Delhi District Court
State vs 1. Devraj on 31 October, 2011
IN THE COURT OF SH. RAKESH SIDDHARTHA,
SPECIAL JUDGE (PCACT)06, TIS HAZARI,
DELHI
Case ID No. 02401R019582005
CC No. 58/2009
STATE V/s 1. DEVRAJ
S/o Sh. Yog Pal Singh,
R/o Vill. Rampur Bisada,
Distt. Gautam Budh Nagar, U.P.
2. AKHTAR ALI
S/o Sh. Manphool Ahmad,
R/o Vill. Ailum, Distt. Muzaffar Nagar,
U.P.
FIR No. 03/2005
U/S 7, 8, 13(1) (d) & 13 (2) of POC Act
r/w Section 120B IPC
Date of Institution : 02.03.2005
Judgment reserved on : 24.10.2011
Judgment delivered on : 31.10.2011
JUDGMENT
1. Accused have been charged that on 08.01.2005, at PS Preet Vihar, accused Devraj and Akhtar Ali entered into a criminal conspiracy for committing an illegal act of demanding and obtaining bribe from such persons whose summons, bailable warrants, non State V/s Devraj etc. Page No. 1/ bailable warrants were received in PS Preet Vihar from different courts for execution and report and accused Devraj being the dismissed Constable of Delhi Police conspired with coaccused Akhtar Ali posted as process serve in PS Preet Vihar and accused Akhtar Ali handed over the process which were to be served by him, to coaccused Devraj for execution by Devraj to enable him to demand and to obtain bribe from the public persons and both the accused persons by entering into this criminal conspiracy demanded Rs. 10,000/ on 8.1.2005 and obtained Rs. 4000/ on 12.01.2005 from complainant Ms. Zhelah Jadran for not arresting her brother Yana Jadran in execution of the NBW issued by the court and was returnable to the court on 14.1.2005 and coaccused Devraj scaled down the demand from 10,000/ to 4000/ which he asked complainant, who arranged and delivered on 12.01.2005 and this illegal act of demanding and obtained Rs. 4000/ from the abovesaid complainant as an illegal gratification other than legal remuneration and thereby both the accused committed an offence punishable u/s 120B IPC.
2. Secondly, that on 12.1.2005 at GKI, in pursuance of the aforesaid criminal conspiracy accused Akhtar Ali being a public servant posted as constable in PS Preet Vihar and on duty as a process server demanded and obtained Rs. 4000/ as illegal State V/s Devraj etc. Page No. 2/ gratification other than legal remuneration as a motive or reward for not arresting Yana Jadran, through accused Dev Raj when Dev Raj went to GKI on 08.01.2005 and represented himself as Vijender posted in PS Preet Vihar to complainant and demanded Rs. 10,000/ which he reduced to Rs. 4000/ and then on 12.1.2005 he demanded Rs. 4000/ and obtained this amount as illegal gratification which was other than legal remuneration or as a motive or reward from complainant Zhalah Jadran from the above said complainant and thereby committed an offence punishable u/s 7 of Prevention of Corruption Act, 1988.
3. Thirdly, that on 12.1.2005 at GKI in pursuance of abovesaid conspiracy accused Akhtar Ali being posted as above and thereby being a public servant by corruption or illegal means or by otherwise abusing his position as a public servant obtained for himself pecuniary advantage to the extent of Rs. 4000/ from the complainant through abovesaid coaccused Dev Raj in furtherance of the abovesaid criminal conspiracy of demanding and obtaining the abovesaid pecuniary advantage of Rs. 4000/ for not arresting Mr. Yana Jadran and he thereby committed the misconduct as specified in Section 13(1) (d) punishable u/s 13(2) of the Prevention of Corruption Act, 1988.
State V/s Devraj etc. Page No. 3/
4. Fourthly, on 12.1.2005 at GKI accused Dev Raj obtained a sum of Rs. 4000/ on behalf of coaccused Akhtar Ali from the abovesaid complainant which was gratification other than legal remuneration and as motive or reward for not arresting Yana Jadran by coaccused Akhtar Ali in execution of the NBWs issued by the court and he thereby abetted the commission of the offence u/s 7 of the Prevention of Corruption Act, 1988 by the abovesaid public srvant Akhtar Ali and he thereby committed an offence punishable u/s 8 of the POC Act r/w Section 120B IPC.
5. The aforesaid charges are based on a complaint lodged by complainant Zhalah Jadran that a case u/s 138 Negotiable Instrument Act was pending in the Karkardooma Court. On 8.1.2005, accused Devraj came to her and introduced himself as Vijender of Preet Vihar and had shown her an NBW issued in the name of her cousin. Accused Devraj asked her to give Rs. 10,000/ as bribe and threatened her that he would take her cousin to the court. On pleading he agreed to accept Rs. 4000/. He further told her that he would come on 12.1.2005.
6. On 12.01.2005, the complainant lodged a complaint against the accused which is Ex.PW3/A with Insp. Sukhbir Singh, who was the RO, in presence of one panch witness namely Rajni.
State V/s Devraj etc. Page No. 4/
7. The complainant produced 8 GC note of Rs. 500/ each before the Raid Officer who recorded the numbers of the same in preraid report, after getting the said GC notes checked through panch witness. Phenolphthalein powder was applied on the GC notes and demonstration was given. Thereafter, the characteristics of phenolphthalein powder and its reaction with sodium carbonate were explained to the complainant and panch witness.
8. Instructions were given to the complainant to keep the panch witness close to her and to talk and to transact with accused in such a manner so that the panch witness would be able to overhear and see the transaction. The complainant was further instructed to give the bribe money to the accused only on specific demand.
9. The panch witness was also instructed to remain close to the complainant and to overhear the conversation between complainant and the accused and also to observe the incident and after the demand and acceptance of money by the accused, she was required to give a signal to the raiding party by moving her both hands over her head.
10. Thereafter, in the presence of panch witness, tainted GC State V/s Devraj etc. Page No. 5/ notes were handed over to the complainant who kept the same in the small purse which she was carrying. Thereafter, hands of panch witness were got washed with the soap and clean water while the solution was thrown away. The RO recorded pre raid proceedings.
11. At about 12:00 PM, complainant alongwith panch witness, Raid Officer Insp. Sukhbir Singh, IO Insp. Sohan Lal and other members of raiding party left AC Branch in a Government vehicle and reached near SBlock, GKI at about 1:05 PM. The Government vehicle was parked at some distance.
12. The complainant and panch witness were again reminded about the instructions given to them in the preraid proceedings and raiding team reached the 2nd floor of S82, Greater Kailash, PartI. IO Insp. Sohan Lal and driver were left in the vehicle while the complainant and panch witness entered drawing room of the said premises and the members of raiding team took their suitable positions.
13. At about 2:05 PM, panch witness gave predetermined signal, at which, the raiding team came to the drawing room where accused Devraj was found present. Panch witness told the RO that the accused had demanded and had also accepted Rs. 4000/ as bribe State V/s Devraj etc. Page No. 6/ from complainant.
14. The Raid Officer disclosed his identity as an AC Branch official to the accused and challenged him. RO also asked the accused that he was required to be searched but before that if he wanted, he could take the search of the members of the raiding party but the accused declined.
15. On the direction of RO, panch witness recovered the bribe money of Rs. 4000/ from the right hand of accused. The numbers of recovered GC notes were tallied with the serial numbers recorded in pre raid report. Thereafter, the recovered GC notes were taken in possession vide seizure memo.
16. Right hand wash of accused Devraj was taken in the colorless solution of sodium carbonate which turned pink. The same was transferred to two clean glass bottles and sealed with the seal of SS.
17. Sample seal and sealed bottles containing hand wash were taken in possession vide seizure memo. Accused Devraj was arrested. Thereafter Raid Officer prepared post raid report.
State V/s Devraj etc. Page No. 7/
18. IO Insp. Sohan Lal was called to the spot and exhibits/case property as well as accused, copy of raid report and related documents were handed over to him for investigation.
19. The case was registered and chargesheet filed on which, charges were framed.
20. Accused pleaded not guilty and claimed trial.
21. In evidence, the prosecution had examined twenty five witnesses to substantiate the charge. Thereafter, statement of accused u/s 313 Cr.PC were recorded wherein the accused have denied their culpability in the commission of the offence charged.
22. I have heard the arguments on behalf of prosecution addressed by the Ld. Addl. PP Sh. Abdul Aleem who has argued that the evidence led by the prosecution manifests support by both the complainant and the panch witness to the case of the prosecution and through the testimony of said witnesses the demand and acceptance of bribe amount towards illegal gratification manifest. The evidence that has been led has shown that the accused Dev Raj, a dismissed employee of Delhi Police, had demanded and accepted illegal gratification on the threat that he would serve the arrest State V/s Devraj etc. Page No. 8/ warrant on the addressee more particularly against the cousin of the complainant and in this regard, had demanded and accepted Rs. 4,000/ in presence of PW5 Smt. Rajni, the panch witness. The prosecution has also proven by corroborative evidence the acceptance of bribe amount. The prosecution has also proven on record that there was an active connivance with the accused Akhtar Ali who was assigned the job of serving summons and warrants on the addressee which were in turn handed over to the accused Dev Raj and together they shared the illegal gratification so derived from the addresses of the warrants and summons. The handwriting expert has proven on record that there was an active connivance as the report had been filed under the signatures of accused Akhtar Ali. Accordingly, accused Dev Raj be held guilty u/s 8 of POC Act r/w Sec. 120B IPC and accused Akhtar Ali under the provisions of 7 & 13(1) (d) of the POC Act r/w Section 120B IPC.
23. Sh. Sunil Panwar and Sh. Naveen Bhargav, Ld. counsels for accused Dev Raj have argued that the prosecution has failed to prove that the accused was responsible for issuance of any threat of arrest etc. as the accused Dev Raj was neither an employee nor a police man and he could not threaten the complainant. The prosecution has failed to show any connivance between the accused Dev Raj and Akhtar Ali and hence, they cannot be liable for any State V/s Devraj etc. Page No. 9/ offence u/s 120B IPC. The present case has been illegally foisted on the accused.
24. Ld. Counsel for accused Akhtar AliSh. Vikrant Sharma has argued that neither was the accused arrested from the spot nor was there any complaint in regard to the accused ever demanding or accepting any illegal gratification from the complainant. The accused Akhtar Ali has no nexus with accused Dev Raj and hence, the present case has been foisted on him as it is admittedly not proven on record that the accused Akhtar Ali handing over the summons or warrants to the accused Dev Raj. Where the prosecution fails to prove the case against the accused beyond reasonable doubt, the accused are entitled to benefit of doubt and accordingly, they are entitled to acquittal.
25. Before we delve into the complicity of the accused in commission of the offence, it is imperative to determine whether the prosecution had procured the requisite sanction under the provision of POC Act which is sine quo non for prosecution of the accused under POC Act.
26. Sanction U/s 19 of POC Act is not an idle formality, but it is a sacrosanct act as the future and career of a Government official is involved. Hon'ble Supreme Court in Ram Kishan Prajapati Vs. State V/s Devraj etc. Page No. 10/ State of U.P., (2000) 10 SCC43 has stressed that the person according sanction should be a competent person and a sanction accorded by the person not competent to grant the same cannot be held to be a valid sanction. This fact has not been challenged by the accused.
27. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. What the court has to see is whether or not the Sanctioning Authority, at the time of giving sanction, was competent to accord sanction and whether it had applied its mind. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.
28. Sanction lifts the bar for prosecution. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. The validity of the sanction would, therefore, depend upon the material placed before the Sanctioning Authority and the fact that all the relevant facts, material and evidence have been State V/s Devraj etc. Page No. 11/ considered by the Sanctioning Authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the Sanctioning Authority had considered the evidence and other material, placed before it. This fact can also be established by the extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the Sanctioning Authority.
29. Since the validity of "sanction" depends on the application of mind by the Sanctioning Authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the State V/s Devraj etc. Page No. 12/ authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.
30. The Hon'ble Delhi High Court in the case of Bhisham Kumar Vs. State 1999 (iii) AD (Delhi) 177, has also applied the test as prescribed in the enunciation of the Hon'ble Supreme Court in the case of Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh 1979 Chandigarh Criminal Cases 113 (SC) and the view taken by the Supreme Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622.
31. In consideration of the said fact, PW24 Sh. Ajay Chaudhary, FRRO, the sanctioning authority has been examined. The witness has testified that Akhtar Ali, constable a public servant in discharging his official duty by corrupt or illegal means and while abusing his official position together with accused Dev Raj, a dismissed constable from Delhi Police had demanded and obtained Rs.4000/ on 12.01.2005 as illegal gratification other than legal renumeration from Zhalah Jadran. As per the said witness, constable Akhtar Ali accused hatched a conspiracy with accused Dev Raj. The said Akhtar Ali was detailed for service of court process in PS Preet Vihar, Delhi and who had handed over the said court processes to accused Dev Raj who in turn used to extort money from persons on State V/s Devraj etc. Page No. 13/ whom the summons and warrants were to be served which was shared between constable Akhtar Ali and accused Dev Raj.
32. The witness being a competent authority, who could remove the accused from service had examined the facts of the case carefully together with the material placed before him in regard to the said acts and allegations and circumstances of the case and after due application of mind PW24 had accorded sanction u/s 19 of POC Act vide sanction order Ex.PW24/A on which the signatures of the witness are appended. The said order was sent to the AC Branch vide forwarding letter Ex.PW24/B.
33. No substantial challenge has been made in regard to the competence or to the capacity of the witness in according sanction. Neither has the authenticity of the sanction order been challenged and in view of the fact, as held in Shankerbhai Laljibhai Rot vs. State of Gujarat 2004 (13) SCC 487 where it was observed by Hon'ble Supreme Court that: "So far as the question of Sanction is concerned, in the absence of anything to show that any defect or irregularity therein caused failure of justice, that plea is without substance."
State V/s Devraj etc. Page No. 14/
34. On the anvil of legal proposition, the aforesaid sanction order Ex.PW24/A is a valid sanction on which the prosecution of the accused Akhtar Ali could ensue. No sanction was required to prosecute the accused Dev Raj.
35. The case was initiated on a complaint lodged by PW3 Zhalah Jadran d/o Mohd. Jaan who has testified that on 08.01.2005 while she was residing in GK, PartI together with her cousin Yana Jadran with whom she was running a business of carpet trading when a case u/s 138 N.I.Act was lodged and was pending in the court of Sh. S.S.Malhotra, (Karkardooma) against her cousin Yana Jadran. The accused Dev Raj identified by the witness introduced himself and Vijender of Preet Vihar and showed an NBW issued in the name of the cousin. Accused Dev Raj demanded a sum of Rs.10,000/ as bribe and threatened that he would take away the cousin by dragging him in presence of the neighbours. It is further testified that the accused stated that if the cash amount was not possible, the witness could give jewellery. On the plea of the witness, the amount was reduced to Rs.4000/ .The accused stated that he would come on 12.01.2005 between 12.30 and 2.30 p.m. to collect the same.
36. It is testified that being averse to the concept of bribe, the witness went to the AC Branch on 12.01.2005 and lodged a State V/s Devraj etc. Page No. 15/ complaint Ex. PW3/A with Inspector of AC Branch on which the signatures of the complainant was appended in presence of one lady panch witness who was also present. The witness had brought 8 GC notes of Rs.500/ each which was given to the Raid Officer who recorded the serial numbers of the said GC notes in the preraid report who applied some powder on the said GC notes. A demonstration was given by making the panch witness touch the tainted GC notes and thereafter washing the hands in some waterlike solution which turned pink. The said solution was thrown away and powder coated GC notes were given to the complainant who kept the same and thereafter, the panch witness and the complainant washed their hands.
37. The Raid Officer instructed the panch witness to remain close to the complainant and observe and hear the transaction and on completion of the same to give an appropriate signal. Similarly, the complainant was instructed to handover the GC notes on specific demand by the accused and to keep the panch witness in close proximity so that she would be able to observe the transaction. Pre raid proceedings Ex. PW3/B were drawn.
38. At about 11.00 a.m. the complainant alongwith the panch witness, RO and other members of the raiding team left the AC State V/s Devraj etc. Page No. 16/ branch in a government vehicle and reached the spot within 45 minutes. The govt. vehicle was parked at a distance from her residence and the complainant and the panch witness sat in the living room while the raiding team took position in adjacent rooms. At about 1.302 p.m. accused Dev Raj came in and asked for the money. He stated that money should be given quickly as he had to go elsewhere. The complainant took out GC notes of Rs.4000/ and handed over the same to the accused who accepted in his right hand and counted it a few times with the help of his both hands. The panch witness on the pretext of going to the toilet left the room and came with the RO who apprehended the accused. The R.O. disclosed his identity as an Officer of the AC Branch. The panch witness informed the RO of the transaction. To this, the accused told the RO that he was the member of I.B. But the accused became perplexed and the RO recovered the GC notes. The numbers were tallied with that of preraid report Ex.PW3/B and same were taken in possession vide memo Ex.PW3/C. The hand wash of the accused was taken which gave positive result of presence of phenolphthalein and the same were taken into possession vide memo Ex.PW3/D. Post raid proceedings were drawn which is Ex.PW3/E. The summons and warrants were recovered from the accused which are collectively marked A and one in the name of cousin of complainant is Ex. PX. The same was seized vide memo Ex.PW3/F. Accused was arrested State V/s Devraj etc. Page No. 17/ vide memo Ex.PW3/G and personal search of accused was conducted vide memo Ex.PW3/H. The GC notes had been identified as Ex.P1 to P8, the hand washes as Ex.P9 and P10.
39. The complainant has been cross examined at some length whereby the character was sought to be impeached by stating that she had a number of cases pending against her but that is immaterial as a person who was stated to have been in business may have a number of cases pertaining to the property as well as commercial transaction. Otherwise no substantial challenge has been made to falsify the case against accused in as much as it is only suggested that a false case has been foisted against the accused.
40. The law in regard to the demand and voluntary acceptance has been established in B. Noha vs. State of Kerala & Anr. in Crl. Appeal no.1122/06 (Arising out of SLP (Crl.) No.952/06) where it was held that : "When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or the motive''.
41. Further in Madhukar Bhaskar Rao Joshi vs. State of State V/s Devraj etc. Page No. 18/ Maharashtra (2000) 8 SCC 571 the Hon'ble Supreme Court has held that : "The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like " gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to be public servant who received it".
42. Once it is established that the was a voluntary acceptance of the bribe amount the law is explicit as in Dhanvantrai Balvantrai Desai V. State of Maharashtra 1964 Crl.LJ437, where the Supreme Court court observed that : State V/s Devraj etc. Page No. 19/ "Therefore the court has no choice in the matter once, it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised u/s 114, Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by ' proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists.
Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted..... Something more, than raising a reasonable probability, is required for rebutting a presumption of law. The bare word of appellant is not enough and it was necessary for him to show that upon the State V/s Devraj etc. Page No. 20/ established practice his explanation was so probable that a prudent man ought, in the circumstances, to have accepted it."
43. The law does not requires or makes it imperative for corroboration of the testimony of the complainant where on the face of it, it seems to be meritorious and inspiring confidence yet prudence requires corroboration and for the said purpose PW5 Smt.Rajni has been examined who was the panch witness. After the initial deposition in regard to the procedure of the raid which was explained and has been narrated by the witness .The factual matrix of the incident as it transpired has also been narrated. PW5 has corroborated the filing of the complaint by the complainant alongwith its contents. It is further testified that at the spot the complainant alongwith the panch witness PW4 sat in the drawing room waiting for the accused while the members of the raiding team had concealed themselves in the house.
44. At 2.00 pm accused Dev Raj came to the house and knocked on the ground floor door. The complainant opened the door and accused came to the first floor where he demanded Rs.4,000/ as the bribe amount together with Rs.200/ on account of expenditure incurred by him as auto fare. Despite the request made by the complainant to scale down the amount, the accused did not relent.
State V/s Devraj etc. Page No. 21/ Complainant took out the powder treated GC notes, and handed them over to accused Dev Raj. On the receipt of the same by the accused, PW4 gave a predetermined signal to the Raid Officer who came to the spot alongwith 2/3 other police officers. The Raid Officer enquired about the transaction and on narration of the incident that accused Dev Raj had obtained the powdered treated GC notes, the Raid Officer disclosed his identity and challenged him that he had obtained illegal gratification. For the said purpose, the accused was required to the searched. If he so desired, the accused could take the search of the raiding team prior to the said search. The accused declined. On the directions of the Raid Officer, the panch witness PW4 recovered the GC notes from the right hand of the accused. Numbers and the amount were tallied with the preraid report and on being found to be identical, they were also taken in possession vide memo Ex.PW2/C. Hand wash of accused Dev Raj was taken in solution of Sodium Carbonate which turned pink. The solution was preserved in two bottles which were sealed and identified. 46 warrants were taken into possession vide memo Ex.PW3/F. The accused was enquired about as to the possession of NBWs and B/Ws and summons. The accused stated that they were all handed over to him by Ct. Akhtar Ali of PS Preet Vihar for execution of the warrants and service of the summons. The amount recovered by accused Dev Raj was shared with Akhtar Ali. The accused Dev Raj State V/s Devraj etc. Page No. 22/ revealed that he was a dismissed constable from Delhi Police and he was impersonating as police official in different names. Post raid proceedings were drawn which is Ex. PW3/E. Rukka was prepared which was sent through Ct. Kishan Pal for lodging of FIR. The GC notes have been identified as Ex.P1 to P8, the residue as P9 and P10 respectively and the sample seal as P11. The warrants etc. have been collectively identified as P12. Inspector Sohan Lal was called to the spot who prepared the site plan and took the accused as well as case property in his possession.
45. The panch witness has also not been challenged in regard to the factual matrix of the incident of demand and acceptance of the GC notes by the accused Dev Raj and the involvement of accused Akhtar Ali in facilitating the accused Dev Raj by providing the summons and warrants etc. Where the evidence so led proves on record that manifests a demand the subsequent accepatance and the recovery of the bribe amount inculpates the accused under the provisions of the POC Act.
46. On minute scrutiny, it is evident that the accused Dev Raj had infact visited the premises of the complainant PW3 where he had demanded Rs.4,000/ for not executing the NBWs against the cousin of PW3. This aspect has been corroborated by the panch State V/s Devraj etc. Page No. 23/ witness PW4. Even though minor discrepancies have been found in the testimony of PW4 yet they do not go into the merit and shake the testimony or dilute the complicity of the accused in the commission of the offence as has been held in Prakash Chand Vs. State (Delhi Admn.), AIR 1979 SC 400, that:
"Where the circumstances justify it, a court may refuse to act upon the uncorroborated testimony of a trap witness. On the other hand, a Court may well be justified in acting upon the uncorroborated testimony of a trap witness, if the Court is satisfied from the facts and circumstances of the case that the witness is a witness of truth."
47. Further support has been lent to the case of the prosecution through the testimony of PW14 Sukhbir Singh, ACP who was Inspector on the relevant day and has testified that on 12/01/2005 while posted as such, complainant Zhalah Jadran had come to the AC Branch and had handed over a written complaint Ex.PW3/A in presence of panch witness Rajni PW4. The complaint was read over to both the witnesses and was attested by witness PW14. The complainant had handed over eight GC notes of Rs. 500/ each to which the witness applied Phenolphthalein powder and explained the purpose of the same and gave demonstration of the consequences. The said GC notes were handed over to the State V/s Devraj etc. Page No. 24/ complainant who kept them in her purse.
48. Instructions were given to the complainant to keep the panch witness close to her and to talk and to transact with accused in such a manner so that the panch witness would be able to overhear and see the transaction. The complainant was further instructed to give the bribe money to the accused only on specific demand.
49. Thereafter the complainant and the panch witness together with the raiding team left the AC Branch in a Government vehicle and reached SBlock, GKI, New Delhi where the vehicle was parked together with Inspector Sohan Lal and Driver Satender. The panch witness and complainant were sent to the drawing room while the raiding team took their respective positions. At 2.05 pm, predetermined signal was received from the panch witness when a person by the name of Dev Raj was apprehended subsequent to the panch witness stating that the said accused have accepted Rs.4,000/ from the complainant. The accused had disclosed his name as Ct.Vijender of PS Preet Vihar. After being challenged and offer of the search, the Raid Officer asked the panch witness to retrieve the GC notes and accordingly they were seized vide memo Ex.PW2/C. Hand wash etc. was taken. They were preserved. Post raid proceedings were drawn and rukka Ex.PW14/A was recorded and State V/s Devraj etc. Page No. 25/ sent through Ct.Kishan Pal for registration of the case while Inspector Sohan Lal was called to investigate the case.
50. To the entire testimony of PW14, no substantial challenge has been made in regard to the procedure of the raid or the apprehension of the accused. A perfunctory defence has been taken which does not challenge the complicity of the accused in commission of the offence in as much as even the accused Akhtar Ali has not challenged the raid proceedings and the recovery of the warrants, notices and summons Ex.PW14/B.
51. The evidence that has been brought on record till the completion of the raid and arrest of accused Dev Raj, the accused Akhtar Ali had only been named as the provider of summons and warrants for execution and furthermore the revelation by the accused Dev Raj that the money so recovered by him was being shared with Ct.Akhtar Ali. The nexus between accused Akhtar Ali and accused Dev Raj who was not a public servant on the date of his arrest and for that matter when charges were framed, it becomes imperative that the complicity of accused Akhtar Ali be determined and his connivance in the commission of the offence. For the said purpose, PW21 Inspector Sohan Lal was examined who was a person responsible for investigation.
State V/s Devraj etc. Page No. 26/
52. As per the testimony of PW21 Assistant Commandant (Retired) Sohan Lal who was Inspector on the relevant date was called to the spot by Inspector Sukhbir Singh and had handed over the custody of accused Dev Raj together with the case property. The witness had interrogated the complainant and the panch witness. Site plan was prepared at the instance of the witnesses PW3 and PW4. Thereafter accused Dev Raj was arrested and his personal search taken. It is testified that on 14/01/2005 the witness together with accused Dev Raj went to PS Preet Vihar where accused Dev Raj pointed out where he used to accept summons and warrants from Akhtar Ali. Memo in this regard was prepared which is Ex.PW21/B. Statements of the witnesses were recorded. The witness seized the photocopy of VB Register from PS Preet Vihar vide seizure memo Ex.PW21/C and the photocopies are Ex.PW21/C1 to C23. Photocopy of the warrant register was also seized which is Ex.PW21/D and photocopies are Ex.PW21/D1 to D23. Accused Dev Raj was arrested and charge sheet filed. Accused Akhtar Ali surrendered before the court and he was arrested vide memo Ex.PW21/F.
53. To further determine the complicity of accused Akhtar Ali, PW11 ASI Sumitra Bharti has been examined who has testified State V/s Devraj etc. Page No. 27/ that she was Incharge of VB where accused Akhtar Ali and one Rajbir who were working in the same section. She used to receive the warrants from the different Naib Courts and after making records of the same, she would give them to Akhtar Ali and Rajbir. Ct.Rajbir has further been examined as PW10 who has testified that he has seen the photocopies of the warrants of arrest. The same bears the signatures of Akhtar Ali subordinate to Incharge, VB.
54. Through the evidence that has been brought on record, it is clear that the summons and notices that were received by VB Branch by witness PW11, the same were being disbursed to PW10 and the accused Akhtar Ali and the said summons bear the signatures of the accused Akhtar Ali and accused Dev Raj.
55. The question of the conspiracy has also been raised. To determine whether there was a conspiracy it has to be first determined as to what is conspiracy? What is the requirements under the said law and what are the requirements of which the accused are being made liable?
56. Criminal conspiracy has been defined in Section 120A of the Indian Penal Code, 1860 to mean:
"when two or more persons agree to State V/s Devraj etc. Page No. 28/ do, or cause to be done
1. an illegal act, or
2. an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
57. As regards the punishment for criminal conspiracy is concerned, Section 120 B of the Indian Penal Code reads as under:
Criminal conspiracy is an independent offence. It is punishable separately.
Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused.
A Criminal conspiracy must be put to action in as much as so long a crime is generated in the State V/s Devraj etc. Page No. 29/ mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder only when that taken concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done by the agreement would give rise to a criminal conspiracy.
Its ingredients are
1. An agreement between two or more persons;
2. An 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.
What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means."
58. As per the law, the accused Dev Raj had no authority to serve the summons or warrants on any person whatsoever as he was no longer in the employment of the Police.The said job was of accused Akhtar Ali who admittedly had taken the summons and warrants from PW11 ASI Sumitra Bharti , the Incharge of VB. The recovered warrants and the notices bear the signatures of accused State V/s Devraj etc. Page No. 30/ Akhtar Ali which signify the complicity and connivance in seeking illegal gratification from the complainant.
59. PW22 Ami Lal Daksh, Retired Senior Scientific Asstt. FSL, Rohini has been examined about the scrutiny of documents, Mark Q1 to Q8 and Q9 to Q17,.The warrants of arrest were received alongwith specimen signatures of S1 to S8 of Devraj and specimen signatures of mark S9 to S35 of Akhtar Ali. The witness thoroughly examined the documents while he was posted at FSL with scientific aids available. Report was given which is Ex.PW22/A under his signatures. Documents Ex.PW22/A1 to A13 were examined on the basis of specimen documents Ex.PW7/B1 to PW7/B8 and Ex.PW21/J1 to PW21/J15. As per the report, there was marked similarity between this writing found on the document with that of specimen signatures made available to the witness to an extent that the author of the documents and admitted signatures seemed to be identical.
60. Witness PW20 Kishanpal has also been examined who has testified that while he was posted as Incharge with V.B., PS Preet Vihar, he had handed over photocopies of the warrants executed by Akhtar Ali to the Investigating Officer. The signatures on the said warrants have been identified. Similarly, PW16 Kamal State V/s Devraj etc. Page No. 31/ Kishore, PW17 Hct. Sikandar Singh and PW18 Hct. Brijveer Singh have been examined who have proven on record the summons etc. received and issued from various courts.
61. On the point of conspiracy, the Hon'ble Supreme Court in State (NCT of Delhi) V/s Navjot Sandhu has stated the law as thus:
"One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."
62. In State of M.P. Vs. Sheetla Sahai, (2009) 8 SCC 617, it is observed :
"Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused.
State V/s Devraj etc. Page No. 32/ "A criminal conspiracy must be put to action inasmuch as so long a crime is generated in the mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, of teninvoluntary, but offence would be said to have been committed thereunder only when that take concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy. Its ingredients are:
(i) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means.
"What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence."
63. Admittedly, the summons and warrants were issued to accused Akhtar Ali which were found in possession of accused Dev Raj who was neither entitled to nor competent to serve them and he had no reason to have them in his possession being a dismissed employee. A voluntarily passing of the said document to accused Dev Raj by accused Akhtar Ali manifests connivance between the State V/s Devraj etc. Page No. 33/ two accused in their consorted effort to gain illegal gratification from various persons. If the accused Dev Raj had taken the summons and warrants skeletally this should have been complained of to the authorities but the report on the warrants etc have the writing by accused Dev Raj under the signatures of accused Akhtar Ali. Hence, the act reflects connivance between the two accused . Accordingly, the accused sharing the illegal gratification and demanding through accused Dev Raj would make him liable under the provisions of Section 7 of POC Act and his willful act of misuse of official position and gaining the said illegal gratification would make him liable under the provisions of Section 13(1) (d) of the Act read with section 120B of IPC.
64. Accused Dev Raj being a dismissed employee and not being public servant on the date of his commission as well as on the day when charges were levelled against the accused by his act of seeking illegal gratification in active connivance of accused Akhtar Ali, a public servant, the act would constitute an offence u/s 8 of the POC Act.
65. The evidence that has been brought on the record by the prosecution has proven with success the aforesaid act of seeking gratification and extracting money by threatening to arrest the State V/s Devraj etc. Page No. 34/ addressees of the summons and warrants and the accused Akhtar Ali actively conniving with the accused Dev Raj in serving the summons and warrants to the addresses and thereafter filing the report under the signatures of accused Akhtar Ali which also have signatures of accused Dev Raj proves on record the guilt of the accused as per the charge.
66. In consequence to the evidence led by the prosecution and on application of the law as established, the prosecution has been successful in proving the case against accused persons whereby accused Dev Raj is held guilty under the provisions of Section 8 of POC Act and 120B of IPC while the accused Akhtar Ali is held guilty under the provisions of Section 7 and 13(1) (d) of POC Act r/w Section 120B IPC.
To come up for arguments on quantum of sentence. Announced in the open court today on 31st day of October, 2011 (RAKESH SIDDHARTHA) SPECIAL JUDGE (PCACT)06 TIS HAZARI, DELHI State V/s Devraj etc. Page No. 35/ IN THE COURT OF SH. RAKESH SIDDHARTHA, SPECIAL JUDGE (PCACT)06, TIS HAZARI, DELHI Case ID No. 02401R019582005 CC No. 58/2009 STATE V/s 1. DEVRAJ S/o Sh. Yog Pal Singh, R/o Vill. Rampur Bisada, Distt. Gautam Budh Nagar, U.P.
2. AKHTAR ALI S/o Sh. Manphool Ahmad, R/o Vill. Ailum, Distt. Muzaffar Nagar, U.P. FIR No. 03/2005 U/S 7, 8, 13(1) (d) & 13 (2) of POC Act r/w Section 120B IPC Date of Judgment: 31.10.2011 Date of Sentence: 28.11.2011 ORDER ON SENTENCE:
It is never too simple and easy to incarcerate a person for his offence and be certain as to whether the sentence so given is commensurate with his deed. An overview and humane touch is often required when a plea of the plight of the family and the dependents, is taken before the court. It is true that we are State V/s Devraj etc. Page No. 36/ answerable for our own acts and deeds but it is seldom that others are not effected by it. Be it the crime or punishment.
2. When corruption was sought to be eliminated from the polity all possible stringent measures were to be adopted within the bounds of law. One such measure was to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as 7 years and directed that even if the said period of imprisonment need not be given the sentence shall not be less than the imprisonment for one year. Such a legislative insistence is reflection of Parliament's resolve to meet corruption cases with very strong hand and to give signals of deterrence as the most pivotal feature of sentencing of corrupt public servants. All public servants were warned through such a legislative measure that corrupt public servants have to face very serious consequences. If, on the other hand, any public servant is given the impression that if he succeeds in protracting the proceedings that would help him to have the advantage of getting a very light sentence even if the case ends in conviction, we are afraid its fallout would afford incentive to public servants who are susceptible to corruption to indulge in such State V/s Devraj etc. Page No. 37/ nefarious practices with impunity. Increasing the fine after reducing the imprisonment to a nominal period can also defeat the purpose as the corrupt public servant could easily raise the fine amount through the same means. (Madhukar Bhaskarrao Joshi Vs. State of Maharashtra (2000 (8) SCC 571)
3. I have heard Ld. Addl. P.P. for State who has argued that the convicts do not deserve any leniency as being police officials had misused their position and furthermore, had extorted money from hapless citizens by extending threats of public humiliation.
4. I have heard the Ld. Counsel Sh. Navin Bhargav for convict Dev Raj, who has argued that the convict Dev Raj is of mature age and has marriageable aged children and prior to his dismissal, from service, he was the sole bread earner.
5. Ld. Counsel Sh. Vikrant Dhawan for the convict Akhtar Ali has argued that the convict has two marriageable daughters and a minor son while his wife is under treatment at St. Stephen Hospital for which the convict as the spouse of the convict requires his assistance for the same. The convict has also a minor son aged 14 years whose future is dependent upon the care to be provided for the upbringing of the child. For the said purpose, prolonged State V/s Devraj etc. Page No. 38/ incarceration would be detrimental.
6. After hearing both the sides and upon perusal of the record, I find it difficult to accept the prayer of the convicts that they deserve any leniency in this case.
7. In words of Justice I. D. Dua in Ram Sarup Charan Singh Vs. The State AIR 1967 DELHI 26 it has been held that : "I may before closing draw the attention of the authorities and all concerned to the grave danger to our very existence as a free, honest democratic welfare society when we became indulgent to our police personnel getting habitual to taking bribes."
8. The Hon'ble Supreme Court in Swtantar Singh Vs. State of Haryana 1997 4 SCC 14 observed as under : "Corruption is corroding like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralizing the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently truthfully honestly and devotes himself assiduously to the State V/s Devraj etc. Page No. 39/ performance of the duties of his post".
9. Corruption has pervaded all public services but it has colossal manifestation in services where public interaction is involved. For each and every need, it has become necessary for ordinary citizen to bribe his way to get his work done. This is a sorry state of affair and the authorities more particularly judiciary has to quell this menace to send a message that society shall not endure this degeneration in public life.
10. The police has certain role to play as a protector and savior of the society and if they themselves turn unscrupulous and dishonest and resort to illegal exploitation, then the society is heading towards chaos. The society should not allow it and it should be quelled with exemplary force.
11. Consequently, the convicts do not deserve any indulgence or clemency from the court of law and as such custodial sentence of Rigorous Imprisonment alone would serve as a real deterrent. In consequence, I sentence the convict Akhtar Ali to undergo R.I. for three years with a fine of Rs.1000/ and in default of the same further imprisonment of three months S.I. u/s 7 of POC Act. The convict is also sentenced to three years R.I. with the fine of Rs. 1000/ and in State V/s Devraj etc. Page No. 40/ default thereof a further period of three months under section 120B IPC. The convict is also sentenced under the provisions of Section 13(1) (d) to a period of three years SI with a fine of Rs.1000/ and in default of payment of fine, a further period of three months S.I.
12. I sentence convict Dev Raj to undergo R.I. for a period of three years with a fine of Rs.1000/ and in default thereof to undergo SI for three months under the provisions of Section 8 of POC Act and the convict is further sentenced to undergo R.I. for three years with a fine of Rs.1000/ in default three months S.I. under the provisions of Section 120B IPC.
All the sentences shall run concurrently. The convicts will also be entitled to benefit u/s 428 Cr.PC.
13. A duly attested copy of the judgment and this order be supplied to the convict free of costs and thereafter file be consigned to record room.
Announced in the open court today on 28th day of November, 2011.
(Rakesh Siddhartha)
Special Judge (PCAct)06
THC/Delhi/28.11.2011
State V/s Devraj etc. Page No. 41/