The Single Bench of the Delhi High Court in the case of Shiv Dutt Bakshi vs CBI consisting of Justice Yogesh Khanna reiterated that the absence of sanction cannot be a ground to quash the criminal proceedings in exercise of power u/s 482 CrPC.
Facts:
This petition for quashing u/s 482 CrPC was filed against an order dated 02.03.2020, passed by the learned Spl. Judge (PC) Act, CBI-12, RADCC, New Delhi, whereby the Ld. Special Judge rejected the closure report wherein admittedly, the original device through which the alleged sting operation was conducted was destroyed and could not be procured during the investigation. It was alleged the Hard disk containing the video footage, allegedly transferred from the original device, was also opined to be a 'bad media' and thus not admissible as evidence in terms of law laid down in Anvar P.V vs P. K Basheer & Ors. and Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke & Ors. It was argued the summoning order was liable to be quashed.
Procedural History:
Samachar Plus broadcasted an alleged sting operation on July 17 and 18 2016. Pt. Ayush Gaur (Deputy Director, Samachar Plus) allegedly used a customized i-Phone spy camera between March to May 2016 to expose how Dr. Karni Singh Shooting Range (KSSR) was flouting rules in exchange for cash and gifts to allow potential shooters to train. One such recording dated 15.05.2016 purportedly showed the Petitioner accepting Rs.1.00 Lakh in cash and a bottle of liquor from the reporter who posed as a teenage shooter wishing to use the shooting range facilities.
In his statement u/s 161 CrPC, Pt. Ayush Gaur confessed the petitioner had never requested any payment for any reason before 15.05.2016 or at any time. According to the prosecution, the producer modified the recording for the program.
The Sports Authority of India (SAI) started an internal probe based on the telecast and requested news channel footage on 18.07.2016. On 20.07.2016, SAI sent the two CDs to CFSL, Chandigarh. On 02.03.2017, the Chief Vigilance Officer, SAI filed a complaint with the Central Bureau of Investigation against the petitioner, alleging that a Hindi news channel called "Samachar Plus" conducted a sting operation called "Operation Arjun" in which the petitioner was shown accepting a cash bribe of Rs.1,00,000. On 09.08.2017, FIR was lodged against the petitioner under Sections 7,13(2) r/w S.13(1)(d) of the Prevention of Corruption Act.
On 05.09.2016, CFSL Chandigarh submitted its report admitting that the parcels including two DVDs were unsealed and unacceptable. Hence, they were alleged to be inadmissible as evidence as per the decision in Ram Singh & Ors. vs. Col Ram Singh. On 22.12.2017, the Respondent sealed one hard disk, which was initially sent to CFSL New Delhi and CFSL Chandigarh, but they refused to take it and said they needed the original device used in the sting operation. Thereafter, Ex.C1 hard disk was forwarded to CFSL, Hyderabad for an opinion, and after examining the hard disk it gave an opinion that the above hard disc appears to be a bad media and could not be identified/accessed. After conducting its investigation and examining the tainted material i.e., the alleged video footage and recording available, the Investigating Officer filed a Closure Report. Despite the closure report, the petitioner was summoned.
Contentions Made:
Petitioner: It was contended that the cognizance taken by the learned Trial Court was bad since a) there was no sanction accorded by the competent authority to proceed against the petitioner herein; b) there was absolutely no evidence against him; as the primary and secondary evidence was distorted since the iPhone used for recording was run over by other recordings and at best was tainted evidence; c) there was no case of demand as admittedly the payment was made to the petitioner for obtaining a gun; and d) the petitioner having been exonerated in departmental enquiry.
Observations of the Court:
Regarding Contention a), the Bench referred to Dr. Anil Kumar Shukla vs. Central Bureau of Investigation, through SP, ACB, and reiterated that the absence of sanction cannot be a ground to quash the criminal proceedings in the exercise of power u/s 482 CrPC.
Regarding Contention b), it held that the fact the CD could not provide a definite opinion as originals were destroyed and were unsealed, hence tampering could not be ruled out, and thus the prosecution based on such lukewarm evidence would be nothing but an abuse of process.
Regarding Contention c) and d), it referred to the statement of reporter Pt. Ayush Garg, recorded by the CBI, stated he was asked by the Editor–in–Chief to offer some gifts in kind or cash during the discussion with the petitioner and he gave a bottle of liquor to the petitioner on his own and there was no demand. Pt. Ayush Garg, the person who allegedly gave a cash bribe to the petitioner himself admitted in his statement u/s 161 CrPC the petitioner had never demanded any amount from him nor there was any acceptance or recovery of any bribe amount from the Petitioner. Further, para 1 of the letter dated 02.03.2017 received by the Secretary of Sports Authority of India itself showed a contradiction regarding accepting of bribe:
“Admittedly, the SAI in its internal inquiry against the Petitioner under CCS Rules on 19.07.2018 held that the currency received by the Petitioner cannot be termed as illegal gratification. Admittedly, the case registered against the petitioner was of demand of bribe but then it came out to be of selling of gun of his son per Enquiry Proceedings.”
Judgment:
The Bench found that where the DVDs were sent in an unsealed condition; the video recordings were in continuity; hard disk was declared to be a bad media; domestic enquiry too revealed it was not a case of bribe but of the sale of his son’s private gun which could not be termed as illegal gratification; the grounds mentioned in the closure report were all cogent and there was no reason to reject it, hence, the impugned order dated 02.03.2020 was set aside and closure report filed by the CBI stood accepted. The petition was thus allowed.
Case: Shiv Dutt Bakshi vs CBI
Citation: CRL.M.C. 1191/2021, CRL.M.A. 6085/2021
Bench: Justice Yogesh Khanna
Advocates for Petitioner: Ms. Geeta Luthra, Senior Advocate with Mr. Nitin Saluja, Ms. Shivani Luthra Lohia, Ms. Kamakshi Gupta, Mr. Ankur Sinha, Mr. Manas Aggarwal, Ms. Poonam Dangi, Mr. Saahil Mongia, Advocates.
Advocates for Respondent: Mr. Nikhil Goel, SPP and Mr. Kartik Kaushal, Advocate.
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