution of sodium carbonate, in water, was prepared in a glass tumbler and the right hand fingers of the accused were washed in the said solution and the said solution had turned pink in colour. Similar action was performed with the left hand fingers of the accused and the said solution had also turned pink in colour. The hand washes of the accused, marked as RHW and LHW, were poured in separate glass bottles and white labels were pasted on the bottles, which were duly sealed with the seal of the CBI and both the bottles were got signed by the TLO Inspector Anand Sarup and both the independent witnesses. Thereafter, independent witness Ramesh Rawat recovered the bribe amount of Rs.20,000/ as well as some other GC notes from the inner pant pocket of the accused and on the directions of the TLO Inspector Anand Sarup, the independent witness tallied the numbers of the recovered GC notes from the numbers noted down in the handing over memo.
CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 9 of 105 Special Judge, CBI01, Central, Delhi
12. It is further stated in the charge sheet that during the above proceedings, accused Narender Kumar Mehta was asked to remove his pant and the wash of the inner pant pocket was also taken in a fresh colourless solution of the sodium carbonate in water, on which, the said solution had also turned pink in colour. The said solution was marked as, 'RSIPPW' and was transferred in a separate glass bottle and the same was also duly sealed and was got signed by independent witnesses. The pant of the accused was also seized and its inner pocket was also got signed by the independent witnesses.
13. It is further stated in the charge sheet that after the trap, TLO Inspector Anand Sarup asked the accused Narender Kumar Mehta to make a phone call from his mobile phone number 9416910359 to the coaccused Dr. S.K.Shakya at his mobile phone number 9958291933 at about 6.00 p.m., and the said conversation was heard with the help of inbuilt speaker of the CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 10 of 105 Special Judge, CBI01, Central, Delhi mobile phone of accused Narender Kumar Mehta and was also recorded simultaneously with the help of Digital Voice Recorder. The said conversation revealed that accused Dr. S.K.Shakya had given consent to accused Narender Kumar Mehta to accept the bribe amount and to come to Devli Mode (Devli Turn) alongwith the bribe amount. Thereafter, the trap party along with accused Narender Kumar Mehta proceeded towards the spot. But, in the meantime, another call was received by accused Narender Kumar Mehta from accused Dr. S.K.Shakya, who directed him to reach Lado Sarai Mode (Lado Sarai turn).
14. It is further stated in the charge sheet that after reaching the spot at Lado Sarai Mode(turn), accused Dr. S.K.Shakya made several calls to accused Narender Kumar Mehta and constantly changed the spot of meeting. Finally, he asked accused Narender Kumar Mehta to come to PVR Saket (Anupam) and told him that he was sitting in his own car. Accused Narender Kumar Mehta told TLO Inspector Anand Sarup that accused Dr. CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 11 of 105 Special Judge, CBI01, Central, Delhi S.K.Shakya owns a Wagon R car and a logo of BSF was affixed on it. On reaching the spot, the car was identified by accused Narender Kumar Mehta and thereafter, accused Dr. S.K.Shakya was also apprehended. Thereafter, both the accused were taken to the CBI office at CGO Complex, New Delhi, for further investigations.
15. It is further stated in the charge sheet that during the investigations, the recorded conversations in the Digital Voice Recorder were transferred in a new blank audio cassette with the help of a compact cassette recorder and was signed by the witnesses at the label pasted on the cassette and the same was marked as 'Q2' and the specimen voice of both the accused persons were also recorded in separate cassettes, mark 'S1' & 'S2'.
16. It is further stated in the charge sheet that the audio cassettes, containing the recorded conversations between the CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 12 of 105 Special Judge, CBI01, Central, Delhi accused persons and the complainant, during the verification of the complaint and the trap proceedings, as well as the specimen voice samples of accused persons and the handwash & pant pocket wash solutions, marked RHW, LHW & RSIPPW, were sent to CFSL for expert opinion and positive reports were received from the CFSL.
17. It is further stated in the charge sheet that during the investigations, it was revealed that accused Dr. S.K.Shakya was detailed to conduct the medical examination of the candidates for the post of Head Constable (Ministerial), BSF, w.e.f. 20.07.2009 to 25.07.2009 and Shri Kapil Dev, brother of complainant, was interviewed on 27.07.2009 and thereafter, he was sent for medical examination to be conducted by accused Dr. S.K.Shakya. During investigations, the search of the car of accused Dr. S.K.Shakya was also conducted, wherein, several incriminating documents and files were recovered. The file containing the statements of the candidates for medical examination along with CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 13 of 105 Special Judge, CBI01, Central, Delhi the medical test reports, including the one of Sh. Kapil Dev, brother of the complainant, were also recovered.
18. It is further stated in the charge sheet that during investigations, the call details of the mobile phones of accused Narender Kumar Mehta and Dr. S.K. Shakya were also obtained and the call details had shown the entries of relevant calls made by them during the trap proceedings.
19. It is further stated in the charge sheet that the investigations has established the demand and acceptance of bribe, on the part of accused Narender Kumar Mehta and has also established that Dr. S.K Shakya was conducting the medical tests of the candidates, for the post of head constables (ministerial) and was in a position to help the candidates to pass the medical examination, which establishes his motive for demand of bribe on his part. The telephonic conversations between Dr. S.K. Shakya and Narender Kumar Mehta establishes the agreement to accept CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 14 of 105 Special Judge, CBI01, Central, Delhi bribe money on behalf of Dr. S.K. Shakya.
20. During investigations, the investigating officer recorded the statements of the various prosecution witnesses and also obtained the sanctions for prosecution of the accused persons from their competent authorities and after completion of the investigation, the charge sheet was filed in the court and the accused were sent up for trial.
21. On 15.03.2012, the order on charge was passed by the Ld. Predecessor of this Court and in pursuance to the said order, the charges for the offences punishable U/s 120B r/w Section 7 & 13(2) r/w Section 13(1) (d) of the Prevention of Corruption Act, 1988 and the substantive offences punishable U/s 7 & 13(2) r/w Section 13(1) (d) of The Prevention of Corruption Act, 1988, were framed against both the accused persons, to which, they pleaded not guilty and claimed trial.
CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 15 of 105 Special Judge, CBI01, Central, Delhi PROSECUTION EVIDENCE
22. During the course of trial, the prosecution has examined the following witnesses :
i) PW1 Sh. R.K.Singh, Nodal Officer, Bharti Airtel, New Delhi, who has provided the call details Ex.PW1/B to the CBI, pertaining to the mobile phone No. 9958291933 of accused Dr. S.K. Shakya, for the period w.e.f. 01.07.2009 to 30.07.2009. He has also provided the call details Ex.PW1/F of mobile phone No. 9910226583 pertaining to complainant Durga Singh, for the period w.e.f. 20.07.2009 to 30.07.2009, to the CBI.
ii) PW2 Sh. Deepak Kumar, Nodal Officer, Idea Cellular Ltd., Haryana and Delhi Circle, who has provided the call details Ex.PW2/E to the CBI, pertaining to the mobile phone No. 9718245959 of accused Dr. S.K. Shakya, for 30.07.2009.
iii) PW3 Sh. Surender Kumar, Sub Divisional Engineer, BSNL Ltd., Panipat, Haryana, who has deposed that the call details Ex.PW3/B, pertaining to the mobile phone No. 9416910359 of accused Narender Kumar Mehta, for the period CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 16 of 105 Special Judge, CBI01, Central, Delhi w.e.f. 01.07.09 to 30.07.2009, were provided to the CBI by Sh.
Pawan Kumar Gupta, the then DGM cum Nodal Officer.
iv) PW4 Sh. Durga Singh, son of Sh. Hetram Bunkar, the complainant in the present case. He has proved his complaint dated 30.07.09 as Ex.PW4/A and has deposed about the demand and acceptance of bribe money by accused Narender Kumar Mehta on behalf of accused Dr. S.K. Shakya.
v) PW5 Sh. Kapil Dev, son of Sh. Hetram Bunkar, the brother of complainant Durga Singh (PW4), who was a candidate for the post of head constable (ministerial) in BSF. This witness was medically examined by accused Dr. S.K. Shakya.
vi) PW6 Dr. N.M.Hashmi, Ex. Senior Scientific OfficerII, CFSL, New Delhi, who has examined the contents of the glass bottles Ex. P21, Ex.P22 & Ex.P23 (LHW, RHW & RSIPPW, respectively) and has proved his report Ex.PW6/A. He has deposed that on chemical examination, LHW RHW & RSIPPW, gave positive tests for the presence of phenolphthalein.
vii) PW7 Sh. Sushil Kumar, son of Ram Khilawan Rattan, who CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 17 of 105 Special Judge, CBI01, Central, Delhi was attached with accused Dr. S.K. Shakya. This witness has not supported the prosecution case and has even failed to identify the signatures of accused Dr. S.K. Shakya.
viii) PW8 Sh. Prem Nath, Inspector, CBI, ACB, New Delhi, who was a member of the CBI trap team on 30.07.2009.
ix) PW9 Dr. Shruti Mishra, Sr. Medical Officer, who was also detailed, along with accused Dr. S.K. Shakya, to conduct the medical examinations of the candidates for the post of head constable (ministerial).
x) PW10 Sh. Mukesh Kumar, Dy. Commandant BSF, who was posted as Dy. Commandant at STS BSF, Tigri, Delhi, in the year 20092010. He provided details of posting and duties performed by accused Narender Kumar Mehta, during the period w.e.f., 06.08.2005 to 20.06.2009, to the CBI. He was also involved in conducting the second phase of tests for selection of the candidates for appointment to the post of head constable (ministerial), in BSF for physical measurement, typing speed test, computer knowledge test, documentation, interview and medical CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 18 of 105 Special Judge, CBI01, Central, Delhi examination.
xi) PW11 Dr. J.P.Singh, who remained posted at STS, BSF Tigri Camp, New Delhi during the period w.e.f. 01.06.2009 to 20.06.2012. He has provided the desired information / documents to the CBI.
xii) PW12 Shri Brajesh Kumar, Commandant (recruitment) Head Quarter, DG BSF, Lodhi Road, New Delhi, who provided information and various documents to the CBI, during investigations.
xiii) PW13 Dr. Laxman Singh, Sr. Medical Officer, who was also detailed to carry out medical examination of the candidates for the post of head constable (ministerial).
xiv) PW14 Dr. Indrajit, who was working as Commandant in Communication & IT Directorate, BSF Head Quarter, Delhi in September 2007. He has provided various documents to Inspector Sanjay Kumar Khullar of the CBI. He has also deposed about the process of the recruitment of candidates for the post of head constable (ministerial) in BSF.
CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 19 of 105 Special Judge, CBI01, Central, Delhi
xv) PW15 Sh. Rajiv Dev, son of Sh. Kishan Lal. His brother Naveen Kumar was also a candidate for the post of head constable (ministerial) in BSF. He has also deposed about the demand of Rs.50,000/ by accused Narender Kumar Mehta, on behalf of coaccused Dr. S.K. Shakya.
xvi) PW16 Smt. Bimla, wife of Sh. Kishan Lal. Her son Naveen Kumar was also a candidate for the post of head constable (ministerial) in BSF. She has also deposed about the demand of Rs.50,000/ for passing the exam and clearance of medical test of her son Naveen Kumar.
xvii) PW17 Inspector Anand Sarup, the Trap Laying officer in the present case.
xviii) PW18 Shri Raj Kumar, son of Ashok Kumar, who was also a candidate for the post of head constable (ministerial ) in BSF. He has also qualified the written test and had appeared in the second phase tests of the selection process. He has also deposed about the demand of Rs.50,000/ for his selection. xix) PW19 Sh. Bal Kishan, son of Sh. Khacheru. His son CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 20 of 105 Special Judge, CBI01, Central, Delhi Pradeep Kumar was also a candidate for the post of head constable (ministerial) in BSF. He has also deposed about the demand of Rs. One Lac, by a person from BSF, for selection of his son. But, this witness has failed to identify the accused. xx) PW20 Sh. Sunil Rawat, son of Sh. K.S. Rawat, an LDC from The Directorate of Education, New Delhi, who was joined as an independent witness, during the trap proceedings on 30.07.2009.
xxi) PW21 Dr. Rajender Singh, Director, CFSL, CBI, Lodhi Road, New Delhi, who has compared the recorded conversations with the specimen voice samples of the accused persons. He has proved his report as Ex.PW21/A. xxii) PW22 Sh. Ramesh Rawat, who was posted as Asstt. Manager (HR) in Airport Authority of India, New Delhi. This witness has also joined the trap proceedings on 30.07.2009. xxiii) PW23 Sh. Sanjay Kumar Khullar, Inspector, ACB, CBI, New Delhi, is the investigating officer of the present case. xxiv) PW24 Sh. M. Tripathi, DIG (Personnel) BSF, Head CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 21 of 105 Special Judge, CBI01, Central, Delhi Quarters New Delhi, who has granted the sanction for prosecution of the accused Dr. S.K. Shakya and Narender Kumar Mehtra vide sanction orders Ex. PW24/A & Ex.PW24/B respectively.
23. After completion of prosecution evidence, the statements of both the accused were recorded, u/s 313 Cr.P.C., wherein, both the accused have denied all the incriminating evidence against them.
(i) Accused Narender Kumar Mehta has stated in his statement, u/s 313 Cr.P.C., that he is innocent and he has been falsely implicated in this case. He has further stated that he had advanced a loan of Rs.50,000/ to Sh. Hetram the father of complainant Durga Singh and Sh. Hetram, in connivance with his son Durga Singh and the CBI officials, got him falsely implicated in this case.
(ii) Accused Dr. S.K. Shakya has also stated in his statement, u/s 313 Cr.P.C., that he is innocent and he has been falsely trapped in the present case. He has further stated that after the CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 22 of 105 Special Judge, CBI01, Central, Delhi medical examination was over, the result of medical examination was shown to each candidate and their signatures, in consent, had been taken on 'certificate3', which are on record as Ex.PW5/A and Ex.PW9/1 to Ex.PW9/33. He has also stated that once the candidate was well aware about the result, immediately after the examination, the question of doing favour to him, later on, does not arise at all. He has admitted that the medical record file was with him, as the same was to be handed over to his presiding officer, as per his direction, on 31.07.2009, as his presiding officer was on leave on 29.072009 & 30.07.2009.
24. Accused Narender Kumar Mehta has examined Sh. Hetram Bunkar, father of complainant Durga Singh (PW4), as DW1, in his defence. This witness has deposed that accused Narender Kumar Mehta was known to him for the last about eight years as he was his gurubhai. He has further deposed that during the year 2009, he requested accused Narender Kumar Mehta for financial help and accused Narender Kumar Mehta had lent him CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 23 of 105 Special Judge, CBI01, Central, Delhi Rs.50,000/. This witness has further deposed that he returned the said money of Rs.50,000/ to the accused Narender Kumar Mehta, in the year 2010.
25. Accused Dr. S.K.Shakya has also examined Sh. Naveen Kumar (DW2), in support of his contentions. This witness has deposed that in March, 2009 he applied for the post of Head Constable (Ministerial) in BSF and qualified the written test and his medical examination was conducted on 27.07.2009. He has further deposed that the concerned doctor conducted the medical examination in a batch of ten persons and after conducting the medical test, the signatures of the candidates were taken on the documents, after showing the result as "Fit".
26. After completion of trial, final arguments were addressed by Shri Praneet Sharma, Ld. Sr. PP for the CBI; Shri Y.K.Kahol, Advocate, for accused Narender Kumar Mehta and Shri P.K.Sharma, Advocate, for accused Dr. S.K.Shakya. CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 24 of 105 Special Judge, CBI01, Central, Delhi Arguments on behalf of the CBI / Prosecution
27. It has been argued by Shri Praneet Sharma, Ld. Sr. PP for the CBI that complainant, PW4, Durga Singh son of Sh. Hetram Bunkar has proved the prosecution case and has categorically stated that accused N.K. Mehta has demanded the bribe from him, on behalf of his coaccused Dr. S.K. Shakya, to enable his brother Kapil Dev (PW5) to clear the medical test for appointment to the post of Head Constable in BSF. His testimony has been corroborated by his brother Kapil Dev (PW5).
28. The Ld. Sr. PP for the CBI has further argued that complainant Durga Singh has proved his complaint, dated 30.07.09 as Ex.PW4/A and the said complaint was duly got verified in the presence of independent witnesses, namely, PW20 Sunil Rawat and PW22 Ramesh Rawat. These witnesses have also corroborated the demand and acceptance of bribe money by accused N.K. Mehta, on behalf of coaccused Dr. S.K. Shakya. CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 25 of 105 Special Judge, CBI01, Central, Delhi
29. The Ld. Sr. PP for the CBI has further argued that a trap was laid by the CBI officials on 30.07.09 and during the trap proceedings a bribe amount of Rs.20000/ was recovered from the possession of accused N.K Mehta and the prosecution witnesses have duly proved the entire trap proceedings and the recovery of the bribe money from the possession of accused N.K. Mehta. After the trap proceedings, accused N.K Mehta had also made a phone call to coaccused Dr. S.K. Shakya, wherein, he had told him that the bribe amount had been recived by him and he fixed the place of meeting with his coaccused Dr. S.K. Shakya and thereafter, Dr. S.K. Shakya was also apprehended by the CBI team from the designated spot and the files pertaining to the medical examination of various candidates, including the file pertaining to the medical test of PW5 Kapil Dev, were recovered from his car.
30. The Ld. Sr. P.P for the CBI has further argued that during CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 26 of 105 Special Judge, CBI01, Central, Delhi verification proceeding of the complaint Ex.PW4/A and the trap proceedings, all the telephonic conversations were recorded in a DVR and the transcripts of the recorded conversations have also been placed on record. These telephonic conversations have also corroborated the prosecution case.
31. The Ld. Sr. PP for the CBI has also argued that after the trap proceedings, the hands of the accused N.K. Mehta were got washed in a solution of sodium carbonate in water and the said solutions had turned pink and the said pink solutions were transferred to empty glass bottles and were duly sealed with the seal of the CBI. Duringf the trap proceedings, the tainted bribe amount consisting of the tainted GC notes worth Rs.20000 were also recovered form the pant pocket of accused N.K. Mehta and therefore, the wash of the pant pocket of accused N.K Mehta was also taken and the said solution had also turned pink in colour.
32. The Ld. Sr. P.P for the CBI has further argued that all the CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 27 of 105 Special Judge, CBI01, Central, Delhi aforesaid three pink solutions were duly sealed in three separate glass bottles and during the investigations, the same were duly forwarded to the CFSL for chemical examination and expert opinion. He has further argued that Dr. N.M Hashmi (PW6) has also proved his report regarding the examination of the pink solutions as Ex.PW6/A and has proved the presence of phenolphthalein powder in the said solutions. The said report has also corroborated the prosecution case. He has further argued that the recorded conversations were also transferred in separate CDs and the same were also sent to CFSL along with the voice samples of the accused persons, for examination and expert opinion and Dr. Rajender Singh (PW21) has duly proved his reports as Ex.PW21/A. He has given a positive opinion and the same has also corroborated the prosecution case.
33. The Ld. Sr. P.P for the CBI has further argued that the prosecution witnesses and the expert reports have proved the demand, acceptance and recovery of bribe money from the CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 28 of 105 Special Judge, CBI01, Central, Delhi possession of the accused N.K. Mehta on behalf of coaccused Dr. S.K.Shakya and therefore, a presumption has to be drawn under Section 20 of the P.C. Act 1988 against the accused persons.
34. The Ld. Sr. P.P for the CBI has further argued that the shadow witness PW20 Sunil Rawat and recovery witness PW22 Ramesh Rawat and the TLO Inspector Anand Sarup (PW17) have also corroborated the testimony of the complainant and have therefore, proved the prosecution case, beyond a shadow of doubt.
35. The Ld. Sr. P.P for the CBI has further argued that the sanctioning authority has also granted the sanction for prosecution of the two accused persons, Dr. S.K Shakya and N.K. Mehta, vide sanction orders Ex.PW24/A and Ex.PW24/B, respectively. The Ld. Sr. P.P for the CBI has prayed that both the accused persons be held guilty and convicted for the offences CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 29 of 105 Special Judge, CBI01, Central, Delhi charged against them.
36. The Ld. Sr. PP for the CBI has relied upon the following judgments, in support of his contentions:
(i) State of Bihar & Ors. vs. Rajmangal Ram, reported as AIR 2014 Supreme Court 1674;
(ii) State of Maharashtra Through C.B.I. vs. Mahesh G. Jain, reported as (2013) 8 SCC 119.
(iii) State of M.P. Vs Bhooraji & Ors., reported as (2001) 7 SCC 679.
(iv) Tehsildar Singh & Anrs. Vs. State of UP, reported as AIR 1959 Supreme Court 1012;
(v) Hari Khemu Gawali v. Dy. Commissioner of Police, Bombay & Anr., reported as AIR 1956 Supreme Court 559;
(vi) M.Narsinga Rao Vs. State of Andhra Pradesh, reported as AIR 2001 SC 318;
(vii) Smt. Neera Yadav Vs. CBI (Allahabad) (FB), reported as 2006 (2) RCR (Crl.) 765.
Arguments in defence, on behalf of accused Narender Kumar Mehta
37. Sh. Y.K.Kahol, Advocate, for accused Narender Kumar Mehta has argued that the prosecution has miserably failed to CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 30 of 105 Special Judge, CBI01, Central, Delhi prove any case against any of the accused. He has argued that there are a large number of material discrepancies and contradictions in the depositions of the prosecution witnesses, from the documentary evidence, which makes them unreliable. He has further argued that in the present case, the complaint Ex.PW4/A was never verified by the CBI, before registration of the FIR, which is unprecedented for the CBI. He has further argued that the complainant Durga Singh (PW4) had admitted in his crossexamination that he lodged a written complaint with the CBI, but, the said complaint is not on judicial record. He has further admitted that in the present case, the complaint Ex.PW4/A was his second complaint and was written by him as per the directions of the CBI officials and on the basis of this second complaint, the FIR was registered by the CBI.
38. The Ld. Defence counsel has further argued that perusal of complaint Ex.PW4/A shows that the complainant Durga Singh had made a large number of improvements in his deposition in CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 31 of 105 Special Judge, CBI01, Central, Delhi the court and a large number of averments, as deposed by him in the court, does not find mention in the complaint Ex.PW4/A. The material improvements and the contradictions in his deposition makes him an unreliable witness.
39. The Ld. Defence counsel has further argued that none of the accused had ever contacted PW5 Kapil Dev, who was the actual candidate for the post of the Head Constable (Ministerial) in BSF. He has further argued that accused N.K. Mehta was having good relations with the father of the complainant and the father of the complainant had taken loan from accused N.K. Mehta and the accused N.K. Mehta had visited the residence of the complainant for getting his money returned from the father of the complainant. But, the complainant, in connivance with the CBI officials, fabricated a false story and got him falsely implicated in this case.
40. The Ld. Defence counsel has further argued that the accused N.K. Mehta has examined DW1 Sh. Hetram Bunkar, the father of CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 32 of 105 Special Judge, CBI01, Central, Delhi the complainant, who has also supported the defence of the accused and has categorically stated that the accused Narender Kumar Mehta used to help him financially and in the year 2009, he had lent a some of Rs.50,000/ to him.
41. The Ld. Defence counsel has further argued that the medical examination of PW5 Kapil Dev was conducted by coaccused Dr. S.K. Shakya on 27.07.2009 and after his medical examination, the signatures of PW5 Kapil Dev were obtained on his medical examination form and at that time he was also told about his fitness and clearing of the medical test and therefore, there was no occasion for either Dr. S.K. Shakya or coaccused Narender Kumar Mehta, to demand any money from the complainant, after 27.07.2009.
42. The Ld. Defence counsel has further argued that the prosecution witnesses have admitted in their depositions before the court that during the trap proceedings accused N.K. Mehta CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 33 of 105 Special Judge, CBI01, Central, Delhi was apprehended by the CBI officials with his hands and the said act was done by the CBI officials deliberately , to falsely implicate him in the present case.
43. The Ld. Defence counsel has also pointed out a large number of discrepancies and contradictions in the depositions of the prosecution witnesses and has argued that the material contradictions, as pointed out by him, makes the entire prosecution case doubtful.
44. The Ld. Defence counsel has further argued that the call detail records could not be proved, during the trial, in accordance with the provisions of The Indian Evidence Act as no certificate under the provisions of Section 65B of the Indian Evidence Act, has been placed on record and therefore, the call detail record, produced before the court, during the trial is inadmissible in evidence. He has further argued that even the cassettes of the alleged recorded conversations could not be proved in CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 34 of 105 Special Judge, CBI01, Central, Delhi accordance with law for want of any certificate under Section 65B of the Indian Evidence Act and therefore, the alleged recorded conversations and their transcripts are also inadmissible in evidence.
45. The Ld. Defence counsel has further argued that the entire link evidence regarding the preparation of the cassettes of alleged conversations, sealing of the cassettes, sealing of the alleged hand wash and pant pocket wash solutions in glass bottles and their depositions, either at the Malkhana of the CBI or at the CFSL, Lodhi Road, New Delhi, is missing and the prosecution has failed to examine any witness in this regard. No register of the Malkhana of the CBI has been produced before the court, during the trial, to substantiate the fact that the aforesaid articles were deposited by the CBI officials, at the Malkhana, during investigations. The person who has taken these articles for deposition at CFSL, New Delhi, is also not examined during the trial.
CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 35 of 105 Special Judge, CBI01, Central, Delhi
46. The last contention of the Ld. Defence counsel has remained that the sanction for prosecution of accused N.K. Mehta, vide order Ex.PW24/B, is not a valid sanction, as the competent authority has not applied his mind to the facts and circumstances of the present case. He has further argued that the competent authority has never seen the entire record and the CFSL reports and the case property, including the audio cassettes, were never sent to him for his perusal. Only a report consisting of 1012 pages was sent by the CBI, for the perusal of the competent authority and the same was not sufficient for application of judicious mind by the competent authority, before passing the sanction order Ex.PW24/B.
47. The Ld. Defence counsel has relied upon the following judgments, in support of his above contentions:
(i) CBI vs. Ashok Kumar Aggarwal, reported as 2014 Crl. L. J. 930 (Supreme Court)
(ii) P.K. Gupta vs. CBI, reported as 2011 (4) JCC 2352 (Delhi CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 36 of 105 Special Judge, CBI01, Central, Delhi High Court);
(iii) Khyamasagar Baina vs. State, reported as 2004 (1) Criminal Court Cases 166 (Orissa).
Arguments in defence, on behalf of accused Dr. S.K. Shakya
48. Sh. P.K.Sharma, Advocate, for accused Dr. S.K.Shakya has argued that there is no legally admissible evidence against the accused Dr. S.K. Shakya and there is no evidence on record to prove any conspiracy between the accused Dr. S.K. Shakya and accused Narender Kumar Mehta. He has further argued that the complainant Durga Singh, PW4 and his brother Kapil Dev, PW5 have not disclosed the name of accused Dr. S.K. Shakya to the CBI, before lodging of the complaint Ex.PW4/A. Accused Dr. S.K. Shakya has never met the complainant Durga Singh and has never raised any demand of money from him. He has further argued that no bribe amount was recovered from the possession of accused Dr. S.K. Shakya and none of the witnesses have deposed anything about any demand or acceptance of bribe CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 37 of 105 Special Judge, CBI01, Central, Delhi money by him from the complainant. He has further argued that there are a large number of material contradictions and improvements in the depositions of complainant Durga Singh PW4 and his brother Kapil Dev PW5, from the depositions of the other prosecution witnesses and the material on record, which makes them unreliable witnesses.
49. The Ld. Defence counsel has further argued that as per the prosecution case, the only evidence against Dr. Shakya was the alleged telephone call, which was allegedly made by coaccused N.K. Mehta, to him, after his arrest, in which coaccused N.K. Mehta had allegedly told him that the bribe amount has been received by him from the complainant and the place of meeting with Dr. S.K. Shakya, was fixed in the said telephonic conversation. But, the said telephonic conversation could not be proved during the trial, as per law, as the said alleged telephone call was recorded in a DVR, from which the same was transferred to an audio cassette. But, during the trial no prosecution witness CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 38 of 105 Special Judge, CBI01, Central, Delhi has furnished any certificate under the provisions of Section 65B of the Indian Evidence Act, to prove the contents of the audio cassettes. He has further argued that the contents of the audio cassette were secondary evidence and the certificate under Section 65B was a mandatory requirement to prove the same. Therefore, the alleged recorded conversation is inadmissible in evidence, in view of the judgment of the Hon'ble Supreme Court in Anvar P.V.'s case.
50. The Ld. Defence counsel for accused Dr. S.K. Shakya has also argued that the sanction order Ex.PW24/A, is not a valid sanction order, as the same has been passed in a mechanical manner and without application of mind. He has further argued that PW24 Sh. M. Tripathi was not the competent authority to grant the sanction for prosecution of accused Dr. S.K. Shakya and he has only conveyed the sanction for prosecution of accused Dr. S.K. Shakya, on behalf of the President of India. He has further argued that the sanction order does not disclose anything about CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 39 of 105 Special Judge, CBI01, Central, Delhi the competent authority or the application of mind by him, prior to passing of the sanction order Ex.PW24/A. He has further argued that the complete record of the case was never forwarded to the competent authority, as PW24 Sh. M. Tripathi has admitted in his deposition before the court that only a report, running into 1012 pages, was submitted by the CBI, for perusal of the competent authority, for passing the sanction order against accused Dr. S.K. Shakya. He has further argued that the contents of sanction order Ex.PW24/A clearly indicate nonapplication of mind by the competent authority as Dr. S.K. Shakya was never caught for demanding or agreeing to accept the bribe amount from the complainant, but, these facts have been mentioned in the sanction order. He has further argued that the sanction order Ex.PW24/A also mentions about the expert opinion, regarding the presence of phenolphthalein powder in the solutions and regarding the cassettes containing alleged recorded conversations between the complainant and the accused persons, but neither the CFSL reports nor the case property, nor CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 40 of 105 Special Judge, CBI01, Central, Delhi the audio cassettes were sent to the competent authority for his perusal.
51. The Ld. Defence counsel has further argued that the prosecution witnesses, including PW5 Kapil Dev, have admitted in their crossexamination that the result of the medical examination of the candidates, conducted by accused Dr. S.K. Shakya, on 27.07.2009, was disclosed to him by Dr. S.K. Shakya on 27.07.2009 itself and as per Ex.PW5/A, PW5 Kapil Dev was declared fit in the medical examination by Dr.S.K. Shakya on 27.07.2009 itself and after the medical examination and declaration of the result of the medical test by Dr. S.K. Shakya, he signed Ex.PW5/A on 27.07.2009 itself and therefore, there was no occasion for Dr. S.K. Shakya to enter into a criminal conspiracy with coaccused Narender Kumar Mehta or to raise any demand from PW5 Kapil Dev or his brother Durga Singh PW4.
CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 41 of 105 Special Judge, CBI01, Central, Delhi
52. The Ld. Defence counsel has further argued that the defence witnesses have supported the defence of the accused persons and have demolished the prosecution case. DW1 Sh. Hetram Bunkar, father of the complainant Durga Singh (PW4) and the candidate Kapil Dev (PW5) had categorically deposed before the court that he was knowing the accused Narender Kumar Mehta for the last about eight years as he was his guru bhai. He has further stated that in the year 2009, accused Narender Mehta had helped him financially and a sum of Rs.50,000/ was lent to him by accused Narender Kumar Mehta for medical treatment of his wife. He has further deposed that the said money was returned to accused Narender Kumar Mehta in the year 2010. This witness was also crossexamined by the Ld. PP for the CBI at lenght and in his crossexamination also he has stated that his son Druga Singh (PW4) had lodged a false complaint with CBI, against accused Narender Kumar Mehta.
53. The Ld. Defence counsel has further argued that DW2 CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 42 of 105 Special Judge, CBI01, Central, Delhi Naveen Kumar was another candidate for medical examination by Dr. S.K. Shakya on 27.07.2009 and he has also deposed before the court that at the time of the medical examination, the concerned doctor had called a batch of ten persons and after conducting their medical test he had shown the result as fit and thereafter, his signatures were taken by the doctor on the documents. Similarly, the signatures of other nine candidates were obtained on their forms. The deposition of DW2 has corroborated the fact that the fitness and result of his medical examination was made known to PW5 Kapil Dev, by accused Dr.S.K. Shakya on 27.07.2009 itself and therefore, there was no occasion for him to demand any money from PW5 Kapil Dev or his brother PW4 Durga Singh, for clearing the medical test.
54. The Ld. Defence counsel has further argued that no evidence of conspiracy has come on record to connect accused Dr. S.K. Shakya, with the commission of offences by coaccused Narender Kumar mehta and even the site plan of his arrest has not been CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 43 of 105 Special Judge, CBI01, Central, Delhi prepared during the investigations. He has further argued that the accused Dr.S.K. Shakya was arrested from his office but, false documents have been prepared by the CBI to show that he was arrested by the CBI officials in the evening, on 30.07.2009.
55. The Ld. Defence counsel has further argued that the accused has been charged for the offences under Section 120B IPC read with Section 13 (1) (d) r/w Section 13(2) of the P.C. Act, 1988 and therefore, a sanction under Section 197 Cr.P.C. was also required for his prosecution. But, no such sanction has been taken from the concerned authorities. The Ld. Defence counsel has relied upon the following judgments, in support of his above contentions :
(i) "Prof. M.K. Ganguly vs. CBI, New Delhi", reported as, "2015 (4) Crimes 372 (Supreme Court)";
(ii) "Anvar P.V. Vs. P.K. Basheer, reported as MANU/SC/0834/2014".
CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 44 of 105 Special Judge, CBI01, Central, Delhi OBSERVATIONS / FINDINGS
56. I have carefully perused the case file and I have given my considered thoughts to the arguments addressed by the Ld. Sr. PP for the CBI and the Ld. defence . I have also gone through the various judgments cited by the Ld. Sr. PP for the CBI and the Ld. defence counsels, in support of their contentions. Demand & acceptance of bribe money
57. Perusal of the record shows that the prosecution has examined the complainant Durga Singh as PW4. Perusal of his testimony shows that this witness has categorically stated in the court that on 29.03.2009, his younger brother Kapil Dev had appeared in written examination for the post of BSF Head Constable (Ministerial) and he had cleared the written examination. Thereafter, he received a letter from BSF, directing him to appear for interview, physical examination and medical examination. He has further deposed that his brother Kapil Dev cleared his physical examination and his medical examination was conducted CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 45 of 105 Special Judge, CBI01, Central, Delhi in March and at that time, a head constable of BSF namely Narender Kumar Mehta came to his flat and told him that he had been sent by accused Dr. Shakya, CMO and there were 23 shortcomings in the medical examination of his brother. He further told him that, in case, he wanted to get his brother clear the medical examination, he will have to pay Rs.50,000/ to Dr. Shakya, through him. He further told him that before preparation of merit list, he will have to pay another Rs.50,000/ to secure position in the merit list. He has categorically stated that this conversation had taken place on 28.07.2009 and at that time his parents and sister had gone out of Delhi and therefore, he told the accused Narender Kumar Mehta that he will be able to commit anything, only after discussing with his father. Thereafter, the accused left and told him to come again on 30.07.2009. Thereafter, the accused came again at about 8 /8.30 am on 30.07.2009, on which, he told him that he could not discuss the matter with his parents. Thereafter, on 30.07.2009, he along with his brother Kapil Dev went to the CBI office and disclosed the CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 46 of 105 Special Judge, CBI01, Central, Delhi entire story to the SP, CBI, who called Inspector Anand Sarup and introduced him and told him about his complaint. Thereafter, he gave a written complaint, in his handwriting. The said complaint has been proved on record as Ex.PW4/A.
58. Perusal of the record shows that the complaint Ex.PW4/A, in the handwriting of the complainant Durga Singh bears the endorsement of SP Sumit Saran, "register case and lay trap". His complaint was also marked to Inspector Anand Sarup by SP Sumit Saran. On the basis of this complaint, case FIR bearing No. RCDAI2009A0037, dated 30.07.2009, Ex.PW4/B, was registered under Section 8 of the P.C. Act 1988 at about 11.15 a.m. It is very relevant to mention here that the complaint Ex.PW4/A was never got verified by any CBI official, prior to registration of the FIR, Ex.PW4/B, which is unheard of, in CBI.
59. Perusal of the complaint Ex.PW4/A also shows that the complainant Durga Singh, PW4, has mentioned in it that on CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 47 of 105 Special Judge, CBI01, Central, Delhi 28.07.2009, accused Narender Kumar Mehta contacted him at his residence at H141, DTC Colony, Shadi Pur, New Delhi8 and told him that he was a head constable in BSF. This complaint further mentions that the accused Narender Kumar Mehta told him that his brother Kapil Dev was unfit in the medical test and Dr. S.K. Shakya had conducted his medical test and, in case, the medical examination was to be passed, then he would have to spend a sum of Rs.50,000/ and the said amount has to be paid to Dr. S.K. Shakya, through him. In case, this amount was not paid, then his brother shall fail in the medical test. He further stated that this was a golden chance to clear the medical test. The complaint Ex.PW4/A further mentions that the complainant told the accused Narender Kumar Mehta that he will arrange the money in one or two days and thereafter, accused Narender Kumar Mehta again visited his residence today, i.e. on 30.07.2009 to collect the money and he told him to disclose his decision to pay the money by 11.00 a.m. today, so that he could disclose the same to Dr. S.K. Shakya. This complaint further mentions that the CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 48 of 105 Special Judge, CBI01, Central, Delhi complainant was not inclined to pay any money.
60. Perusal of the complaint Ex.PW4/A, as mentioned above, clearly indicate that the complainant has made a large number of material improvements from his complaint, in his deposition before the court as PW4, deliberately. It is further observed that the complainant has falsely written in his complaint Ex.PW4/A that on 28.07.2009 accused Narender Kumar Mehta had contacted him at his residence and disclosed his identity to him and told him that he was a head constable in BSF. This averment in the complaint Ex.PW4/A is falsified by the deposition of DW1 Hetram Bunkar, the father of the complainant, who has categorically stated in the court that accused Narender Kumar Mehta was known to him for last about eight years and the accused had helped him financially during the sickness of his wife in the year 2009. It is highly improbable that the complainant, being the son of DW1 Hetram Bunkar was unaware about the identity of the person, who had helped his family financially, during the sickness CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 49 of 105 Special Judge, CBI01, Central, Delhi of his mother. Furthermore, the call detail record of mobile phone No. 9910226583 of the complainant Durga Singh, Ex.PW1/F and the call detail record of the mobile phone No. 9718245959 of accused Narender Kumar Mehta, Ex.PW2/B, clearly indicate that on 28.07.2009, the complainant Durga Singh (PW4) had himself made a phone call to the accused Narender Kumar Mehta, in the evening at about 07.17.53 p.m. On 28.07.2009, the accused Narender Kumar Mehta had not made any phone call to him. Perusal of the CDRs, Ex.PW1/F & Ex.PW2/B, clearly indicate that the accused has never made any phone call to the complainant and even the complainant has not contacted the accused on his mobile phone, prior to 28.07.2009 evening. Furthermore, even the complainant has not made any other phone call to the accused, after 28.07.2009 at 07.17 p.m., till 30.07.2009 at 12.06.46 p.m. Furthermore, the call detail records of the mobile phone of complainant and the accused persons have been brought on record as Ex.PW1/B, Ex.PW1/F, Ex.PW2/B & Ex.PW3/B, but no certificates under Section 65B of The Indian CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 50 of 105 Special Judge, CBI01, Central, Delhi Evidence Act, have been filed on record, to prove these call detail records.
61. Perusal of the complaint Ex.PW4/A further indicates that this complaint does not find mention about the fact that a total demand of Rs.1 Lac was made by accused Narender Kumar Mehta from him, as he had asked him to pay a sum of Rs. 50,000/ to Dr. Shakya, through him, in case, he wanted his brother Kapil Dev to clear the medical examination and the further payment of Rs.50,000/ was to be made to secure a position in the merit list, before preparation of the merit list. In his deposition before the court, the complainant Durga Sigh PW4 has specifically stated these facts and has categorically stated that all these conversations had taken place on 28.07.2009.
62. Perusal of the complaint Ex.PW4/A further shown that this complaint does not find mention anything about the shortcomings in the medical examination of his brother, as deposed by the CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 51 of 105 Special Judge, CBI01, Central, Delhi complainant in the court. The complainant has categorically stated in his deposition in the court that accused Narender Kumar Mehta had told him that his brother was having rapid heart beat and his eye sight was not according to the specifications and the expansion of chest was less by two centimeters.
63. Perusal of the record further shows that during his cross examination, complainant Durga Singh (PW4) has not supported the prosecution case on various material points and therefore, he was also crossexamined by Sh. Praneet Sharma, Ld. Sr. PP for the CBI. In his crossexamination, by the Ld. Sr. PP for the CBI, the complainant had denied a large number of suggestions of the Ld. Sr. PP for the CBI. Furthermore, during his crossexamination by Sh. P.K. Sharma, Advocate, for accused Dr. S.K. Shakya, he has admitted that he filed his written complaint at about 10.30 a.m. and he gave the said written complaint to the SP, CBI and the contents of the said complaint were not dictated to him by anybody. He has further admitted that the complaint Ex.PW4/A, CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 52 of 105 Special Judge, CBI01, Central, Delhi which is on record, was his second complaint and the same was dictated to him by Inspector Anand Sarup, in the night on 30.07.2009, between 12 midnight to 1.00 a.m., at the CBI office. He has further admitted that the name of Dr. S.K. Shakya was not mentioned by him in his first complaint, which he gave to the CBI officials, at 10.30 a.m. on 30.07.2009. He had volunteered that he came to know about the name of Dr. S.K. Shakya, only after the trap proceedings. This deposition of complainant PW4 Durga Singh has demolished the prosecution case about lodging of the complaint in the morning on 30.07.2009 and registration of the FIR at about 11.15 a.m. His deposition indicates that the FIR Ex.PW4/B is an antetimed document.
64. Perusal of the record further shows that PW4 Durga Singh has further stated in the court that his complaint was shown to Inspector Anand Sarup and the same was shown to all the team members and they asked him to verify the complaint. Thereafter, two independent witnesses, namely, Sunil Rawat (PW20) and CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 53 of 105 Special Judge, CBI01, Central, Delhi Ramesh Rawat (PW22) were called and thereafter, he made a phone call to accused Narender Kumar Mehta from his mobile phone No. 9910226583 at about 1.00 / 2.00 p.m. He has further stated that this conversation was recorded by the CBI, by using a voice recorder. He has further stated that during the conversation he told accused Narender Kumar Mehta that he would pay the amount and fixed up the time at about 3 .00 / 4.00 p.m., at his house. This recorded conversation was played in the presence of the independent witnesses and was confirmed. But, this recorded conversation was allegedly transferred to an audio cassette mark 'Q1' and was allegedly forwarded to the CFSL for expert opinion and comparison with the specimen voice sample of accused Narender Kumar Mehta. In his report Ex.PW21/A, Dr. Rajender Singh, Director, CFSL, CBI, Lodhi Road, New Delhi, has specifically mentioned that Ex. 'Q1', was a normal audio cassette of make 'SONY ZX 60', which was regarding the verification of the complaint. He has categorically mentioned in the report, in respect of the cassette Ex. 'Q1', as under :
CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 54 of 105 Special Judge, CBI01, Central, Delhi " No common clearly audible sentences / words of Sh. Narender Kumar Mehta could be detected in the questioned cassette marked exhibit 'Q1' with respect to the specimen voice recorded in cassette marked exhibit 'S1' as the questioned voice of Sh. Narender Kumar Mehta is distorted and unintelligible due to highly electronic interfering background noise. Hence, the same could not be considered for auditory and voice spectrographic examination."
It is pertinent to mention here that as per report Ex.PW21/A a copy of the transcription of the alleged conversation between the complainant and the accused, in audio cassette 'Q1', comprising of three pages, was also submitted to PW21 Dr. Rajender Singh for his perusal, before comparison of the questioned and specimen voice samples. The transcript of this alleged recorded conversation is on judicial record, as Ex.PW4/F. In view of the report Ex.PW21/A, as submitted by Dr. Rajender Singh (PW21), this court has failed to understand, as to how, this transcript was prepared by the CBI officials on 17.02.2010, when the contents of the recorded conversations were not clearly audible and there CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 55 of 105 Special Judge, CBI01, Central, Delhi was a lot of disturbances in it.
65. Perusal of the record further shows that complainant PW4 Durga Singh had also deposed that after the demand of bribe by the accused Narender Kumar Mehta, he was not interested in paying any money to him and therefore, he went to the CBI office on 30.07.2009 alongwith his brother Kapil Dev, PW5. But, the presence of his brother PW5 Kapil Dev, at the CBI office, is not reflected in any document. No document bears the signatures of PW5 Kapil Dev, as a witness. Even the handing over memo Ex.PW.4/C, which was allegedly prepared in the CBI office, prior to the trap proceedings does not find mention about his presence and does not bear his signatures.
66. Complainant PW4 Durga Singh has also stated that after lodging of his written complaint, two independent witnesses, namely, Sunil Rawat, PW20 and Ramesh Rawat, PW22 were called and thereafter, he was asked to make a phone call to CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 56 of 105 Special Judge, CBI01, Central, Delhi accused Narender Kumar Mehta, from his mobile phone number 9910226583. He has further stated that after verification of his complaint, at about 1.00 - 2.00 p.m., he told accused Narender Kumar Mehta that he would pay the amount at his residence at about 3.00 - 4.00 p.m. and thereafter, he gave an amount of Rs. 20,000/ to the CBI officers and one of the officer sprinkled some powder on the GC notes and the independent witness Ramesh Rawat, PW22, gave the demonstration by touching the GC notes and dipping his fingers in water, on which, the solution had turned pink. He had further stated that the GC notes were kept in his pocket by PW22 Ramesh Rawat and he was instructed not to touch the GC notes. He has further stated that PW20 Sunil Rawat was deputed to act as a shadow witness and the CBI officials also provided him a voice recorder, which was kept in his shirt pocket.
67. PW4 Durga Singh has further stated that after reaching his residence, he entered his house along with PW20 Sunil Rawat CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 57 of 105 Special Judge, CBI01, Central, Delhi and the remaining team members had remained outside. After a short time, accused Narender Kumar Mehta came to his flat and he told him to pay the amount of Rs.50,000/ and also told him that a further amount of Rs.50,000/ may be paid by him lateron, on which, he told accused Narender Kumar Mehta that he could arrange only a sum of Rs.20,000/ and the balance amount would be paid by him, after discussion with his father. Thereafter, he took out the money from his pocket and handed over the same to accused Narender Kumar Mehta and told him to count the GC notes, on which, accused counted the GC notes and kept the same in his inner pant pocket. Thereafter, accused Narender Kumar Mehta made a phone call to accused Dr. S.K.Shakya and told him that the payment has been received and the candidate should be passed and thereafter, he went out of the flat.
68. It is further stated by complainant PW4 Durga Singh that he called the CBI team, immediately, by giving a missed call and the CBI team members immediately caught the accused Narender CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 58 of 105 Special Judge, CBI01, Central, Delhi Kumar Mehta and brought him inside his flat. He has also deposed that the hands of the accused were got washed in a solution and the said solution had turned pink in colour. He had further stated that the inner pant pocket of accused Narender Kumar Mehta was also washed and the said solution had also turned pink. He has further stated that PW22 Ramesh Rawat had conducted the personal search of accused Narender Kumar Mehta, in which, the GC notes of Rs.20,000/ were recovered from his inner pant pocket. He has further deposed that another sum of Rs.20,000/ was recovered from the person of accused Narender Kumar Mehta and on questioning by the CBI officials, accused Narender Kumar Mehta had informed them that he had collected the said amount of Rs.20,000/ from another candidate, namely, Naveen Kumar. It is pertinent to mention here that this candidate Naveen Kumar has been examined by accused Dr. S.K.Shakya, in his defence, as DW2.
69. Perusal of the record further shows that the documents, CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 59 of 105 Special Judge, CBI01, Central, Delhi prepared by the CBI, during the trap proceedings, i.e., the recovery memo Ex.PW.4/D has also mentioned the fact of the recovery of another amount of Rs.20,000/, from the possession of accused Narender Kumar Mehta. But, the numbers of the said GC notes have not been mentioned in it. Furthermore, nothing has come on record to show as to what had happened to the said cash amount of Rs.20,000/, after the trap proceedings in the present case. The fate of the said amount of Rs.20,000/ is not known and the said amount of Rs.20,000/ was never deposited at the malkhana of the CBI.
70. Perusal of the record further shows that complainant PW4 Durga Singh had categorically stated in his examinationinchief that accused Narender Kumar Mehta has not told anything about the person, to whom the recovered bribe amount was to be paid by him. He has further stated that accused Narender Kumar Mehta has not disclosed anything about the person, to whom another amount of Rs.20,000/, which was allegedly recovered CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 60 of 105 Special Judge, CBI01, Central, Delhi from him, was to be paid by him. But, the recovery memo Ex.PW4/D has mentioned that accused Narender Kumar Mehta had told the CBI officials that this amount was to be paid by him to his coaccused Dr. S.K.Shakya. Above depositions of complainant, PW4 Durga Singh indicate that the contents of the recovery memo Ex.PW.4/D have been written by the CBI officials, as per their own whims and fancies, only to create evidence for establishing a conspiracy between the two accused persons and to falsely implicate them in the present case.
71. Perusal of the record further shows that complainant PW4 Durga Singh has further stated that after the arrest of accused Narender Kumar Mehta from his house, he was dropped by the CBI team at his residence and the CBI team had went away and on the same day, he again visited the CBI office at about 8.00 - 8.30 p.m., and there, accused Narender Kumar Mehta and accused Dr. S.K.Shakya were brought by the CBI officials. He has further stated that the documents pertaining to the present CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 61 of 105 Special Judge, CBI01, Central, Delhi case were prepared at the CBI office and he was sent downstairs by the CBI officials and at about 1.00 - 1.30 p.m. (in the midnight), he was again called upstairs and then he signed the documents. It also indicates that these documents were not prepared at the residence of the complainant, as alleged in the prosecution case.
72. Perusal of the record further shows that the prosecution witnesses have categorically stated that during the trap proceedings, pant of accused Narender Kumar Mehta was also got removed and the wash of the inner pant pocket was also taken. But, there are contradictory statements, regarding providing of a fresh pant to accused Narender Kumar Mehta, after the trap proceedings. Complainant PW4 Durga Singh had not deposed anything in this regard. PW17 Inspector Anand Sarup, the Trap Laying Officer, had categorically stated in his cross examination that a new trouser was procured for wearing of accused Narender Kumar Mehta, from the local market, whereas, CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 62 of 105 Special Judge, CBI01, Central, Delhi PW22 Ramesh Rawat had deposed in his examinationinchief that the complainant PW4 Durga Singh had brought one pant for wearing of accused Narender Kumar Mehta and thereafter, the pant pocket of accused Narender Kumar Mehta was also washed in the solution.
73. In case titled as "State (NCT of Delhi) Vs. Devender Singh, reported as 2013(4) JCC 2635 (DLI)", it was held as under : "4. The prosecution witnesses have given divergent version as to when and by whom the bribe amount was demanded. The complainant allegedly executed the work awarded to him in February, 2000 for which work order was issued to him on 04.01.2001. The complaint was lodged on 29.03.2001. The delay in claiming the payment and lodging the report has remained unexplained complainant's statement could not be corroborated by any independent public witness as PW13 (Ram Swaroop Chopra) joined as panch witness expired before he could be crossexamined by the appellant. Even if examination inchief recorded on 03.07.2007 is considered, it does not substantiate the complainants version regarding demand of bribe prior to the lodging of the complaint on 29.03.2001. PW13 did not depose if the complainant had CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 63 of 105 Special Judge, CBI01, Central, Delhi named the appellant Devender to have demanded bribe. He was not categorical as to which of the accused Devender Singh and Harpal Singh had demanded illegal gratification in the office, on scrutnising his testimony, it appears that the demand was raised for the first time on the day of incident. Both panch witnesses and the complainant have given inconsistent version about the arrival of Harpal Singh at the spot, in the absence of demand of bribe which the prosecution could not establish beyond reasonable doubt, there was no cogent material to base conviction under Section 7/13 POC Act. The demand and acceptance of the money for doing a favour in discharge of official duties is sine qua non to the conviction. Mere recovery of tainted money from the accused by itself is not enough in the absence of substantive evidence of the demand and acceptance. It is also settled in law that statutory presumption under Section 20 of the Act can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that the money was accepted other than the motive or reward as 'stipulated under Section 7 of the Act. (emphasis supplied by me) Recording of telephonic conversations, preparation of Audio Cassettes, seizure of bribe money, hand wash solutions and deposition of exhibits at CFSL, for expert opinion.
74. Perusal of the record shows that the alleged telephonic CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 64 of 105 Special Judge, CBI01, Central, Delhi conversations between the complainant PW4 Durga Singh and the accused, were allegedly recorded at two stages. The first stage was prior to the trap, for the purposes of verification of the complaint Ex.PW.4/A and the second stage was during the trap proceedings. The complainant PW4 Durga Singh has deposed that a voice recorder was given to him by the CBI team, which was kept in his shirt pocket. It is relevant to note that the alleged trap proceedings have taken place in the month of July, 2009, which has a very hot & humid climate, in Delhi and therefore, the voice recorder in the shirt pocket of complainant must have been clearly visible to every person, including the accused N.K. Mehta.
75. Perusal of the record further shows that the conversations which were allegedly recorded during the pretrap proceedings on 30.07.2009, are not clear and the words spoken by the accused Narender Kumar Mehta, during the said conversation, were not audible and his questioned voice in cassette marked 'Q1' was distorted and unintelligible, due to highly electronic interfering CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 65 of 105 Special Judge, CBI01, Central, Delhi background noise, as mentioned in the expert report, Ex.PW21/A.
76. Perusal of the record further shows that PW21 Dr. Rajender Singh, Principal Scientific Officer of CFSL, New Delhi, has also stated in his deposition before the court that the audio cassette Ex. Q1 was having recorded duration of two minutes and twenty seconds and the same were distorted and intelligible, due to highly electronic interfering background noise and hence, the same could not be considered for auditory and voice spectographic examination. Perusal of the transcripts, Ex.PW4/F & Ex.PW4/G, also indicate that the words spoken by the accused were not clear and therefore, the same have not been mentioned in these transcripts. The transcripts Ex.PW4/F and Ex.PW4/G, are not having the entire words spoken by the accused Narender Kumar Mehta and the dotted lines/blank spaces, have been left in these transcripts, against the words allegedly spoken by him.
77. It has been held by the Hon'ble Supreme Court, in case titled CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 66 of 105 Special Judge, CBI01, Central, Delhi as, "Nilesh Dinkar Paradkar Vs. State of Maharashtra, reported as, 2011 STPL (Web) 291 (SC)", as under: "30. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification. In the case of Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors.
(1976) 2 SCC 17, this Court made following observations : "We think that the High Court was quite right in holding that the taperecords of speeches were "documen ts", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions : "(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 67 of 105 Special Judge, CBI01, Central, Delhi evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subjectmatter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act."
(emphasis supplied by me)
78. In the case of "Ram Singh & Ors. Vs. Col. Ram Singh", 1985 (Supp) SCC 611, the Hon'ble Supreme Court again stated some of the conditions necessary for admissibility of tape recorded statements, as follows : "(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker, it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the taperecorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Every possibility of tampering, with or erasure of a part of a taperecorded statement must be ruled out otherwise it may render the said statement out of context CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 68 of 105 Special Judge, CBI01, Central, Delhi and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
(emphasis supplied by me)
79. In the present case, after the alleged trap proceedings, the recorded conversations were transferred from the voice recorder to a mini cassette recorder and thereafter, the audio cassettes, Ex. 'Q1' & Ex. 'Q2' were prepared. But, neither the voice recorded nor the mini cassette recorder were seized, during the investigations, nor were produced before the court, during trial. It is not clear from the evidence on record, as to which CBI officer has prepared the audio cassettes of the conversation, recorded in the digital voice recorder. The said audiocassettes are secondary evidence in nature. But, no certificate under Section 65B of the Indian Evidence Act, has been filed on record, by any CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 69 of 105 Special Judge, CBI01, Central, Delhi of the CBI officials.
80. It has been held by the Hon'ble Supreme Court, in case titled as, "Anvar P.V. Vs. P.K. Basheer, reported as MANU/SC/0834/2014", as under :
13. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed Under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned Under Sub section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions Under Section 65B(2). Following are the specified conditions Under Section 65B(2) of the Evidence Act :
CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 70 of 105 Special Judge, CBI01, Central, Delhi
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
14. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 71 of 105 Special Judge, CBI01, Central, Delhi conditions mentioned Under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
16. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A opinion of examiner of electronic evidence.
17. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements Under Section 65B of the Evidence Act are not complied with, as the law now stands in India. CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 72 of 105 Special Judge, CBI01, Central, Delhi
18. It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America,, under Federal Rule of Evidence, reliability of records normally go to the weight of the evidence and not to admissibility.
19. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed Under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law Under Section 63 and 65 has to yield.
20. In State (NCT of Delhi) v.
Navjot Sandhu alias Afsan Guru, MANU/SC/0465/2005 : (2005) 11 SCC 600, a twoJudge Bench of this Court had an occasion to consider an issue on production of electronic record as evidence. While considering the printouts of the computerized records of the calls pertaining to the cell CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 73 of 105 Special Judge, CBI01, Central, Delhi phones, it was held at Paragraph150 as follows :
150. According to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the serviceproviding company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in Subsection (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Section 63 and 65.
CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 74 of 105 Special Judge, CBI01, Central, Delhi
21. It may be seen that it was a case where a responsible official had duly certified the document at the time of production itself. The signatures in the certificate were also identified. That is apparently in compliance with the procedure prescribed Under Section 65B of the Evidence Act. However, it was held that irrespective of the compliance with the requirements of Section 65B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, Under Sections 63 and 65, of an electronic record.
22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence Under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia special bus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements Under Section 65B CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 75 of 105 Special Judge, CBI01, Central, Delhi are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
(emphasis supplied by me) Therefore, the recorded conversations in audio cassettes Ex. Q1 & Ex. Q2 are also inadmissible in evidence.
81. Perusal of the record further shows that after preparation of the alleged audio cassettes of the recorded conversations, the same were deposited at the Malkhana of the CBI, but, no evidence has come on record, in this regard. None of the witnesses have deposed anything about the custody of the cassettes of the recorded conversations. No witness from the Malkhana of the CBI has been examined to corroborate these facts. No evidence has come on record as to when the case property was deposited in the Malkhana and as to when the same was sent to CFSL, Lodhi Road, for its examination and expert opinion. CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 76 of 105 Special Judge, CBI01, Central, Delhi
82. Perusal of the record further shows that after the trap proceedings, the hand washes of the accused Narender Kumar Mehta and the wash of his pant pocket was also taken at the residence of the complainant, in a transparent solution of sodium carbonate, which had allegedly turned pink, due to its chemical reaction with the phenolphthalein powder. After the trap proceedings, the said pink colored solutions were kept in three separate glass bottles and were marked as RHW, LHW and RSIPPW, respectively, and were duly sealed with the seal of the CBI. But, no evidence has come on record, regarding the custody of these articles also.
83. It has been held by the Hon'ble High Court of Rajasthan in case titled as, "The State of Rajasthan & Ors. vs. Mani Ram & Ors., reported as 1980 Cri. L.J. NOC 173 (RAJ)", as under: " All those witnesses should be examined in whose custody the sealed packets remained, though none of them would depose that the seals were in any way tampered with, but negatively it has to be established that the seals were not tampered with and an opportunity is to CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 77 of 105 Special Judge, CBI01, Central, Delhi be given to the accused persons for crossexamination. This evidence is, no doubt, formal, but still the prosecution is required to lead this evidence. Although looking to the facts and circumstances of the case the bona fides of the investigating agency cannot be doubted with regard to the tampering of the seals or in late sending of the packets for expert's examination, still the corroborative evidence cannot be pressed into service on behalf of the prosecution without such examination. 1963(2) Cri. L.J. 418 (SC); ILR (1953) 3 Raj 655; ILR (1959) 9 Raj 107 and 1955 Cri. L.J. 930 (SC).
(emphasis supplied by me)
84. Perusal of the record shows that no link evidence has been brought on record regarding the deposition of the sealed exhibits at the Malkahana of the CBI and no evidence in the form of Malkhana registers have been produced, for perusal of the court. The MHC(M) of CBI Malkhana has not been examined during the trial and even the person, who took the sealed exhibits from the Malkhana to CFSL, Lodhi Road, for depositing the same, had not been examined, during the trial. It is relevant to note that these exhibits were deposited at CFSL, Lodhi Road, only on 04.08.2009, after a delay of more than one month. There is no CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 78 of 105 Special Judge, CBI01, Central, Delhi explanation of this delay. The entire link evidence regarding the safe custody of the various exhibits has remained missing. Sanction for Prosecution
85. It has been held by the Hon'ble Supreme Court in case titled as, "C.B.I. Vs. Ashok Kumar Aggarwal", reported as, "2014 Crl. L.J., 930", as relied by the Ld. Counsel for accused Narender Kumar Mehta, as under : "7. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 79 of 105 Special Judge, CBI01, Central, Delhi the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge sheet and other materials on record, were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter alia on the ground CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 80 of 105 Special Judge, CBI01, Central, Delhi that the order suffers from the vice of total non application of mind."
8. In view of the above, the legal propositions can be summarised as under :
(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft chargesheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d) The order of sanction should make it evident that the authority had been aware of all relevant facts / materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 81 of 105 Special Judge, CBI01, Central, Delhi mind on the same and that the sanction had been granted in accordance with law.
(emphasis supplied by me)
86. In the present case, the prosecution has examined PW24 Shri M. Tripathi, Deputy Inspector General (Personnel), BSF Headquarters, New Delhi, to prove the sanction orders, regarding the prosecution of accused Dr. S.K.Shakya and accused Narender Kumar Mehta, as Ex.PW.24/A & Ex.PW.24/B, respectively. Perusal of these two sanction orders clearly indicate that both the sanction orders are exactly similar. Furthermore, both the orders Ex.PW.24/A & Ex.PW24/B have been passed by him, on behalf of the President of India, which indicates that PW24 Shri M. Tripathi, Deputy Inspector General (Personnel) BSF Headquarters, New Delhi, was not the competent authority, to pass the sanction orders. Vide these orders, PW24 Shri M. Tripathi has only communicated the sanction for prosecution of these two accused persons, on behalf of the President of India. CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 82 of 105 Special Judge, CBI01, Central, Delhi
87. Perusal of the deposition of PW24 Shri M. Tripathi further indicates that in his examinationinchief, he had categorically stated that a report was received by him from the CBI, wherein, it was mentioned that accused Dr. S.K.Shakya and accused Narender Kumar Mehta were involved in some alleged case of corruption and it was only a 10 or 12 page report. He had categorically stated that no further documents or piece of evidence were clubbed with that report. In his crossexamination, he had admitted that no audio cassette or CD was sent to his office by the CBI.
88. Perusal of the orders Ex.PW.24/A & Ex.PW.24/B further shows that the said orders find mention about the CFSL report and the expert opinion on the solution / handwash, as well as the CDs containing the recorded conversations. It is very difficult to understand as to how the order finds mention that a positive opinion has been received from the CFSL, regarding the solution / handwash and the CDs containing the conversations of the CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 83 of 105 Special Judge, CBI01, Central, Delhi complainant and the accused persons, when PW24 Shri M. Tripathi was having no opportunity to see these reports. Furthermore, the case properties i.e., the handwash solution and the recorded conversations in the two audio cassettes were never submitted to him for his perusal. Even the transcripts of the conversations were not submitted to him, for his perusal.
89. The testimony of PW24 Shri M. Tripathi and the sanction orders Ex.PW.24/A & Ex.PW.24/B clearly indicate that these orders were passed by the competent authority, without going through the entire material evidence or the documents on record and all the documents and the material evidence were never produced before the competent authority, for his perusal.
90. During the course of arguments, Ld. Counsel for accused Dr. S.K.Shakya has also relied upon the judgment of the Hon'ble Supreme Court, in case titled as, ""Prof. N.K.Ganguly Vs. CBI New Delhi, reported as 2015 (11) JT 113: 2015(12) SCALE 500:
CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 84 of 105 Special Judge, CBI01, Central, Delhi 2015(8) SLT 693: 2015(4) Crimes 372(SC)", wherein, it has been held, as under:
19. In the instant case, it is alleged in the charge sheet that the appellants entered into an agreement to commit an illegal act, which is an offence punishable under Section 120B of IPC. Therefore, the provision of Section 197 of CrPC is squarely applicable to the facts of the case. Prior sanction of the Central Government was required to be taken by the respondent before the learned Special Judge took cognizance of the offence once the final report was filed under Section 173(2) of CrPC. In this regard, Mr. Gopal Subramanium, learned senior counsel appearing on behalf of the appellant has very aptly placed reliance on the decision of a three judge bench of this Court in the case of R.R. Chari v.
State of Uttar Pradesh, AIR 1951 SC 207 wherein, while examining the scope of Section 197 of CrPC, this Court made an observation indicating that the term "cognizance" indicates the stage of initiation of proceedings against a public servant. The Court placed reliance upon the judgment of the Calcutta High Court delivered in the case of Superintendent and Remembrance of Legal Affairs, West Bengal v. Abhani Kumar Banerjee, AIR 1950 Cal 437, wherein it was held that before taking cognizance of any offence, a Magistrate must not only be said to have applied his mind to the contents of the petition CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 85 of 105 Special Judge, CBI01, Central, Delhi "but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."
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24. The learned Additional Solicitor General, on the other hand, appearing on behalf of CBI placed strong reliance on the decision of this Court in the case of Prakash Singh Badal v. Union of India, 16 (2007) 1 SCC 1 to buttress his contention that no sanction was required to be taken in the instant case as the Appellants have entered into a criminal conspiracy, therefore, it cannot be said to be a part of their official duty as the public servants. The act of the appellants of transferring the plot in question in favour of the aforesaid society, allotted in favour of ICMR for the purpose of construction of the flats and allotting the same in favour of the employees of ICPOICMR society without obtaining the order from either CEO or Chairman of the NOIDA with a motive to make CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 86 of 105 Special Judge, CBI01, Central, Delhi wrongful gain for themselves after entering into a conspiracy cannot be said to be an act that has been carried out in discharge of their official duty. The learned Additional Solicitor General placed reliance on the following paragraphs of the Prakash Singh Badal case (supra) :
"49. Great emphasis has been led on certain decisions of this Court to show that even in relation to offences punishable under Section 467 and 468 sanction is necessary. The foundation of the position has reference to some offences in Rakesh Kumar Mishra's case. That decision has no relevance because ultimately this Court has held that the absence of search warrant was intricately with the making of search and the allegations about alleged offences had their matrix on the absence of search warrant and other circumstances had a determinative role in the issue. A decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context.
50. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120 B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence"
CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 87 of 105 Special Judge, CBI01, Central, Delhi Mr. P.P. Khurana and Mr. Gopal Subramaniam, the learned senior counsel appearing on behalf of some of the appellant, on the other hand, contends that the decision in the Prakash Singh Badal case needs to be appreciated in light of the facts of that case. Thus, while stating that the offences under Sections 420, 467, 468, 471 and 120B of IPC can by no stretch of imagination and by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of his official duty, this Court did not mean that merely because an official was charged with an offence under these sections, no sanction was required to be taken. The learned counsel placed reliance on the following paragraph of the judgment to emphasise the same :
"51. In Baijnath v. State of M.P., 1966(1) SCR 210, the position was succinctly stated as follows :
".. it is the quality of the Act that is important and if it falls within the scope and range of his official duty the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted.: The learned senior counsel also placed reliance on the three judge bench decision of this Court rendered in the case of Shreekantiah Ramayya Munipalli, referred to supra, wherein it was held as under : "18. ....If Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied for, of course it is no part of an official's duty CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 88 of 105 Special Judge, CBI01, Central, Delhi to commit an offence and never can be. But it is not the duty we have to examine so much as the act because an official act can be performed in the discharge of official duty as well as in dereliction of it....
19. Now an offence seldom consists of a single act. It is usually composed of several elements and as a rule a whole series of acts must be proved before it can be established.... Now it is evident that the entrustment and/or domino here were in an official capacity and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity...."
25. From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate government under Section 197 of CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the respondent that the alleged offences were CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 89 of 105 Special Judge, CBI01, Central, Delhi committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 of CrPC was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence.
(emphasis supplied by me)
91. In view of the above pronouncement, the Ld. Defence counsel for accused Dr. S.K.Shakya has argued forcefully that a further sanction under Section 197 Cr.P.C., was also required. But, I do not find any merit in this submission, as the facts of the said case are totally different from the facts and circumstances of the present case. In the case of "Prof. N.K.Ganguly Vs. CBI New Delhi" (supra), the Hon'ble Supreme Court has distinguished the facts and circumstances of the said case from the settled legal position, as discussed by the Hon'ble Supreme Court, in case titled as "Prakash Singh Badal v. Union of India, 16 (2007) 1 SCC 1". In the considered opinion of this court, the facts and CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 90 of 105 Special Judge, CBI01, Central, Delhi circumstances of the present case are squarely covered by the judgment of the Hon'ble Supreme Court, in the case of "Prakash Singh Badal v. Union of India".
92. Furthermore, it is also held by the Hon'ble Allahabad High Court in case titled as, "Smt. Neera Yadav Vs. CBI (Bharat Sangh)", reported as "2006(2) R.C.R. (Criminal) 765; 2006(2) Apex Criminal 150", as under :
70. Once the authority competent to remove a public servant, has recorded its satisfaction and has granted the sanction, the requirement of any further sanction may create substantive obstruction in the way of prosecution of such public servant. There is no reason or compulsion to assume a similar scrutiny by a different authority particularly when the appointing authority itself has analyzed the matter and has recorded its satisfaction. It would not only be superfluous but may frustrate the very object of grant of sanction. A member of Indian Administrative Services working in State cadre may develop, with the passage of time, and in discharge of his duties, cordial relations with the politicians and others, who matter in the concerned State. It may happen, and the judicial notice can be taken of the fact that the Government at the Centre and CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 91 of 105 Special Judge, CBI01, Central, Delhi the State may have different political affinities. In such case a situation may arise, where the Central Government finds a trial into alleged offence by a court of law against such public servant as genuine and desirable and grants sanction, the State Government for political reasons takes a different view. It may be vice versa. In our view, the decision of authority competent to remove such public servant must prevail over the view of any other authority. We may fortify our aforesaid view with the following additional reasons :
Firstly, Section 197 of the Criminal Procedure Code nowhere suggests that the sanction required under the said provision is over and above and in addition to a sanction already provided under a Special Act.
71. Secondly, the contention of the learned counsel is selfcontradictory with reference to interpretation of Section 19 of the Act of 1988. Section 19 specifically requires previous sanction before cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 of the Act of 1988 is taken. It does not talk of any further sanction under any other provision. Subsection (3) of Section 19 of the said Act provides that in respect of certain irregularities etc. in the matter of sanction, no Court shall interfere in certain circumstances affecting the proceedings under the Act of 1988. Taking an illustration, under Sections 7, 10, 11, 13 and 15 of the Act of 1988, any irregularity in sanction would not by itself vitiate the prosecution, by virtue of subsection (3), irrespective of anything contained in the Code of CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 92 of 105 Special Judge, CBI01, Central, Delhi Criminal Procedure 1973, yet can it be said that the aforesaid provision shall be rendered ineffective by application of Section 197 Cr.P.C. In our view, apparently, the answer would be in negative. Thus, the argument that, where the act is in discharge of official duties, for prosecution under the provisions of the Act of 1988, sanction Section 197 Cr.P.C. will also be required, is clearly fallacious. Any other interpretation would amount to adding certain words in Section 19 of Act of 1988 and making the Special Act subservient to Section 197 Cr.P.C., which is not permissible. When the provisions of status are clear, categorical and unambiguous, the Court is not required to read anything more, or make an addition to it.
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73. Thirdly, the Code of Criminal Procedure , 1973 is a procedural law while Act of 1988 is a special enactment and substantive law, having its own independent procedural provisions. Section 40 I.P.C. makes conspiracy an offence under the Special Act, i.e., the Act of 1988. If there is no specific provision under Special Act and the reading of the statute so permits, the general provision of procedural law, like Cr.P.C., would be read in the special Act but not otherwise.............................
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75. In the Act of 1988, specific provision has been CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 93 of 105 Special Judge, CBI01, Central, Delhi made for sanction with reference to the offences under the said Act and thus, it would neither be correct nor is otherwise permissible to import the provisions of Cr.P.C. unless it is specifically provided in the special enactment.
76. In K. Veeraswami (1991)3 SCC 655 (supra) quoting Craies on Statute Law, the Hon'ble Apex Court held "the construction which would promote the general legislative purpose underlying the provision in question, is to be preferred to a construction which would not. If the literal meaning of the legislative language used would lead to results which would defeat the purpose of the Act the court would be justified in disregarding the literal meaning and adopt a liberal construction which effectuates the object of the legislature."
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82. We are conscious of the fact that in the present case the petitioners have raised the issue of sanction at the beginning of the proceeding. However, it is not a case where no sanction has been accorded. The employer, who is the authority competent to remove, has considered and applied its mind and thereafter granted sanction in no uncertain terms permitting prosecution under Section 13 (1)(d) and (2) in Act of 1988 as well as Section 120B, I.P.C. and other provisions of other enactments. The public interest has been served and the probability and possibility of vexatious prosecution stands excluded. Now, with the CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 94 of 105 Special Judge, CBI01, Central, Delhi assistance of legal brain raising threadbare and hair splitting arguments, the petitioners are making an attempt to foil the entire prosecution so as to prevent trial of senior members of Indian Administrative Services, i.e., Country's Principal Civil Service and other important persons. Such an attempt would certainly be against larger public interest.
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90. There is another angle to judge the correctness of the submission. In case for an offence under the Act of 1988 where sanction under Section 19 is granted, Section 197 Cr.P.C. is also applied, the object and purpose with which the provision of sanction has been made, will be rendered futile. It will lead to an exercise in futility. We fail to understand as to why separate sanction under both the enactments would be necessary. Learned counsel for the petitioners could not explain the purpose of requiring sanction under Section 197 Cr.P.C., except that if the law requires, the provisions of sanction has to be observed strictly as it is jurisdictional issue. The Act of 1988 is a Special Act. .......
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91. Subsection (3) of Section 5 of the Act of 1988 applies the provisions of Cr.P.C., only in so far as they are not inconsistent with the Act in the matter of procedure and power of Special Judge. The same intention is evident from Sections 4(1), (3) and (4), 6(2), CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 95 of 105 Special Judge, CBI01, Central, Delhi 17, 19(3), 22 and 23 of the Act of 1988. There is a marked difference in the language of Sections. 197 Cr.P.C. and Section 19 of the Act of 1988. The two, provisions are not paramateria. In brief the distinction may be summarized as under :
(i) Section 197 Cr.P.C., is applicable to a serving public servant and also to those who are no more in service, on account of retirement, termination, dismissal or otherwise, whereas Section 19 of Act of 1988 provides protection only to a public servant who is in service.
(ii) Section 197 Cr.P.C. provides sanction of such authority under whom the public servant at the time of commission of the alleged offence is employed and is restricted only to the affairs of the Union or State and not to any other authority. For example, a public servant neither employed in connection with the affairs of the Union or with the affairs of the State, at the time of commission of alleged offence, would not be entitled to claim any protection under Section 197 Cr.P.C.
Section 19 of Act of 1988 extends the protection not only with reference to the employment of the concerned public servant in the affairs of the Union or the State, but also with reference to the power of removal from office by the concerned Government, may be the Central Government or the State Government. It further provides protection to a third category, i.e. all the remaining public servants with reference to the power of removal. For example, in the matter of statutory bodies, local authorities etc., where the power of removal is not CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 96 of 105 Special Judge, CBI01, Central, Delhi exercisable either by the Central Government or the State Government, the sanction of the authority having power of removal is required by 19(1)(C) of the Act of 1988 vide K. Veeraswami (1991) 3 SCC 655 (supra). .......
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95. The authorities contemplated under Section 19 of Act of 1988 are more than those provided under Section 197 Cr.P.C. Even in those cases where protection under Section 197 Cr.P.C. may not be claimed by a public servant, it may come to his rescue where cognizance is to be taken under the Act of 1988. This difference with reference to sanctioning authority has been considered and explained by the Hon'ble Apex Court in R.R.Chari v. State of Uttar Pradesh (AIR 1962 SC 1573) (supra).
(iii) Section 197 Cr.P.C. is applicable only when the public servant has committed offence while acting or purporting to an Act in discharge of his official duty. Sanction under Section 19 of the Act of 1988 is much wider and do not impose any such, restriction.
(iv) Lastly, we also find that although prosecution has been launched under Section 13 of Act of 1988 with respect to criminal misconduct, on the part of the aforesaid two persons in discharge of their official duties, the involvement of these two petitioners in criminal conspiracy to benefit themselves or others cannot be construed as an act in discharge of their official duties. Learned counsel for the petitioners CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 97 of 105 Special Judge, CBI01, Central, Delhi addressed us at length to demonstrate that the entire allegations against the petitioners show that their action is in discharge of their official duties and, therefore, without sanction under Section 197 Cr.P.C., no prosecution either under the Act of 1988 or I.P.C. is permissible, and in particular, prosecution under Section 120B IPC cannot be allowed to proceed further at all. However, we propose to deal with this aspect in detail while considering question No.2.
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104. Thus, answering question No.1, we are not agreeable with the contention of the learned counsel for the petitioners that sanction, under both the Acts, i.e, the Act of 1988 & Cr.P.C. is necessary, for prosecution under Section 13 or any other provision of the Act of 1988.
105. Question No.1 is, thus, answered in negative. Question No. 2
106. This issue was argued from two angles :
First : Section 120B IPC is an independent and substantive provision and, thus, where Special Judge takes cognizance in a prosecution under the Act of 1988, in a matter where the allegation constitutes acts in discharge of official duties, sanction under Section 197 Cr.P.C., would be mandatory failing which the prosecution under Section 120B IPC, cannot proceed.
In order to elaborate the submission, learned counsel for the petitioners relied upon cases to show as to what CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 98 of 105 Special Judge, CBI01, Central, Delhi is the meaning of the official acts in discharge of official duty.
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117. This leaves us to consider another angle the aspect whether an offence of conspiracy alleged to have been committed under Section 120B IPC, i.e., conspiracy, would it constitute acts in discharge of official duties, particularly where the narration of events is with reference to the acts constituting offence under the Act of 1988, and will at all attract Section 197 Cr.P.C.
118. Privy Council in AIR 1958 PC 128 (H.H.B. Gill and another v. The King) held that the prosecution under Section 161 Cr.P.C., read with Section 120B IPC does not require any sanction under Section 197 Cr.P.C., since the act of bribe cannot be said to be an act in discharge of official duty.
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121. Similar view has been taken in respect to prosecution under different provisions of the Indian Penal Code including Section 120B IPC as detailed hereinbelow : (A) In Hori Ram Singh v. Emperor, AIR 1939 PC 43, it was held that sanction under Section 270 of the Government of India Act, 1935, which is similar to Section 197(1) of the Code of Criminal Procedure, no sanction was required for prosecution under Section CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 99 of 105 Special Judge, CBI01, Central, Delhi 409 IPC.
(B) The same view was followed in AIR 1948 PC 156, Albert West Medas v. The King.
(C) For offence under Section 409 IPC, no sanction under Section 197 Cr.P.C. was necessary, has been held in the following : (I) AIR 1957 SC 458 Om Prakash Gupta v. State of U.P., (II) AIR 1960 SC 266 Satwant Singh v. State of Punjab, (III) AIR 1966 SC 220 Baijnath Gupta v. State of Madhya Pradesh, (V) AIR 1967 SC 776 P. Arulswami v. State of Madras, (VI) 1972 (3) SCC 89 : (1972 Cri. LJ 89) Harihar Prasad v. State of Bihar, (VII) AIR 1999 SC 2405 State of Kerala v. V. Padmanabhan Nair, (VIII) AIR 2004 SC 2317, (IX) AIR 1996 SC 901 R. Batakrishna Pillai v. State of Kerala, (X) 2004 (2) SCC 349 : (2003 AII SCW 6887). (D) With respect to Section 120B IPC, the Hon'ble Apex Court in Harihar Prasad v. State of Bihar, (1972 Cri. LJ 89) (supra) considering the question of applicability of Section 197 Cr.P.C., has observed as under :
"As far as the offences of criminal conspiracy punishable under S.120B read with Section 409 IPC and also Section 5(2) of the Prevention of Corruption Act are concerned they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure." (Emphasis added) This paragraph has been quoted with approval recently in 2005 (36) AIC 108 : (AIR 2006 SC 336) (Supreme Court) Romesh Lal Jain v. Naginder Singh Rana & CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 100 of 105 Special Judge, CBI01, Central, Delhi others, 2005(4) R.C.R. (Criminal) 835 : 2005 (3) Apex Criminal 533 (paras 23 & 28) (E) In State of Kerala v. V. Padmanabhan Nair, (AIR 1999 SC 2405) (supra) the Hon'ble Apex Court held as under :
"That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120B of the I.P.C., sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious..........."
"It is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct." (Para7) (Emphasis added) (F) In State (NCT of Delhi) v. Nabjot Saddhu @ Afsan Guru, 122 (2005) DLT 194 : (AIR 2005 SC 3820) (SC) the Hon'ble Apex Court observed as under :
"The other submission that the addition of the offence under Section 120B IPC which does not require sanction, reveals total nonapplication of mind, does not appeal to us. Though the conspiracy to the commit offences punishable by Section 121B IPC, is covered by Section 121A, probably Section 120B was also referred to by way of abandon caution though the prosecution for the said offence does not require sanction." (Emphasis added).
122. To put it more clearly, it is no part of the duty of a public servant, while discharging official duties, to enter into a criminal conspiracy or to indulge in criminal CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 101 of 105 Special Judge, CBI01, Central, Delhi misconduct and thus the absence of sanction under Section 197 Cr.P.C. not a bar to proceed with the trial.
123. Moreover, there is an apparent fallacy in the contention of the learned counsel for the petitioners that just because the petitioners have been chargesheeted under Section 120B IPC, this itself is sufficient to attract Section 197 Cr.P.C. The entire allegations against the petitioners constitute offence under various provisions of Act of 1988, which is a Special Act. Section 40 I.P.C., clarifies that where conspiracy is an offence under the Special Act, Section 120B would be referable to the offence under the said special Act. Section 120B IPC in the present case cannot be read in isolation and has to be read alongwith the provisions of the Special Act, i.e., the Act of 1988. Since the sanction under Section 19 of the Special Act has been obtained from the competent authority, in our view, Section 197 Cr.P.C. is not attracted as Section 120B IPC is referable to the offences committed under the Special Act.
124. In the present case, three chargesheets contain offences under Sections 13 (1)(d) and (2) of Act of 1988 read with Section 120B IPC and one chargesheet is only under Sections 13(1)(d) & (2) of the Act of 1988. The offences under Act of 1988 as has been held by the Hon'ble Apex Court in Harihar Prasad, (1972 Cri. LJ 89) (supra), Kalicharan Mahapatra (supra), which still holds field does not come within the purview of word "in discharge of the official duty". Thus, the offence of CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 102 of 105 Special Judge, CBI01, Central, Delhi criminal conspiracy under Section 120B IPC, would also not be within the term "in discharge of official duty"
and, therefore, Section 197 Cr.P.C. has no application at all.
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127. In view of the aforesaid, answers to the aforesaid three questions are as follows :
(I) For prosecution under Prevention of Corruption Act, 1988, once sanction under Section 19 of the said Act is granted, there is no necessity for obtaining further sanction under Section 197 of the Code of Criminal Procedure.
(II) Where a public servant is sought to be prosecuted under the provisions of Prevention of Corruption Act read with Section 120B IPC and sanction under Section 19 of Act of 1988 has been granted, it is not at all required to obtain sanction under Section 197 Cr.P.C. from the State Government or any other authority merely because the public servant is also charged under Section 120B IPC.
(III) The offences under the Prevention of Corruption Act, 1988 as well as charge of criminal conspiracy, cannot be said to constitute "acts in discharge of official duty."
(emphasis supplied by me).
93. Therefore, in view of the above pronouncements and the CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 103 of 105 Special Judge, CBI01, Central, Delhi evidence on record and the facts of the present case, I am of the considered opinion that the second sanction for prosecution under the provisions of Section 197 Cr.P.C., is not required. However, the material evidence on record clearly indicate that even the sanctions, under Section 19 of The Prevention of Corruption Act, 1988 as conveyed by PW24 Shri M.Tripathi, vide order Ex.PW24/A & Ex.PW24/B. are not legally valid sanctions.
94. In view of the large material contradictions, in the deposition of the prosecution witnesses, from the documentary evidence on record, as discussed above, this court is of the considered opinion that the prosecution has failed to prove its case, against the accused persons, beyond a shadow of doubt. Accordingly, benefit of doubt is extended to both the accused persons and both of them are hereby acquitted, for the offences punishable under Section 120B IPC r/w sec. 7 and 13(1) (d) punishable under Section 13(2) of the P.C. Act, 1988, as well as for the substantive offences under Section 7 & 13(1) (d) punishable CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 104 of 105 Special Judge, CBI01, Central, Delhi under Section 13(2) of the P.C. Act, 1988.
95. The bail bonds have already been submitted by the accused Narender Kumar Mehta and Dr. S.K. Shakya on 15.12.2015 under the provisions of Section 437A of the Cr.P.C. The same shall remain in force for a period of six months from today. The accused persons are further directed to appear before the Appellate Court, as and when, any notice is issued to them by the Appellate Court, in any appeal, if preferred by the prosecution/ CBI, against their acquittals.
It is ordered accordingly.
File be consigned to Record Room after due compliance. Announced in open Court on this 29 day of March, 2016 th BRIJESH KUMAR GARG Special Judge:CBI01 Central District. Delhi CBI Vs. Narender Kumar Mehta etc.(CC No.03/2010) Page 105 of 105 Special Judge, CBI01, Central, Delhi