Delhi District Court
23 vs Kundan Lal Etc.; Fir No.29/ on 6 March, 2017
1
IN THE COURT OF MS. HEMANI MALHOTRA, SPECIAL JUDGE (PC ACT),
(ACB), (CENTRAL05), TIS HAZARI COURTS, DELHI
CC No. 111/2008
FIR No. 29/2001
PS Anti Corruption Branch
Under Section 13 PC Act and
Sections 120B/420/468/471 IPC
CNR No. DLCT010001642006
STATE
Versus
1. Kundan Lal
S/o Dalip Chand
R/o 34 A3, Sec5, Rohini (JJ Slum, MCD),
Delhi
2. Rajinder Khurana
S/o Ram Narain
R/o 8821/3, Multani Danda,
Paharganj,
New Delhi
3. Ram Charan Kamal
S/o Mantali Ram
R/o G68C, Tilak Vihar,
Delhi
4. Laxmi Narain
S/o Nathu Ram
R/o Vill. & PO Pandwala Kalan,
Delhi
State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 1 of 58
2
5. Shankar Sahani
S/o Bani Lal
R/o 239/7, Andrews Ganj,
New Delhi
6. Kishan Lal Taneja
S/o M.R. Taneja
R/o E A/143/2, Gagore Garden,
New Delhi
7. K.L. Maggo
S/o Amar Nath
R/o 30/14, Ashok Nagar,
Delhi
8. Raj Bala Sharma
W/o Ram Kumar
R/o 1780, Sohan Ganj,
Subzi Mandi, Delhi
9. Ashok Kumar Chibbar
S/o Tirath Ram
R/o 8/901, Mehrauli,
Delhi
10. Ms. Kamlesh Gupta
D/o late S.C. Gupta
R/o H.No. 592/L, Nakul Street,
Vishwash Nagar, Shahdara,
Delhi
11. R.K. Sharma
S/o D.N. Sharma
R/o 9069/B9, Vasant Kunj,
Delhi
12. Jagdish Chander
S/o R.L. Asamal
R/o 168, Abu Line,
Meerut Cantt., U.P.
State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 2 of 58
3
13. Satender Pal
S/o Mahraj Singh
R/o Vill. & PO Patla Distt.,
Ghaziabad, U.P.
14. Darshan Lal (since deceased)
S/o Munshi Ram
R/o A/16364, Nehru Vihar,
Delhi
15. R.S. Sandhu
S/o Gurmej Singh
R/o H.No. 28, IInd Floor,
Hakikat Nagar,
Delhi
.....Accused Persons
Date of institution : 24.03.2006
Date of receiving by this Court : 28.10.2015
Date of reservation of judgment : 14.02.2017
Date of pronouncement of judgment : 28.02.2017
JUDGMENT
1. Accused (1) Kundan Lal, Joint Director (JJ Slum, MCD)/Head of Lock Committee, (2) Rajinder Khurana (R.K. Khurana)/Field Investigator, MCD Survey, (3) Ram Charan Kamal/Member of Lock Committee, (4) Laxmi Narain/LDC, (5) Shankar Sahani/Field Investigator/ Member of Lock Committee, (6) Kishan Lal Taneja/MCD Sociologist Incharge of Field Investigators, (7) K.L. Maggo/Slum Wing (MCD), (8) Raj Bala Sharma/Field Investigator(MCD), (9) Ashok Kumar Chibbar/MCD Slum, (10) Kamlesh Gupta/Field Investigator(MCD), State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 3 of 58 4 (11) R.K. Sharma/Field Investigator(DDA), (12) Jagdish Chander/ Field Investigator (DDA), (13) Satender Pal/Field Investigator(DDA) have been chargesheeted by PS ACB for committing offences punishable u/sec. 13(1)(d) of the Prevention of Corruption Act (hereinafter called the 'PC Act') read with Sections 420/468/471/ 120B IPC for misusing their official position and getting alloted 28 alternative plots to (14) accused Darshan Lal/Property Dealer (since expired) and (15) accused R.S. Sandhu/Property Dealer on the basis of bogus ration cards, I/Cards and bogus survey conducted in respect of 28 fictitious JJ dwellers resulting into unlawful pecuniary gain of Rs.10.92 lakhs to them.
2. Succinctly stated, as per the case of the prosecution, a complaint dated 24.04.2001 written by complainant Vijay and addressed to ACP Anti Corruption Department, Civil Lines was received alleging that officials of Slum & JJ Department, MCD (Accused Nos.1 to 13) were indulging in malpractices with the help of unscrupulous property dealers (Accused Nos.14 and 15) who after producing and manufacturing forged ration cards, identity cards purported to have been issued by Delhi Administration and MCD were getting the names of nonexistent fictitious persons mentioned in the survey list of jhuggies in order to get allotted to them alternative plots in Delhi from MCD JJ Department. To substantiate his allegations, the complainant Vijay also attached list of 28 nonexistent fictitious jhuggi dwellers in whose names plots were allotted at Bhalswa and 2 forged ration cards and I/cards of one Sita Ram and Basanti Devi. On receipt of the complaint, IO/Insp. O.P. Arora, conducted discreet enquiries and got the FIR bearing No.29/2001 dated 18.05.2001 State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 4 of 58 5 registered against the accused persons u/s 13(1)(d) of PC Act and Secs. 420/468/471/120B IPC.
3. During investigation, it was found that there was a proposal of relocation of jhuggi cluster of Yamuna Pushta comprising of GautampuriI, Players Building by Delhi Government to Bhalswa Resettlement Colony. Pursuant thereto, a joint survey in respect of 1340 JJ Dwellers located at Gautam PuriI, Players Building was conducted by officials of Slums & JJ Department (MCD) and the officials of DDA known as Field Investigators. The officials of Slum & JJ Deptt. (MCD) comprised of accused Rajinder Khurana, Raj Bala Sharma and Kamlesh Gupta, whereas the officials of DDA (Land Owing Agency) comprised of accused Jagdish Chander, R.K. Sharma and Satender Pal Singh. All the Field Investigators conducted survey under the supervision of accused K.L. Maggo and accused A.K. Chibbar (Senior Investigators) who used to remain physically present on the site of survey under the overall supervision of accused Kishan Lal Taneja (Sociologist). As per the survey list, jhuggies of 28 JJ Dwellers were found locked which was signed by all the concerned Field Investigators. However, during subsequent visits, 15 JJ dwellers were found present but the jhuggies of 13 JJ dwellers were still found to be locked. Accordingly, a survey report was prepared by the Field Investigators which was submitted by them to their Incharge accused Kishan Lal Taneja (Sociologist) through Senior Investigators accused Ashok Kumar Chibbar and K.L. Maggo. The same was then forwarded by accused K.L. Taneja to accused Kundan Lal, JD(Slums Upgradation & Rehabilitation). It is further the case of the prosecution that 13 JJ dwellers out of 28 JJ dwellers, whose jhuggies were found to be State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 5 of 58 6 locked in the subsequent visits by the FIs, approached accused Kundan Lal and submitted applications for allotment of alternative plots by stating that at the time of joint survey, they were out of station and their names existed in the Joint Survey list. Accordingly, accused Kundan Lal asked accused Kishan Lal Taneja to verify the existence of names of 13 JJ dwellers. Similarly, names of 15 JJ dwellers in the Joint Survey List were also got verified by accused Kundan Lal through accused Kishan Lal Taneja. After receipt of the report, accused Kundan Lal proposed to Sh. S.K. Trivedi, DC(Slums & JJ Deptt) that all these 13+15 JJ dwellers be given alternative accommodation as their names existed in the joint survey list which was approved by Sh. S.K. Trivedi.
4. Further investigation revealed that as per the records, the cases of 13 fictitious JJ dwellers were to be dealt by the Lock Committee comprising of accused Ram Charan Kamal, accused Shankar Sahani and S.R. Bhatnagar (Chairman of the Lock Committee) but since the Chairman S.R. Bhatnagar was on leave, accused Ram Charan Kamal and Shankar Sahani (Field Investigators & Members of Lock Committee) in the absence of S.R. Bhatnagar (Chairman of Lock Committee) dealt with the cases of those 13 fictitious JJ dwellers. These 13 fictitious JJ dwellers appeared before accused Ram Charan Kamal and accused Shankar Sahani along with their forged ration cards on 31.1.2001, whereafter, accused Ram Charan Kamal and Shankar Sahani recommended to accused Kundan Lal for allotment of alternative plots to these 13 fictitious JJ dwellers. During investigation, it was also revealed that none of the socalled absentee JJ dwellers had furnished their affidavits along with photographs State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 6 of 58 7 attested by SDM/First Class Magistrate which was one of the requisites of the codal formalities of functioning of Lock Committee. The Lock Committee recommended the cases of 13 out of 28 JJ Dwellers after satisfying themselves as regard the correctness of documents to accused Kundan Lal who also personally verified the forged ration cards and physical presence of the said fictitious JJ dwellers and recommended the allotment of alternative plots to them on the same day i.e. 31.1.2001 though none of them had submitted requisite affidavits along with photographs attested by SDM/First Class Magistrate. Accused Kundan Lal then marked these to accused Laxmi Narain/LDC for processing.
5. The investigation also revealed that 5 hand written applications submitted by the fictitious JJ dwellers were written in the handwriting of accused R.S. Sandhu and that one of the plots i.e. Plot No.A3/1, Bhalswa Resettlement Colony allotted to fictitious JJ dwellers was taken by accused Darshan Lal (since expired) from accused R.S. Sandhu and the construction on the said plot was undertaken by accused Darshan Lal (since expired). It was also discovered that none of the 28 JJ dwellers/allottees ever resided in the Gautam PuriI JJ Cluster and that the ration cards and I/Cards produced by these 28 JJ dwellers were fake. It was also found during investigation that the accused Darshan Lal (since expired) and R.S. Sandhu were regular visitors of those alternative 28 plots in question and were trying to sell these plots. Since a sum of Rs.29,000/ per plot had been contributed by DDA and a sum of Rs.10,000/ per plot had been contributed by Delhi Government to the Slum wing of MCD, accused R.S. Sandhu and accused Darshan Lal (since deceased) State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 7 of 58 8 obtained a pecuniary gain of Rs.10.92 lakhs by getting the said 28 plot allotted in the names of fictitious JJ dwellers in connivance with accused Nos. 1 to 13. During further investigation, expert opinion on the specimen writing of accused R.S. Sandhu and other government officials was obtained which was opined to be positive. After completion of investigation, accused Nos. 1 to 15 were thus chargesheeted u/ss 13(1)(d) POC Act r/w Secs. 420/468/471/120B IPC.
6. Since during investigation some forged documents (ration cards of different names, blank ration cards, ration card covers and Delhi Administration I/Cards) were also recovered during the house search of property dealers namely accused Bharat Bhushan Sehgal and Lal Mani which did not pertain to JJ dwellers Gautam PuriI and investigation regarding the remaining plots was in progress, a mention was made in the chargesheet that the supplementary chargesheet against accused Bharat Bhushan Sehgal and Lal Mani shall be filed subsequently. Accordingly, a supplementary charge sheet qua accused Lal Mani and Bharat Bhushan Sehgal vide FIR No.29/01, PS Anti Corruption Branch U/ss 420/468/471/120B IPC and 13(1)(d) of PC Act was filed on 29.11.2014. Since the alleged recovery of forged ration cards from the house search of accused Lal Mani during investigation of FIR No.29/01 was only incidental and collateral and was not connected with the allotment of 28 alternative plots which was subject matter of FIR No.29/01, accused Lal Mani and Bharat Bhushan Sehgal were discharged vide order dated 17.02.2016 by this Court. This order was never challenged by the prosecution.
State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 8 of 589
7. After the chargesheet dated 17.02.2006 was filed by IO/Insp. Mehar Chand/ACB, cognizance was taken by the learned Predecessor of this Court and accused persons were summoned to face trial.
8. After hearing the accused persons on charge, the Learned Predecessor of this Court vide order dated 15.10.2008, framed charges for offences punishable u/ss 13(1)(d) and 13(2) PC Act and Sec.420 IPC r/w Sec. 120B IPC against accused Nos.1 to 13 and for offences punishable u/ss 420/468/471/120B IPC against all the accused persons i.e. accused Nos.1 to 15, to which they pleaded not guilty and claimed trial.
Prosecution Evidence
9. To prove its case, prosecution has examined as many as 21 witnesses.
Material witnesses-Complainant Vijay was examined as PW2; Yodha Ram was examined as PW6; Ram Kripal was examined as PW10; Sushil Kumar Gupta was examined as PW11; Dr.S.Ahmed / Sr. Scientific Officer / FSL was examined as PW15 and Parmod was examined as PW17; Formal witnesses- R.P. Mehra (Retd. Suptd.) who verified three ration cards was examined as PW1; K.S. Bist (Retd. FSO) who checked 25 ration cards from the master register was examined as PW3; S.K. Trivedi/Vice Chairman/DDA who deposed regarding procedure of reallocation of jhuggies was examined as PW4; Yad Ram/ Research Assistant, Planning Department/ DDA who supervised the joint survey team of DDA and Slum Deptt. was examined as PW5; S.P. Bhardwaj (Retd.) Joint Director/DDA who deployed the survey team for counting of jhuggies in the slum area State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 9 of 58 10 was examined as PW7; Phillip Toppo / Dy. Director, Slum Deptt. who collected the seized record from ACB was examined as PW8; Atul Vashist/UDC, Slum & JJ Deptt who handed over two files to the IO was examined as PW9; SI Kanwar Singh (Retd.) who recorded the FIR (Ex. PW12/A) and made endorsement on the rukka at point A was examined as PW12; Madhukar Gupta/Vice Chairman, DDA, who accorded sanction (Ex. PW13/A) in respect of accused Nos.11, 12 & 13 was examined as PW13; Rakesh Mehta/Chief Secretary/Delhi Government who accorded prosecution sanction w.r.t. accused Nos. 1 to 10 was examined as PW18. Witnesses of investigation- Insp. O.P. Arora, First Investigating Officer was examined as PW21; Insp. Arun Sharma, the second IO was examined as PW14; ACP Satish Sharma, the third IO was examined as PW19 and ACP Mehar Chand, the fourth IO was examined as PW20.
10. After completion of prosecution evidence, statements of all the accused persons u/s 311 Cr.P.C. were recorded wherein they denied the case of prosecution in toto and claimed that they have been falsely implicated in this case. Except accused Kundan Lal and Kamlesh Gupta none of the accused persons opted to lead any defence evidence.
11. In her defence, accused Kamlesh Gupta examined official witnesses Sh. B.L. Meena as DW1, DW2 Balbir Singh, DW3 Vijay Pal Singh, DW5 Sh.Ashok Joseph, DW6 Bhuwaneshwar Singh, DW7 Sh. Kuman Anand, DW8 B.B. Sharma and DW9 H.S. Pandey. However, none of the witnesses except DW8 Sh. B.B. Sharma and DW9 H.S. Pandey could help the case of the accused Kamlesh Gupta. DW8 Sh. B.B. State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 10 of 58 11 Sharma produced files pertaining to the allotment of plots made to Smt.Ramwati and Bhoop Singh at Bhalswa and DW9 Sh. H.S. Pandey produced draw list pertaining to allotment of plots of JJ Cluster shifted from Gautam Puri to different places i.e. Bhalswa near Jahangir Puri, Holambi Kalan and Bawana as Ex.DW9/A.
12. In his defence, accused Kundan Lal examined DW4 Ct. Umesh who produced the original FIR register of PS Badarpur for the year 2001 and proved the copy of FIR No.242/2001 U/s 468/471/417 IPC which was of no help to the accused Kundan Lal.
13. Since the record of this case was voluminous which was lying in trunks, arguments were heard on several dates.
14. Before appreciating the evidence against each accused person, it is relevant as well as significant to briefly discuss the background which led to the allotment of alternative plots to various JJ dwellers. In the judgment dated 11.02.2010 passed by the Hon'ble High Court of Delhi in WP(C) Nos. 8904/09, 7735/07, 7317/09 and 9246/09, State's Policy of Resettlement of jhuggi inhabitants which is also the subject matter of the present case was very succinctly discussed. In the aforesaid judgment (supra), the policy in the nutshell was reproduced as under: "The Government in the year 1990, decided to resettle the then inhabitants of jhuggies in Delhi and a comprehensive survey was conducted by the Civil Supplies Department of Delhi Administration between January and March, 1990, wherein all jhuggi clusters except those residing on road, footpath etc., were identified with the cutoff date of January 31, 1990, pursuant to which a proposal was submitted to the Delhi Administration and the Planning Commission for its 199091 Annual Plan. The Municipal Corporation of Delhi mooted a three pronged strategy in its proposal to the Delhi Administration and Planning Commission for State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 11 of 58 12 Annual Plan, 199091, to solve the problem of eligible dwellers which, inter alia, provided:
StrategyI: Relocation of these jhuggi households where land owning agencies are in a position to implement the projects on the encroached land pockets as per requirements in larger public interest and they submit request to S&JJ Department for clearance of the jhuggi cluster for project implementation and also contribute due share towards the resettlement cost.
StrategyII: Insite upgradation of JJ clusters and informal shelters in case of those encroached land pockets where the land owning agencies issue NOCs to Slum & JJ Department for utilization of land. However, the utilization of land under this strategy is linked with clearance of the project by the Technical Committee of the DDA.
StrategyIII: Extension of minimum basic Civic amenities for community user under the Scheme of Environmental Improvement in JJ clusters and its component schemes of construction of Pay and Use Janasuvidha complexes containing toilets and baths and also the introduction of mobile toilet vans in the clusters, irrespective of the status of the encroached land till coverage under one of the aforesaid two strategies.
The Delhi Government with the approval of Central Government finalised the Rehabilitation and Improvement Scheme, 2000 for Jhuggi Clusters which came into effect from 01.04.2000 and had a cutoff date of 30.11.1998 for the entitlements. The said scheme was set aside by this Court in the case of Wazirpur Bartan Nirmata Sangh Vs. Union of India, reported in 103 (2003) DLT 654 but the Supreme Court vide its orders dated 19.02.2003 and 03.03.2003 passed in SLP(C) No. 31663167/2003 filed by the Union of India stayed the said order of the High Court. Therefore, the policy is still operative today. The policy for relocation of JJ clusters w.e.f. 01.04.2000, interalia, provided that slums will be relocated only from project sites where specific requests have been received from the land owning agencies and no large scale removal should be resorted to without any specific use. Relocation land will be identified in Delhi and NCR in consultation with DDA and NCRPB so that it is in conformity with the land use policy under the Master Plan and the NCR Plan. Land to be acquired will be identified by DDA/NCRPB in small pockets near existing residential areas so that the cost of peripheral services is minimized. A target of shifting 10,000 jhuggies in 20002001 was laid down which was to be reviewed each year in April by Delhi Government based on requests received from land owning agencies. Cutoff date for beneficiaries was 30.11.1998 and to verify eligibility, ration cards issued prior to 30.11.1998 were to be taken in account, the name of allottee must also figure in the notified voters list as on 30.11.1998. Keeping in view the scarcity and high cost of land, the plot size for single dwelling unit was kept at 20 sqm (those who are eligible before 31.01.1990) and 15 sqm (eligible between 01.02.1990 to 31.12.1998) with 100% ground coverage. The layout plans, building plans and other development works for relocation settlement were to be prepared by the executing agency, i.e. Slum State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 12 of 58 13 Department, MCD. Prior to relocation and payment of subsidy by the land owning agency and Delhi Government, a joint survey of the slum cluster was to be carried out by the Dy. Commissioner (Revenue) jointly with the land owning agency and the executing agency. The figure of jhuggies to be relocated was to be determined on the basis of this survey keeping in view the eligibility criteria. A separate revolving fund was also envisaged with the contribution of the beneficiary, subsidy given by Delhi Government and the subsidy given by the land owning agency which was to be released to the executing agency based on the project estimates. A steering committee under the Chairmanship of the Chief Secretary, Delhi Government was set up for identifying and prioritizing clusters to be shifted, shifting of identified clusters and for monitoring the execution of each project."
15. It is a matter of record that pursuant to the State's Policy for Rehabilitation/ Resettlement of Jhuggi Inhabitants, so far as Slum & JJ Department was concerned, it was to relocate only those squatter families/ clusters from the encroached land pockets which were required by the land owning agencies for some project implementation. The procedure to relocate those squatter families was explained by PW4 Sh. S.K. Trivedi, Dy.Commissioner (S&JJ) in detail vide his letter dated 14.06.2001 (Ex. PW4/A), the contents of which are reproduced as follows:
".....The LOA approaches the Slum & JJ Department for removal of that cluster. After that a joint survey with a team comprising of representative of Slum & JJ Department as well as of LOA is undertaken to ascertain the number of squatter families having Ration Cards with cutoff date of 31st January 1990 and the families having the Ration Cards of post 1990 till December, 1998. According to the basis of Jt.Survey, the relocation charges amounting to Rs.29,000/ in the case of squatter families having ration card/any other proof of pre 1990 and Rs.20,000/ in case of post 1990 till December, 1998 are deposited by LOA on provisional basis. According to the importance of the project to be undertaken by the LOA as well as intervention of the Courts, the priority for removal of JJ Clusters is fixed by the department. As explained above, the criteria for eligibility is determined on the basis of Ration card/Identification card of 1990 or voter certificate of pre 1990/1990. In case of post 1990 till December, 1998 the eligibility is fixed on the basis of Ration Card/Birth Certificate/ Death certificate/ School Certificate/ Medical treatment Card post 1990before 1998/Election I.Card as supportive eligibility evidence. To handover the vacant possession of the encroached land pocket State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 13 of 58 14 to the LOA, the entire cluster is shifted from the site after conducting a computerised draw of lot and Demolition Slip/Identification Slip indicating the Plot No. and the relocation site is given to the squatter family. Before issuance of the formal Allotment Letter, the following documents are required to be produced by the jhuggi dweller.
(a) Photograph of the Allottee.
(b) Affidavit to the effect that he was the bonafide occupier/resident of the said Jhuggi cluster.
(c) Ration Card/ICard or any other proof of pre 1990 in case of 1990 category and Ration Card/Birth Certificate/Death Certificate/School Certificate/ Medical treatment card post 1990 before 1998/Election I.Card.
It has already been explained that 18 sq.mtrs. of plot are allocated to the pre 1990 category and 12.5 sq.mtrs. of plot to post 1990 till December, 1998 category.
The beneficiary is supposed to pay an amount of Rs.7000/ which includes Rs.5000/ as beneficiary share and Rs.2000/ as advance licence fee for 10 years @ Rs.200/ per annum.
When a substantial number of houses/jhuggies are found locked in a particular cluster, the efforts are made to visit it twice or thrice to ascertain the factual position.
Allout efforts are made by the Lock Committee to ensure the genuineness of the documents produced before it by seeing the original documents including ration card as well as his/her personal appearance before the Committee.
The duties of the Lock Committee are mainly to determine the eligibility of the squatter family on the basis of his/her personal appearance as well as verification of the original documents. It was formed in 1999 to disposeoff the locked cases.
The plots are allotted to the squatter families on license fee basis for selfoccupancy. As per the terms and conditions of the letter of Allotment (Copy enclosed) in case of change of hand, the plot is to be cancelled and its possession is to be takenover by Slum & JJ Department.............."
Law on conspiracy
16. It is now well settled that the conspiracies are hatched in darkness and executed in secrecy. It has been held in a catena of decisions that the Court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. While however, doing so, it must be borne in mind that the meeting of the mind is essential; mere knowledge or discussion would not be.
State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 14 of 5815
17. Conspiracy is defined in Section 120 A of the IPC as follows: "120 A Definition of Criminal Conspiracy When two or more persons agree to do, or cause to be done (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated as a criminal conspiracy;
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance there of.
Explanation It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object. An offence of conspiracy which is a separate and distinct offence, thus, would require involvement of more than one person. Criminal conspiracy is the independent offence, it is punishable separately; it's ingredients being;
(i) an agreement between two or more persons
(ii) the agreement must relate to doing or causing to be done either
(a) an illegal act ; (b) an act which is not illegal in itself but is done by illegal means."
18. It was observed in STATE VERSUS MOHD. AFZAL AND OTHERS reported as 2003 VII AD (DELHI)1 that "proof of a criminal conspiracy by direct evidence is not easy to get and probably for this reason, Section 10 of the Indian Evidence Act was enacted. It reads as under: "Section 10 Things said or done by conspirator in reference to common design Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.".
Thus, the substantive section of the IPC i.e Section 120 A adumbrated thereon Section 10 of the Indian Evidence Act give us the legislative provisions applicable to conspiracy and its proof. Section 10 of the Evidence could be divided into two parts. Para 1 refers to the existence of reasonable grounds to form a belief that two or more persons have conspired and the second part would come into operation when the condition of the first part is satisfied and makes relevant anything said, done or written by the conspirators as a relevant fact against coconspirators. In AIR 1965 SC 682 Sardar Sardul Singh Kava Sher V State of Maharashtra, the Hon'ble Supreme Court held that the evidentiary value of the act, deed, or writing referred to in Section 10 of the Evidence Act is State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 15 of 58 16 limited by two circumstances, namely that the acts shall be in reference to the common intention, and in respect of a period after such intention was entertained by anyone of them. In almost all cases of conspiracy, the following passage by Coleridge, J., in R. Murphy 173 ER 502 is quoted as laying the root of the concept of conspiracy and we may be failing in our duty if we do not note the same: "I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have their common design and to pursue it by common means, and so to carry it into execution. This is not necessary because in many cases of most clearly established conspiracies there are no means of providing any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts, the same object, often by the same means, one performing one part of an act, so as to complete it, with : a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, " Had they this common design, and did they pursue it by these common means the design being unlawful?"
19. The law relating to criminal conspiracy has been very aptly discussed in the judgment of YOGESH @ SACHIN JAGDISH JOSHI VS. STATE OF MAHARASHTRA reported as 2008 (6) Scale 469, Division Bench of the Hon'ble Apex Court observed as under:
"Thus it is manifest that a meeting of mind of two or more persons for doing an illegal act or an act by illegal means is sine qua none of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place to the illegal agreement."
Appreciation of Evidence
20. The hierarchy of the Slum & JJ Deptt/MCD with respect to the survey in question from bottom to top is as follows:
Sociology Department
1. Field Investigators State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 16 of 58 17
2. Senior Investigators/Research Officers
3. Sociologist Allotment Branch/SUR (Slum Upgradation & Resettlement) Section:
1. Allotment Clerk
2. Joint Director Lock Committee:
1. Chairman and two Members Deputy Commissioner (Slum & JJ):
With this background, I will now proceed to scan the evidence regarding each and every accused person in order of their hierarchy. (I) Field Investigators (FIs), Sr. Investigators and Sociologist/ Incharge of Field Investigators Admittedly, the following were the Field Investigators, Sr. Investigators and Sociologist/Incharge of Field Investigators during the relevant time:
A2 - Rajinder Khurana (FI)/MCD, A8 - Raj Bala Sharma (FI)/MCD, A10 Kamlesh Gupta (FI)/MCD, A11 R.K. Sharma (FI)/DDA, A12 Jagdish Chander (FI)/DDA, A13 Satender Pal (FI)/DDA A7 K.L. Maggo/Sr. Investigator/MCD A9 - Ashok Kumar Chibbar/Sr. Investigator/MCD A6 - Kishan Lal Taneja/Sociologist/Incharge of FIs/MCD It is the admitted case of the parties that in reference to compliance of office order No.E137/DC/(S&JJ)/2000 dated 15.04.2000 (Ex.State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 17 of 58
18 PW21/E4) regarding joint survey of jhuggies located on Pushta from I.P. Power Station to Old Yamuna Bridge, joint survey of JJ clusters namely Gautam PuriI, Players Building was conducted by the aforesaid Accused Nos.2, 8, 10, 11, 12 & 13/Field Investigators comprising of staff of Slum & JJ Deptt., MCD and DDA under the supervision of A7/K.L. Maggo and A9/Ashok Kumar Chibbar (Sr. Investigators). It is also the admitted case of the parties that A6/Kishan Lal Taneja was the Sociologist and Incharge of Field Investigators who from time to time issued circulars Ex. PW21/E1 to Ex. PW21/E3 relating to Field Investigators and their supervisors.
21. To prove its case against the Field Investigators, the prosecution examined PW4/S.K. Trivedi, the then Dy. Commissioner/ Slums & JJ Deptt., MCD and PW21/IO/ACP O.P. Arora, the then Inspector in PS ACB and IO.
22. PW4/S.K. Trivedi in his testimony proved his letter dated 14.06.2001 (Ex. PW4/B) vide which he had informed the Investigating Officer/PW21 about the duties of Field Investigators, Sr. Investigators and Sociologist. He also proved his letter dated 26.02.2003 (Ex. PW4/G) vide which he sent a copy of joint survey (Ex. PW4/F) conducted by the FIs to the IO/PW21. In his crossexamination, he testified that the status of Field Investigators and Supervisors is almost identical. While conducting survey, it was the discretion of the survey team as to how to conduct the survey i.e. whether one surveyor will go to the jhuggies to make enquiry or 56 persons will go together. Only a form (Ex. PW4/D7/2) was given to the Field Investigators and the Field Investigators were to fill up that form and State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 18 of 58 19 hand over the same to the Supervisor. There were directions to the survey team as to how the documents of the JJ Dwellers were to be checked. The Field Investigators used to sign survey report and Supervisor used to forward the same. In case if any jhuggi was found locked, the Field Investigators used to mention that jhuggi was lying locked in the survey report and that they were required to visit such jhuggies 23 times and to report about the status of those jhuggies. As per the initial report, 28 jhuggies were found locked and on subsequent visits, the Field Investigators found that out of 28 jhuggies, 15 jhuggies were open and 13 were still locked. During his further crossexamination, he testified that the role of the Field Investigators was only to carry out the survey and that no clear instructions were given to the Field Investigators as to how the genuineness of the ration cards produced by the JJ dwellers was to be ascertained. But, they were to make foolproof investigation. He categorically denied the suggestion that job of FIs was only a preliminary exercise. He also testified that the survey was to be made in respect of entire cluster and not in respect of some pocket of cluster. The jhuggies which were not part of the cluster which was to be relocated could not have been relocated. He also deposed that it was not the job of the Field Investigators to check the genuineness of the ration cards from the Department of Civil Supply. The role of Field Investigators was to verify the occupants of the locked jhuggies by making enquiries from the neighbours and that the matter of locked jhuggies was required to be put before the Lock Committee. The job of Field Investigator was to go to jhuggi cluster and on visiting each jhuggi, verify the eligibility of occupants for allotments. He/She was to fill the details in a prescribed proforma provided by State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 19 of 58 20 the Land Owing Agency, Slums & JJ Wing etc. Thereafter, his job was to hand over one copy of said filled proforma to Land Owing Agency, Slum & JJ Deptt., including his/her seniors. Pursuant to which, their job was over with respect to survey.
23. ACP O.P. Arora/IO was examined as PW21, he testified that during investigation it was revealed that there was a proposal of shifting/relocating the jhuggi dwellers from GautampuriI, Yamuna Pushta to Bhalswa which was communicated to him by PW4/S.K. Trivedi/ Dy.Commissioner vide Ex. PW4/D for which funds were sanctioned vide Ex. PW21/C. To implement the scheme, a survey had to be conducted by joint teams of MCD (Slum & JJ) and DDA (Land Owing Agency) through FIs (Field Investigators) of MCD and DDA. Accordingly, three FIs namely Rajinder Khurana, Raj Bala Sharma and Kamlesh Gupta from MCD and three FIs namely R.K. Sharma, Satender Pal and Jagdish Chander from DDA were deputed vide Ex. PW21/E1 and Ex. PW21/E2 (circulars dated 30.06.2000 and 08.01.2001) and Ex. PW5/A. These FIs were working under the supervision of A.K. Chibbar (A9) and K.L. Maggo (A7), Sr. Investigators by the orders of Sociologist Kishan Lal Taneja (A6), Head of Survey Department.
24. After survey, the FIs had prepared a joint survey list of 1340 JJ dwellers (Ex. PW4/F), out of which 28 persons were found to have been wrongly alloted plots as their ration cards/I.Cards were found to be bogus. During investigation, it was revealed that 8 names were included by FIs Rajinder Khurana and R.K. Sharma, 7 names were included by FIs Raj Bala Sharma and Jagdish Chander and 13 names State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 20 of 58 21 were included by FIs Kamlesh Gupta and Satender Pal. Subsequently, on the direction of accused Kundan Lal through accused Kishan Lal Taneja/Sociologist and head of Survey Deptt., Ashok Kumar Chibbar/Sr. Investigator, FIs Raj Bala Sharma and Kamlesh Gupta confirmed the correctness of their survey in respect of aforesaid 28 JJ dwellers through verification reports (Ex. PW9/B and Ex. PW9/C filled by accused Raj Bala Sharma and Kamlesh Gupta). He had conducted investigation to verify the existence of aforesaid 28 JJ Dwellers and correctness of documents supplied by them. FSO (Food Supply Office), Minto Road vide report (Ex. PW3/A) reported that all the 28 ration cards submitted by aforesaid JJ Dwellers were bogus. Ashok Kumar Chibbar (A9) had marked the files of 15 JJ dwellers to FI Raj Bala Sharma and files of 13 JJ dwellers to Kamlesh Gupta. It was reported by Raj Bala Sharma that during revisit in August 2000, all the 15 JJ dwellers were found present and in respect of 13 JJ dwellers it was reported by Kamlesh Gupta that the jhuggies of those 13 JJ dwellers were still found locked. It was also reported by Kamlesh Gupta that 12 of these 13 JJ dwellers were occupying units in that part of cluster which was not to be relocated. The role of FIs was to verify and correctly report the existence of JJ dwellers in GautampuriI, JJ cluster so as to entitle them for relocation and allotment of alternative plots. During investigation, ACP O.P. Arora had stated that in the case of locked units, FIs should have made enquiries from the neighbouring units to ascertain the actual occupants of those units. However, no such enquiries were made by FIs.
25. In his crossexamination, he admitted that the case pertained to relocation of jhuggies from Players Building, GautampuriI only. He State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 21 of 58 22 categorically stated that no guidelines for conducting survey were available. However, he had recorded the statement of PW4/ S.K. Trivedi / Dy. Commissioner / Slum & JJ Wing/ MCD regarding the scope and manner of survey. The duty of Field Investigator was to visit jhuggies and record the names and particulars of the jhuggi dwellers correctly. In case of locked jhuggies, the particulars of occupants were to be collected from the neighbours. FIs were usually accompanied by officials of Land Owing Agency and officials of Sociology Division of MCD. He admitted that the role of Field Investigator of DDA and MCD concluded after survey and that they were not required to collect documents from the jhuggi dwellers. They were only required to verify the existence of relevant documents and that the verification of authenticity of ration cards was not within the purview of the survey team. He denied the suggestion that survey team was misled and cheated by the jhuggi dwellers in connivance with persons who had vested interest in the land. He also denied the suggestion that the survey report did not entitle the jhuggi dwellers for allotment of alternative plots. He, however, admitted that 13 locked jhuggies which were surveyed by Kamlesh Gupta were found locked as per Ex. PW4/F (Joint Survey List) filed by Kamlesh Gupta and the survey team. It was also very specifically admitted by him that the present case pertained to relocation of jhuggies from Players Building, Gautam PuriI only. When the attention of PW21 /IO/O.P. Arora was drawn to a note at page 3N dated 25.01.2001 on Ex. PW9/B written by accused Kamlesh Gupta, he admitted that as per the said note, she had mentioned that 12 jhuggies out of 13 were not entitled to be relocated. He also admitted that in the case of 13th locked jhuggi, only the name of the owner of the said jhuggi was State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 22 of 58 23 mentioned and the column for document produced by the owner of the jhuggi was left blank. The survey team was required to identify the owner of locked premises. The claimant of the jhuggi reported to be locked was to appear before the Lock Committee. It was also testified by him that it is the Jr.Engineer of MCD who hands over physical possession of the reallocated jhuggi at the spot and out of 28 disputed allotments, no person had claimed possession.
26. From the evaluation of the testimonies of PW4/S.K Trivedi, Dy.Commissioner and PW21/IO/O.P. Arora it transpires that the role of Field Investigators was to visit each jhuggi dweller residing in Gautam PuriI, Players Building. In case jhuggi occupants were found present, the information was to be collected from them in terms of the proforma (Ex. PW4/D7/2) provided to the FIs after verifying the information from the original documents produced by the jhuggi dwellers/occupants. In case, any jhuggi was found locked, a remark to the said effect was to be made in the column "Remark" and the name of the jhuggi occupant was to be enquired from the neighbours of the locked jhuggi and mentioned in the proforma. No duty was cast upon them to verify the correctness of documents shown to them by the JJ dwellers. The FIs were the last rung in the hierarchy and their role finished with the survey.
27. The fact of the matter which also emerges from the testimony of PW21/IO/O.P. Arora, Ex. PW9/B and Ex. PW9/C (files relating to the movement of applications/representations of 28 fictitious JJ dwellers) is that a social economic survey was conducted in OctoberNovember 1999 w.r.t. 530 jhuggies in the area of Gautam PuriI, Players State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 23 of 58 24 Building, Delhi. The land owing agency at that time was Public Works Department (PWD) and the survey was a joint survey of MCD and PWD. Thereafter, again in the year 2000, another socio economic survey was conducted by the MCD along with DDA for various jhuggi clusters at Yamuna Pushta including the area of Gautam PuriI, Players Building which was already surveyed in the year 1999 on a larger scale where the land owing agency was DDA. The said joint survey was ordered on 28.04.2000 and for the said survey, 10 teams were constituted including the three teams comprising of accused persons namely (i) Rajinder Khurana and R.K. Sharma (ii) Kamelsh Gupta and Satender Pal and (iii) Rajbala Sharma and Jagdish Chander who had surveyed 1340 jhuggies (including the 28 jhuggi dwellers in question) in the area of Gautam PuriI, Yamuna Pushta, Delhi included in the previous survey area of Players Building. The FIs had correctly filled the information in the survey reports on making enquiries from the occupants of the jhuggies and in cases of locked jhuggies, from their neighbours. The correctness of the survey is also proved from the documents produced by DW8/Sh. B.B. Sharma, Director/DUSIB w.r.t. Bhoop Singh s/o Hari Ram whose name finds mention in Ex. PW9/B. Ex. PW9/B which is a file regarding the "verification status of Gautam Puri, Players Building dwellers whose name do not exist in survey list but exist in the new survey" shows that when representation from alleged dwellers of Gautam PuriI, Players Building whose name did not exist in the survey list but existed in the joint survey was received, the same was marked to Kamlesh Gupta to give a verification report qua the same. It was then reported by accused Kamlesh Gupta that out of 17 representations/persons, the names of only 13 representations/ State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 24 of 58 25 persons were figuring in the survey list as locked. She also categorically noted that:
"These units have been again found locked on subsequent visits in August 2000 during joint survey of locked units along with staff of DDA.
Further, these jhuggies (except mentioned at S.No.13 above) are located in the pocket which has not been shifted/relocated."
The noting on Pg 3/N on Ex. PW9/B given by accused Kamlesh Gupta is dated 25.01.2001 and it very candidly reflects that as per her, 12 occupants whose representations had been received, were not entitled to be shifted/relocated and one occupant had already been shifted. DW8/Sh. B.B. Sharma, Director/DUSIB had produced documents Ex. DW8/C, Ex. DW8/D and Ex. DW8/DX related to Bhoop Singh s/o Hari Ram whose name was found mention at Sl.No.8 in the list of 13 occupants. Ex. DW8/C and Ex. DW8/D reveal that he was a resident of JJ cluster Gautam PuriI, Yamuna Pushta and he was relocated to Bawana on 27.05.2004. As he was not an occupant of jhuggi clusters Opposite Players Building, Gautam PuriI, he was not to be relocated to Bhalswa. Further, evidence in the shape of documents also reveals that the FIs had no role in recommending alternative plots to those 28 JJ dwellers.
28. Thus, in view of my aforesaid discussion, it can be safely concluded that no role can be attributed to any of them (accused Rajinder Khurana, R.K. Sharma, Kamelsh Gupta, Satender Pal, Rajbala Sharma and Jagdish Chander) in the conspiracy.
Role of Sr. Investigators (Accused K.L. Maggo & Ashok Kumar Chibbar)
29. The facts which are not disputed are that the Sr. Investigators A.K. State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 25 of 58 26 Chibbar and K.L. Maggo were appointed as Sr.Investigator vide Ex. PW21/E1 to E4 and that their duties were of supervisory nature involving identification of the area to be surveyed and deploying requisite staff for conducting the survey smoothly. However, as per the case of the prosecution, SIs were also a part of the conspiracy and in pursuance of same, they had deliberately overlooked the survey report prepared by the FIs by including the names of 28 fictitious JJ dwellers.
30. However, before I proceed to discuss the evidence against accused K.L. Maggo and A.K. Chibbar, it is significant to note that during the course of arguments, it was vehemently urged by learned counsel for accused A.K. Chibbar that since the Appointing Authority and Disciplinary Authority of accused A.K. Chibbar was Commissioner DDA and not Commissioner MCD, the sanction order (Ex. PW18/A) to prosecute accused A.K. Chibbar accorded by Rakesh Mehta, Commissioner MCD was invalid and on this score itself the trial of the accused A.K. Chibbar was invalid and void abinitio.
31. The witness who was examined qua accused Ashok Kumar Chibbar in this regard was PW18/Sh. Rakesh Mehta, Chief Secretary, Govt. of NCT of Delhi, the then Commissioner/MCD. He proved the prosecution sanction of accused Ashok Kumar Chibbar and other employees of Slums & JJ Deptt., MCD as Ex. PW18/A. He testified that before according sanction, he had perused the Biodata of all the 10 accused persons including K.L. Maggo and Ashok Kumar Chibbar. He admitted that if the appointing authority and disciplinary authority is not MCD, he was not competent to accord the sanction State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 26 of 58 27 for prosecution. He also admitted that as per Ex. PW18/B (Biodata of accused Ashok Kumar Chibbar), the appointing authority and disciplinary authority of accused A.K. Chibbar was Commissioner DDA. He however defended the grant of prosecution sanction of accused A.K. Chibbar (Ex. PW18/A) accorded by him as Commissioner MCD by stating that the sanction was accorded by him as accused A.K. Chibbar was working in Slum Deptt. MCD.
32. I am afraid that I find myself in agreement with the argument of learned counsel for accused A.K. Chibbar qua the prosecution sanction accorded for his presentation being invalid as it is settled law that if no sanction according to law has been given for the prosecution of the accused, the Special Judge has no jurisdiction to take cognizance of the case and that the trial is invalid and void abinitio. This proposition of law has been reiterated time and again by the Hon'ble Supreme Court. In a recent judgment of Hon'ble Supreme Court titled as NANJAPPA VS. STATE OF KARNATAKA delivered in CRL. APPEAL NO. 1867 OF 2012 DATED 24.07.2015, the Apex Court has observed as under: "15. The legal position regarding the importance of sanction under Section 19 of the Prevention of Corruption is thus much too clear to admit equivocation. The statute forbids taking of cognizance by the Court against a public servant except with the previous sanction of an authority competent to grant such sanction in terms of clauses
(a), (b) and (c) to Section 19(1). The question regarding validity of such sanction can be raised at any stage of the proceedings. The competence of the court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid the court can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for prosecution in accordance with law. If the trial Court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be nonest in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution...............
................
State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 27 of 5828
17. In the case at hand, the Special Court not only entertained the contention urged on behalf of the accused about the invalidity of the order of sanction but found that the authority issuing the said order was incompetent to grant sanction. The trial Court held that the authority who had issued the sanction was not competent to do so, a fact which has not been disputed before the High Court or before us. The only error which the trial Court, in our opinion, committed was that, having held the sanction to be invalid, it should have discharged the accused rather than according an order of acquittal on the merit of the case. As observed by this Court in Baij Nath Prasad Tripathi's case (supra), the absence of a sanction order implied that the court was not competent to take cognizance or try the accused. Resultantly, the trial by an incompetent Court was bound to be invalid and nonest in law."
33. Therefore, taking in account the invalid sanction accorded to prosecute accused A.K. Chibbar by PW18/ Sh. Rakesh Mehta, the then Dy. Commissioner MCD, the trial qua him is held void abinitio and nonest in law. Resultantly, accused A.K. Chibbar is discharged.
34. Now, so far as accused K.L. Maggo is concerned, to ascertain whether the prosecution was successful in establishing their case against him, it is necessary to evaluate the testimonies of PW4 and PW21. As already discussed in the earlier part of the judgment, PW4/S.K. Trivedi/the then DC (Slum & JJ Deptt.), MCD in his testimony proved his letter dated 14.06.2001 (Ex. PW4/B) vide which he had informed the Investigating Officer about the duties of Sr. Investigators and others. In his crossexamination, he stated that the status of FIs and Supervisor (Sr. Investigators) was almost identical in nature and that the survey report signed by the FIs was forwarded by the supervisor(Sr. Investigator). He denied the suggestion that the job of supervisor (Sr. Investigator) was only to direct the FIs to conduct survey.
35. In his examinationinchief, PW21/O.P. Arora/IO while corroborating State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 28 of 58 29 the testimony of PW4 regarding the role of the Sr. Investigators, also admitted that neither K.L. Maggo nor Ashok Kumar Chibbar had any role in allotment of alternative plots and neither of them personally conducted the survey. Their role was of supervisory nature and they were to be present at the spot at the time of the survey. He completely denied the suggestion that the accused SIs were not required to be present at the site for supervision of the work by FIs. He did not admit or deny that the area under supervision was so large that accused K.L. Maggo could not be physically present at every field visit but he denied that the role of accused SI was only to ensure that the team under his control was discharging his duties. He further negated the suggestion that the role of SIs was only to compile the data collected by Field Investigator and submit the same to the superiors. During his further crossexamination, PW21 very specifically admitted that he did not come across any circular or office order issued prior to registration of FIR or prior to start of survey defining the role and duties of Sr. Investigators/Research Officers. He also admitted that he did not get any supporting document analogous with Ex. PW4/B (letter dated 14.06.2001 written by PW4 informing the IO/PW21 about the duties of Field Investigators, Sr. Investigators, Sociologist). He further admitted that 28 applications along with documents for allotment of alternative plots were not submitted before accused K.L. Maggo and Ashok Kumar Chibbar and the same were dealt with by the Allotment Branch.
36. The meticulous examination of testimonies of PW4/the then Dy.
Commissioner/S.K. Trivedi and PW21/IO/O.P. Arora reflects that the nature of duty of Sr. Investigators/Team Incharge was supervisory in State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 29 of 58 30 nature. As per Ex. PW21/E3, 3 SIs were appointed to supervise the survey of GautampuriI, JJ Cluster. Three teams for conducting survey were under the supervision of accused K.L. Maggo and two teams were under the supervision of A.K. Chibbar. Ex. PW21/E3 also reveals that the survey teams were to submit their survey report to their respective team incharge i.e. SIs on daily basis. Thus, in my opinion, on the basis of directions given to SIs in Ex. PW21/E3 and Ex. PW4/B (letter of PW4 defining the duties of the accused persons), the only inference which can be drawn is that SIs/Team Incharges were to only properly supervise the work of the FIs involving identification of the area to be surveyed and deploying requisite staff for conducting the same smoothly. Therefore, no role in the conspiracy can be attributed to accused K.L. Maggo who was the SI/Team Incharge either.
Role of Sociologist/Accused Kishan Lal Taneja
37. In so far as accused Kishan Lal Taneja is concerned, it was testified by PW21/O.P. Arora/IO that since during investigation he had not come across any Codified rule book regarding the working of officials associated in relocation of jhuggies, he had recorded the statement of PW4/S.K. Trivedi wherein he had stated that it was not the duty of Sociologist to verify the locked cases and for that purpose, Lock Committee was formed. He also testified that 28 JJ dwellers moved representations in two sets of 15 & 13 each addressed to Joint Director/accused Kundan Lal who marked the same to accused Laxmi Narain for processing who in turn put up two separate notes in respect of 15 and 13 sets of JJ dwellers requesting for consideration of their cases. Later on Ashok Chibbar, Sr. Investigator and FIs Raj State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 30 of 58 31 Bala Sharma & Kamlesh Gupta confirmed the correctness of their survey in respect of aforesaid 28 JJ Dwellers through verification report asked for by accused Kundan Lal through accused Kishan Lal Taneja/Sociologist which were contained in two files (Ex. PW9/B and C). PW4/S.K. Trivedi/DC (Slum & JJ Deptt.), MCD when cross examined, admitted that the sociologist was nowhere concerned with the physical verification of the jhuggies. He also admitted that it was not the duty of the sociologist to verify the ration cards and other documents pertaining to JJ cluster.
38. The evidence reveals that the nature of duty of Sociologist was summarised in Ex. PW4/B which is a letter dated 14.06.2001 addressed to PW21/IO by PW4/S.K. Trivedi/the then Dy. Commissioner (S&JJ). According to Ex. PW4/B, the Sociologist was overall Incharge of Sociology Division involving liaison with Land Owing Agency and interaction with the field staff. In case of problems faced by the field staff during the course of survey, the Sociologist was also required to intervene in the matter and resolve their problems. From the evidence of PW4 and PW21, it is hence evident that the duty of the Sociologist never demanded that he be present at the site of the survey or verify the survey conducted by the FIs. Even when 28 representations were received by accused Kundan Lal, he was only a link between the Joint Director i.e. accused Kundan Lal and the FIs who were to give verification report regarding the representations received by the Joint Director. Hence, I am of the considered opinion that prosecution has failed to prove the involvement of accused K.L. Taneja in the conspiracy beyond reasonable doubt.
State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 31 of 5832 Role of Accused Laxmi Narain/UDC
39. Accused Laxmi Narain at the relevant time was working as UDC in the office of Joint Director (SUR). As per the case of the prosecution, he was an important link in the conspiracy alleged to have been hatched by the accused persons. In this regard, it was testified by PW21/IO/O.P. Arora that when these 28 fictitious JJ dwellers moved representations in two sets of 15 & 13 each addressed to accused Kundan Lal/Joint Director stating that their premises were reported to be locked during survey and they should be alloted alternative plots, the representations were marked to accused Laxmi Narain (dealing hand) who put up two separate notes in respect of sets of 13 & 15 JJ dwellers requesting for consideration of their cases. Thereafter, Joint Director/accused Kundan Lal marked the representations to Sociologist/accused Kishan Lal Taneja to ascertain whether their names existed in the survey list or not and whether they were eligible or ineligible. PW21 further testified that during investigation he had collected the biodata forms of 13 JJ dwellers and specimen/admitted handwriting of members of Lock Committee, Kundan Lal and Laxmi Narain and had sent the same to FSL for comparison. He also deposed that it was accused Laxmi Narain (dealing hand) who had initiated and processed both files (Ex. PW9.B and Ex. PW9/C) containing the case of 28 JJ dwellers, overlooking major irregularities and despite the fact that necessary documents did not accompany the applications, he processed the files Ex. PW9/B & Ex. PW9/C.
40. In his crossexamination, PW21/O.P. Arora/IO categorically admitted that accused Laxmi Narain was not involved in physical survey at the State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 32 of 58 33 site or making enquiries at the spot. He also admitted that the directions issued by Hon'ble Delhi High court in the year 1993 that before allotment, Icard of JJ Dwellers issued by Delhi Admn, were to be verified, were not to be complied with by accused Laxmi Narain. He though admitted that accused Laxmi Narain had no role in the field investigation but stated that his role was more than mere putting up the survey report before the Joint Director. It was also clarified by PW21 that accused Laxmi Narain was supposed to ensure the correctness of the record and existence of the applicants before putting up the report before the Joint Director.
41. The analysis of the evidence w.r.t. accused Laxmi Narain shows that admittedly, accused Laxmi Narain/LDC was nowhere involved in field investigation. However, his role was not just merely to put up the files/representations before the Joint Director/accused Kundan Lal, his role was also to see if the representations which were received from jhuggi dwellers to allot them alternative plots was accompanied with requisite supporting documents (ration card/voter Icard). Despite lengthy crossexamination of PW21 conducted by learned counsel for accused Laxmi Narain, no suggestion to the effect that it was not the role of accused Laxmi Narain to see if the application accompanied the requisite documents was not given. However, for obvious reasons, it was definitely not the duty of accused Laxmi Narain to check the authenticity of the applicants or the documents which were supposed to be submitted along with the applications, but from the evidence on record, it is evident that accused Laxmi Narain was under a bounden duty to ensure that the applications/ representations of 28 jhuggi dwellers were supported by requisite State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 33 of 58 34 documents. The testimony of PW21 that the representations of the set of 15 JJ dwellers were not filed along with the requisite documents is factually incorrect. The file Ex. PW9/C which was seized during investigation thus contains photocopies of ration cards of all the 15 fictitious JJ dwellers who were alloted alternative plots and the same were even sent to FSO to ascertain their authenticity.
42. Thus, it was never the role of accused Laxmi Narain to check the authenticity of the documents submitted along with the representations and so I find myself unable to agree with the prosecution that accused Laxmi Narain/LDC had played any role in the alleged conspiracy and so the prosecution has failed to bring home the charge of conspiracy against accused Laxmi Narain beyond reasonable doubt.
Role of Accused R.S. Sandhu
43. It is the case of the prosecution that accused R.S. Sandhu and accused Darshan Lal (since deceased) both private persons obtained pecuniary gain of Rs.10.92 lakhs by getting 28 plots alloted in favour of 28 fictitious JJ Dwellers in connivance with accused Kundan Lal/Joint Director and other accused persons. It is also the case of the prosecution that this fact is established from the fact that the applications for grant of alternative plots preferred by fictitious JJ dwellers were found to be in the handwriting of accused R.S. Sandhu and the ration cards submitted with the representations were found to be bogus.
44. It is also significant to mention here that dehors the allegations of the State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 34 of 58 35 prosecution in the chargesheet, it is the admitted fact that in pursuance of conspiracy, allotment on provisional basis was only made and before any final allotment could be made to the fictitious 28 JJ dwellers, allotment made on provisional basis was cancelled sometime between 19.06.2001 (as per report of FSO, Ex. PW3/A) and 19.07.2001 by the Commissioner, MCD and the same finds mention in Ex. PW4/E.
45. To establish its case against accused R.S. Sandhu that it was accused R.S. Sandhu who was beneficiary of allotment to 28 fictitious JJ dwellers, the prosecution has examined PW6/Yodha Ram, PW10/Ram Kripal, PW11/Sushil Kumar Gupta and PW17/Pramod. Further, to prove that the handwriting of the applications was that of accused R.S. Sandhu, the prosecution examined PW14/Insp. Anil Sharma, PW15/Dr. S.Ahmed, Asstt. Government Examiner of Questioned Documents and PW21/O.P. Arora/IO.
46. PW21/O.P. Arora/IO testified that accused R.S. Sandhu hatched a criminal conspiracy with official accused persons and got manipulated false Survey Reports and false Lock Committee Reports by moving false representations/ applications on behalf of the said 28 non existing JJ dwellers. Accused R.S. Sandhu also managed to get allotment of alternative plots against the representations moved by 28 nonexistent JJ dwellers. During investigation, he had sent the handwriting of accused R.S. Sandhu to FSL for expert opinion to compare the same with the handwriting of the applications submitted on behalf of 28 JJ dwellers and the report of handwriting expert is Ex. PW14/A which wash found to be positive. He had also conducted raid State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 35 of 58 36 at the house of accused R.S. Sandhu at Hakikat Nagar and had seized documents as mentioned in Seizure Memo Ex. PW21/F from his house.
47. So far as the public witnesses i.e. PW6/Yodha Ram, PW10/Ram Kripal, PW11/Sushil Kumar Gupta and PW17/Pramod examined by the prosecution to prove that accused R.S. Sandhu was in possession of alternative plots alloted to 28 nonexistent JJ dwellers are concerned, they turned hostile and nothing could be extracted from them against accused R.S. Sandhu in their crossexamination by the State.
48. PW15/Dr. S. Ahmed, Asstt. Government Examiner of Questioned Documents was examined. He proved his opinion as Ex. PW14/A. In his report/expert opinion Ex. PW14/A, he mentioned in para 1 that he had examined questioned writings marked Q2 to Q6 (applications addressed to Director/ Joint Director, Slum Deptt. Delhi made by non existent JJ dwellers) and specimen writings marked S1 to S8, S10 to S23, S27 to S39, S41 to S56, S153 to S177 (specimen handwriting of accused R.S. Sandhu). He had also examined S40/ specimen handwriting of accused R.S. Sandhu and on comparison of questioned writings with the standard specimen writings similarities were observed in detailed execution of various characters and part of characters. He had also examined A55 (admitted writing of accused R.S. Sandhu written in a diary of R.S. Sandhu seized from his house). On examination, he had observed similar variations in the writings (questioned, specimen writing and admitted writings) indicating that the writings marked Q2 to Q6, S1 to S8, S10 to S23, S27 to S56, S153 State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 36 of 58 37 to S177 and A55 were written by one and the same person. In his crossexamination, he denied the suggestion that the writing A55 had been inserted in Hindi subsequently. He also denied the suggestion that he had not followed the basic principles of Handwriting Comparison and that his report was given at the behest of officials of Anti Corruption Branch.
49. Questioning the opinion of the handwriting expert (Ex. PW14/A) it was argued by learned counsel for the accused R.S. Sandhu that in view of Section 5 of the Identification of Prisoners Act, 1920, the specimen signatures of accused R.S. Sandhu obtained by IO O.P. Arora/PW21 during investigation were not taken in accordance with law and, therefore, the opinion of the expert is inadmissible in evidence. There is no teeth in the argument of learned counsel for accused R.S. Sandhu as it is settled law that the Investigating Officer can obtain the handwriting of the accused during investigation. In a case titled as REKHA SHARMA VS. CBI DECIDED on 05.03.2015 by the Hon'ble Delhi High Court it was observed as under: "446. I have meticulously gone through the case laws cited at the Bar. The decision of the Supreme Court in Navjot Sandhu (supra) and reiterated in Dara Singh (supra) is quite clear. Expert evidence in the form of report on handwriting and signature specimens is not barred from consideration on the ground that they were obtained without permission of Court. The law on obtaining handwriting specimen is now specifically incorporated under Section 311A Cr.P.C. which came in to effect on 23.06.2006. The specimens were taken prior to this date and, therefore, the procedure prescribed by the section could not be adhered to. The decision in Ram Babu Mishra (supra) was based on the question whether the Magistrate is empowered to direct an accused to give his specimen writing and signature under Section 73 of the Evidence Act for the purpose of enabling the Court to - compare" such writings with writings alleged to have been written by such person. The Court in Ram Babu Mishra interpreted the purport of Section 73 and held that the words "for the purpose of enabling the Court to compare" assume continuance of some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 37 of 58 38 compare such writings. The direction is to be given for the purpose of 'enabling the Court to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. It was observed that the language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. The ratio of this case was, therefore, limited to observing that Section 73 Indian Evidence Act is not an enabling provision for the Magistrate to give any such direction to an accused in a matter that is pending investigation. However, it cannot be said that as a necessary corollary to this principle, the specimen handwriting and signature is not obtainable at all during investigation. The investigating officer in a criminal case is empowered under Section 2(h) Cr.P.C. to collect evidence and undertake various steps in that endeavor. The Supreme Court in Selvi v. State of Karnataka, (2010) 7 SCC 263 has endorsed this view and held that the term - investigation includes steps which are not exhaustively and expressly enumerated. Even otherwise, experience suggests that every crime requires its own tailor made investigation which may be peculiar to the circumstances of the case. It would not be prudent and neither possible to exhaustively catalogue such steps taken during investigation in a code like Cr.P.C. Thus, absence of a specific provision enabling a particular step under investigation does not imply that the investigation agency is disabled from taking that step under its power/duty (power coupled with duty) to conduct investigation. For e.g. the police during investigation of a murder case prepares the site plan, collects/seizes the blood stained earth, seizes various articles lying on the spot, seizes the weapon used during commission of crime, seizes the clothes of the victim and the accused etc. However, there is no such express provision in the Cr.P.C. or other statute to enable the police to undertake such acts for collection of evidence during investigation. .............
.........
448. The decision in Sapan Haldar (supra) again has considered the question whether handwriting and signature specimens are obtainable under Section 4 and 5 of the Identification of Prisoners Act, 1920 and the Court observed that since both handwriting and signature of a person are not a mark of identification, the same cannot be measurement as defined under Section 2(a) of the Identification of Prisoners Act. However, the very next line which declares that an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence is in teeth with the view adopted by the Supreme Court in Navjot Sandhu (supra) and Dara Singh (supra)." (emphasis supplied) The judgment cited above makes it crystal clear that the handwriting State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 38 of 58 39 sample of accused R.S. Sandhu obtained by IO/PW21 was in accordance with law and does not violate Section 5 of Identification of Prisoners Act. Hence, as necessary corollary the expert opinion (Ex.PW14/A) is held to be admissible in law.
50. It was further argued by Ld. Counsel for accused R.S.Sandhu that since the opinion Ex.PW14/A is not corroborated by other evidence in this case, opinion of Hand Writing Expert is of no consequence. To substantiate his assertion, learned counsel for the accused R.S. Sandhu relied upon a case titled as "JOSEPH VS. ALEYAMMA" reported as (1990) 2 KLT 68 (SN). The argument of learned counsel for accused R.S.Sandhu does not hold any water as it is settled law that where the reasons for opinion are convincing, the uncorroborated testimony of an handwriting expert can be accepted. In State of MAHARASHTRA ETC. VS. SUKHDEO SINGH AND ANR. reported as 1992 AIR 2100, it was observed by the Apex Court as follows:
"It is well settled that evidence regarding the identity of the author of any document can be tendered (i) by examining the person who is conversant and familiar with the handwriting of such person or
(ii) through the testimony of an expert who is qualified and competent to make a comparison of the disputed writing and the admitted writing on a scientific basis and (iii) by the court comparing the disputed document with the admitted one. In the present case the prosecution has resorted to the second mode by relying on the opinion evidence of the handwriting expert PW 120 .But since the science of identification of handwriting by comparison is not an infallible one, prudence demands that before acting on such opinion the Court should be fully satisfied about the authorship of the admitted writings which is made the sole basis for comparison and the Court should also be fully satisfied about the competence and credibility of the handwriting expert. It is indeed true that by nature and habit, over a period of time, each individual develops certain traits which give a distinct character to his writings making it possible to identify the author but it must at the same time be realised that since handwriting experts are generally engaged by one of the contesting parties they, consciously or unconsciously, tend to lean in favour of an opinion which is helpful to the party engaging him.............Since such opinion evidence cannot take the place of substantive evidence, courts have, as a rule State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 39 of 58 40 of prudence, looked for corroboration before acting on such evidence. True it is, there is no rule of law that the evidence of a handwriting expert cannot be acted upon unless substantially corroborated but courts have been slow in placing implicit reliance on such opinion evidence, without more, because of the imperfect nature of the science of identification of handwriting and its accepted fallibility. There is no absolute rule of law or even of prudence which has ripened into a rule of law that in no case can the court base its findings solely on the opinion of a handwriting expert but the imperfect and frail nature of the science of identification of the author by comparison of his admitted handwriting with the disputed ones has placed a heavy responsibility on the courts to exercise extra care and caution before acting on such opinion. Before a court can place reliance on the opinion of an expert, it must be shown that he has not betrayed bias and the reasons on which he has based his opinion are convincing and satisfactory. It is for this reason that the courts are wary to act solely on the evidence of a handwriting expert; that, however, does not mean that even if there exist numerous striking peculiarities and mannerisms which stand out to identify the writer, the court will not act on the expert's evidence. In the end it all depends on the character of the evidence of the expert and the facts and circumstances of each case. (emphasis supplied) The Hon'ble Supreme Court in the aforecited case also relied upon the celebrated judgment rendered in MURARI LAL VS. STATE OF MP (1980) 1 SCC 704 wherein it was held as follows:
"Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person `specially skilled' `in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (Section 3) tells us that `a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we set an artificial standard of proof not warranted by the provisions of the Act. Further, under Section 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 40 of 58 41 Section 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.
................................................... In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There can not be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight." (emphasis supplied) The Hon'ble Supreme Court, then observed;
"What emerges from the case law referred to above is that handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of finger prints; courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the Court has to decide in each case of its own merits what weight it should attach to the opinion of the expert."
51. Now, applying the dictum of the aforesaid case to the facts and circumstances of the present case, PW15/Dr. S.Ahmad in his Expert Opinion Ex.PW14/A gave innumerable commencing reasons for arriving at the conclusion that the questioned writings Marked Q2 to Q6 and sample writings S1 to S8, S10 to S23, S27 to S56, S153 to State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 41 of 58 42 S177 and A55 have been written by one and the same person (Accused R.S. Sandhu). He categorically stated in para 1 of his opinion (Ex.PW14/A) that:
"1. ........On comparison of questioned writings with the standard writings similarities are observed in detailed execution of various characters and part of characters such as manner of question letter स, nature of its initial body part; shape of eyelet of vow3l sign of EKAR( ेे)meant in the formation of body pat of letter 'वव' , open nature of its body oval at lower part; manner of execution of letter 'न', manner of combining of its horizontal stroke with its top of the body staff, manner of execution of letter ' त ' commencement of its body part from the foot of its body staff, peculiar manner of formation of vowel sign if IKAR ( िे) and forming a small loop alongwith its direction of finish, habit of putting sign of ' half Ra' before the proper location in the words 'िनररशक' , 'सवर' ', manner of execution of letter ' र ' shape of its body part, movement in the formation of body part of letter ' क ' manner of combining of terminal part of ' क ' with the vowel sign of EEKAR ( े ) in the word ' कक ' , peculiar manner of formation of letter ' ल ', location of its body curved part, manner of execution of letter ' भ ', shape of its body part, manner of formation of vowel sign of EEKAR ( े ) in continuation of terminal part of letter ' ल ' in the word 'िरल ', manner of execution of letter ' ह ' , shape of its two body parts, manner of execution of letter 'य' , nature of its body part, manner of combining of vowel sign of UKAR (ेु) with the terminal body part of letter ' ह ' in the word 'हह ' , manner of execution of letter ' ज' , nature of its body curved part , manner of execution 'प' and its manner of combining with vowel sign of UKKAR (ेु), manner of formation of vowel sign of EIKAR (ेै) appearing as '4' , movement in the formation of letter 'इ' and its direction of finish, movement impulse start of letter 'अ' , shape of its body part, manner of execution of letter ' च ', nature of its body part, peculiar manner of formation of letter ' half Pa' in the word 'पललट' , manner of execution of letter 'ए' , nature of its body part , manner of execution of letter 'झ' , movement while making its body part along with its direction of finish, manner of execution of letter 'ट' , nature of its body part, hooked start of top scoring over the words and habit of putting dot below the sign of VIRAM (l) as observed in the questioned writing is similarly observed in standard writing with similar various indicating that the writings marked Q2 to Q6, S1 to S8, S10 to S23, S27 to S56, S153 to S177 and A55 have been written by one and the same person."
52. Hence, in my considered view, the reasoning given by PW15 Dr. S.Ahmad is not only convincing but also reliable. It will also be not out of place to mention here that PW15 Dr. S.Ahmad is from Forensic Science Laboratory which is a government body and thus the State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 42 of 58 43 probability of Dr. S.Ahmad being biased and favourable towards prosecution and inimical against the accused is remote. The complicity of accused R.S. Sandhu is also corroborated from the fact that one folder containing list of JJ Dwellers Gautam Puri, Rajeev Camp Rohini, photocopies of ration cards and other such documents, one file containing documents regarding allotment of alternative plots in place of jhuggies and other documents were recovered from the house search of accused R.S. Sandhu which was seized vide Seizure Memo Ex. PW21/F. The recovery of the aforesaid documents further fortifies the fact that accused R.S. Sandhu was neck deep involved in the conspiracy.
53. The involvement of accused R.S. Sandhu is also fortified from the fact that the ration cards which were attached with these applications were found to be forged and fabricated. The same is proved from the testimonies of PW1/R.P. Mehra, PW3/K.S. Bisht (Retd FSO) and Ex. PW4/E (communications dated 24.07.2001 written by PW4/S.K. Trivedi, Dy.Commissioner (S&JJ) addressed to O.P. Arora/IO/PW21 and communication dated 19.07.2001 of accused Kundan Lal, Joint Director (SUR)). Vide letter dated 24.07.2001, it was stated by PW4/S.K. Trivedi that the ration cards submitted by the jhuggi dwellers were got verified and it was confirmed that these were not issued by the Food & Civil Supply Deptt. PW1/R.P. Mehra testified that in the year 2003 he was posted at FSO (Food & Supply Office), Circle3, Minto Road, New Delhi and on the request of Anti Corruption Branch, he had verified the ration cards of the following:
(1) Ram Prakash alleged to be residing at JC/8B/664, Gautam PuriI, having F/C No.FPS/Regn.No.331345/6390/1038 State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 43 of 58 44 (2) Sarvan Kumar alleged to be residing at JC/8B/456, Gautam Puri I having F/C No. FPS/Regn.No. 331558/6390/1185 (3) Hari Shankar Verma alleged to be residing at JC/8A/672, Gautam PuriI, having F/C No.FPS/Regn.No.168657/6390/1527.
He had checked the Master Register and no entry was found in the Master Register in respect of these three ration cards and hence, he had sent his detailed report Ex. PW1/A in this regard. In his cross examination, he also proved a letter dated 12.12.2003 written by Sh. C.M. Dhingra, Asstt. Commissioner (New Delhi) regarding verification of I/Cards of JJ dwellers of Gautam Puri I.P. Estate wherein it was specifically mentioned by Sh. C.M. Dhingra that "The Inspector had visited the Gautam Puri area and enquired about these 28 persons. But none of these persons were traceable there. On local enquiry, it was revealed that no such person were residing now or ever resided in the given address." PW3/K.S. Bisht, Retd. FSO, in his testimony stated that in June 2001 he was posted as FSO in Circle3, Minto Road. He had received a letter from Anti Corruption Branch along with photocopies of 25 ration cards attached with the (Fair Price Shop) FPS No.6390. He had checked the numbers of these ration cards from the Master Register maintained in the Circle Office. The number and details of these ration cards were not found mentioned in the Master Register and accordingly he had given his detailed report (Ex. PW3/A) regarding the 25 ration cards (Mark PW3/A1 to A25). The bare perusal of Ex. PW3/A reflects that it was communicated by PW3 to the IO/O.P. Arora/PW21 that the Master Register at FPS No.6390 maintained in this Circle has been checked and it has been found that none of these 25 ration cards have been issued or have been registered at the relevant columns of Master Register. The 25 State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 44 of 58 45 persons mentioned in the list given by the IO/PW21 have not been issued Food Cards in their favour by their office.
54. It was also argued by learned counsel for accused R.S. Sandhu that since Master Register from which it was concluded that the ration cards were forged and fabricated was not produced, it has not been proved that the ration cards were fake. The argument is completely devoid of merit as this fact was also established from communicated dated 19.07.2001 which is a part of Ex. PW4/E. As per communication dated 19.07.2001 accused Kundan Lal, Joint Director (SUR) himself acknowledged the fact that the allotment made to the questioned 28 JJ dwellers stood cancelled as these jhuggi dwellers had submitted forged documents which also included the fake ration cards.
55. In view of aforesaid discussion, the only conclusion which is liable to be arrived at is that accused R.S. Sandhu played a major role in the conspiracy.
Role of Members of Lock Committee (Accused Ram Charan Kamal and Shankar Sahani)
56. Admittedly, accused Ram Charan Kamal and Shankar Sahani both were members of Lock Committee along with Sh. S.L. Bhatnagar, Chairman who was on leave at the relevant time. It is also not in dispute that the cases of all locked jhuggies were dealt by both accused Ram Charan Kamal and Shankar Sahani only and that they had recommended allotment of plots to them. It is the case of the prosecution that when the questioned 28 JJ Dwellers had appeared before the Lock Committee, they had submitted forged ration cards State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 45 of 58 46 and insufficient documents. The Lock Committee had neither checked and verified the authenticity of the documents nor had noted that the documents filed by the fictitious JJ dwellers were incomplete. Rather, as the members were in hand in glove with the other coaccused persons, they had strongly recommended allotment of plots to them vide Ex. PW21/B1 to Ex. PW21/B28. To prove its case against the members of Lock Committee i.e. accused Ram Charan Kamal and Shankar Sahani, the prosecution examined PW4/S.K. Trivedi, the then Dy. Commissioner (Slum & JJ Deptt.) and PW21/O.P. Arora/IO.
57. PW4/S.K. Trivedi, the then Dy. Commissioner (Slum & JJ Deptt.), MCD testified that he had informed the IO/PW21 about the working of Lock Committee vide his letter dated 26.12.2002 (Ex. PW4/C) and that the Lock Committee was required to conduct its own investigation and then make a recommendation. PW4 in his testimony also proved Ex. PW4/D1/1 and Ex. PW4/D1/2 as per which it was the Lock Committee which was solely responsible for disposal of cases of locked jhuggies. As per him, the procedure to be followed by Lock Committee required the jhuggi dweller to appear before the Committee with the entire family along with affidavit of the Head of the family and his ID proof and family photograph. During investigation, vide Ex. PW4/A Sh. S.K. Trivedi/PW4 had informed the IO/PW21 that the duties of Lock Committee were mainly to determine the eligibility of squatter families on the basis of his/her personal appearance as well as verification of original documents and that it was formed in 1999 to dispose of cases of locked jhuggies.
58. The procedure which was to be followed by accused Ram Charan State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 46 of 58 47 Kamal and Shankar Sahani (Members of Lock Committee) as per PW4/S.K. Trivedi, was reiterated by PW21/O.P. Arora/IO in his testimony. He also specifically testified that the role of Lock Committee was to check the ration cards or any other residence proof personally produced by JJ Dwellers when they appeared before the Lock Committee. A BioData form was also required to be filled up by the absentee JJ Dwellers and he was also required to furnish an affidavit along with a passport size photograph attested by SDM or 1st Class Magistrate. According to him (PW21), during investigation it was revealed that none of the 13 JJ dwellers personally appeared before the Lock Committee or furnished the attested affidavit, passport size photograph or ration card along with BioData form. Thus, despite the fact that the mandatory codal formalities were not fulfilled, the Lock Committee recommended their case for allotment of plots vide Ex. PW21/B1 to Ex. PW21/B28 by submitting a false report Ex. PW9/B.
59. Strangely, both PW4 and PW21 blew hot and cold in their testimonies and subsequently testified that Lock Committee was not required to verify the ration cards of JJ dwellers whose jhuggies were found locked. PW21/IO/O.P. Arora went to the extent of stating that the policy of relocation of jhuggi dwellers placed on record did not reflect any provision regarding verification of identity documents attached by the applicants with their applications. Also contradicting his earlier statement, he testified that "During investigation, Dy. Commissioner (MCD) (JJ Slum) had made a statement to me that verification of I cards issued by Delhi Administration was to be carried out after the allotment, as because of political decisions, there was rush of work to be State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 47 of 58 48 done and, therefore, verifications were deferred to be done after the allotment. It was further informed by Dy. Commissioner that provisional allotments were being made, subject to be confirmed, after possession is offered." Hence, in his subsequent crossexamination, he tried to absolve accused Shankar Sahani and Ram Charan Kamal and stated that there was no duty cast upon the members of Lock Committee to verify the documents of the locked cases during provisional allotment and that the same were to be verified at a subsequent stage.
60. It will also not be out of place to mention here that during investigation, PW21/O.P. Arora/IO had collected a communication dated 01.01.2003 addressed to Dy. Commissioner of Police/Anti Corruption Branch by Ramesh Negi, Addl. Commissioner (S&JJ) which also endorses the fact that there was no specific instruction contained in the policy regarding verification of ration cards before making allotment to squatter families. Before issuance of formal allotment letter, JJ dweller was to produce documents i.e. (a) Photograph of the allottee, (b) Affidavit to the effect that he was the bonafide occupier/resident of the said jhuggi cluster, (c)Ration card/Icard or any other proof of pre 1990 in case of 1990 category and ration card/birth certificate/death certificate/school certificate/ medical treatment card post 1990before 1998/Election Icard. The onus to produce genuine documents was on the relocated families meaning thereby that the Members of Lock Committee were not required to check the authenticity of the documents at the time of provisional allotment and therefore, in the present case as well they had not done the verification.
State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 48 of 5849
61. Be that as it may, the culpability of accused Ram Charan Kamal and Shankar Sahani in the conspiracy is clearly reflected from the notings in Ex. PW9/B (the file which showed the movement of the applications of 13 questioned JJ Dwellers). Record reveals that IO/PW21 had misstated the facts regarding the number of locked jhuggi cases dealt by Lock Committee. As per Ex. PW21/B1 to Ex. PW21/B28, only 13 cases of JJ dwellers were dealt with by the members of Lock Committee i.e. Ram Charan Kamal and Shankar Sahani. In the case of remaining 15 JJ dwellers, allotment on provisional basis had already been made to them in December 2000 by accused Kundan Lal. So far as the 13 locked cases were concerned, the names of these 13 locked cases were found mentioned in Ex. PW9/B which reveals that despite accused Kamlesh Gupta/FI reporting on 25.01.2001 on Pg 3/N that occupants of jhuggies mentioned at Sl.No.1 to 12 are located in the pocket which is not eligible to be shifted/relocated and occupant of jhuggi mentioned at Sl.No.13 has already been shifted, the Members of Lock Committee i.e. accused Shankar Sahani and Ram Charan Kamal deliberately ignored the noting and recommended the names of fictitious 13 JJ Dwellers for allotment of alternative plots. The complicity in conspiracy is also established from the fact that when they dealt with the applications of these 13 JJ dwellers, they deliberately ignored the addresses given in the ration cards of the fictitious occupants. The bare perusal of their ration cards reveal that the occupants were occupying jhuggies in Gautam PuriI which is a large area. Since the address did not mention that the jhuggi was located opposite Players Building in Gautam PuriI which was only a small part of Gautam State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 49 of 58 50 PuriI, the question which begs answer is how did the members of the Lock Committee ascertain that the applicants were residents of Gautam PuriI, Opp. Players Building without verifying the said fact.
62. In view of the aforesaid discussion, complicity of accused Ram Charan Kamal and Shankar Sahani in the conspiracy is stand proved beyond reasonable doubt.
Role of accused Kundan Lal, the then Joint Director (SUR)
63. The role of accused Kundan Lal, the then Joint Director (Slum Upgradation & Rehabilitation) as per the version of the prosecution was that he was the kingpin of the conspiracy and that he misused his official position by approving the allotment of alternative plots to 28 fictitious nonexistent jhuggi dwellers as he was in conspiracy with the other coaccused persons. He thereby caused pecuniary gain to property dealers i.e. accused R.S. Sandhu and accused Darshan Lal (since expired) and pecuniary loss to the government exchequer.
64. However, before I proceed to discuss the evidence against accused Kundan Lal, it is pertinent to mention that during the course of arguments it was pointed out by learned Counsel for accused Kundan Lal that an application for seeking discharge of accused Kundan Lal on the ground of invalid sanction was pending. Consequently, it was argued that vide Establishment Order bearing No.GA/1140/ 175/93/Admn./D336 dated 25.10.1999 the accused Kundan Lal was a Class 'A' officer of the MCD. The Establishment Order reads as under:
"The Corporation vide its Resolution No.191 dated 09.08.1999, consequent upon the termination of lien by the parent department of Kundan Lal w.e.f. 22.11.1998 from the post of Assistant Director State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 50 of 58 51 (Plg/Stat) in GNCTD and issuance of "no objection" for absorption of Sh.Kundan Lal (on deputation with Slum & JJ Deptt., MCD w.e.f. 22.11.1993) by the Planning Deptt., Govt. of NCT of Delhi has approved the absorption of Sh. Kundan Lal w.e.f. 23.11.1998 to the post of Deputy Director in the Pay Scale of 30004500/ (prerevised) in the Slums & JJ Deptt. of MCD".
It was then argued that as per the judgment dated 25.01.2012 of Hon'ble Delhi High Court titled as G.S. Matharaoo Vs. CBI, it was the Corporation and not the Commissioner who was the competent authority to grant sanction u/s 19 of PC Act for Group A officers of MCD. Resultantly, the sanction accorded by PW18/Rakesh Mehta, the then Commissioner of MCD, was invalid and therefore, accused Kundan Lal be discharged for want of legitimate sanction.
65. It is no doubt true that valid order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants; and that it has to be accorded by a competent authority. However, I am of the opinion that in case of dispute regarding the competency of sanctioning authority, the burden to prove that it was not sanctioned by the competent authority is on the accused. Since, it was argued that Corporation was the competent authority and not the Commissioner, MCD and this fact was in the exclusive knowledge of the accused Kundan Lal, it was he who was bound to prove the same.
66. The witness who was examined qua accused Kundan Lal in this regard was PW18/Rakesh Mehta, Chief Secretary, Govt. of NCT of Delhi, the then Commissioner/MCD. He proved the prosecution sanction of accused Kundan Lal and other employees of Slums & JJ Deptt., MCD as Ex. PW18/A. He testified that before according State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 51 of 58 52 sanction, he had perused the Biodata of all the 10 accused persons including accused Kundan Lal and had accorded the sanction on 20.04.2004. In his crossexamination conducted by learned Counsel for accused Kundan Lal on 01.02.2011, no question challenging his competency was asked. Unlike, counsel for accused Ashok Kumar Chibbar who had questioned the competency of PW18/Rakesh Mehta by pointing out Ex. PW18/B (BioData of accused Ashok Kumar Chhiber), no question was put by the learned counsel for accused Kundan Lal to the effect that BioData of accused Kundan Lal was incorrect as it mentioned the Commissioner to be his Disciplinary Authority. It is also pertinent to mention here that the statement of accused Kundan Lal u/s 313 Cr.P.C. was recorded on 08.05.2015 wherein in answer to question No.11 relating to sanction Ex. PW18/A, he had though replied that Commissioner was not competent to remove him from service, he did not lead any evidence substantiating his claim. It will not be out of place to mention here that accused Kundan Lal had relied upon Resolution No.191 dated 09.08.1999 and Establishment Order bearing No.GA/1140/ 175/93/Admn./D 336 dated 25.10.1999 in his application but did not prove the same. Moreover, as per the BioData of accused Kundan Lal, the Appointing Authority as well as Disciplinary Authority was the Commissioner MCD, hence, the argument of the learned counsel for accused Kundan Lal that Commissioner MCD was not the competent authority to accord sanction deserves to be rejected.
67. Now adverting to the testimony of PW21/IO/O.P. Arora, the bare reading of evidence of PW21/IO/O.P. Arora reflects that during investigation he had seized two files i.e. Ex. PW9/B and Ex. PW9/C State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 52 of 58 53 which reflect that the 28 fictitious nonexistent JJ dwellers to whom the alternative plots were approved by accused Kundan Lal had moved representation in two sets of 15 and 13 each addressed to accused Kundan Lal, the then Joint Director stating that their premises were reported to be locked during survey and they should be alloted alternative plots. The representations were marked to accused Laxmi Narain (dealing hand) who put up two separate notes in respect of sets of 13 and 15 JJ dwellers, requesting for consideration of the cases. After this, Joint Director accused Kundan Lal marked the representations to Sociologist (accused Kishan Lal Taneja) who in turn marked both the files to Sr. Investigator (accused Ashok Chibbar). Accused Ashok Chibbar marked the file of 15 JJ Dwellers to FI (Accused Raj Bala Sharma) and the second file of 13 JJ Dwellers was marked to FI (accused Kamlesh Gupta). It was reported by accused Raj Bala Sharma vide Ex. PW9/C that during revisit in August 2000, all the 15 JJ Dwellers were found present and in respect of 13 JJ Dwellers, it was reported by FI Kamlesh Gupta that those 13 units of JJ Dwellers were still found locked. It was also reported by FI Kamlesh Gupta vide Ex. PW9/B that 12 out of these 13 JJ Dwellers were occupying units in that part of cluster which was not eligible to be relocated. These reports were submitted by SI Ashok Chibbar who forwarded the same to Sociologist/accused Kishan Lal Taneja, who further forwarded it to Joint Director accused Kundan Lal. Thereafter, accused Kundan Lal submitted this report to DC (Slum & JJ) recommending approval of allotments of alternative plots to the aforesaid 28 JJ Dwellers.
68. PW21/O.P. Arora further deposed that the role of accused Kundan State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 53 of 58 54 Lal, Joint Director was to shift the JJ cluster, Gautam PuriI, opposite Players Building and relocate the same to Bhalswa Resettlement Colony on the basis of survey conducted by the staff of Sociology/Survey Division, formation of Lock Committee and finalisation of codal formalities. He failed to follow the codal formalities when he approved the allotment on the basis of false report of members of Lock Committee and personally overlooked the codal formalities which were to be followed by him after the 13 JJ Dwellers were produced before him by the Lock Committee. He, thus on the basis of these false survey reports of FIs and the members of Lock Committee made the allotment to all the fictitious nonexistent 28 JJ Dwellers, vide computerized draw (Ex. PW21/D).
69. It was very vehemently argued by learned counsel for accused Kundan Lal that accused Kundan Lal had no role to play in the alleged conspiracy as vide Ex. PW4/D1/1, Ex. PW4/D1/2 and Ex. PW4/D1/3, it was the Lock Committee which was responsible for disposal of all such cases after ensuring that all the relevant documents were produced by the JJ Dwellers whose jhuggies were found locked at the time of survey. The said argument of learned counsel for accused Kundan Lal is not sustainable in the eyes of law as Ex. PW4/D1/3 is a circular dt. 17.01.2001 which was issued subsequent to the approval of grant of alternative plots by accused Kundan Lal on 12.12.2000. Otherwise also, Ex. PW4/D1/3 pertains to cases of Gautam Nagar Jhuggi Dwellers behind AIIMS and not Gautam PuriI, Players Building, Yamuna Pushta.
70. So far as the argument of learned counsel for accused Kundan Lal State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 54 of 58 55 regarding the sole responsibility of members of Lock Committee is concerned, it also does not hold any water. The accused Kundan Lal was under a bounden duty as Joint Director to oversee the report of his subordinates including that of Lock Committee and he was to also ensure that the alternative plots are allotted to rightful claimants. His role was not that of a post office.
71. The role of accused Kundan Lal in the conspiracy can very well be gauged from Ex. PW9/B which is the file pertaining to the movement of representations filed by 13 fictitious JJ Dwellers surveyed by FI Kamlesh Gupta and FI Satender Pal. Bare perusal of Ex. PW9/B reveals that FI Kamlesh Gupta on Page 3/N dated 25.01.2001 had very categorically reported that 12 out of these 13 JJ dwellers were occupying units in that part of cluster which was not eligible to be relocated and the JJ dweller at S.No.13 had already been shifted. However, her report was deliberately ignored by accused Kundan Lal by observing on 25.01.2001 itself as follows:
"Sociologist(s) has certified that the name of the above dwellers are existing in the survey list. We may provide alternative to all of them. For approval please."
It is also pertinent to note that it was nowhere certified by the Sociologist Kishan Lal Taneja that the names of these 13 JJ Dwellers existed in the survey list of the Pocket which was to be relocated, even then approval was recommended by accused Kundan Lal. Ex. PW9/B also reveals that vide noting dated 5th February 2001, accused Kundan Lal observed that:
"Please ensure that these jhuggi dwellers may not be provided/considered for alternative allotment as and ...(word not legible) the said cluster is relocated so as to avoid duplication."
However, provisional allotments had already been made by accused State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 55 of 58 56 Kundan Lal to these 13 JJ dwellers on 31.01.2001/01.01.2001 i.e. even before the noting dated 05.02.2001 which also cements the case of the prosecution against accused Kundan Lal.
72. Also, Ex. PW9/C which is the file pertaining to the movement of representations filed by the remaining 15 fictitious JJ dwellers surveyed by FIs Rajbala Sharma, R.K. Sharma, Jagdish Chander, Rajinder Khurana reflects the pivotal role of accused Kundan Lal in the conspiracy. As per Ex. PW9/C, the dealing clerk/Laxmi Narain had put up a note on 29.11.2000 before the Joint Director (SUR)/accused Kundan Lal to request the Sociologist to ascertain the existence of names of these 15 JJ dwellers in joint survey list and their status. The Sociologist/accused K.L. Taneja had further enquired the same from FI Rajbala Sharma and FI Rambir. Thereafter, a report was given by someone else (not by FI Rajbala Sharma) that the names of these 15 JJ dwellers existed in the joint survey list, whereafter, the note was again put up before the Sociologist who further put up the same before accused Kundan Lal. Accused Kundan Lal on 08.12.2000 had noted that:
".......Sociology Division has verified all the cases and certified at Pg 25/N that their names are appearing in the new joint survey conducted with DDA indicating the survey number. Since these families have been approaching this office for providing alternative, we may consider their names for providing alternative after completing all the codal formalities. Thereafter, we may also send a reference to Sociologist(s) to delete their names from the new survey list so that no duplicacy is occurred in future.
Submitted for approval please."
This noting was approved by Dy. Commissioner (S&JJ) on 12.12.2000, after which it was noted by accused Kundan Lal on 15.12.2000 that:
State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 56 of 5857 "Discussed. Please ensure that these jhuggi dwellers are not provided/considered for allotment as & when the said cluster is relocated so as to avoid duplication."
Thereafter, it was marked to the dealing clerk/accused Laxmi Narain. Further, Ex. PW21/B1 to Ex. PW21/B28 (files related to the applications/ representations of 28 JJ dwellers and the documents submitted by them) show that some of these 15 JJ dwellers deposited cash of Rs.7,000/ towards security for allotment of plot on 14.12.2000 i.e. even before the noting of 15.12.2000 was made by accused Kundan Lal. Since, it is no one's case that provisional allotments were made by anyone other than accused Kundan Lal, the noting dated 15.12.2000 further establishes the manipulations done by him and his complicity.
73. The facts which stand proved from the testimonies and documents qua the role of accused Kundan Lal are that he illegally approved allotment of plots to 28 fictitious JJ dwellers on provisional basis who were shifted from Gautam PuriI, Opp. Players Building to Bhalswa and the same stood cancelled by the Commissioner MCD sometime between 19.06.2001 and 19.07.2001. The same finds mention in Ex.
PW4/E that cancellation of provisional allotment was done on the basis of the report of Food Supply Department (Ex. PW3/A) that the ration cards of 28 JJ dwellers were forged and fabricated.
74. Since the allotment on provisional basis was cancelled, I am of the opinion that the prosecution failed to bring home the charge of Section 420 IPC against accused Kundan Lal, Ram Charan Kamal, Shankar Sahani and R.S. Sandhu. However, since an attempt was made, though it was not fructified, prosecution was successful in State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 57 of 58 58 proving the charge of Section 420 read with Section 511 IPC. Also, as the ration cards of the 28 applicants were found to be forged and fabricated, offences under Sections 468/471 IPC also stand proved. So far as Section 13(1)(d)(ii) of PC Act is concerned, the same also stands proved against the accused/public servants namely Kundan Lal, Ram Charan Kamal and Shankar Sahani as they in conspiracy with each other abused their position as public servants and obtained pecuniary advantage for accused R.S. Sandhu and deceased Darshan Lal by providing him plots at Bhalswa on provisional basis.
75. In view of my aforesaid discussion, accused/public servants namely Kundan Lal, Ram Charan Kamal and Shankar Shahani are held guilty and stand convicted under Sections 13(1)(d)(ii) of PC Act and Sections 120B, 420 r/w Section 511 IPC, 468 and 471 IPC whereas accused R.S. Sandhu is held guilty and stands convicted under Sections 120B IPC r/w Sec. 13(1)(d)(ii) PC Act and u/ss 420 r/w Sec. 511, 468 and 471 IPC. While discharging accused Ashok Kumar Chibbar, I have no hesitation in acquitting the remaining accused persons namely Rajinder Khurana, Laxmi Narain, K.L. Taneja, K.L. Maggo, Raj Bala Sharma, Kamlesh Gupta, R.K. Sharma, Jagdish Chander and Satender Pal by giving them the benefit of doubt.
Let convicts be heard separately on the point on sentence.
Announced and singed in the open Court on 28th February, 2017 (Hemani Malhotra) Spl.Judge (PC Act)(ACB)/C Tis Hazari Courts/Delhi State Vs. Kundan Lal etc.; FIR No.29/01, PS ACB Page 58 of 58