Delhi District Court
Cbi vs K.K.Arora & Ors. on 25 November, 2014
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IN THE COURT OF SH. J.P.S MALIK :SPECIAL JUDGE
CBI03 (PC ACT): TIS HAZARI: DELHI
CC No. 04/14
CBI Vs K.K.Arora & Ors.
ORDER:
1. This is the third closure report filed in the matter and like the earlier two, it has also been filed on the ground that during further investigation, sufficient material has not come forthwith to establish the complicity of FIR named accused persons to prosecute them.
2. First closure report in the matter was filed on 25.07.2007, which was not accepted and as per order dated 03.09.2007, CBI was directed to investigate the case further.
3. Again, the second closure report in the matter was filed on 11.09.2008 with the conclusion that allegations are not substantiated during further investigation for want of evidence. It was also stated that departmental action was recommended against the FIR named accused Dr. K.K.Arora and Dr. A.S.Nayyar, who have been dismissed from service. CC No.04/14 1/22
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4. In brief, the facts of the case are that a letter dated 17.10.2005 written by Dr. P.C.Kesavankutty Nayar, President (Acting), Medical Council of India (MCI), was sent to CBI alongwith two CDs containing recording of the programme "Maut Ki Ghoos", which was shown on Zee News on 14.10.2005. As per the recording of the programme, two officers of Medical Council of India, namely Dr. K.K.Arora and Dr. A.S.Nayyar, both Deputy Secretaries, were shown in the programme, Dr. Arora shown to be accepting the money and Dr. Nayyar shown to be agreeing to some job. Both, Dr. K.K.Arora and Dr. A.S.Nayyar are the accused named in the FIR, which was registered on the basis of letter dated 17.10.2005 received by CBI.
5. It was contended in the first closure report dated 25.07.2007 filed in the matter that the copy of the CD sent by MCI alongwith the complaint, does not show any date or time or place of the recording of its contents. The recording of the CD was reproduced in the closure report filed. The allegations as per the investigation were that, one Anil Sharma, Head of Crimes and Zee News, Zee Telefilm Ltd., Noida, U.P CC No.04/14 2/22 3 alongwith Vatsal Shrivastava and Pramod Sharma of Zee News, had conducted a sting operation relating to corruption in Medical Council of India and through one Ashish, they came in contact of Dr. Arora, who was a Deputy Secretary in MCI. The issue raised by Vatsal Shrivastava (Crime Reporter of Zee News) was for permission to Kalinga Institute of Medical Science and it was claimed that Dr. Arora had agreed to accept Rs.50,000/ from Vatsal Shrivastava, who was posing himself as Sudarshan, in hotel Ashoka Palace, New Delhi. The other accused Dr. A.S.Nayyar, who was also a Deputy Secretary in MCI, was introduced to Zee News team by Dr. Arora and with Dr. Nayyar, they started discussion about the issue relating to two colleges named Vikarabad and Bhagwan Mahavir Medical College and Dr. Nayyar during discussion had become suspicious, asked Zee News team to disclose their identity and also to show the contents of their bag, on which the Zee News team left MCI office. During investigation, it was also disclosed that Dr. Arora was not dealing with the file relating to recognition of the medical colleges, which was under the charge of one Devender Kumar, another Deputy Secretary, CC No.04/14 3/22 4 MCI, stating that file in question was never in custody of Dr. A.S.Nayyar or Dr. K.K.Arora and Devender Kumar also disclosed that there were no colleges by the name of Vikarabad and Bhagwan Mahavir, there being only one college namely Bhagwan Memorial Trust situated at 1011, Bhagwan Mahavir Marg, AC Guard, Vikara Bad, Hydrabad, which had been denied recognition by MCI for year 2005 and year 2006. It was also found during investigation of the case that original video tapes were not preserved, were either recycled or destroyed. The programme "Maut Ki Ghoos' was shown on 14.10.2005 on Zee News on the basis of CD selected portion, taken prepared from the original video tapes.
6. As per the closure report dated 25.07.2007, prosecution concluded that allegations were not substantiated for want of evidence for the reasons: (I) Original video tapes were not provided by Zee news. (II) CD is edited one and there are chances of modification/manipulation. Chances of alteration also cannot be ruled out conclusively.
(III) It could not be established as to in what context DR KK Arora was making demand of money from Sh. Vatsal Shrivastava (Sudharshan).
(IV) It also not established as to how money went in the hands of Dr. KK Arora from the hands of Sh. Vatsal Shrivastava. CC No.04/14 4/22
5 (V) It is also not clear what was the amount of the money which changed hands. It is also not clear the identity of the person who was counting money just after the shot in which Sh.Vatsal Shrivastava was counting the money.
(VI) The statement of anchors by which they are relating the shots of CDs and recorded conversations and developing the story could not be relied upon as these statements do not find in the recorded conversations. (VII) CFSL, Chandigarh has not given opinion on the authenticity of CD. And the chain of custody of the edited CD can is also questionable because the same was not handed over to MCI by the Zee News in sealed cover nor the MCI handed over the same to CBI in sealed cover. There may be apprehensive of alteration or erasing in the CD at any stage at any place.
(VIII) Moreover, the context of Dr. KK Arora making demand money from Sh. Vatsal Shrivastava and accepting it is open to all sort of inferences / presumptions as only the reporter statement puts it in one prospective of it been bribe money.
(IX) The lack of recovery of bribe money as well as any independent corroboration about handing over of money. (X) The date and time of recordings is not indicated or can the reporter recall it.
7. Final report was not accepted by the Court and as per order dated 03.09.2007, the grounds given were that Mr. Vatsal Shrivastava (Crime Reporter of Zee News), who had carried out the sting operation, stands by his version of payment of bribe money of Rs.50,000/, which was accepted by accused Dr. K.K. Arora. IO had admitted that the Voice Spectrographic Test in respect of voice on the VCD has CC No.04/14 5/22 6 matched with the sample voice of Dr. K.K. Arora. Further ground for rejecting the closure report was that the fact of original video tape / VCD having not been provided or that it could be manipulated / modified, was not very relevant at the stage, as it was only a corroborative evidence. The Court was of the opinion that the demand of illegal gratification by accused Dr. K.K. Arora is also clear from the statement of Mr. Vatsal Shrivastava. The Court also observed that the fact that demand of bribe by Dr. K.K. Arora and its acceptance may be open to several inferences and lack of recovery of bribe money, was also not relevant at that stage.
8. After further investigation, second closure report was filed on 11.09.2008 and it was stated that investigation has again disclosed that allegations are not substantiated for want of evidence, which were explained as under: (1) Original video tapes were not provided by Zee news. (2) CD is edited one and there are chances of modification/manipulation. Chances of alteration also cannot be ruled out conclusively.
(3) It could not be established as to in what context DR KK Arora was making demand of money from Sh. Vatsal Shrivastava (Sudharshan, Reporter of Zee News).
(4) It also not established as to how money went in the hands of Dr. KK Arora from the hands of Sh. Vatsal Shrivastava. CC No.04/14 6/22
7 (5) It is also not clear what was the amount of the money which changed hands. It is also not clear the identity of the person who was counting money just after the shot in which Sh.Vatsal Shrivastava was counting the money.
(6) The statement of anchors by which they are relating the shots of CDs and recorded conversations and developing the story could not be relied upon as these statements do not find in the recorded conversations. (7) CFSL, Chandigarh has not given opinion on the authenticity of CD and the chain of custody of the edited CD can is also questionable because the same was not handed over to MCI by the Zee News in sealed cover nor the MCI handed over the same to CBI in sealed cover. There may be apprehensive of alteration or erasing in the CD at any stage at any place.
(8) Moreover, the context of Dr. KK Arora making demand money from Sh. Vatsal Shrivastava and accepting it is open to all sort of inferences / presumptions as only the reporter statement puts it in one prospective of it been bribe money.
(9) The lack of recovery of bribe money as well as any independent corroboration about handing over of money. (10) The date and time of recordings is not indicated or can the reporter recall it.
9. The second closure report was also not accepted and vide order dated 01.09.2009, the Court directed further investigation.
10. The second closure report was not accepted for the reason that in reference to points no.1 & 2, the statements of PW2 Anil Sharma and PW4 Vatsal Shrivastava that Original raw footage (Original CD of this programme), 5060 video CC No.04/14 7/22 8 tapes are recorded for shooting of one programme (operation) and when the operation was completed, then relevant portions (shoots) were taken in CD for the purpose of telecast.
11. In reference to points no.3 & 4, it was pointed out by the Court that PW2 Anil Sharma and PW4 Vatsal Shrivastava have stated in their statements that entire transaction was regarding grant of permission / clearance to private medical colleges namely Bhagwan Mahavir Medical College and Vikarabad. It was also pointed out by the Court that money was handed over by Vatsal Shrivastava, who had assumed the name of Sudarshan, to accused Dr. K.K. Arora in room no.310 of Hotel Ashoka Palace at Anand Niketan, New Delhi and the visit of accused Dr. K.K.Arora to Ashoka Palace hotel was corroborated by the statement of PW7 Harish Kumar Taneja, Manager, Hotel Ashoka Palace.
12. In regard to point no.5, the Court pointed out that from the statements of PW2 Anil Sharma and PW4 Vatsal Shrivastava as well as PW7 Harish Kumar Taneja, there was evidence of accused Dr. K.K. Arora agreeing to accept advance money of Rs.50,000/, which was accepted by him from PW4 CC No.04/14 8/22 9 Vatsal Shrivastava @ Sudarshan during his second visit to Hotel Ashoka Palace.
13. In regard to point no.7, the Court opined that as per the report dated 22.03.2007, given by CFSL, Chandigarh, the report was "on the basis of the analysis of the video in CD marked 'ExI' it is revealed that there are indications to say that the video is the post production edited version.
However, there is no indication of the alteration in the identified video shot on the basis of examination by frame by frame."
14. In view of the CFSL report, the Court pointed out that CFSL report categorically stated that there is no indication of alteration in the CD on the basis of examination done by frame by frame and the authentication could not be performed on video recording on CDs. It was further opined that examination of video recording for authentication can be possible if the original video recording was available and it was not right for the CBI to say that there was apprehension of alteration or erasing of CD at the time of handing over to MCI by the Zee News and further, MCI handing over the same to CC No.04/14 9/22 10 CBI. The Court opined that it showed that accused Dr. K.K. Arora and accused Dr. A.S. Nayyar were involved in the said transaction and money was demanded and accepted by accused Dr. K.K. Arora for granting recognition to Private Medical College and accused Dr. Nayyar agreed to accept money for removing some confidential file relating to the registration of doctors in MCI.
15. Then, Court has also referred to a letter dated 17.10.2005 written by accused Dr. K.K.Arora to Justice M. Katju, the then Chief Justice, Hon'ble High Court of Delhi, wherein he almost admitted / confessed his involvement in the matter.
16. The third closure report was filed on 15.09.2014 by CBI explaining all the points raised by the Court vide order dated 01.09.2009 and again, it has been concluded that sufficient material has not come forth to prosecute the accused named in the FIR.
17. Notice of the closure report filed, was given to the complainant/ Medical Council of India and appearance was made on behalf of Medical Council of India through Ms. Manpreet Kaur, Adv. Appearance was also made on behalf of CC No.04/14 10/22 11 Interventionist / V.B.Kaushik on 13.10.2014 through Sh. Ashok Mahay, Adv. Protest Petition was filed on behalf of both, the complainant / MCI and Interventionist / V.B.Kaushik. Submissions were made on behalf of CBI by Sh. V.K.Ojha, Public Prosecutor. Sh. T.Singhdev, Adv. made submissions on behalf of complainant/MCI and Sh. Jawahar Singh, Adv. made submissions on behalf of Interventionist / V.B.Kaushik. Formal reply to the Protest Petition was not filed on behalf of CBI, as earlier also Protest Petitions were filed on behalf of complainant / MCI as well as the Interventionist / V.B.Kaushik, which are on the records of earlier Court files, which were summoned, which were replied to by CBI.
18. Nowhere in the statements of PW2 Anil Sharma and PW4 Vatsal Shrivastava, the dates of the alleged discussions/negotiations between the accused persons or the Zee News Reporters, is disclosed and even in their statements recorded under section 161 Cr.P.C, both, PW2 Anil Sharma and PW4 Vatsal Shrivastava stated that the operation took nearly 2 months and they were not in a position to give specific dates of alleged discussions/transactions. The first part of the CC No.04/14 11/22 12 recorded conversation given in the closure report file reads as under : Vatsal Shrivastava "mujhe lagta hain, ham galat aaye hain". Dr. K.K. Arora "Nahin galat kyon aaye hain. Vatsal Shrivastava "Kahi vyast hain aap. Dr. K.K. Arora Thik Hain kal char baje ke bad phone kar lena.
Vatsal Shrivastava Ham phone per bat karte hain, char baje ke bad.
19. Second part of the recorded conversation in the closure report filed, reads as under: Vatsal Shrivastava "Sir Sudershan"
K.K. Arora Ha bolo Vatsal Shrivastava Ha sir K.K. Arora Aap unse aise boliye ke hamne aap ko 33 de diye hai, ha hello, aap pahle vo Dr. Sahab ko do, ham unse bat karenge, ke vo milgaye ke nahin, aage ki bat ham karenge. Uske hath me aap kuchch nahin pakdayenge, mujhe denge seedha, thik hain"
Vatsal Shrivastava Kitne dene hain aapko K.K. Arora Abhi apne mujhe aapne 50 ka commitment kiya hain, vo to aap mujhe kal de denge.
Uske through nahin denge maine 5 ki baat kahin thi advance me aap vo kar dijiye thik hain uske bad phir aage chalte hain.
CC No.04/14 12/22
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Vatsal Shrivastava To kal main aapko kitne de du
Dr. K.K. Arora Aap ke pas hain pure kya
Vatsal Shrivastava 50 dena hain, kitne dena hain
Dr. K.K. Arora Aapke pas kitne hain, poore hain 50.
Vatsal Shrivastava Ha 50 de sakta hoom abhi to
Dr. K.K. Arora Ha to thik hain, 50 de dijiye kal mujhe, thik
hain alright.
Vatsal Shrivastava Ok. Sir Good Night.
20. The second part only discloses that accused Dr. K.K.Arora is seen telling Vatsal Shrivastava (Crime Reporter of Zee News) after negotiations that he should give him 50 (explained as Rs.50,000/) on the next day. There is no reference of the purpose for the giving of money by Vatsal Shrivastava to accused Dr. K.K. Arora. There is also no reference of the total amount having been agreed to be paid to accused Dr. K.K. Arora, though PW2 Anil Sharma and PW4 Vatsal Shrivastava in their statements, have stated that Rs. 50,000/ was to be paid in first hand. In his letter dated 17.10.2005 written to Hon'ble Chief Justice of Delhi High Court, accused Dr. K.K. Arora is telling that Rs. 10 Lacs in total was agreed to be paid, Rs.50,000/ was paid by the CC No.04/14 13/22 14 persons, who were negotiating, but they did not return to make the balance payment.
21. As per the closure report, the CD was also showing that accused Dr. K.K. Arora is entering into a room alongwith PW4 Vatsal Shrivastava, both seen sitting on separate chairs in the room, PW4 Vatsal Shrivastava counting currency notes with both his hands and in the next scene, one person is seen counting currency notes with both his hands, but his face was not visible. There was no recording of any conversation between Vatsal Shrivastava (Crime Reporter of Zee News) and accused Dr. K.K. Arora at the alleged transaction of money between them. Thus, from the recording, there is no evidence of accused Dr. K.K. Arora, seen accepting the currency notes from PW4 Vatsal Shrivastava and it is only that in one scene, PW4 Vatsal Shrivastava is seen counting currency notes and in the next scene, someone, unidentifiable, is seen counting the currency notes.
22. The next recording scene in the CD as reproduced in the closure report filed, the conversation is as under: Dr. K.K. Arora Bade heavy status hain. Who jo doctor ke registration FIR hoti hain, individual ki, CC No.04/14 14/22 15 uske 55 lakh dete hain, ye to puri file hain, samjhe ab usme badi mushkil se mol bhav kar ke do hain. Do ka bees me bat kar rahe hain, Aap unse 25 mango, kahi badi mushkil se kiya hain Vatsal Shrivastava Bees Dr. K.K. Arora Do hain, pura collage hain, ek akela thode hain.
Vatsal Shrivastava Bees jyada nahin hain, hamare favour me thoda to bolo.
K.K.Arora Tum bolo
Vatsal Shrivastava Jyada Hain
K.K.Arora Tum bolo kitne doge
Vatsal Shrivastava Hamari taraf se aapko hi bat karna hain
K.K.Arora Kiske pas
Vatsal Shrivastava Yani ki yahan bhi bat karna hain
K.K.Arora Yahan to main karunga wahan kaun karega,
wahan shuru to karo
Vatsal Shrivastava Shayad who nahin manenge
K.K.Arora Baki bat to karo, shuru to karo, files to puri
bahar aa jayengi dono
Vatsal Shrivastava Thik hain
K.K.Arora Nayyar, Devender, Rajesh sabko pakad liya
hain maine, jo bhi 4 log shamil hain
23. In the scenes, at the time of conversation, accused Dr. K.K. Arora is seen sitting with an unidentified person in a room, both taking drinks. Recorded conversation is between Dr. K.K. Arora and PW4 Vatsal Shrivastava alongwith this scene, but PW4 Vatsal Shrivastava is not seen in the CC No.04/14 15/22 16 scene/picture. In this conversation, accused Dr. K.K. Arora is seen telling that Rs. 5 Lacs each is paid for an FIR against registration of a doctor and in the case, the matter pertains to entire file and he is talking for the two for 20 (explained as Rs. 20 Lacs). Accused Dr. K.K. Arora is also seen telling that he should demand 25 (explained as Rs.25 Lacs), further stating that he should tell that the job has been done with much difficulty. PW4 Vatsal Shrivastava is heard telling that 20 is a bit high and there is conversation of negotiation at other place and accused Dr. K.K. Arora is also heard telling that he had been able to take Nayyar, Devender, Rajesh, all into confidence. In the next scene in the CD, as reproduced in the closure report filed, there is conversation between accused Dr. K.K. Arora and PW4 Vatsal Shrivastava in the Cannaught Place area, New Delhi, which is as under: Vatsal Shrivastava is mamle main aapne bola tha, 2 tak use bola hai, 2 mai use kar dena hai. Aapne ye 2 collage ka maine bola 2 pahuncha dun au kaam shuru karwa deta hun. Uske bad who apnatha, uska kehna hai. Who bhi agar tum kisi ko de rahe ho to usse mil to lo.
Maine dekho aise mil islia nahin sakte kyoki isme bahut sare log shamil aur har admi se main nahin mil sakta.
CC No.04/14 16/22 17 K.K.Arora Bolo mil liye tabhi ye bat aaye hain.
24. In the above conversation, PW4 Vatsal Shrivastava is heard telling accused Dr. K.K. Arora about earlier negotiations, also stating that he was not in a position to meet all the persons involved. Further, CD has shown the conversation between accused Dr. K.K. Arora and PW4 Vatsal Shrivastava in a office room of Dr. K.K. Arora where accused Dr. A.S.Nayyar is also seen asking something to PW4 Vatsal Shrivastava and the conversation reads as under: Dr. A.S.Nayyar Koi bat nahin ho jayega nam kaun sa hain collage ka Dr. K.K.Arora Collage ka nam batao Vatsal Shrivastava Ye dono hain na Vikarabad aur Bhagwan Mahavir College.
25. Thus, in all, accused Dr. A.S. Nayyar is seen only speaking one sentence 'Koi bat nahin ho jayega nam kaun sa hain collage ka'. Except for the allegations in the statements of PW2 Anil Sharma and PW4 Vatsal Shrivastava, there is no evidence as such, showing the amount of Rs.50,000/ or any CC No.04/14 17/22 18 other amount, being received by accused Dr. K.K. Arora. Accused Dr. A.S. Nayyar only seen asking the name of the college, while telling that the work will be done, which shows that till that time, accused Dr. A.S. Nayyar, was not even aware of the facts.
26. PW2 Anil Sharma and PW4 Vatsal Shrivastava are stating the facts generally, while stating that accused Dr. K.K. Arora has agreed to accept Rs.50,000/ in first hand.
27. Even otherwise, in the absence of the original CD and the proof of its authenticity, same cannot be accepted as an admissible piece of evidence. No dates of the transactions are given by PW2 Anil Sharma and PW4 Vatsal Shrivastava, who were involved in the shooting / recording of the conversations with accused Dr. K.K. Arora or accused Dr. A.S. Nayyar.
28. The only evidence, as is emerging from the CDs, even if, CDs are accepted to contain the exact conversation, is that accused Dr. K.K. Arora was seeking payment of Rs.50,000/, but the reward or the motive for which the money was being sought, cannot be gathered from the conversations, all of CC No.04/14 18/22 19 which, have been reproduced above. Initially, PW2 Anil Sharma and PW4 Vatsal Shrivastava are talking of Kalinga Institute of Medical Science and then, stating that there is one FIR against Vikarabad and Bhagwan Mahavir Medical Colleges. Letter dated 17.10.2005, written by accused Dr. K.K. Arora to Hon'ble Chief Justice of High Court of Delhi, cannot be the basis for prosecuting him, particularly when he in the letter, copy of which has been placed on record by the Interventionist, is stating that the total sum agreed to be paid to him was Rs.10 Lacs and only Rs. 50,000/ was paid, further telling that he was only working as a front man for Dr. Ketan Desai, alongwith one Ashish. In his letter dated 17.10.2005, applicant/accused is also seen claiming that Mr. Ashish was introduced to him by Dr. Ketan Desai, the then President of Medical Council of India and Dr. A.R.N. Setalvad, who was then Secretary of the Medical Council of India. In the letter dated 17.10.2005, accused Dr. K.K. Arora is also seen claiming that when Dr. Ketan Desai was prosecuted on the directions of Hon'ble High Court of Delhi, he was looking after the Legal Section, representing the case and because of that, he CC No.04/14 19/22 20 had become a bad person, was demoted from the post of Joint Secretary to Deputy Secretary and was also suspended on fabricated allegations of stealing files. Even otherwise, no details of the events have been given and it is just stated that he had received Rs.50,000/ from the persons, sent by Dr. Ketan Desai, from Kalinga Institute of Orissa, who were denied recognition.
29. Matter has been investigated by CBI more than once and no actionable evidence against the accused persons could be gathered. It is also not possible to comprehend what further evidence could be collected, as the case was based on the sting operation conducted by the Crime Reporters of Zee News and the evidence collected as well as their statements, which are vague, stating no dates of the events or the specific reward or motive and also not explaining the events specifically in reference to the dates of transactions, in their statements. Also, there is no evidence of accused Dr. K.K. Arora accepting the money, except in the statement of PW4 Vatsal Shrivastava. Even PW2 Anil Sharma, who earlier had stated that Rs. 50,000/ were accepted by accused Dr. K.K. Arora, at the time CC No.04/14 20/22 21 of his second visit to the Ashoka Palace Hotel at New Delhi, had stated during further investigation that no recording with regard to transaction of bribe amount between MCI officials and Reporter of Zee News, was held in his presence. Also, during further investigation, PW4 Vatsal Shrivastava has stated that conversations, when accused Dr. K.K. Arora had agreed to accept money from him, was held on mobile and the same was recorded, during sting operation, but CBI had not been able to collect the CDRs of the mobile phone, as PW4 was not remembering the dates of recording and by the time CBI approached the Nodal Officer of Vodafone, they were informed that as per the guidelines of DOT, data of last one year is maintained and not earlier to that. CBI approached Nodal Officer, Vodafone for call details of period from 01.08.2005 to 15.10.2005 pertaining to mobile phone number 09811802414 of PW4 Vatsal Shrivastava and reply was received from Nodal Officer, Vodafone vide email dated 05.08.2014.
30. In view of the above, the closure report filed by the CBI is accepted, as there is not sufficient material on record to CC No.04/14 21/22 22 proceed against the accused persons named in the FIR. The documents filed, be returned to CBI, to be returned to the concerned parties, but the documents shall not be returned to the concerned parties by CBI before 3 months.
31. This file be consigned to record room.
Announced in open court (J P S MALIK)
On 25.11.2014 SPECIAL JUDGE
CBI03 (P C Act)
DELHI
CC No.04/14 22/22