Kiran Pal Singh vs State
2011 Latest Caselaw 2191 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+                    Crl. Appeal No. 281/2001

%

                                            Decided on: 26th April, 2011.

KIRAN PAL SINGH                                               ..... Appellant
                              Through:   Mr. Sunil K. Mittal, Mr. Harsh Khanna
                                         and Mr. Abhishek Sharma, Advocates.

                     versus

STATE                                                     ..... Respondent
                              Through:   Mr. Narender Mann, Spl. Public
                                         Prosecutor, CBI

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may         Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                Yes

3. Whether the judgment should be reported           Yes
   in the Digest?

MUKTA GUPTA, J.

1. By this appeal, the Appellant lays a challenge to the impugned

judgment whereby the Appellant has been convicted for offences punishable

under Sections 7 and 13(1) (d) read with Section 13(2) of the Prevention of

Corruption Act, 1988(in short the PC Act) and awarded a sentence of

imprisonment for a period of six months and a fine of `2000/- and in default

of payment of fine, to further undergo simple imprisonment for a period of

one month for offence punishable under Section 7. For the offence punishable

under Section 13(i)(d) read with Section 13(2) of the P.C. Act, the Appellant

has been sentenced to undergo simple imprisonment for a period of one year

and a fine of `5000/- and in default of payment of fine to further undergo

simple imprisonment for two months.

2. Briefly, the prosecution case is that the Complainant lodged a complaint

Ex.PW2/A with the CBI alleging that the Appellant who was working as a

supervisor with the Delhi Development Authority(DDA) and posted at Sriram

Colony, demanded `500/- as bribe for permitting him to fill up the low lying

area near his house. On the complaint of Prem Singh, PW5 a trap was laid by

Inspector S.K. Bhati who associated Inspector S.R. Singh, PW10 and other

staff members, and two panch witnesses Sanjay Khandpal and D.Sen Gupta

both Junior Assistants in NDMC. Pursuant to the trap, 5 currency notes of

Rs. 100/- denomination each were treated with the chemical. The

complainant PW 5 along with PW 4 Sanjay Khandpal on the demand of the

Appellant paid him the money, wheareafter he was trapped . His left hand

wash and wash of the jacket‟s pocket gave pink colour and the Appellant was

thus arrested. After investigation, a charge-sheet was filed along with the

sanction accorded by PW 3, Director(Personnel), DDA. Shri S.K. Bhati, trap

laying Officer expired before his testimony could be recorded. Thus the

testimony of Shri S.R. Singh, Inspector as the trap officer assisting Sh. S.K.

Bhati was recorded. After recording of the prosecution evidence, statement of

the Appellant under Section 313 Cr.P.C. and defence evidence, the Appellant

was convicted as above.

3. Learned counsel for the Appellant challenging the conviction states that

no valid sanction has been granted in the present case as PW3 in her cross-

examination has stated that she merely signed the sanction order without

going through any papers. Thus, the sanction is invalid in view of the non-

application of mind. The Appellant never challenged the competency of PW3

to grant the sanction however, the learned trial court did not consider the issue

of application of mind while grant of sanction but only considered the

competency of PW3 to grant the sanction. Relying on Mohd. Iqbal Ahmed vs.

State of Andhra Pradesh, AIR 1979 S.C. 677, it is contended that it is

incumbent on the prosecution to prove that a valid sanction has been granted

by the sanctioning authority after it was satisfied that a case of sanction has

been made out constituting the offence. Reliance is placed on State vs.

Ravinder Singh 1995 Crl.L.J. 3428 to contend that the sanction for

prosecution is a pre-requisite for taking cognizance of offence and in the

absence of a valid sanction for prosecution, the accused cannot be prosecuted.

Referring to Deewan Chand vs. State 1982 Crl .L.J. 720 it is contended that

while sanctioning, the facts constituting the offence should be before the

sanctioning authority and a sanction accorded in a mechanical manner cannot

be consider as a valid and legal sanction. It is next contended by the learned

counsel for the Appellant that the entire case of the prosecution is based on

leading questions put by the learned counsel for the CBI to the prosecution

witnesses which were not legally permissible. From the evidence adduced by

the prosecution witnesses, neither any demand nor acceptance has been

proved. There are material discrepancies in the statement of the witness PW5

the alleged complainant, who has contradicted himself on all material aspects.

There are contradictions on the fact as to where the complaint was written and

to whom the same was given. PW2 Rajbir Singh has deposed that the

complaint Ex.PW2/A was written by him in his shop, whereas PW4 has stated

that the complaint was written in the CBI office by Rajbir Singh PW5, the

alleged complainant stated that he got the complaint written by Rajbir Singh

in lal mandir situated near CRPF Camp in Siri Ram Colony. He further stated

that Rajbir never went alongwith him to the CBI Office. PW8, panch witness

stated that the complaint was written in the CBI office. The version of the

complainant PW5 as regards the demand and acceptance has been

contradicted by him in his cross-examination and also by the other

prosecution witnesses and hence no demand and acceptance has been proved.

Though, the prosecution case is that PW5 Prem Singh is the complainant but

the Appellant has successfully shown from the cross-examination of the

prosecution witnesses that, in fact, Rajbir was the Complainant and the

Appellant has been falsely implicated at the instance of Rajbir against whom

the Appellant had already registered complaints. The Appellant gave a cogent

explanation of false implication in his statement under Section 313 Cr. P.C.

along with reply R-1 and has also examined defence witnesses. However, the

learned trial court did not consider them. The incriminating evidence against

the Appellant has been brought on record by answers to leading questions put

by the learned APP. Relying on Varkey Joseph vs. State of Kerala, AIR 1993

SC 1892, it is contended that leading questions can be permitted only to draw

the attention of the witness on questions which cannot otherwise be called to

the matter under enquiry, trial or investigation. In the absence of demand or

acceptance being proved, the legal presumption under Section 20(1) of the PC

Act cannot be raised. The recovery of the tainted money from the Appellant

is also doubtful in view of the contradictory versions of the witnesses. Even

post-trap proceedings are doubtful as to where they were carried out as some

of the witnesses have stated that the same was carried out on the spot and the

others stating it to be carried out at the CBI Office. It is thus prayed that the

Appellant be acquitted of the charges framed against him.

4. Per-contra, learned counsel for the CBI states that PW3 in her

testimony has stated that she had perused all the documents and statements of

the witnesses before according sanction for prosecution against Kiran Pal

Singh vide sanction order Ex.PW3/A. The fact that she applied her mind is

also apparent from the sanction order Ex.PW3/A wherein all the facts in detail

are mentioned and have been considered by the sanctioning authority.

Relying on State of Madhya Pradesh vs. Hari Shankar Bhagwan Prasad

Tripathi, 2010 (8) SCALE 402, it is contended that in a case where the

sanction order itself speaks of the fact that the material on record has been

examined by the officer before according sanction is sufficient to show that

the sanction was accorded after due application of mind. Only in cases where

the sanction order does not speak for itself, it must be proved by leading

evidence that all particulars were placed before the sanctioning authority for it

to apply mind. Reliance is also placed on Section 19(3)(a) of the Act to

contend that notwithstanding anything in the Act no finding, sentence or order

passed by a Special Judge shall be reversed or altered by a Court for any error

or omission or irregularity in the sanction required unless in the opinion of the

Court a failure of justice has, in fact, been occasioned. Relying on State of

Madhya Pradesh vs. Jiyalal, 2009 (15) SCC 72 it is contended that when the

sanction order was passed in discharge of routine official duty and function,

there is a presumption that the same was done in a bona fide manner.

Reference is made to Section 19(4) of the Act to contend that to determine the

omission or irregularity, regard will have to be taken to the fact that whether

the objection was raised at any earlier stage in the proceedings. Learned

counsel for the CBI next contends that even if the Complainant was acting on

behalf of Rajbir Singh PW2, the same is immaterial as ultimately the

Appellant has demanded bribe from PW 5 and has accepted the same from

him. Reliance is placed on Billa Nagul Sharief vs. State of Andhra Pradesh,

AIR 2010 S.C. 3549 to contend that where specific and consistent demand of

bribe is proved, the allegations that there was a quarrel between the Appellant

and the Complainant de facto is of no consequence and also the plea of the

Appellant that the money was thrust in his pocket cannot be believed. Even as

per the evidence led, Rajbir Singh is only a scribe of the complaint as the

Complainant was illiterate and animosity between Rajbir Singh and the

Appellant is not relevant. The initial demand has been proved by the

Complainant PW 5 followed by a demand at the time of trap which version of

PW5 has been corroborated by the shadow witness PW4. The acceptance is

proved by the direct testimony of PW5 the Complainant and PW4 the shadow

witness and also by PW8 and PW10 who immediately thereafter apprehended

the Appellant with the tainted currency notes. This version of the prosecution

witnesses is corroborated by the expert opinion of Sh. K.S.Chabra, PW1 who

analysed the samples received by him with duly intact seals giving positive

tests for presence of phenolphthalein and sodium carbonate. There is no

motive attributable to PW4, PW5, PW8 and PW10 to falsely implicate the

Appellant. It is further contended that minor discrepancies in the testimony of

witnesses are bound to occur by passage of time. Considering the entire

evidence produced by the prosecution and the defence of the Appellant, the

only conclusion that can be arrived at is that the Appellant demanded and

accepted illegal gratification whereafter this Court is duty bound to raise the

presumption under Section 20(1) of the PC Act. Thus, the Appeal is liable to

be dismissed being devoid of merit.

5. I have heard the learned counsel for the parties and perused the record.

On perusing the sanction order Ex.PW3/A and testimony of PW3, I do not

find any merit in the contention of the learned counsel for the Appellant that

the sanction is vitiated on account of non-application of mind. PW3 in her

examination-in-chief had stated that she has perused all documents and

statements of witnesses before according sanction of prosecution of Kiran Pal

Singh and the sanction order Ex.PW3/A bears her signature on each page of

the sanction order. In her cross-examination, she has stated ; and it would be

appropriate to quote the relevant portion of the cross-examination:

"I had not seen any paper. I did not receive any draft sanction from CBI, Vigilance Deptt., might have received the same, Vigilance Deptt. had produced before me the sanction order and I had signed on the same. I had applied my mind before according sanction in this case"

6. Thus, from the cross-examination of PW3, it is apparent that what is

denied is having received the draft sanction from the CBI but may be a draft

had been produced by the Vigilance Department which she had signed,

however, she reiterates that she applied her mind before according sanction to

the case. From the sentence, "I had not seen any paper", no inference can be

drawn that the question put to her, the reply whereof she had given by the

statement related to the papers for grant of sanction. Even from the cross-

examination of PW3 it can be safely adduced that she applied her mind before

according her sanction and signed the draft sanction order produced before

her by the Vigilance Department. It is settled legal position that draft sanction

order can be placed before competent authority along with the material and if

the competent authority after perusing the material signs the draft sanction

order, it cannot be said to suffer from non-application of mind. In Indu

Bhusan Chatterjee vs. State of West Bengal, AIR 1958 SC 148, wherein the

sanction order was prepared by the police and put before the sanctioning

authority by the personal branch of his office and that before according the

sanction he went through all the relevant papers put before him, it was held by

the Hon‟ble Supreme Court to be a valid sanction. In Mohd. Iqbal(supra), the

Hon‟ble Supreme Court was dealing with the sanction accorded by the

Standing Committee of the Corporation by way of resolution. Since, the

resolution did not depicts the facts on the basis of which the prosecution was

sanctioned, it was held that it was incumbent on the prosecution to prove that

a valid sanction has been granted by the sanctioning authority which could be

done in two ways either (i) by producing the original sanction which itself

contains the facts constituting the offence and the grounds of satisfaction and

(ii) by adducing evidence aliunde to show that the facts placed before the

sanctioning authority and the satisfaction arrived at by it. However, in the

present case, the sanction order Ex.PW3/A is a complete narration of

sequence of events and re-produces the facts. Thus, the reliance of the

Appellant on Mohd. Iqbal(supra) is misconceived. In the light of law laid

down in State of Madhya Pradesh vs. Hari Shankar (Supra) it can be safely

held that the sanction order is eloquent enough to show that there has been

application of mind. This is further strengthened by the testimony of PW3

who in her examination-in-chief and cross-examination has clearly stated that

she applied her mind before according sanction in the case. Much has been

sought to be made by the learned counsel for the Appellant on the leading

question put by the learned counsel for the CBI to this witness. Even ignoring

this leading question which is put to her after her examination-in-chief and

cross-examination and which is permissible under Section 142 of the

Evidence Act, there is sufficient material on record to show that PW3

accorded sanction after due application of mind.

7. I also do not find any merit in the contention that the Appellant has

been falsely implicated at the instance of Rajbir Singh who was the de facto

complainant in the case as the Appellant had earlier lodged complaint against

him. Learned counsel for the Appellant lays a lot of emphasis on the fact that

though as per the prosecution case the complainant is PW5 Prem Singh

however, from his cross-examination, it has been elicited that Rajbir Singh

not only scribed the complaint but was also present in the CBI office and at

the time of raid along with the Complainant. Undoubtedly, as per the defence

of the Appellant which he has taken in his statement under Section 313 Cr.

P.C. along with the reply R-1 and by way of defence witnesses, the Appellant

on 6th January, 1997 lodged a complaint vide Ex. DW/1/A and vide DD No.

13 dated 1st January, 1997 lodged „Ittalla Peshbandi‟ Ex. DW2/A at P.P. Sri

Ram Colony that Rajbir Singh who is the supplier of building material,

brought an iron gate which he did not permit and this man can implicate him

in a false case. The scribe of the complaint with whom animosity has been

alleged i.e. Rajbir Singh has been produced by the prosecution as PW2. PW2

in his cross-examination has clarified that on 1st January, 1997 he was

bringing a gate to be taken to Sonia Vihar as this route through Sri Ram

Colony to Sonia Vihar was shorter by 4/5 kilometers but the Appellant did not

permit so he took through the longer route. Even assuming that from the

complaint Ex. DW2/A, animosity is born out with Rajbir Singh, the same

does not mitigate the Appellant‟s action of demanding and accepting bribe

from PW5 for permitting him to carry material on his „bhainsa baggi‟. In

Billa Nagul Sharief(supra) the Hon‟ble Supreme Court negatived the defence

of the alleged quarrel between the Appellant and the de facto Complainant on

the 30th December, 1996 as of no consequence in view of the specific and

consistent evidence about the demand and payment of bribe unfolded by the

prosecution witnesses on 18th January, 1997. Thus the grievance of the

Appellant that his response in his statement recorded under Section 313 Cr.

P.C. wherein he filed a written reply has not been considered is also

unmerited and deserves to be rejected.

8. The next contention of the learned counsel for the Appellant that in

view of the contradictions in the testimony of the witnesses, no reliance can

be placed on the same and hence from the evidence on record neither the

demand nor acceptance has been proved, is wholly misconceived. The

contradictions pointed are as to the place where the complaint was written i.e.

PW2 saying the same to be written at his shop, PW 4 stating it to be written at

the CBI Office, PW5 stating it to be written by PW2 at Lal Mandir, PW 8

stating it to be written in the CBI office and PW 10 stating that the same was

not written in his presence. From the facts it is apparent that as per PW2 and

PW5 when the Complainant went to the office of the CBI, he already had a

written complaint with him whereas two shadow witnesses say that the same

was written in the CBI Office. But what is material is that these two shadow

witnesses do not say that the complaint Ex. PW 2/A was written by him in the

CBI Office. Thus, there is no contradiction in the testimony of the witnesses

as to the place where the complaint Ex.PW2/A was scribed.

9. The contention of the learned counsel for the Appellant that from the

testimony of the witnesses it is not clear as to whom the Complainant gave the

complaint in the CBI office, as the complaint was marked to S.P., CBI who

made an endorsement on Ex.PW2/A "Inspector S.K. Bhati to lay the trap and

report" is also unmerited. The contradiction in this regard is sought to be

brought out from the testimony of PW5 who has stated that he went to the

CBI office along with the complaint and met one official Sh. S.K. Bhati.

Merely because Mr. S.K. Bhati or the S.P. who made the endorsement and

marked the matter to Sh. S.K. Bhati has not been examined, the same would

not discredit the prosecution case.

10. The contention that the acceptance of the bribe money has not been

proved in view of the contradictory testimony of the witnesses is also

meritless. The factum of acceptance is sought to be discredited by the learned

counsel for the Appellant in view of the testimony of PW4 who stated that he

gave the pre-appointed signal, though in his cross-examination he has stated

that the raiding party was not visible from inside the tent where they were

sitting, and on the other hand, PW5 had stated that on acceptance of the bribe

money by the Appellant, he came out of the tent and gave a signal by

scratching his head. In this regard, it would be relevant to note the testimony

of PW10 Inspector S.R. Singh, the trap laying officer with Sh. S.K.Bhati who

has stated that the Complainant PW 5 and PW4 were sent inside the tent and

PW4 gave the pre-appointed signal whereafter they entered the tent. Even,

the suggestion to PW4 is that the Complainant wanted to insert the tainted

G.C. notes in the pocket of jacket of the Appellant and the Appellant was

refusing to accept the same and in this process the G.C. notes touched the

hands of the accused and at once the CBI officers came and apprehended the

Appellant. Thus, this suggestion itself accepts the presence of PW4 along

with the Complainant PW5 inside the tent. Thus this contention warrants

rejection. The prosecution has proved beyond reasonable doubt that the

Complainant and PW4 had gone inside the tent and PW4 after coming out

gave the pre-appointed signal pursuant whereto the raiding party went inside.

The contention of the learned counsel as regards the discrepancy in the

statements of the witnesses qua recovery also deserves to be rejected. Having

regard to the testimony of PW10, PW4 and PW5, it is proved beyond

reasonable doubt that on instructions of Inspector S.K. Bhati, PW8 the

shadow witness took out the money from the pocket of the jacket of the

Appellant. Though, PW8 in his testimony says that Inspector S.R. Singh took

out tainted G.C. notes from the pocket of the jacket of the Appellant, however,

this minor discrepancy does not cast a doubt on the entire prosecution case as

this witness was examined on 28th January, 2000, three years after the incident

and minor variations are bound to take place with passage of time. Even the

contradiction as regards the testimony of the witnesses as to whether the

documents were prepared whether on the spot or in the CBI office deserves to

be rejected, because all the witnesses have consistently stated that the

proceedings were conducted at the spot. The witness PW4 in his cross-

examination has clarified that since the matter is old, he does not remember

as to where the memo were signed and it was possible that these were

prepared and signed at the spot.

11. The contention of the learned counsel for the Appellant that the entire

prosecution case is based on leading questions put to the prosecution

witnesses by the learned counsel for the CBI thus impermissible under the

Evidence Act, also deserves to be rejected. In this regard, it would be relevant

to note Section 142 of the Evidence Act which states: -

"142. When they must not be asked: - leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court".

As per this provision, the prosecutor can put leading questions to the

prosecution witnesses with the permission of the Court. Such questions should

be either explanatory or in the opinion of the Court already sufficiently

proved. As shown above, leading questions have been put by the learned

counsel for the CBI only when they have been sufficiently proved and were in

the form of re-examine of the witnesses on particular aspects.

12. The appeal is, accordingly, dismissed. The bail bond and the surety

bond of the Appellant are cancelled. The Appellant be taken into custody to

undergo the remaining sentence.

(MUKTA GUPTA) JUDGE

APRIL 26th 2011/dk