Delhi District Court
Cc No.98/19 State vs Subhash Borker Pages: 1/37 on 21 November, 2019
IN THE COURT OF MS. KIRAN BANSAL, SPECIAL JUDGE
(PC ACT CASES) (ACB01), CENTRAL DISTRICT
ROUSE AVENUE COURT COMPLEX, NEW DELHI
CNR No. DLCT110002352019
CC No. 98/2019
State (Govt. of NCT of Delhi)
VERSUS
1. Subhash Borker
S/o Sh. Pandurang Borker
R/o RZ14B, Sainik Colony
Laxmi Park, Nangloi, Delhi.
FIR No. : 23/14
U/S : 7/13 PC Act
PS : Vigilance
Date of institution : 03.01.2019
Judgment reserved on : 21.11.2019
Judgment delivered on : 21.11.2019
JUDGMENT
1. Brief facts of the case as revealed from the chargesheet are that a complaint was filed by the complainant Irshad Khan against Delhi Traffic Police, Patel Nagar Circle, MIG Chowk stating that he is the president of the Janta Ka Adhikar Kalyan Samiti and is employee as cameraman in Jan Ujala daily newspaper. He further stated that on CC No.98/19 State Vs Subhash Borker Pages: 1/37 07.03.2014, he projected himself as helper of a vehicle and they were going from Inderlok to Punjabi Bagh and at Rampura Metro Station, Jakhira Circle, police officials were checking the vehicles after stopping them and had also stopped the vehicle of the complainant and asked him to show the papers of the vehicle. The complainant further stated that he produced all the papers related to his vehicle and thereafter, the police official stated that he must show entry of the vehicle on the route and further stated that he accepts Rs.500/ as entry fees for the said route and if the complainant wanted that his vehicle should ply on this route, then he should also pay entry fees of Rs.500/ and thereafter, he can take as many passengers as he wants in his vehicle. The complainant further stated that he pleaded with the police official to reduce the amount but the police official persisted that he would accept only Rs.500/ as entry fees otherwise he would seize his vehicle. The complainant further stated that thereafter, he had to pay Rs.500/ to the police officials and he also noticed that police officials were stopping other vehicles also and was demanding entry fee from them also and therefore, extorting illegal money. He further stated that he recorded the said incident in his spy camera and had given a complaint regarding incident to T.I., Patel Nagar Circle on 09.04.2014 alongwith the CD but no action was taken on the said complaint and therefore, he was filing this complaint alongwith a video DVD for action against corrupt police officials. On the said complaint, it is stated that an enquiry was conducted and after approval of the senior officers, present FIR was registered and investigation was conducted. During investigation, IO called the complainant and in the presence of the complainant, video CD was played and the complainant identified the CD to be the same which was made by him on 07.03.2014 CC No.98/19 State Vs Subhash Borker Pages: 2/37 at Rampura Metro Station near Jakhira Flyover. Thereafter, the original CD was seized and sealed with the seal of RRK. Certificate under section 65B Indian Evidence Act was also given by the complainant. Statement of complainant was also recorded. During further investigation, Munna also joined the investigation and produced the memory card of 2GB which was having the recording of the same sting which was conducted by Irshad Khan on 07.03.2014. It is stated that transcription of the video was made in the presence of Munna and working copy of the transcription was made and was sealed with the seal of RRK. The investigation was thereafter, conducted by Insp. Anand Singh. Accused was identified by HC Shaji Mon P.K. The duty roster of the accused was also collected. Accused also joined the investigation and was shown the video CD but he stated that he did not take any money from anybody and there was some editing in the video and he also refused to give his sample voice. Munna was also asked to give his sample voice but Munna also refused to give his sample voice and rather gave an affidavit stating that he had nothing to do with the CD and he had never given any money to police officials and he had never met any police official. He stated that when he was going to Vigilance Office someone gave envelope having a memory card to him and told to give the same at Vigilance Office. He further stated in the affidavit that he has no concern with the video nor he wanted to give his sample voice. Irshad Khan gave certificate under section 65B Indian Evidence Act regarding correctness of the recording and he further stated that when he was doing sting of SDM, Nand Nagari, his original device was broken by some persons and he had reported the matter to PS Nand Nagari on 04.04.2015 and he further stated that he could not produce original CC No.98/19 State Vs Subhash Borker Pages: 3/37 device. The exhibits i.e. memory card and CD were sent to FSL for examination and the FSL opined that there was no indication of alteration in the video CD. Bribe money was not recovered as the amount was small and case was registered after seven months. Thereafter, chargesheet was filed in the court and cognizance of the offence under section 7/13(1)(d) of Prevention of Corruption Act against accused was taken on 18.01.2019, vide order dated 08.01.2019.
2. Thereafter, charge for the offences punishable under section 7 & 13 (1)
(d) of Prevention of Corruption Act 1988 was framed on 16.04.2018 against accused Subhash Borker to which he pleaded not guilty and claimed trial. Prosecution in support of their case examined 15 witnesses and the accused did not examine any witness in his defence.
3. PW1 Ct. Ankush deposed that he had collected the FSL result from FSL Rohini alongwith the sealed exhibits and came back to PS Vigilance and handed over the FSL result and sealed exhibits to MHC(M).
4. PW2 SI Krishan Pal deposed that on 07.10.2014, SHO gave him complaint of Irshad Khan bearing endorsement Ex.PW2/B of SHO and he had registered the FIR Ex.PW2/A by using computer system installed at PS Vigilance. Certificate under section 65B Indian Evidence Act in respect of FIR is Ex.PW2/C.
5. PW3 Raghu Raj Khatana deposed that in the year 2014 he was posted as SHO, PS Vigilance and had received a complaint of Irshad Khan alongwith one CD and after preliminary enquiry and approval of the senior officers, the present case was registered and investigation was entrusted to Insp. Raj Kumar. The complaint is Ex.PW3/A.
6. During the crossexamination by ld. Counsel for accused, he stated that he cannot tell the exact time as to when the complaint was received or CC No.98/19 State Vs Subhash Borker Pages: 4/37 for how many days the preliminary enquiry was conducted. He further admitted that preliminary enquiry report was not annexed with the complaint Ex.PW3/A, neither the same has been show to the court. He further stated that he did not make any enquiry from Munna and Irshad Khan. However, he denied the suggestion that he gave directions for registration of case mechanically without due application of mind.
7. PW4 Ct. Mahender Kumar deposed that on 07.10.2014, he was posted at PS Vigilance and the duty officer gave him complaint of Irshad Khan with endorsement of SHO and he had fed the same into the computer system for registration of FIR and had also issued certificate under section 65B Indian Evidence Act.
8. PW5 HC Jai Bhagwan deposed that on 29.06.2015, he had handed over the attested copy of duty roster and pointwise duty chart of Patel Nagar Circle for 07.03.2014 Ex.PW5/A to the IO. He further deposed that as per the duty roster, HC Subash Borker i.e. the accused was deputed on 07.03.2014 at Zakhira under flyover/round about Zakhira, Ganda Nala from 08:00 am to 10:00 pm. He further deposed that vide DD no. 3 dated 07.03.2014 Ex.PW5/B, accused had proceeded from Traffic Circle for his duty.
9. PW6 ASI Joseph deposed that he was posted at PS Vigilance on 11.01.2016 and had collected two sealed exhibits with the seal of RRK from the MHC(M) and had deposited the same at FSL Rohini and receipt of the same was given at FSL Rohini which he gave to the MHC(M).
10. PW7 Ct. Sikandar Mann deposed that on 02.12.2014, Irshad Khan came to the office of Vigilance at Barakhamba and produced a CD containing recording of transaction of bribe by Munna at Zakhira, before Insp. Raj Kumar. He further deposed that the CD was played on the CC No.98/19 State Vs Subhash Borker Pages: 5/37 office computer and thereafter, the CD was kept in sealed envelope and converted into pullanda and sealed with the seal of RRK and taken into police possession vide memo Ex.PW7/A. Thereafter, on 19.12.2014, one person Munna came to Vigilance office and handed over memory card of 2 GB black colour to the IO which were seized vide seizure memo Ex.PW7/B and sealed with the seal of RRK. He also identified the case property i.e. memory card Ex.P1 and the CD mailer envelope Ex.P2 as well as DVD Ex.P3. He further deposed that Irshad produced certificate under section 65B Indian Evidence Act on 02.12.2014 while he produced DVD Ex.P3. He further stated that he does not remember, if in his presence the transcript was read over to Munna and he had signed the same. He further deposed that on 30.06.2015, the IO had asked the accused to give his sample voice but the accused had refused to give his sample voice. The accused was apprised about the consequences of not giving the sample voice and IO had prepared the memo Ex.PW7/B in this regard.
11. PW8 Dr. Bharti Bhardwaj deposed that she was working as Scientific Assistant, Physics since January 2000 and in the year 2014, she was working as Senior Scientific Officer and had examined the exhibits of the present case i.e. micro SD card Ex.Q1 and the DVD Ex.QCD1. She further deposed that micro SD card Ex.Q1 contained one file and there was no indication of alteration in the video shot on the basis of frame by frame examination. She further deposed that video file in Ex.QCD1 also contained one video shot and there was no indication of alteration in the video shot on the basis of frame by frame examination and her report in this regard is Ex.PW8/A. She further deposed that the exhibits were thereafter sealed with her seal. She identified the memory card Ex.P1 CC No.98/19 State Vs Subhash Borker Pages: 6/37 and Ex.P3 to be the same which were examined by her.
12. During the crossexamination, she deposed that there was no subject of video frame examination in M.Sc. (Physics) and Ph.D (Physics) and she has not passed any diploma or degree in video file frame examination. She further deposed that there was also subject computer science in M.Sc. (Physics) which also covers Video Frame Examination. She further deposed that she did not ask for the original recording device before forming her view and framing her report. She further stated that the formats of recording of CD and SD card are different. She further stated that she had not stated in her report Ex.PW8/A as to whether the recording was done originally/primarily in the micro SD card. She further admitted it to be correct that the contents can be pasted in micro SD card. She further admitted that the lab i.e. FSL, Rohini was not notified under section 79A of Information and Technology Act at the time when she gave her report Ex.PW8/A, though she stated that the same was notified at the time of recording her testimony.
13. PW9 S.K. Tewari, DCP is the sanctioning authority who stated that he had received a request from DCP, Vigilance alongwith FIR and documents including statement of witnesses, draft chargesheet, refusal memos of accused to give his sample voices etc. and that PW9 was the disciplinary authority of the accused and was competent to remove him from his services. He further stated that he perused all the documents and found sufficient incriminating material for according prosecution sanction and thus, granted sanction vide order dated 12.07.2017 Ex.PW9/A.
14. During the crossexamination on behalf of the accused, he stated that he had also received list of documents and list of witnesses alongwith the CC No.98/19 State Vs Subhash Borker Pages: 7/37 request letter for grant of sanction. He also admitted that copy of one affidavit of one Munna in which Munna had stated that he had no connection with the present case was also sent to him. He further stated that he did not verify as to which vehicle was used by the complainant in respect of which the demand was made. He further admitted that the document Ex.PW9/D1 dated 28.10.2017 bears his signature as per which the accused was exonerated in the departmental enquiry.
15. PW10 ASI Shaji Mon deposed that on 07.03.2014, he was shown the recording contained in CD in the Traffic Circle and PW10 found that a person was looking like Subhash Borker and was talking about challan and money. He further deposed that HC Subhash Borker was posted at Patel Nagar Traffic Circle on 07.03.2014. The CD annexed with the judicial file was played on the laptop and after seeing the same, PW10 submits that accused is visible in this recording taking some money from a person and the DVD is Ex.P5. During crossexamination, he stated that he does not remember whether the CD was in sealed condition or not.
16. PW11 SI Sagar Singh deposed that on 11.01.2016, he was working as MSI, PS Vigilance and exhibits of the present case were given by him to HC Joseph for depositing at FSL Rohini and after depositing all the exhibits in FSL Rohini, HC Joseph gave him copy of acknowledgement of FSL. Copy of register no. 21 containing the road certificate is Ex.PW11/A. He further deposed that on 19.12.2014, the case property was deposited in Malkhana by the IO and the copy of the register containing the relevant entries is Ex.PW11/B.
17. PW12 Insp. Raj Kumar is the IO who deposed that on 07.10.2014 after registration of the FIR, the investigation of this case was assigned to him and he issued notice to the complainant. Complainant Irshad Khan came CC No.98/19 State Vs Subhash Borker Pages: 8/37 to the Vigilance office on 02.12.2014 and produced a CD which was played on the office computer in the presence of Ct. Sikandar Mann and thereafter, kept in an envelope and sealed with the seal of RRK and seized vide seizure memo Ex.PW7/A. He further deposed that on 19.12.2014, Munna came to Vigilance office and produced one memory card and the recording in the memory card was played on the laptop and a working copy of the same was made and thereafter, the memory card was sealed with the seal of RRK and seized vide seizure memo Ex.PW7/B. He further stated that on 19.12.2014, transcription Ex.PW12/A of the recording was also seen by him and shown to Munna and signed by him.
18. PW13 Munna Ansari did not support the case of the prosecution and was declared hostile and deposed that he has nothing to do with the present case and on receipt of notice from Vigilance, he visited Vigilance office at Barakhamba and when he was marking his attendance in register at reception, one person met him and asked him as to whether he was going to meet Sahab on which he replied in affirmative on which that person gave him one envelope to handover the same to Sahab which PW13 had handed over to Sahab. He further stated that he was asked to sign some papers which he signed. He further stated that he had told the concerned official that he had no concern with the sting operation and further requested him not to send notice.
19. PW13 was crossexamined by Ld. Addl. PP for the State. During the crossexamination by Ld. Addl. PP for the State, he denied the suggestion that at the reception of the Vigilance office no person met him or gave him any envelope to hand over to any Sahab. He further CC No.98/19 State Vs Subhash Borker Pages: 9/37 deposed that he did not enquired about name of the person who had given envelope to him. He denied the suggestion that on 19.12.2014, he had produced one memory card of 2 GB capacity. He also denied the suggestion that memory card was played in his presence on the laptop or that the same was sealed and seized in his presence. Though, he admitted his signature on the seizure memo of the memory card. He further stated that the contents on the seizure memo were also written when he had put his signature. PW13 also admitted his signature on the transcript Ex.PW12/A though he stated that he was not aware about the contents of the same. He further admitted that he knew Irshad Khan but he further stated that he does not know as to what is the profession of Irshad Khan. He also failed to identify the accused in the court. He denied the suggestion that accused Subhash Borker is a traffic police official who had demanded bribe from him on 07.03.2014 while Mohd. Irshad was present with him and on the demand of accused, he had given Rs.500/ to him at Zakhira Flyover. He failed to identify the memory card ExP1 and stated that he had seen the memory card for the first time in the court. PW13 has also been shown the DVD containing the video during his testimony but he stated that he has no concern with the DVD and he cannot say anything about the contents of the recording. He further stated that on 07.03.2014, he was present at his house and he was not working as driver at that time.
20. During the crossexamination by Ld. Defence counsel, he admitted his signature on the affidavit Ex.PW13/DA wherein he has stated that he has no concern with the present case.
21. PW14 Irshad Khan stated that he was running Tansport Business and CC No.98/19 State Vs Subhash Borker Pages: 10/37 was also running an NGO namely Janta Ka Adhikar Kalyan Samiti. He further deposed that when he was sitting in his office when one person namely Imtiaz came to his office and gave him one CD and asked him to take action against police official. He further stated that he asked as to why Imtiaz himself was not going to police whereupon he stated that PW14 had already filed several cases against the police officials and therefore, he wanted Irshad Khan to file the same. He further stated that he had seen the contents of the CD by playing on the computer and prepared a complaint Ex.PW3/A and sent to police to take action against traffic police official. He further stated that he had produced one CD which was seized vide memo Ex.PW7/A when he was asked to identify the accused and to check if the person present in the court was visible in the CD, Irshad Khan stated that accused was not present in the court and thus, failed to identify the accused in the court. However, he identified the DVD Ex.P3 and further stated that he cannot identify the person visible in the CD.
22. As he was not supporting the prosecution case, therefore, he was crossexamined by Ld. Addl. PP for the State. During the cross examination by Ld. Addl. PP, he denied that no person with the name Imtiaz had come to his office and had not given any CD to him. He further stated that he had told the police that Imtiaz had recorded the sting but police officials told him that they would not record the name of the original complainant in the complaint as police officials may pressurize the complainant. He further stated that they told him that they will call him separately. He also admitted that he had not mentioned the name of Imtiaz in his complaint Ex.PW3/A. However, he had taken Imtiaz alongwith him to the police station/Vigilance Branch where his CC No.98/19 State Vs Subhash Borker Pages: 11/37 statement was recorded. He denied the suggestion that he had not taken Imtiaz with him in the Vigilance Office or that he had not mentioned the name of Imtiaz in his complaint as no person by the name of Imtiaz had produced the DVD to PW14 in his office or that he himself had recorded the incident in the DVD. PW14 admitted his signature on the certificate and same is Ex.PW14/B. However, he stated that the police had obtained the signature of Imtiaz also on similar papers. He also admitted his signature on the certificate under section 65B Indian Evidence Act Ex.PW14/C and stated that Ex.PW14/B and Ex.PW14/C were provided by police official and he had only signed the same. He further stated that he does not know English language. He denied the suggestion that the certificate Ex.PW14/B and Ex.PW14/C were not provided to him by the police and further stated that he had given all the documents in Hindi language. He further stated that he had not mentioned the name of Imtiaz in his complaint Ex.PW3/A because he was apprehensive that if he would disclose his name, police will harass him. He further stated that he does not know any person with the name Munna. He denied the suggestion that on 07.03.2014 at Zakhira Flyover when he alongwith Munna were on vehicle, accused Subhash Borker had demanded bribe from Munna who gave Rs.500/ to him as bribe and he had captured the incident in a spy button camera. He denied the suggestion that Munna was working with him on his vehicle and further stated that Imtiaz was working on his vehicle at that time. He denied the suggestion that he had produced the memory card before the police. He also denied the suggestion that the memory card Ex.P1 was attached with the spy camera with which he had done the sting operation of the accused on 07.03.2014 at Zakhira CC No.98/19 State Vs Subhash Borker Pages: 12/37 Flyover.
23. During the crossexamination by Ld. Defence counsel, he deposed that the complaint Ex.PW3/A was got typed in the office of PS Vigilance and the complaint which he had sent to Vigilance Branch is not Ex.PW3/A. He further deposed that police never asked him for the registration certificate of any vehicle.
24. PW15 Insp. Anand Singh deposed that on 07.04.2015, investigation of the present case was assigned to him. He further deposed that the complainant Mohd. Irshad told that original device used in the sting operation in the present case has been snatched from him and he could not produce the same. He further stated that video recording was played and HC Shahji Mon identified the accused. He further stated that he collected the copy of the Chittha Ex.PW5/A from the concerned traffic circle. He further stated that on 30.06.2015, he asked the accused to give his sample voice but the accused refused to give his sample voice and in this regard memo is Ex.PW7/C. He further stated that the complainant produced certificate under section 65B Indian Evidence Act i.e. Ex.PW14/C pertaining to micro chip which was used in the sting operation and that he had sent the CD and micro chip to FSL, Rohini. He further deposed that after receipt of FSL result Ex.PW8/A, request for prosecution sanction against accused was sent and prosecution sanction Ex.PW9/A was received. He further stated that he had signed the transcript of the recording Ex.PW12/A which was already prepared by Ins. Raj Kumar. During crossexamination by Ld. Defence counsel, he admitted that he had not mentioned in the memo Ex.PW7/C that refusal to give sample voice would go against the accused. He further admitted that it is not mentioned in Ex.PW7/C in the CC No.98/19 State Vs Subhash Borker Pages: 13/37 same manner. He further stated that he had prepared the Ex.PW14/C and that handwritten portion in the ExPW14/C is in his handwriting.
25. After completion of the prosecution evidence, statement of accused was recorded under section 313 Cr.P.C. wherein all the incriminating evidence was put to the accused which he denied to be false and incorrect and further stated that he is innocent and has been falsely implicated in the present case.
26. Thereafter, I have heard Sh. Manoj Kumar Garg, Ld. Addl. PP for the State and Sh. Yogesh Verma, Ld. Counsel for the accused. I have also gone through the case file carefully.
27. Ld. Addl. PP for the State has argued that FSL expert PW8 Dr. Bharti Bhardwaj has deposed that there was indication of alteration in the video shot on the basis of frame by frame examination and further accused has refused to give his sample voice for comparison with recording of sting. It is not disputed that the accused was on duty on the alleged day of the incident on 07.03.2014 near Rampura Metro Station, Zakhira and he has been identified in the recording by PW10 ASI Shaji Mon and further accused is clearly visible in the audiovideo recording played during the examination of witnesses. It has been deposed by the prosecution witnesses namely PW7 Sikandar Mann and PW12 Insp. Raj Kumar that SD card and CD containing audiovideo recording was produced by Munna and Irshad Khan. PW9 S.K. Tewari had proved the prosecution sanction against the accused. PW13 Munna and PW14 Irshad Khan had admitted their signatures on the documents. Finally, it was argued that there was sufficient incriminating evidence against accused and prayed for his conviction.
CC No.98/19 State Vs Subhash Borker Pages: 14/37 SANCTION :
28. Ld. Defence counsel has argued that the sanctioning authority has not applied his mind independently and the sanction was granted mechanically as sanctioning authority had not seen the audiovideo footage before grant of sanction and therefore, same also reveals non application of mind by the sanctioning authority.
29. On the other hand, Ld. Addl. PP for the State has argued that no prejudice has been shown to have been caused to the accused. As far as the fact that the sanctioning authority had not gone through the audio video recording is concerned, in the judgment of State Vs R.C. Anand & Anr., (2004) 4 SCC 615, it was held that :
".............The counteraffidavit of the present appellant before the High Court clearly indicated that relevant aspects were noted by the Governing Body before arriving at its decision. The High Court seems to have proceeded on the basis that since the basic material or evidence i.e. alleged taped conversation, was not looked into by the Governing Body to form its own independent opinion to depart from the view of the President, the sanction was contrary to law. In Kalpnath Ravi Vs State, (1997) 8 SCC 732 it was clearly observed by this Court that the sanctioning authority is not required to wait for the report of the experts. The sanctioning authority has only to see whether the facts disclosed in the complaint prima facie disclose commission of an offence or not. The actual production of the tapes, etc. are matters for proof during trial and are not necessarily to be undertaken at this stage..............."
30. In view of the above case of R.C. Anand, it is immaterial if the CC No.98/19 State Vs Subhash Borker Pages: 15/37 sanctioning authority has not gone through the audiovideo recording before according sanction, as the same are matters of proof during trial.
31. Also, as regards application of mind by sanctioning authority in 2013 (8) SCC 119 State of Maharashtra through CBI Vs Mahesh Jain, following principles were culled out : "14.1 It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2 The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution. 14.3 The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4 Grant of sanction is only an administrative function and the sanctioning authority is required to prime facie reach the satisfaction that relevant facts would constitute the offence.
14.5 The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6 If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7 The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity."
It was further held that :
CC No.98/19 State Vs Subhash Borker Pages: 16/37 "True it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused."
32. Thus, grant of sanction is an administrative function and only prima facie satisfaction of the sanctioning authority is needed. The adequacy or inadequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order and when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with.
Also, flimsy technicalities cannot be allowed to become tools in the hands of accused.
33. Also in Mansukhlal Vithaldas Chauhan Vs State of Gujarat, decided on 03.09.1997 by the Hon'ble Supreme Court of India, it has been observed that :
"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 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 extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority.
CC No.98/19 State Vs Subhash Borker Pages: 17/37 Since the validity of "Sanction" depends on the applicability 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 by acting upon it to take 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 or 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 authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."
34. There is nothing on record to suggest that the sanctioning authority was under any obligation or compulsion to grant sanction or had not applied his independent mind.
35. Also, in CBI Vs Ashok Kumar Aggarwal, decided on 31.10.2013 by the Hon'ble Supreme Court, it has been held that : "(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material.
The record so sent should also contain the CC No.98/19 State Vs Subhash Borker Pages: 18/37 material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withheld the sanction.
(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d) The order of sanction should make it evidence that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."
36. Certainly, it is the duty of the prosecution to send entire record of the case to the sanctioning authority and the emphasis of the Hon'ble Supreme Court in the above case is also that the record should be sent alongwith material and document that may tilt the balance in favour of the accused and on the basis of which competent authority may refuse the sanction. Though, Ld. Counsel for the accused has argued that the entire record was not sent but he has failed to show as to which of the documents which the prosecution had not sent, would have tilted the balance in favour of the accused. None of the document which CC No.98/19 State Vs Subhash Borker Pages: 19/37 were not sent to the Sanctioning Authority could have formed basis for refusing sanction. Also, how the balance would have tilted in his favour, if the sanctioning authority would have perused the audiovideo recording or the audio recording of the conversation between the complainant and the accused. The accused has not been able to point out any document or material which if would have been put before the Sanctioning Authority (but was not sent to Sanctioning Authority by the IO) might have tilted the balance in favour of the accused and on the basis of which it can be said that if the said document would have been brought to the notice of the Sanctioning Authority, he would not have granted sanction for prosecution of the accused. Moreover, no question regarding nonperusal of audiovideo footages has been put to the witness PW9, Sanctioning Authority during his crossexamination. The accused has also not been able to show that the discretion vested in the Sanctioning Authority was affected by any extraneous consideration or that the mind of sanctioning authority was under pressure from any corner.
37. Also, in Ashok Kumar Tshering Bhutia Vs State of Sikkim, 2011 (3) LRC 93 (SC) on the point of sanction, it was held as follows:
"......In the absence of anything to show that any defect or irregularity therein caused a failure of justice, the plea is without substance. A failure of justice is relatable to error, omission or irregularity in the sanction. Therefore, a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19 (1) of the PC Act 1988 is a matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the Court under Cr.P.C., it cannot CC No.98/19 State Vs Subhash Borker Pages: 20/37 be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance........"
38. The object behind the requirement of grant of sanction to prosecute a public servant under the POC Act are designed as a check on frivolous and unscrupulous attempts to prosecute honest public servant for acts arising out of due discharge of their duties. Section 19(1) of the POC Act are mandatory and forbid courts from taking cognizance of any offence punishable U/S 7,10,11,13 & 15 of the POC Act against public servants except with the previous sanction of the competent authority.
39. Also, this court is of the view that accused failed to show that failure of justice had occasioned by any error, omission or irregularity in the sanction. Moreover, as regards errors, omission or irregularity in the sanction order including competency of the authority to grant sanction, it has been held in "State of Bihar Vs. Raj Mangal Pandey, 2014 (II) SCC 388" as under :
"In a situation where under both the enactments any error, omission or irregularity in the sanction which would also include the competence of the authority to grant sanction, does not vitiate the eventual conclusion in the trial including the conviction and sentence, unless of course a failure of justice has occurred."
"The object behind the requirement of grant of sanction to prosecute a public servant need not detain the court save and except to reiterate that the provisions in this regard either under the Code of Criminal Procedure or the Prevention of Corruption Act, 1988 are designed as a check on frivolous, mischievous and unscrupulous attempts to prosecute an honest CC No.98/19 State Vs Subhash Borker Pages: 21/37 public servant for acts arising out of due discharge of duty and also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office. The test, therefore, always is - whether the act complained of has a reasonable connection with the discharge of official duties by the government or the public servant. If such connection exists and the discharge or exercise of the governmental function is, prima facie, founded on the bona fide judgment of the public servant, the requirement of sanction will be insisted upon so as to act as a filter to keep at bay and motivated, illfounded and frivolous prosecution against the public servant. However, realising that the dividing line between an act in the discharge of official duty and an act that is not, may, at times, get blurred thereby enabling certain unjustified claims to be raised also on behalf of the public servant so as to derive undue advantage of the requirement of sanction, specific provisions have been incorporated in Section 19(3) of the Prevention of Corruption Act as well as in Section 465 of the Code of Criminal Procedure which, inter alia, make it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent court unless in the opinion of the court a failure of justice has been occasioned. This is how the balance is sought to be struck."
40. PW9 has denied the suggestion that he had not applied his mind. There is nothing established on record to suggest that any draft sanction order was placed before competent authority before grant of sanction and therefore, it cannot be said that there is any nonapplication of mind.
CC No.98/19 State Vs Subhash Borker Pages: 22/37
41. In view of the above discussion, it cannot be said that the order of sanction for prosecution of accused is not valid or illegal.
ADMISSIBILITY OF MEMORY CARD EX.P1 AND CD EX.P3 AND THE REPORT OF FORENSIC EXPERT :
42. It is argued that the report Ex.PW8/A cannot be read in evidence for want of notification under section 79A I.T. Act.
43. As far as the argument that the FSL was not notified under section 79A of I.T. Act is concerned, the electronic evidence is explained in Section 29A IPC : The words "electronic record" shall have the meaning assigned to them in clause (t) of Subsection (1) of section 2 of the Information Technology Act, 2002.
44. Sec. 2 (1)(t) I.T. Act :
""Electronic record" means data, record or data generated, image or sound stored, received or sent in an Electronic Form or Micro Film or computer generate micro fiche.
Similarly qualification of expert is defined under section 45A Evidence Act and Section 79A I.T. Act.
Section 45A Evidence Act :
When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer recourse or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000 (21 of 2000) is a relevant fact.
Section 79A I.T. Act :
Central Government to Notify Examiner of Electronic Evidence The Central Government may, for the CC No.98/19 State Vs Subhash Borker Pages: 23/37 purposes of providing expert opinion on Electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as a Examiner of Electronic Evidence."
45. The issue as to whether in absence of notification under section 79A of Information Technology Act, the report given by an expert from FSL, New Delhi regarding examination of electronic evidence, would be admissible in evidence, is a legal issue.
46. The relevant law provisions in this regard Section 79 A of I.T. Act was enacted in the year 2000, which came into force w.e.f. 17.10.2000. This provision provides that the Central Government may for the purposes of providing expert opinion on electronic form evidence, specify, by notification, any department, body or agency as an examiner of electronic evidence.
47. Moreover, the provision under section 79A I.T. Act or provision under section 45A Evidence Act do not provide that in absence of such notification, opinion based on scientific examination given by a person well versed or skilled in such science, would not be admissible in evidence. Unless such bar is created in law, it cannot be read as an extension of section 79A of I.T. Act, that the report given by any other authority/lab would be inadmissible in evidence. Therefore, the court does not find any occasion to go into the question of intention of legislature while using the term 'may' in Section 79 A.
48. Hon'ble High Court at Madras in the case of K. Ramajayam Vs Inspector of Police, Chennai 2016 Cr.LJ 1542, on the issue of Section 79A of I.T. Act, observed that CC No.98/19 State Vs Subhash Borker Pages: 24/37 "It is axiomatic that the opinion of an expert, which is relevant under Section 45 of the Indian Evidence Act, 1872, when accepted by the Court graduates into the opinion of the Court. The Central Government has not yet issued notification under Section 79A of the Information Technology Act, 2000 on account of which Section 45A of the Indian Evidence Act, 1872 remains mute. Therefore, the methods evolved by Kala (PW 23) and Pushparani (PW24), Scientific Officers of the Tamil Nadu Forensic Sciences Department to analyze and give their opinions on the electronic data, are correct and cannot be faulted."
49. It is also pertinent to mention that the Information Technology Act was enacted in the year 2000, after much advancement in the use of electronic data, transactions being carried out by means of electronic data and other means of electronic communication. It was so enacted to provide safeguards necessary for legal recognition to such transactions. However, recorded conversations were being produced during criminal trial of a case since long and much prior to 2000 and same were duly relied upon by the courts, subject to certain precautionary measures, for the purpose of giving decision in such cases.
50. Also, section 293 Cr.P.C. refers to certain government scientific experts and provides that report of such experts may be used as evidence even without calling such expert to formally prove their reports before the court. Thus, report of certain experts were given special status and were admissible without formally calling such expert in the witness box to prove the same. In the year 2005, legislature added one more category in section 293 (4) Cr.P.C. to include any other government scientific expert specified by notification by the Central Government for this purpose. This addition took effect from 23.06.2006. Thereafter, w.e.f. 27.10.2009, legislature again came up with section 45A Indian Evidence Act, which CC No.98/19 State Vs Subhash Borker Pages: 25/37 provided that opinion of examiner of electronic evidence referred in Section 79 A of I.T. Act shall be a relevant fact in respect of any information stored in any computer resource or any other electronic devise. Thus, it is clear that legislature has been taking steps one after another for the purpose of due legal recognition of electronic evidence in formal manner.
51. It cannot be said that prior to 2009, opinion of any scientific expert qua recorded conversations was irrelevant or not admissible in any court proceedings. Section 45 of Evidence Act in itself is enabling provision to accept opinion of such expert in the court proceedings. Obviously, the courts over the passage of time, have evolved certain precautionary measures for the purpose of appreciation of expert opinion. Notification under section 79A of I.T. Act may further lay down a basis to accept report of such notified expert under Section 293(4)(g) Cr.P.C., without formal proof of the same. It is also to be appreciated that other experts viz. handwriting experts have to prove their opinion or report before the court, after appearing as witness. Their opinion/reports are evaluated and appreciated by court on merits rather than being rejected on the grounds that they are not notified experts. As the CFSL was not notified under section 79A of the I.T. Act, the formal proof of report of such experts cannot be dispensed with under section 293(4)(g) of Cr.P.C. and the prosecution would have to prove their report by calling such experts as witnesses.
52. In the present case, PW8 appeared in the court for her evidence and proved her report and was subjected to lengthy crossexamination also by the defence. She adopted prevalent scientific instrument and method of audiography and spectrography. Her opinion/report is based on CC No.98/19 State Vs Subhash Borker Pages: 26/37 scientific examination, rather than personal opinion. Therefore, the same cannot be discarded or be said to be inadmissible for want of notification under section 79A of I.T. Act.
53. Ld. Counsel for the accused has further argued that the certificate under section 65B of Indian Evidence Act Ex.PW14/B and Ex.PW14/C are not as per law and as prosecution has not produced the certificate as required under Section 65B(4) of the Evidence Act in respect of CD Ex.P3 and micro chip Ex.P1, therefore, the CD and micro chip are not admissible in evidence and no oral evidence or opinion of Examiner of electronic evidence on CD Ex.P3 or micro chip Ex.P1 can be taken in view of the law laid down by the Hon'ble Supreme Court in Anvar P.V. Vs P.K. Basheer. For the same reason, the transcript Ex.PW12/A and FSL report Ex.PW8/A are also inadmissible, as they are derivatives of the CD Ex.P3 and micro chip Ex.P1, which itself is inadmissible.
54. In case titled as Anvar P.V. Vs P.K. Basheer, AIR 2015, SC 180, it has been observed that :
"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under subsection (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, CC No.98/19 State Vs Subhash Borker Pages: 27/37 i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act :
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and CC No.98/19 State Vs Subhash Borker Pages: 28/37
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc. pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A Opinion of examiner of electronic evidence.
The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India."
55. The above judgment was again discussed in the case Shafhi Mohammad Vs State of Himachal Pradesh, in Special Leave Petition (Crl.) No.2303 of 2017 by Hon'ble Supreme Court and vide order dated 30.01.2018 the Hon'ble Supreme Court observed as follows :
"We may, however, also refer to judgment of this CC No.98/19 State Vs Subhash Borker Pages: 29/37 Court in Anvar P.V. Vs P.K. Basheer and Others, (2014) 10 SCC 473, delivered by a ThreeJudge Bench. In the said judgement in para 24 it was observed that :
"Electronic evidence by way of primary evidence was covered by Section 62 of the Evidence Act to which procedure of Section 65B of the Evidence Act was not admissible. However, for the secondary evidence, procedure of Section65 B of the Evidence Act was required to be followed and a contrary view taken in Navjot Sandh (supra) that secondary evidence of electronic record could be covered under Sections 63 and 65 of the Evidence Act, was not correct. There are, however, observations in para 14 to the effect that electronic record can be proved only as per Section 65B of the Evidence Act. Though in view of ThreeJudge Bench judgments in Tomaso Bruno and Ram Singh (supra), it can be safely held that electronic evidence is admissible and provisions under Section 65A and 65B of the Evidence Act are by way of a clarification and are procedural provisions. If the electronic evidence is authentic and relevant the same can certainly be admitted subject to the Court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under Section 65B (h). Sections 65A and 65B of the evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V. (supra), this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65A and 65B of the Evidence Act.
The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case CC No.98/19 State Vs Subhash Borker Pages: 30/37 where electronic evidence is produced by a party who is not in possession of a device, applicability of Section 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory.
Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies."
56. Thus, the Hon'ble Supreme Court in the above case of Shafhi Mohammad, after discussing the judgment in Anvar P.V. Case held that requirement of certificate under section 65(B) is not mandatory and applicability of the requirement of certificate being procedural can be relaxed by the court wherever interest of justice so demands. Though, one of the situation where requirement of certificate can be dispensed with as discussed by the Hon'ble Supreme Court in the above judgment is where electronic evidence is produced by a party who is not in possession of original device, then in such case applicability of Section 63 and 65 of the Evidence Act cannot be held to be excluded. However, the Hon'ble Supreme Court has not stated that it is only in case where a CC No.98/19 State Vs Subhash Borker Pages: 31/37 party is not in possession of original device that the requirement of certificate under section 65B (H) can be dispensed with and thus, person producing electronic device being not in possession of original device is one of the instances wherein the requirement of the certificate being procedural can be relaxed. The Hon'ble Supreme Court categorically held that the requirement of certificate under section 65B Evidence Act is not always mandatory and the applicability of the requirement of certificate under section 65B can be relaxed whenever interest of justice so justifies. Therefore, in view of the above judgment, let us analyze the evidence brought on record in the present case to see whether the requirement of certificate under section 65B(H) should be relaxed in the present case in the interest of justice.
57. The requirement of certificate under section 65B Evidence Act is to rule out any tampering with the electronic evidence produced on record. Source and authenticity are the two hallmarks pertaining to electronic record. The CD in the present case was examined in the FSL to check the authenticity in the audiovideo recording. The findings of the FSL expert in report dated 25.05.2016 regarding authenticity of the audio video recording being relevant is reproduced as follows : "1. On examination of micro SD Card, ExhibitQ1 it was found that it contains one video file. The video file contains one identified video shot & there is no indication of alteration in the video shot on the basis of frame by frame examination.
2. On examination of video file in ExhibitQCD1 it was found that content of video is similar to the content of video in ExhibitQ1 containing one identified video shot. There is no indication of alteration in the video shot on the basis of frame by frame examination."
CC No.98/19 State Vs Subhash Borker Pages: 32/37
58. In view of the FSL report Ex.PW8/A, the authenticity of the video shot in CD Ex.P3 and micro SD card Ex.P1 is established qua video but there is no report regarding the fact as to whether there was any alteration in the audio in the audiovideo recording. The video shot has been examined frame by frame for ruling out any possibility of attention in the video but no spectrographic test has been carried out to rule out any possibility of alteration in the audio in the audiovideo recording. The recording in the CD and micro chip are audiovideo recording and the possibility of alteration in the audio as well as video was required to be ruled out.
59. As regards source, the complainant has stated that he had not prepared the CD Ex.P3 and according to him the said CD was prepared by Imtiaz. Even the said sting was conducted by Imtiaz as per the statement of complainant PW14. In such circumstances, the source of CD Ex.P3 has not been proved on record. As far as micro chip Ex.P1 is concerned, PW13 Sh. Munna has stated that he was handed over micro chip by somebody else and thus, micro chip Ex.P1 did not belong to him as per his statement on oath. The original recording device has not been produced by the complainant and has not been seized by the IO.
60. Also, PW15 Insp. And Singh has stated that he had only signed the transcript which was already prepared by Insp. Raj Kumar but Insp. Raj Kumar has not stated in his statement that he had prepared the transcript Ex.PW12/A. He has only stated that the transcript of the recording was seen by him and was also shown to Munna. In such circumstances, it has not been proved on record that who has prepared the transcript Ex.PW12/A. The source of transcript is thus, also not proved on record.
CC No.98/19 State Vs Subhash Borker Pages: 33/37 As the source of transcript Ex.PW12/A as well as micro chip Ex.P1 and CD Ex.P3 has not been proved on record, therefore, the requirements of certificate under section 65B Indian Evidence Act cannot be dispensed with in the present case. Two certificates under section 65B Indian Evidence Act of the complainant Ex.PW14/B and Ex.PW14/C are available on record. However, as the complainant has disowned the CD and the micro chip, he was not competent to issue certificate under section 65B Indian Evidence Act and thus, certificate under section 65B Indian Evidence Act Ex.PW14/B and Ex.PW14/C available on record are not as per law. As the source as well as authenticity, the two hallmarks pertaining to electronic record are not established, therefore, the memory card Ex.P1 and CD Ex.P3 and transcript Ex.PW12/A are held to be inadmissible in evidence.
DEMAND & ACCEPTANCE : WHETHER PROVED ?
61. It is settled law that the prosecution has to prove the charge beyond reasonable doubt under the Prevention of Corruption Act also, like any other criminal offence and the accused has to be considered innocent till it is established by cogent evidence regarding demand and acceptance of illegal gratification which are vital ingredients. In State of Kerala & Anr. Vs C.P. Rao (2011) 6 SCC 450, Hon'ble Supreme Court held that mere recovery by itself would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
62. In B. Jay Raj Vs State of Andhra Pradesh, (2014) 13 SCC 55, Hon'ble Supreme Court observed that mere possession and recovery of CC No.98/19 State Vs Subhash Borker Pages: 34/37 currency notes from an accused without proof of demand would not establish an offence under section 7 as well as 13(1)(d)(i) and (ii) of the Act and it was further observed that in the absence of proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Section 7 and 13 of the Act. It was further held that in the absence of proof of demand, such legal presumption under section 20 of the Act would also not arise. It was held that such proof of acceptance of illegal gratification could follow only if there is proof of demand.
63. In P. Satyanarayana Murthy Vs District Inspector of Police & Anr., 2015 AIAR (Criminal) 1008, Hon'ble Supreme Court has held that :
"..............The proof of demand of illegal gratification, thus, is the gravemen of the offence under section 7 and 13 (1)(d)(i)(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act................"
64. The complainant has not deposed about any specific words being spoken by the accused to indicate demand, it has not been proved on record that the accused had demanded or accepted any illegal gratification from the complainant. The two star witnesses of the prosecution PW13 and PW14 have turned hostile and have not CC No.98/19 State Vs Subhash Borker Pages: 35/37 supported the case of the prosecution. They have not deposed about any demand made by the accused or any amount being accepted by the accused. Despite extensive crossexamination by Ld. Addl. PP, nothing has come on record to prove that the accused had made any demand or had accepted any illegal gratification from Munna. In fact, Munna has stated that he during the investigation itself had given an affidavit that he was not concerned with the present case and that he had never given any bribe to anybody. The said affidavit was filed by the IO alongwith the chargesheet and is Ex.PW13/DA. He has clearly stated that he has never met the police official who can be seen in the video. He further stated that he does not own any vehicle. No document was seized by the IO regarding the vehicle which was plying on the said route and if the registration number of the vehicle which was being plied allegedly by Munna and the route of the said vehicle has not been stated in the chargesheet. The IO has not even seized any document regarding vehicle which was plying on the route and therefore, no motive for demand has been established on record. The FIR was registered on 07.10.2014 and the CD was seized after seven months. The delay in registration of FIR and seizing the CD has not been explained in the chargesheet. Moreover, as per the complaint the demand was of Rs.500/ whereas in the audiovideo recording the demand was of Rs.600/ and thus, the complaint is totally at variance with the audio video recording. Also in the complaint, it is stated that the concerned police official had stated that after the demand of bribe money, the driver can take as many passengers as he wants. But as per the transcript, the carriage was containing slipper (Chappal), thus, the transcript Ex.PW12/A and complaint Ex.PW3/A are totally at variance. To CC No.98/19 State Vs Subhash Borker Pages: 36/37 convict the accused in such circumstances would be negation of justice.
65. The prosecution has thus, failed to establish its case and to bring home the guilt of the accused because of the following grounds :
(i) the electronic evidence i.e. CD Ex.P3, memory card Ex.P1 being not admissible in evidence;
(ii) the complainant has not supported the case of the prosecution and has turned hostile;
(iii) Munna has not supported the case of the prosecution and has turned hostile;
(iv) demand or acceptance of illegal gratification not proved by the complainant or Munna.
66. If the evidence adduced by the prosecution is of such a nature that room still exists for taking the view that every reasonable possibility of his innocence has not been excluded, the accused would be entitled to benefit of doubt. Therefore, in view of the aforesaid discussion, I am of the view that prosecution failed to prove its case against the accused for the offences under section 7 & 13 (1)(d) of Prevention of Corruption Act 1988 beyond reasonable doubt, so the accused Subhash Borker is given benefit of doubt and therefore, acquitted of above offences.
67. His bail bond is cancelled and surety discharged.
68. File be consigned to record room.
Digitally signedAnnounced in the open court KIRAN by KIRAN BANSAL on this 21st November, 2019. BANSAL Date: 2019.11.27 12:10:54 +0530 (Kiran Bansal) Special Judge (PC Act) (ACB01) Central District, Rouse Avenue Court Complex, Delhi CC No.98/19 State Vs Subhash Borker Pages: 37/37