Delhi District Court
"Balram vs State Of Maharashtra" Reported In 2008 ... on 16 August, 2011
1
IN THE COURT OF SH. N. K. SHARMA, SPECIAL JUDGE
(PC ACT)-02 DELHI.
RC No.66(A)/2001.
CC No. 32/2002.
CBI
VS
ROHTASH SINGH, (SUBINSPECTOR)
S/O late SH. SHIV NARAIN,
R/O F1/46, BUDH VIHAR, PHASE1,
DELHI86.
Date of Institution : 07.11.2002.
Date of Arguments : 05.08.2011.
Date of Judgment : 16.08.2011.
JUDGMENT
1. This judgment will dispose off the CBI criminal case referred to herein above filed by the CBI on 07.11.2002.
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2. The facts in brief of the CBI case are that a written complaint dated 25.09.2001 made by Sh. Charan Singh, S/o Sh. Dauzi Ram, R/o H. No. 447, Tugalakabad, New Delhi110044, alleging therein that Sub Inspector Rohtash Singh, had demanded Rs.5,000/ as bribe for arranging bail of complaint's brother Sh. Prem Singh, who is as accused in a case being investigated by the said Sub Inspector and was at that point of time in judicial custody. It is further alleged that the said Sub Inspector had directed that complainant to pay the bribe of Rs.5,000/ on 26.09.2001 at 10.00 AM in the Patiala House Court where the bail matter is posted for hearing. Since the complainant did not want to pay the bribe, he lodged a written complaint dated 25.09.2001, with CBI for taking legal action against the accused person.
3. After registration, the case was entrusted to Inspector P. Balachandran, CBI, ACB, New Delhi, for investigation, who after verifying 2 of 59 3 the veracity of the allegation made in the complaint, decided to lay a trap on the next day i.e. on 26.09.2001. A trap team comprising of P. Balachandran, D. K. Singh and M. M. Ansari all Inspectors and other subordinate staffs was constituted for laying trap on the next day i.e. on 26.09.2001. On the said date, the complainant attended the CBI Office again at about 8.00 AM and in the presence of two independent witnesses namely Bola Ram & Hardayal Singh Kaim both officials from Sales Tax Department, Government of NCT Delhi, the pre trap formalities were completed.
4. The two independent witnesses were introduced to the complainant and were allowed to read his written complaint dated 25.09.2001. The witnesses then discussed with the complainant and satisfied the veracity of the allegation contained in his complaint. After that the CBI trap party members were got introduced and the procedure for 3 of 59 4 laying trap were explained by the Trap Laying Officer Inspector P. Balachandran.
5. The complainant then produced a sum of Rs.5,000/ in the form of 10 GC notes of Rs.500/ denomination each, the numbers of which, were noted down. Subsequently, demonstration of Sodium Carbonate - Phenolphthalein test with explanation of its importance and significance to witnesses and complainant was given by Inspector P. Balachandran with the help of Inspector D. K. Singh. After this, the tainted currency notes of Rs.5,000/ were entrusted to the complainant and the Trap Laying Officer kept the said notes in the left side shirt pocket of the complainant. He was also directed to hand over the tainted bribe money to Sub Inspector Rohtash Singh or to any other person on his direction, only on fresh demand. The witness H. S. Kaim was directed to act as shadow witness and he was directed to show a signal by wiping his face twice with a 4 of 59 5 handkerchief once the bribe money is accepted by Sub Inspector Rohtash Singh. All the proceedings were recorded in a handing over memo, which was read over, explained and signed by all present.
6. The trap team finally left CBI Office at about 9.00 AM and reached to Patiala House Court by 9.40 AM. The complainant and shadow witness took position at the entrance of the new Court building and the other members took suitable positions nearby. At about 10.00 AM, the accused reached the court premises and called the complainant and went inside the court. The complainant alongwith the shadow witness followed nd him and when the accused at the 2 floor corridor of the new building premises then asked for bribe money with gesture and hinted that the same should be kept in the file which he was holding in his hand at that time. Thereafter, the accused and the complainant went inside the court room of Sh. Babu Lal, the then learned ASJ and the shadow witness was 5 of 59 6 left behind. After sometime, the complainant came out and told the Trap Laying Officer that the accused had taken out the bribe money from the file cover and kept in in right pant pocket. Then the trap team rushed inside and called the accused outside and brought him to the CBI's Prosecution room. On the way, he was challenged of having accepted the bribe money from the complainant for which he kept mum and after repeated questioning he accepted the fact of taking bribe money. Inside the Prosecutors room, the post trap proceedings were completed. The hand wash of accused was obtained in fresh solution of sodium carbonate and the right hand wash turned into pink colour. The currency notes were recovered from his pant pocket by the witness Bola Ram and the serial numbers were tallied with the handing over memo. The pant pocket of the accused and file cover in which he had originally kept the bribe money were washed in sodium carbonate and both solutions turned pink in 6 of 59 7 colour. The three solutions were poured into separate bottles labelled as :RHW, RPPW and FCW and sealed using the CBI seal. The witnesses signed on the bottle labels the wrapper, pant pocket flap and the file cover. Then the bribe money, 3 bottles, pant worn by accused and file cover were taken into police possession. A rough sketch of the scene of crime was prepared and sample seal impression of the CBI seal were also obtained separately. The CBI seal has been handed over to witness Bola Ram for safe custody and producing later as and when required. The accused was formally arrested at 11.00 AM and a separate Arrest cum Personal Search Memo were also prepared. A detailed recovery memo was prepared on the spot incorporating all the post trap proceedings which was read over, explained and signed by all present.
7. Investigation further revealed that the case FIR NO. 260/2001 dated 23.06.2001 was registered at PS Sarojini Nagar, against Prem 7 of 59 8 Singh, (the brother of the complainant who was in judicial custody since 21.07.2001), Madan Pal and Baij Nath, Under Section 307/34 IPC, and the same was entrusted to accused /Sub Inspector Rohtash Singh for investigation. He being the IO of the case, bail petition of Prem Singh was also marked for him, which was fixed for hearing on 18.09.2001 in the court of Smt. Mamta Sehgal, the then learned ASJ, which kept on getting postponed and finally fixed for 26.09.2001. Investigation further confirmed that accused /Sub Inspector Rohtash Singh proceeded to Patiala House Court vide DD entry no. 20B dated 26.09.2001, PS Sarojini Nagar in the morning of 26.09.2001.
8. During investigation, the three sealed bottles containing washes were sent to CFSL on 15.10.2001 vide Letter No. 11429/15.10.01 for chemical analysis. The CFSL vide its report No. CFSL2001/C0564 dated 29.10.2001, have confirmed the presence of phenolphthalein and sodium 8 of 59 9 carbonate in all the solutions.
9. After obtaining the sanction from the competent authority, IO has filed present charge sheet for the trial of accused Rohtash Singh, for the commission of offence punishable under Section 7 & 13 (2) read with 13 (1) (d) of Prevention of Corruption Act, 1988.
10. On appearance of the accused Sub Inspector Rohtash Singh, copies of charge sheet and documents relied upon by the CBI were supplied to him.
11. On 04.07.2003, charges against the accused for his trial for the offences punishable under Section 7 and under Section 13 (2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, were framed.
12. In support of its case the CBI examined the following witnesses: PW1 K. S. Chhabra, retired, SSO cum Assistant Chemical Examiner, has examined the parcels and gave his detailed report Ex.
9 of 59 10 PW1/A. PW2 Jaspal Singh, SP, Anti Corruption & Vigilance, has stated that he gave sanction for prosecution of accused Sub Inspector Rohtash Singh, vide his sanction order Ex. PW2/A on the basis of material placed before him and after due application of mind.
PW3 Charan Singh is the complainant, who has proved the Complaint Ex. PW3/A, Handing Over Memo Ex. PW3/B, Recovery Memo Ex. PW3/C and Site Plan Ex. PW3/D. Hardayal Singh, Head Clerk, GradeII, is examined as PW4. He was the shadow witness. He has identified his signatures on handing over memo Ex. PW3/B, Recovery Memo Ex. PW3/C, Site Plan Ex. PW3/D. But he was declared hostile by the prosecution as he resiled from his previous statement recorded under Section 161 Cr. P. C. PW5 Bhola Ram, LDC, Sales Tax, ITO, was an independent 10 of 59 11 witness. He has identified his signatures on handing over memo Ex. PW3/B. He was declared hostile by the prosecution as he resiled from his previous statement recorded under Section 161 Cr. P. C. PW6 Inspector Rajesh Kumar Naithani, deposed that on 24.06.2001, he was posted as SHO, PS Sarojini Nagar, New Delhi where accused Rohtash Singh was posted as SubInspector. He has identified the case diary as Ex. PW6/A (Colly.) and attested copy of DD entry no. 20B, dated 26.09.2001, which is attested by Duty Officer, vide which Sub Inspector Rohtash Singh left for Patiala House Courts, as Ex. PW6/B. PW7 ACP S. K. Tiwari, also identified Ex. PW6/A (Colly), which was attested by him under his seal and signatures.
PW8 Keshav Nand, reader in the court of Sh. S. L. Bhayana, the then learned ASJ, has identified the certified copy of case FIR No. 260/2001 as Ex. PW8/A (Colly).
11 of 59 12 PW9 D. K. Singh, retired SI, UP Police, is the member of the trap team, who has deposed that complaint Ex. PW3/A was endorsed to Inspector P. Balachandaran by the then SP Sh. P. V. Ramashastri for verification and laying a trap. On the basis of said complaint, FIR Ex. PW9/A was registered under the signatures of SP Sh. P. V. Ramashastri. He has identified his signatures on handing over memo Ex. PW3/B, Search cum Arrest Memo Ex. PW4/A and Recovery Memo Ex. PW3/C. PW10 Inspector Rajiv Kumar Sinha is the Investigation Officer of the case. He has identified the signatures of SP Sh. P. V. Ramashstri at point A, who has moved an application under Section 17 of the PC Act, 1988 before Sh. Gulshan Kumar, the then learned MM, Patiala House Courts, New Delhi, who has permitted him to investigate the case vide order dated 15.10.2011 Ex. PW10/B. PW11 Dy. SP P. Bala Chandran, is the Trap Laying Officer in the 12 of 59 13 present case. He has proved his signatures on Recovery Memo Ex. PW3/C, Personal Search cum Arrest Memo Ex. PW4/A and Rough Site Plan Ex. PW3/D.
13. After conclusion of the prosecution evidence on 25.10.2010, statement of accused u/s 313 Cr. P.C was recorded on 28.01.2011. The accused has denied his involvement in commission of offence. His plea is that he is innocent and has been falsely implicated in this case.
14. Accused Rohtash Singh has led defence evidence by examining HC Bhura Singh as DW1, who has deposed that he had visited Patiala House Courts on 26.09.2001 as part of his official duties and had met the accused in the Court room of Sh. Babu Lal, the then learned ASJ, Delhi and alongwith ASI Sumer Khan, he talked with the accused outside the court room and he left at the time when few officials of the CBI came and wanted to conduct the search of the accused and the accused had offered 13 of 59 14 the search.
15. After conclusion of the evidence and at the time of final arguments, the charge was amended on 09.05.2011. The Prosecution has not led any evidence on amended charge and consequently the accused has also not led any evidence. Thereafter, I have heard final arguments of Learned PP for CBI and Learned Defence Counsel of the accused and perused the record.
Sanction For Prosecution From the Competent Authority.
16. It would be appropriate and relevant to reproduce provisions of Section 19 of the Prevention of Corruption Act,1988. These provisions are as under: "Previous Sanction necessary for prosecution (1) No Court shall take cognizance of an offence punishable under Section 7, 11, 13 and 15 alleged at have been committed by a public servant, except with the previous sanction : 14 of 59 15
(a) *****
(b) In the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or by the sanction of the State Government, or that Government; **
17. PW2 Jaspal Singh, SP, Anti Corruption & Vigilence, Port Blair, deposed that in the capacity of Addl. Dy. Commissioner of Police, he was competent authority for taking disciplinary action against the Sub Inspectors of Delhi Police and was competent to grant sanction for prosecution of the accused and that after perusing the complaint, the FIR, the other relevant documents alongwith the statement of witnesses put up before him and after applying his mind, he awarded sanction vide Sanction Order Ex. PW2/A. The line of the cross examination was that as Addl. DCP, PW2 was not the competent authority since there was no provisions for the DCP's to delegate such powers to Addl. DCP's. The Ld. Counsel for the accused has however, not confronted the witness with any 15 of 59 16 documentary evidence to substantiate that there was no provision of delegation of such powers. Therefore, from the testimony of PW2, it is evident that the competency of the officer i.e. PW2 to grant sanction has not been proved to be wanting. The deposition of PW2 shows independent application of mind to the facts of the case. The records before the competent authority as evident from the bare reading of Ex. PW2/A showed that it included the complaint, FIR as well as the statement of witnesses and documents collected during the course of investigation. The Sanctioning Authority has taken into consideration all the facts and circumstances including the fact that the matter had been thoroughly investigated by the CBI and the CBI having recorded the statement of various witnesses and the fact that the accused at the relevant time was working as SubInspector in the Delhi Police, and was the IO in the case FIR No. 260/2001, PS Sarojini Nagar, registered inter 16 of 59 17 alia against the brother of the complainant.
18. On going through the order Ex.PW2/A sanctioning prosecution, in my view the order fulfills the requisites of a valid sanction. It cannot be said that sanction is granted without independent application of mind by the authority according sanction or that there was lack of powers and jurisdiction in PW2 to accord such sanction.
19. In view of the discussion and evidence mentioned herein above this point is decided in favour of the CBI and against the accused and it is held that the prosecution obtained valid sanction for prosecution from the competent authority for trial of the accused.
GRATIFICATION AND CRIMINAL MISCONDUCT.
20. It would further be appropriate and relevant to reproduce provisions of Sections 7, 13 (1) (d) and 13 (2) of the Act. These provisions are as under:
17 of 59 18 "7. Public Servant taking gratification other then legal remuneration in respect of an official act. Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification, whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, Corporation or Government Company referred to in Clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less then 6 months but which may extend to 5 years and shall also be liable to fine."
"13. Criminal Misconduct by a Public Servant.
(1) A Public servant is said to commit the offence of criminal misconduct;
(a) to (c) ..........
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person 18 of 59 19 any valuable thing or pecuniary advantage; or
(ii)by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii)while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or ***** (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less then one year but which may extend to 7 years and shall also be liable to fine."
21. In order to convict the accused, for the above mentioned offences, prosecution has to prove:
(i) that accused was public servant on the date of commission of alleged offences;
(ii)that by abusing his position as public servant, he demanded Rs.5,000/ as gratification/bribe from the complainant Charan Singh; and
(iii)that by abusing his position as public servant, he accepted Rs.5,000/ as gratification/bribe from complainant Charan Singh; and
(iv)that gratification/bribe was taken as a motive or reward for arranging bail of brother of the complainant, who was the accused in FIR no. 260/2001, registered at PS Sarojini 19 of 59 20 Nagar, in which the accused herein Sub Inspector Rohtash Singh was the IO.
That Accused was public servant on the Date of Commission of alleged offences.
22. PW2 SP Jaspal Singh, has deposed that he was the competent authority to take disciplinary action against SubInspectors of Delhi Police. It is undisputed fact that the accused Rohtash Singh at the time of the commission of alleged offence, was Sub Inspector, posted with Delhi Police and therefore, was a public servant.
That by Abusing his position as public servant, accused demanded Rs.5,000/ as Gratification/bribe from complainant Charan Singh..
For the sake of convenience and to avoid repetition of discussion and evidence, points nos. (ii) to (iv) are dealt with together.
23. For arriving at the conclusion as to whether all ingredients of an offence, vizdemand, acceptance and recovery of amount of illegal gratification have been satisfied or not, all the facts and circumstances brought on record in its entirety has to be considered.
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24. As held by the Hon'ble Supreme Court of India in the case of "Balram Vs State of Maharashtra" reported in 2008 (14) SCC 779, every acceptance of illegal gratification whether preceded by a demand or not would be covered by section 7 of the PC Act, 1988, but if acceptance of illegal gratification is in pursuance of a demand by a public servant then it would also fall under Section 13 (1) (d) of PC Act, 1988. The essential ingredients of Section 7 are (i) that the person accepting the gratification should be public servant, (ii) that he should accept the gratification for himself and that the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official function, favour or disfavour to any person. The crucial question would be whether the accused had demanded any amount as gratification to show any official favour and whether the said amount was paid by the complainant and received by the accused as 21 of 59 22 consideration for showing such special favour.
25. The complaint Ex. PW3/A triggered the registration of the FIR, the pretrap, trap and post trap proceedings, nailing of the accused, submission of charge sheet and extensive trial to bring home the guilt against the accused Rohtash Singh.
26. Therefore, the subject matter of the complaint has necessary significance since it is the genesis of subsequent actions. As per the complaint Ex. PW3/A, the accused on 23.06.2001, registered a false and frivolous FIR against the brothers of the complainant Sh. Madan Pal and Sh. Prem Singh. It was further alleged that the bail application was filed on behalf of Sh. Prem Singh, the younger brother of the complainant, who was in the judicial custody, which was listed on 21.09.2001, on which day the accused demanded a sum of Rs.5,000/ and said to the complainant that as long as this amount is not paid, the accused shall ensure that bail 22 of 59 23 is not granted to the brother of the complainant. It was further alleged that since the complainant did not pay the demanded amount to the accused on 21.09.2001, the accused Sub Inspector Rohtash Singh did not appear in the court and because of which the hearing of the bail application was adjourned to 26.09.2001. It was further alleged that on 25.09.2001, the complainant called the accused on phone and requested him to be present in the court on 26.09.2001, upon which the accused Sub Inspector Rohtash Singh told him that till the time the amount of Rs.5,000/ not paid, he would ensure that bail is not granted to the brother of the complainant even on 26.09.2001 and the accused Sub Inspector Rohtash Singh told the complainant to bring the money in the court on the next day. As per the complaint Ex. PW3/A, since the complainant being a law abiding citizen was not ready to relent to the illegal demand of the accused and therefore, considered appropriate to approach the CBI.
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27. From the evidence on record what transpires is in total contradiction to the contents of the complaint. During the course of trial, the bail application of the brother of the complainant in FIR no. 260/2001 PS Sarojini Nagar, under Section 307/34 IPC has been exhibited on record as Ex. PW8/DA, wherein it was interalia contended that the other coaccused in the said FIR had been granted bail on 24.07.2001. The other documentary evidence placed on record during trial are the order sheets Ex. PW10/DA, which contains the orders dated 18.09.2001, 21.09.2001, 26.09.2001, 27.09.2001, 28.09.2001 and 29.09.2001. A perusal of the order sheet dated 18.09.2001 would show that during the course of hearing on the bail application of the brother of the complainant, it transpired that his previous bail application was rejected on 24.07.2001 and 11.09.2001. Accordingly, the Ld. ASJ, seized of the bail application ordered for summoning of the previous bail orders for 21.09.2001 24 of 59 25 alongwith the challan file. The order sheet dated 21.09.2001 shows that the learned ASJ was desirous of having the bail order dated 29.08.2001 also on record vide which the bail application of the brother of the complainant was rejected and the hearing on the application was adjourned to 26.09.2001.
28. From the testimony of PW6 Inspector Rajesh Kumar Naithani, the admitted position which emerges is that the charge sheet in FIR no. 260/2001 was sent to court before 26.09.2001. Further as per the photocopy of duty roaster of PS Sarojini Nagar dated 21.09.2001 Ex. PW6/DA, Sub Inspector Raj Kumar had been deputed to attend the bail matter of the brother of the complainant on the said date and the accused Sub Inspector Rohtash Singh was deputed in connection with inquest report as per directions of DCP (SouthWest). The further admitted position is that there was no document produced by the prosecution to 25 of 59 26 show that after filing of the charge sheet in the case FIR no. 260/2001, the accused Sub Inspector Rohtash Singh had been assigned any further duty with respect to the said case or any further investigation was in progress at his end.
29. Therefore, what is abundantly clear is that the non absence of accused Sub Inspector Rohtash Singh was not the reason for adjournment of hearing of the bail application of the brother of the complainant in FIR No. 260/2001 on 21.09.2001. Moreover, there was no reason or occasion for the accused Sub Inspector Rohtash Singh to be present in the said hearing on 21.09.2001 giving rise to any eventuality of his exercising any discretion to deliberately remain absent since on the said date Sub Inspector Raj Kumar had been assigned duty to attend the hearing and as per the orders of the DCP, the accused Rohtash Singh was deputed in connection was inquest report in another case. Further, admittedly, the 26 of 59 27 charge sheet Ex. PW3/DB in case FIR No. 260/2001 of PS Sarojini Nagar stood filed prior to 21.09.2001 and the same is revealed from perusal of page no. 49 of Ex. PW3/DB which shows that the same was filed in the court of Learned Metropolitan Magistrate on 28.08.2001. Therefore, the role of the Investigating Officer was over so far as the investigation was concerned after the filing of the charge sheet. The order sheets of the Ld. ASJ would show that emphasis was upon production of the previous bail orders vide which the bail applications of the brother of the complainant had been rejected and it was because of this reason that the hearing on the said bail application was being adjourned. Finally, when the bail orders were made available during the course of hearing on 29.09.2001, the Ld. ASJ in his discretion was pleased to admit Sh. Prem Singh, brother of the complainant on bail in FIR no. 260/2001. Therefore, it is difficult to comprehend as to how the accused Sub Inspector Rohtash 27 of 59 28 Singh had any role to play in granting of bail to the brother of the complainant. As such the contents of the complaint Ex. PW3/A is totally false and the evidence recorded during the course of trial does not support the grievance of the complainant in the said complaint. Therefore, the grounds alleged by the complainant which according to him was the basis for the demand of illegal gratification by the accused does not inspire confidence at all.
30. The complainant Sh. Charan Singh deposing as PW3 testified that his brother Prem Singh was employed in AIIMS and that the accused Sub Inspector Rohtash Singh was the Division Officer of that area and was demanding monthly from his brother for running the vehicle in that area and when his brother denied paying the monthly, a false case was registered against his brother by accused Sub Inspector Rohtash Singh. In his cross examination, PW3 Charan Singh testified that his brother was 28 of 59 29 a Government Servant and that he too was a Government Servant and at one point of time, Sub Inspector in CRPF. As per the complaint Ex. PW3/A filed by the complainant with CBI, there is no whisper about the fact that the accused used to harass the brother of the complainant by demanding money for plying vehicles on road. This fact came up for the first time in the deposition of the complainant PW3 wherein he interalia testified that the accused used to demand monthly from his brother. However, in his cross examination, PW3 admitted the fact that his brother was a Government Servant and neither used to drive a vehicle nor knew driving. PW3 chose to remain silent as to how and in what manner, his brother was associated with vehicles plying on road thereby giving rise to a situation or occasion for the accused to demand money. It is therefore obvious that this allegation was concocted and false and a futile attempt on the part of the complainant to colour his application with more 29 of 59 30 allegations against the accused and attempt to justify his having approached the CBI. In his deposition, the complainant PW3 also deposed about the accused having asked him to meet him at Mool Chand Flyover on 21.09.2001. PW3 further testified that it is he, who had called the accused on 25.09.2001 on telephone. In his complaint Ex. PW3/A, the complainant PW3 remained silent as to the circumstances and the place and the manner in which the accused had demanded Rs.5,000/ and had threatened him regarding the consequences of not paying the demand.
31. PW3 Charan Singh admitted that the bail application of his brother was rejected by the court prior to 26.09.2001 and that he was not present at the time when the rejection order was passed. He could not admit or deny the fact that the bail application was rejected because accused Sub Inspector Rohtash Singh had appeared and opposed the 30 of 59 31 bail. He denied the proceedings as recorded in the order sheet 21.09.2001 in the bail application of his brother. He also denied the suggestion that he got this trap arranged to remove the accused Sub Inspector Rohtash Singh from the case as he was strongly opposing the bail application of his brother. The complainant is more keen to harp on his own tune and in doing so he has the audacity to deny the recordings in the proceeding sheet of the bail application of his brother. His motive therefore was very clear i.e. under no circumstances he was ready to run the risk of the presence of the accused Sub Inspector Rohtash Singh during the hearing of the bail application of his brother. The only way in which he therefore, found appropriate to get rid of the accused was to manage the trap. The complainant succeeded and this would be evident from the fact that the accused stood implicated and was therefore, not associated with the case any further.
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32. The Prosecution in order to justify the registration of the FIR against the accused on the basis of the complaint Ex. PW3/A have contended through the deposition of their official witnesses that the veracity of the complaint Ex. PW3/A was verified by them before considering appropriate to register the FIR. How and in what manner the verification was done, has however, not been explained. It has been stated in the deposition that the verification was "Discreet Verification". This terminology appears to be absurd and improper in the facts and circumstances of the present case since the substratum of the complaint was based on judicial orders and proceedings recorded in judicial file on the bail application of the brother of the complainant as well as conversation on telephone. Obviously, the judicial orders could have been procured or seen and the telephone records could have been obtained to ascertain whether any call had been made or not. No attempt 32 of 59 33 has been made to ascertain the veracity of the contents of the complaint and it is because of this reason that the socalled verification of the complaint Ex. PW3/A has been termed as "Discreet Verification". I am therefore, of the considered view that no attempt or endeavour was made by the CBI to enquire into the veracity of the complaint. It is evident that the complaint Ex. PW3/A on its face value was accepted by the CBI to be gospel truth. Therefore, the only conclusion which can be drawn is that the complaint Ex. PW3/A was made in a preplanned and premeditated manner with active involvement of the officials of the CBI.
33. The prosecution, in order to prove the demand of the bribe money at the spot and the acceptance of the bribe money by the accused and he being apprehended alongwith the bribe money on his person, has examined five witnesses out of which besides the complainant, two are official independent witnesses namely Hardayal Singh and Bhola Ram, 33 of 59 34 who were part of the trap team, one CBI Official Inspector D. K. Singh, and Trap Laying Officer Dy. SP P. Bala Chandran. The two independent official witnesses who were part of the trap team, namely Hardayal Singh and Bhola Ram entered the witness box as PW4 and PW5 respectively and were declared hostile.
34. The prosecution story as it unfolds from the charge sheet is that on 26.09.2001 at 8 AM the complainant as asked attended the CBI Office and in the presence of PW4 Hardayal Singh and PW5 Bhola Ram the pretrap formalities were completed. These formalities were, verifying the veracity of the complaint Ex. PW3/A of the complainant, asking the complainant to arrange Rs.5,000/ i.e. the bribe money, demonstrating sodium carbonate phenolphthalein test, entrustment of currency notes of Rs.5,000/ to the complainant by the Trap Laying Officer Dy. SP P. Bala Chandran, and keeping the notes in the left side shirt pocket of the 34 of 59 35 complainant with the direction to hand over the tainted bribe money to the accused or any other person on his direction only on demand, assigning the role of shadow witness Hardayal Singh Kaim and the signal to be as wiping of the face twice with the handkerchief once the bribe money is accepted.
35. In this entire proceedings, there is no mention of recording of the voices of the shadow witness or of the complainant on tape or handing over of the tape recorder to the complainant. If the Prosecution was so sure of the fact that no tape recorder was at all used in the trap proceedings, there was no question or occasion for any of the witnesses to the trap proceedings deposing about the existence of the tape recorder or about recording of voices at the time of pretrap formalities. Such stories generally tend to come up when something preplanned has been done and thereafter, writing work is done to make the action come in line and in 35 of 59 36 consonance with the legal procedure so as to give it a colour of a legal action. However, in doing so, the unattended corners and the unwanted lacunas left out exposes the truth and the cat comes out of the bag. This is what has happened in the present case.
36. The only witness to the trap proceedings besides the officials of the CBI, who has not been declared hostile by the Prosecution is the complainant Charan Singh PW3. The complainant deposed that Dy. SP. P. Balachandran kept the powdered GC notes in his left side shirt pocket and directed the complainant to hand over the same to the accused on his specific demand. PW9 Inspector D. K. Singh deposed that the powder treated GC notes were given to the complainant with the direction to give the notes on the specific demand of the bribe money. PW11 Dy. SP P. Balachandran, who was the Trap Laying Officer Inspector deposed that the tainted bribe money was entrusted to the complainant and the same 36 of 59 37 was kept in his left side shirt pocket. PW4 the independent official witness, Hardayal Singh deposed that the powdered GC notes were handed over to the complainant which were kept by him in his pocket and that it was only at that time, that the complainant had been called in the room where the pretrap proceedings had been conducted. Since PW4 Hardayal Singh turned hostile, he was cross examined by learned Senior PP for CBI, who gave him a suggestion which was answered by him in affirmative that the powder treated GC notes were given to the complainant with the directions to give the same to the accused on demand. The suggestion was not that the powdered GC notes were kept in the left side shirt pocket of the complainant by the Trap Laying Officer. PW5 Bhola Ram also categorically deposed that the powder treated notes were given to the complainant Charan Singh with the direction "Inko jeb main seedhe rakhne hain" and that these were the only directions given.
37 of 59 38 On having being declared hostile, PW5 was cross examined by learned Senior PP for CBI, who surprisingly gave no suggestion as to in what manner the powdered GC notes had reached the left side shirt pocket of the complainant. The only suggestion given to PW5 Bhola Ram was that the complainant had been directed to give the tainted bribe money to the accused on his demand and the answer of PW5 to this suggestion was that he was unable to remember. Even no suggestion was given to PW5 during cross examination after he had turned hostile that the tainted GC notes had been put by the Trap Laying Officer himself in the left side shirt pocket of the complainant.
37. Therefore, there is gross discrepancy in the Prosecution story as to manner in which the tainted GC notes were put on the person of PW3 the complainant Charan Singh in his left side shirt pocket. The testimony of the Prosecution witnesses on the contrary points out to the eventuality 38 of 59 39 that during pretrap proceedings the tainted GC notes were handed over to the complainant by the Trap Laying Officer and the complainant had himself put the tainted GC notes in his left side shirt pocket.
38. The other aspect to be considered is the transaction of demand and acceptance of the bribe amount. The Prosecution in order to prove this, has relied upon the recovery memo Ex. PW3/C according to which the trap party after completing the pretrap proceedings left the CBI office at 9.20 hours and reached at Patiala House Courts at 9.40 hours. The complainant and the shadow witness took position near the entrance of MEA Building in the Patiala House Court Complex and the other members stood nearby. At about 10 AM, the accused reached and signaled the complainant to follow him. The complainant went with the accused and the shadow witness followed the complainant and the other trap team members went along unobtrusively. The accused and the complainant 39 of 59 40 went to the second floor and in the corridor of the second floor, the accused was seen opening the file which he was carrying with him and showing to the complainant and the complainant was then seen keeping the bribe amount in the file after taking it out from his shirt pocket. This transaction was observed by all at the same time. After accepting the money in the file, the accused and the complainant went inside the court room of Sh. Babu Lal, the then ASJ and after 10 minutes, the complainant came outside the court room and informed the Trap Laying Officer that the accused after going inside the court room took out the money from the file and kept the same in his right side pant pocket. The trap team members then entered the court room and asked the accused to come out and apprehended him outside the court room.
39. In this factual matrix, it would be necessary to ascertain that at which point of time the transaction of demand and acceptance of the bribe 40 of 59 41 money according to the Prosecution stood completed. If it stood nd completed in the corridor of the 2 floor of the MEA building and witnessed by all the trap team members including independent official witnesses and the complainant himself, then the question arising for consideration is as to why the accused was not apprehended at that time at that place. If according to the prosecution, the said place was not the place where the demand and acceptance of bribe could be said to have stood completed then one has to ascertain as to where according to the prosecution the said transaction stood completed. In this context, the records show that according to the prosecution, the accused went inside the court room alongwith the file in which the complainant had put the tainted GC notes and the complainant followed the accused into the court room and after 10 minutes came out and told the trap team members that he had seen the accused taking out the bribe money from the file and 41 of 59 42 keeping the same in his right side pant pocket. Admittedly, this action of the accused has not been witnessed by anyone except the complainant as the shadow witness did not enter the court room alongwith the complainant when the complainant followed the accused inside the court room.
40. According to the prosecution, the place where the accused was apprehended is at point R in the Site Plan Ex. PW3/D. However, even accepting the prosecution story to be correct the point "R" in the site plan Ex. PW3/D is not the place where the transaction of the demand and acceptance of the bribe took place and witnessed by either the complainant or the shadow witness or any member of the trap team.
41. One would pause at this stage and think of a situation where the accused after seeing the complainant having put the tainted GC notes in his file would have simply closed his file and walked out from the court 42 of 59 43 building. In this situation, was the trap team in a position to apprehend the accused as apprehending the accused could have arisen only on completion of the transaction of demand and acceptance of the bribe. If in this situation, the trap team was empowered to apprehend the accused, then the obvious conclusion would be that the demand and acceptance of the bribe stood completed the moment the complainant put the GC notes inside the file which was in the hands of the accused and the trap team was not required to wait for the accused to take out the GC notes from the file with his hand and put it anywhere on his person. In the present case, the accused was not apprehended at that time and at that place where according to the prosecution, the transaction of demand and acceptance of bribe money took place. On the contrary, in this case, the trap team considered appropriate to wait as to when the eventuality would arise when the accused would take out the bribe money from the file and keep it 43 of 59 44 on his person. However, this alleged situation was seen by no one except the complainant since the trap team preferred to wait for the complainant to come out and narrate something related to the demand and acceptance of the bribe money as according to the trap team it was that narration which was mandatory before the trap team could act.
42. Now I consider necessary to delve into the evidence of the prosecution in this regard. The complainant Charan Singh deposing as nd PW3 testified that in the corridor of the 2 floor of MEA building, the accused opened the file and made a gesture towards the complainant with his eyes and on his directions, the complainant took out the powder treated notes and kept the same in the file opened by the accused. According to the prosecution each and every member of the trap team has seen the transaction of demand and acceptance of bribe with their own eyes. However, in this regard, the version of PW9 Inspector D. K. Singh 44 of 59 45 is contrary to the version of PW3 the complainant. According to PW9 Inspector D. K. Singh, the accused had made a gesture with his hands and had asked the complainant to keep the money in the file. Since out of the other trap team members, the two independent official witnesses i.e. PW4 Hardayal Singh and PW5 Bhola Ram had turned hostile, the only other eye witness on whom the prosecution relies is PW11 the Trap Laying Officer , who had simply seen the accused opening the file and the complainant placing the tainted money in the file. According to PW9 Inspector D. K. Singh, he was present at point D,E in the site plan Ex. PW3/D and from there he had seen the accused make a gesture with his hands upon which the complainant had put the tainted money in the file. The position of Trap Laying Officer in the site plan Ex. PW3/D is at point C which is ahead and much near to the place where the complainant and the accused were standing, however the Trap Laying Officer was not able 45 of 59 46 to see the accused making a gesture with his hand. Moreover, except for PW9 neither the complainant PW3 nor the Trap Laying Officer PW11 have stated that the complainant took out the tainted money from the left side shirt pocket and put it in the file of the accused. The Site Plan Ex. PW3/D has not been signed by PW9 Inspector D. K. Singh and therefore, the presence of PW9 at the site becomes doubtful. The reason for this doubt is because of the fact that if according to the prosecution, the post trap proceedings were conducted in the prosecution room in Patiala House Courts, where the recovery memo Ex. PW3/C as well as the Site Plan Ex. PW3/D was prepared on that day itself, then where would the occasion arise for PW9 to be a witness to the Recovery Memo Ex. PW3/C and not to the Site Plan Ex. PW3/D when according to the prosecution, PW9 was present throughout. During the testimony of PW4 Hardayal Singh and at the time when he was being cross examined by the 46 of 59 47 Ld. Counsel for the CBI after being declared hostile a suggestion was put to him that the money was paid before climbing the stairs which he denied. If according to the prosecution, bribe money was paid in the form of nd keeping inside the file in the open corridor of 2 floor of MEA building therefore, it was obvious that according to the prosecution it had been paid after climbing the stairs and reaching the corridor. This suggestion given to PW4 Hardayal Singh is not even the Prosecution Story and rather it amounts to contradicting the Prosecution Story.
43. As brought forth further from the evidence on record, the testimony of PW3 the complainant Charan Singh records that the accused while coming out of the court room of Sh. Babu Lal, the then Ld. ASJ, continued to carry the file with him, while the remaining files of PS Sarojini Nagar were with Sub Inspector Mohamaddin. It is strange as to why the accused even after having alleged to have taken out the bribe 47 of 59 48 money from the file and having kept it in his right side pant pocket would still chose to carry the said file with him when as per the complainant the remaining files had been in the custody of Sub Inspector Mohamaddin. Just because of this reason, the suggestion given by Ld. Counsel for the accused to the complainant during the course of his cross examination though having denied by the complainant, inspires confidence to the effect that the accused after having come out from the court of Sh. Babu Lal, the then Ld. ASJ was not carrying any file with him and that the files were lying inside the court room till the time he was there with the CBI officials and that during the process when the CBI officials were challenging the accused for having accepted the bribe, the complainant had pointed out to the CBI that he had kept the money in the file which at that time was lying on the table of the court room and that on the directions of the officials of the CBI, their staff brought the file from the court room and that the 48 of 59 49 accused on being questioned told the CBI officials that he had not taken any money.
44. In this context, the conduct of the complainant as revealed from his testimony is noteworthy. If the reason why the accused had demanded money as per the complainant was correct, then like a normal human being, it was expected from the complainant to have ensured that the accused Sub Inspector Rohtash Singh accompanies him to the court of Ms. Mamta Sehgal, the then Ld. ASJ and ought to have struck a conversation in this regard with the accused. However, nothing of that kind happened. Moreover, the version of the complainant does not show that there was any inquisitiveness or anxiety in him to know about the fate of the bail application of his brother which was listed for hearing on 26.09.2001. As per the complainant, he merely noted down the next date as told by Madan Lal and did not care to enquire about the proceedings 49 of 59 50 which took place or the reason for the adjournment. The perusal of the order dated 26.09.2001 of the Ld. ASJ, in the bail application of the brother of the complainant would show that it was admittedly not adjourned because of the absence of the IO/accused. Therefore, it is apparent that the complainant knew that the IO/accused was not required to be present during the hearing of the bail application on 26.09.2001. The charge sheet Ex. PW3/DB had already been filed in FIR no.260/2001 PS Sarojini Nagar, in the court of Learned Metropolitan Magistrate on 28.08.2001, implicating the accused persons therein for the offences as alleged in the FIR. Therefore, what does not inspire confidence at all is the insistence of the complainant for appearance of the accused in the bail hearing on 26.09.2001 or of the accused having a major role to play in the granting of bail to the brother of the complainant. As such, I do not hesitate to hold that right since the beginning, there was never any demand made by the 50 of 59 51 accused for illegal gratification nor any threat was extended by him to the complainant regarding the consequences of non fulfillment of the demand. The fact that the trap team did not apprehend the accused when according to them the transaction of demand and acceptance of bribe stood completed i.e. in the corridor of the MEA building, this inaction prompts me to hold that in the corridor of the MEA building no transaction of demand of the bribe money by the accused or acceptance of the bribe money by the accused had taken place and since nothing of this kind had happened, no such transaction was witnessed by any of the member of the trap team as well as the complainant. My such finding stands fortified from the fact that if all the trap team members as per the prosecution story had seen and witnessed the alleged transaction of demand and acceptance of bribe then what was left for them to inquire which they sought to enquire from the complainant after he had come out from the court room of Sh. Babu Lal, 51 of 59 52 the then Ld. ASJ, where he had entered following the complainant.
45. It is not the case of the complainant that after accepting the bribe money, the accused had ensured that he would be present at the time of the hearing of the bail application of the brother of the complainant in the court of Ms. Mamta Sehgal, the then Ld. ASJ,Delhi. As per the testimony of the complainant, the counsel for the brother of the complainant who had filed the bail application, was very close to the complainant and used to visit his office. In these circumstances, it is obvious that the complainant knew of the fact that the bail application of his brother was listed for hearing on 26.09.2001 before the court of Ms. Mamta Sehgal, the then Ld. ASJ, Delhi and that the knowledge of the same had not been given to him for the first time by the accused Sub Inspector Rohtash Singh. If what the complainant alleged was correct then after paying the bribe money he should have asked the accused as to whether he was accompanying him 52 of 59 53 to the court of Ms. Mamta Sehgal, the then Ld. ASJ, Delhi or as to when the IO/ accused would reach the said court. The complainant has not even stated that after accepting the bribe money the accused Sub Inspector Rohtash Singh had promised to be present in the Court of Ms. Mamta Sehgal, the then Ld. ASJ, Delhi to attend the hearing of the bail application of the brother of the complainant. However, nothing of this kind happened.
46. During the recording of the testimony of PW9 Inspector D. K. Singh, his statement under Section 161 Cr. P. C. was exhibited on record as Ex. PW9/D1. In the said statement, it has nowhere been stated that PW9 was a witness to the demand and acceptance of the bribe. There is no mention about the fact that PW9 Inspector D. K. Singh visited Patiala House Courts on 26.09.2001. It is also not mentioned about the accused Sub Inspector Rohtash Singh having been brought out from the Court 53 of 59 54 room of Sh. Babu Lal, the then Ld. ASJ, Delhi. It has also not been mentioned that there was gathering of large crowd. In this situation, the deposition of PW9 Inspector D. K. Singh that he had seen that the accused Sub Inspector Rohtash Singh by the gesture of his hand had asked the complainant to keep the bribe money in the file carried by him does not inspire confidence at all. Moreover, PW9 Inspector D. K. Singh has admitted that as per PW3 the complainant Charan Singh, he was told that the bail matter is in the room of Ms. Mamta Sehgal, the then Ld. ASJ, Delhi. To a specific question put to PW9 Inspector D. K. Singh that no signal was given since no transaction of money had taken place, he replied that the shadow witness had not given the signal and the complainant informed the Trap Laying Officer about the transaction. PW9 admitted the fact that it was not mentioned in his statement recorded under Section 161 Cr. P. C. Ex. PW9/D1 that the recovery of any money 54 of 59 55 from the person of the accused Sub Inspector Rohtash Singh had taken place in his presence or within his sight or that the accused had been challenged by the Trap Laying Officer in his presence. PW9 also admitted the fact that it was also not mentioned in Ex. PW9/D1 that any of the trap team member had went inside the court room of Sh. Babu Lal, the nd then Ld. ASJ, Delhi or that the CBI Officials had visited the 2 floor of the new building or that the CBI Officials had visited the Patiala House Courts on that day or even visited the Prosecutor's room in Patiala House Courts or any papers were prepared on that day. PW9 also further admitted that Ex. PW9/D1 did not record the fact that he had signed Handing Over Memo, Recovery Memo and the Personal Search Memo on 26.09.2001. Though he denied the suggestion that he appended his signatures on the Handing Over Memo and the Recovery Memo at a much later point of time, however this denial is of no consequence since the surrounding 55 of 59 56 circumstances is inclined in favour of the suggestion given. The entire thrust in the cross examination has been to show that it is PW9 Inspector D. K. Singh, who had the main role to play in getting the accused Sub Inspector Rohtash Singh implicated and that it was he who in order to help the complainant had played an instrumental role in involving the CBI. The testimony of PW9 if read in its entirety and also alongwith Ex. PW9/D1, there would be no element of doubt that PW9 Inspector D. K. Singh has been ensured to be shown on paper as a part of the trap team.
47. The post trap proceedings included the washes taken of the right hand, left hand and right side pant pocket of the accused as well as the file cover being carried by the accused. So far as the left hand wash is concerned, as per the prosecution story, the same on having remained colourless had been thrown away as being of no consequence. A question arises as to whether their vests any discretion in the CBI to 56 of 59 57 discard any piece of evidence collected during the course of investigation. The answer obviously would be no since every piece of evidence would have a material bearing on the case as the said evidence is related to the happenings in the case. Therefore, the posttrap proceedings is definitely under cloud and it throws serious doubt on the fact as to whether any such proceeding was at all conducted as narrated by CBI.
48. The shadow witness admittedly did not give any preappointed signal. The entire trap team chose to remain a silent spectator even after having seen the transaction of demand and acceptance of bribe being completed. There is no evidence on record to show that the accused Sub Inspector Rohtash Singh had asked the complainant to follow him inside the court room. No reason or justification has been given as to why and for what reason the complainant considered necessary to follow the accused Sub Inspector Rohtash Singh inside the court room. No plausible 57 of 59 58 explanation has been given as to why the shadow witness preferred to remain outside. If according to PW9, it was the complainant who had informed the Trap Laying Officer about the bribe money having been accepted then the necessary implication is that this acceptance had not been seen by anyone else. This itself belies the entire prosecution story that each and every member of the trap team had seen and witnessed the transaction of demand and acceptance of bribe.
49. From the above detailed discussions, the entire story of the prosecution regarding the demand of illegal gratification by the accused to extend favour to the complainant, the actual tender of demand amount by the complainant and acceptance of the same by the accused and he then being apprehended by the CBI red handed is totally under cloud.
50. In view of the above discussions, I am of the opinion that prosecution has not successfully proved the case against the accused 58 of 59 59 beyond the shadow of reasonable doubt and therefore, accused Rohtash Singh is acquitted by giving him due benefits of doubt for the substantive offences punishable under Section 7 as well as Section 13 (2) read with Section 13 (1) (d) Prevention of Corruption Act.
ANNOUNCED IN THE OPEN COURT TODAY i.e. ON 16.08.2011. (N. K. SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 DELHI 59 of 59 60 CC NO.32/02 CBI VS. Rohtash Singh 16.08.2011.
Present: Sh. Anil Tanwar, Ld. PP for CBI.
Accused Rohtash Singh is present on bail with counsel Sh. J. P. Sharma, Advocate, as proxy counsel for counsel Sh. H. K. Sharma, Advocate.
Vide separate judgment announced of even date on separate sheets, accused Rohtash Singh is acquitted by giving him due benefits of doubt for the substantive offences punishable under Section 7 as well as Section 13 (2) read with Section 13 (1) (d) Prevention of Corruption Act.
As accused Rohtash Singh is acquitted but to secure his presence, in case, States files an appeal, Rohtash Singh is admitted to bail on furnishing a Personal Bond in the sum of Rs.25,000/ with one surety in the like amount as per provisions of Section 437A of Cr. P. C. Personal Bond and Surety Bond furnished and accepted for a week. Surety Manmohan Singh is directed to furnish the FDR of a Nationalized Bank for a sum of Rs.
th 25,000/ on or before 23 August, 2011.
(N. K. SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 DELHI/16.08.2011 60 of 59