Delhi High Court
State vs Mukesh Kumar Singh & Anr on 3 April, 2018
$~
IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 5th March, 2018
Decided on: 03rd April, 2018
+ CRL.REV.P. 462/2017
STATE ..... Petitioner
Through: Mr. R.S. Kundu, ASC with Ms.
Suman Saharan and Mr. Premsagar
Pal, Advocates. SI Bhoop Singh, P.S.
A.C. Branch.
versus
MUKESH KUMAR SINGH & ANR ..... Respondents
Through: None.
+ W.P.(CRL) 942/2017 and CRL. M.A. Nos. 5237/2017,
8318/2017 and 8319/2017
+ W.P.(CRL) 3012/2017
K G TYAGI ..... Petitioner
Through: Mr. Hariharan, Sr. Advocate with Mr.
Riyaz A. Bhatt, Mr. Jacob and Mr.
Nayyar Kedar, Advocates.
versus
STATE ..... Respondent
Through: Mr. R.S. Kundu, ASC with Ms.
Suman Saharan and Mr. Premsagar
Pal, Advocates. SI Bhoop Singh, P.S.
A.C. Branch.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
J UD G M E N T
The challenge
1. The criminal case (CC No.18/2010) from which these three
CRL.REV.P. 462/2017 etc. Page 1 of 95
petitions arise was registered on the basis of report(s) submitted under
Section 173 of the Code of Civil Procedure, 1973 (Cr.P.C.) -
hereinafter referred to as "the case of ACB" - in relation to First
Information Report (FIR) No.34/2008, which was registered on
16.10.2008 by Anti-Corruption Branch (ACB) Police Station of the
Government of NCT of Delhi (GNCTD) for investigation into
offences allegedly committed under Sections 7, 8 and 13(1)(a) and (d)
read with Section 13(2) of the Prevention of Corruption Act, 1988
("POC Act", for short) read with Sections 384, 120-B and 34 of Indian
Penal Code, 1860 ("IPC" for short).
2. The Special Judge, in seisin of the case, directed by order dated
02.03.2017, one of the accused persons whose prosecution was sought
by ACB to be put on trial while discharging the two others. The order
of discharge is challenged by the State by the criminal revision
petition while the accused against whom charges have been framed
assails the same very order invoking the writ jurisdiction of this court.
The said accused had questioned the legality and validity of the
sanction for his prosecution under Section 19 of POC Act, his
contentions having been rejected by the subsequent order dated
11.10.2017 of the Special Judge, which is the subject-matter of
challenge in the second captioned writ petition.
3. During the course of investigation of the case of ACB, four
persons came to be arrested, they including Inspector Krishan Gopal
Tyagi (A1), Sub-Inspector Mukesh Kumar (A2), Assistant Sub-
Inspector Rajbir Singh (A3) and Mr. Ravinder Chadha, Advocate. On
CRL.REV.P. 462/2017 etc. Page 2 of 95
the petition of the last said arrestee, the Supreme Court by order dated
16.12.2013 in Crl. Misc. Petition Nos.18196-7 of 2013 in SLP (Crl.)
Nos.7210-7211 of 2013 stayed the trial against him. As mentioned
above, by order dated 02.03.2017, the Special Judge discharged A2
and A3 and directed charges to be framed against A1 for offences
punishable under Sections 7/13(1)(d) of POC Act read with Sections
384,389,120-B IPC. The formal charges framed on 04.03.2017 reflect
three heads, viz. under Sections 384/120-B IPC, Sections 389/120-B
IPC and Sections 7/13(1)(d) of POC Act read with Section 120-B IPC.
4. After the charges had been framed, the prosecution led evidence
on the issue of sanction and has examined Mr. Ashok Chand (PW-1),
the then Additional Commissioner of Police (Additional CP) and Mr.
Balwant Singh Dhingra (PW-2), the then Assistant Commissioner of
Police (ACP), the former (PW-1) being the authority which had
granted the sanction for prosecution of A1, A2 and A3 on 18.07.2014
under Sections 19 of POC Act, 1988 and the latter (PW-2) being the
investigating officer of the case of ACB at the relevant point of time.
The legality and validity of the sanction had been challenged before
the trial court by A1, in the wake of such evidence having come on
record, by a formal application. The said application was dismissed by
the special Judge by order dated 11.10.2017.
Background
Facts
5. Given the facts and circumstances of the case and the issues
which have been raised by both sides, it is necessary to trace the
germane background facts, in chronological order to the extent
possible, focus being on such facts and events as regards which there
is now no dispute, culled out from the documents or material relied
upon or submissions made by the State or such further material which
has come to be proved during the recording of evidence of
aforementioned witnesses at the instance of the accused or further at
the hearing in this court.
6. On or about 29.09.2007, a person named Vijay Singh Yadav @
Vijji was shot dead in Gali Arya Samaj Bazar, Sita Ram Delhi, the
said incident becoming subject matter of FIR No.356/2007, under
Section 302 IPC of Police Station Hauz Qazi, Delhi - hereinafter
referred to as "the case of murder" - in which one Abhay Yadav is
stated to be the complainant. The said case of murder was initially
investigated into by the local police. By order of the Commissioner of
Police, Delhi, the investigation was transferred to the Crime Branch on
09.10.2007. During the relevant period, A1, A2 and A3 were posted
in the Inter-State Cell (ISC) of Crime Branch, Dr. Joy N. Tirkey, ACP
and Mr. Satyender Garg, Additional CP being their immediate
superiors in hierarchy in ISC. The responsibility of the investigation
into the case of murder was entrusted to A1. In the course of
investigation that followed, A1 made several arrests including of
Gopal Krishan Aggarwal effected on 07.12.2007. On the application
moved by A1 on 08.12.2007, police custody remand of the said Gopal
Krishan Aggarwal (and one another) was granted by the court of
magistrate. On 22.02.2008, as the investigating officer of the case of
murder, A1 filed report under Section 173 Cr.P.C. ("charge-sheet")
in the case of murder seeking prosecution of nine persons including
the said Gopal Krishan Aggarwal, this being followed later by
supplementary charge-sheets. The said case was committed to the
court of Sessions on 08.04.2008.
7. On 09.05.2008, A1 lodged daily diary (DD) entry No.11 at
09.57 p.m. in Anti Homicide (AH) Section of Crime Branch primarily
to record that he was facing great problems ever since the filing of the
charge-sheet in the case of murder, some of the accused persons
arrested in the case being influential persons and he being under
pressure from senior officers to save or help such of the accused, his
superiors not being supportive and he apprehending some wrong
might be done against him.
8. On 16.06.2008, Gopal Krishan Aggarwal moved the vacation
judge of this court for release on bail on medical grounds, it being
later converted into an application for regular bail which was granted
by the vacation judge by order dated 20.06.2008. On the move
initiated by A1 on 23.06.2008, special leave petition (SLP) later came
to be filed in the Supreme Court against the said order of release on
bail. It may be mentioned here itself that the Supreme Court by order
dated 23.03.2009 in SLP (Crl.) No. 891 of 2009 cancelled the bail
granted to Gopal Krishan Aggarwal in the case of murder, the trial in
the said case having progressed, after formal charges were framed on
24.09.2010 including against Gopal Krishan Aggarwal, it being still
pending trial.
9. On 14.07.2008, A1 lodged DD No.20 at 5.10 p.m. in AH
Section of Crime Branch stating, inter alia, that Gopal Krishan
Aggarwal along with two other co-accused in the case of murder were
hatching plan to get him involved in some false case and he suspected
the complicity of some disgruntled police officials and advocates. This
was followed by two other DD entries, one being DD No.27 dated
23.07.2008 lodged at 8.30 p.m. and the second DD No.14, dated
28.07.2008 lodged at 3.15 p.m. in Crime Branch (AH Section). As per
DD No.27 Abhay Yadav, the complainant of the case of murder had
telephonically informed him (A1) on the night of 22.07.2008 that
Vinod @ Teda, a witness of the case of murder, had been lifted by
officials of police post Turkman Gate, Police Station Chandni Mahal
at the instance of Gopal Krishan Aggarwal (then out on bail) and upon
he (A1) talking to the said witness, the latter having told him about he
being pressurized and intimidated by Gopal Krishan Aggarwal to
make him desist from deposing against him in the court, the
allegations of Gopal Krishan Aggarwal, on the other hand, being that
the witness was trying to extort money from him in the matter. By
DD No.14, A1 recorded that Gopal Krishan Aggarwal (then out on
bail) had made an attempt on that day to unnecessarily talk to him
outside the court and he appearing to intend commit some
mischievous act against him.
10. On 01.08.2008, FIR No.68/2008 was registered in Police Hauz
Qazi, Delhi against Gopal Krishan Aggarwal and others for offence
under Section 3 of Maharashtra Control of Organized Crime Act, 1999
(MCOCA).
11. On 16.10.2008, the ACB registered FIR No.34/2008 on the
complaint dated 15.10.2008 of Abhinav Krishan Aggarwal son of
Gopal Krishan Aggarwal. The sum and substance of the allegations
made in the said complaint are that A1, while carrying out the
investigation into the case of murder, had adopted an unending
systematic extortion routine making demands through Mr. Ravinder
Chadha, Advocate and by creating pressure receiving money through
his associates that included A2 and A3. It was stated in the complaint
that A1 had called the said complainant Abhinav Krishan Aggarwal
and his father Gopal Krishan Aggarwal several times to the office of
crime branch, interrogating them and taking their signatures on blank
papers and at times detaining them unnecessarily. He alleged that on
06.12.2007 his father was detained by A1 in the crime branch office
and when he had met on 07.12.2007, A1 had demanded a bribe of
Rs.8,00,000/- asking it to be brought to his residence on the next
morning. He further alleged that when he had arranged and taken the
said amount of money to the residence of A1, as instructed, the son of
A1 had asked him to meet A1 at City Hospital, Pusa Road, where
brother-in-law of A1 was admitted at the time. He stated that he had
accordingly met A1 in the City Hospital, Pusa Road, where the said
amount of money was handed over in the presence of one more
person. He further stated that, as instructed by A1, he had met him
again on the same date (08.12.2007) in the crime branch office when
he was taken to the room of Mr. Joy Tirkey, ACP where he was told
that the arrest of Gopal Krishan Aggarwal had to be effected under
pressure and though he (the complainant) was also to be arrested in the
case he was being spared and further that his father would be released
in 10-15 days. It was further alleged that A1 had asked him (the
complainant) to engage Mr. Ravinder Chadha, Advocate assuring that
the said counsel would do the needful and that the said advocate upon
being met demanded Rs.2 lacs to be paid, which payment was to be
made on the next date. He alleged that after this, the extortion became
a routine, A1 exerting pressure and demanding money through the
said advocate now and then. He stated that he had started secretly
recording (in audio/video mode) the conversations and demands of the
said advocate, and A1, since 31.12.2007, the video recordings
collected indicative of acceptance of illegal gratification by one of the
named public servants. According to his complaint, he was victim of
extortion to the extent of Rs.26-27 lacs, out of which Rs.8 lacs had
been taken directly by A1 on 08.12.2007, the rest having been realized
through Mr. Ravinder Chadha Advocate, which according to his
allegations, included Rs.4 lacs as the share of the Advocate and the
balance of A1. He also stated that the video recordings collected by
him confirmed the manipulation in the record of the investigation of
the case of murder. The complainant also alleged that after his father
had been released on bail on 20.06.2008 by the High Court, A1 had
extended threats to have him implicated in some other case unless
further amount of Rs.25 lacs was paid to him and further that upon
refusal to accede to such demand, A1 had extended threats,
subsequently MCOCA case having been got registered due to
manipulation by A1. The complainant submitted with the complaint
"un-edited DVD" of audio and video recordings of the conversations
along with typed copy of transcript of the relevant portions prepared
by the complainant himself, seeing necessary action.
12. After its registration on 16.10.2008, the case of ACB was
entrusted for investigation to Mr. H.P.S. Sodhi, ACP. The said
investigating officer (IO) arrested A1,A2 and A3, besides Mr.
Ravinder Chadha, Advocate on 17.10.2008.
13. On 09.02.2009, the Additional CP (Crime) granted sanction for
prosecution (hereinafter referred to as "the first sanction order") under
Section 19 of POC Act. On 25.03.2009, charge-sheet was prepared
and submitted in the court of Special Judge on 01.04.2009. On
22.04.2009, the Special Judge recorded an order taking cognizance of
offences punishable under Sections 7/13(1)(d) of POC Act.
14. As per the record of ACB, the complainant Abhinav Krishan
Aggarwal had handed over another copy of DVD (having been
marked as "B") containing audio/video recording of the conversation
referred to in the complaint/FIR, the DVD submitted at the time of
lodging of the FIR having been earlier signed by the Special Judge
(and marked as "A"). Both the said DVDs in separate sealed parcels,
(DVD mark "B" concededly having one additional track) were
statedly examined by Andhra Pradesh Forensic Science Laboratory
(APFSL) at Hyderabad, on the request dated 15.12.2008 of the IO for
opinion as to whether the contents thereof were the same, the tracks of
such recordings being continuous or whether there was any tampering
noticed and further as to whether such material could be considered
"useful for investigation purposes". The report of APFSL dated
01.12.2009 was submitted with the first supplementary charge sheet in
the court of Special Judge on 16.02.2010. It is stated that two more
supplementary charge-sheets were later submitted on 16.07.2010 and
16.09.2010 respectively.
15. On 06.03.2010, A1 made a request in the court of Special Judge
for the DVDs in question to be opened to verify the number of files
and their particulars. As per the proceedings conducted by the court on
same date, the properties of the digital files contained in the two
DVDs were checked and memoranda thereupon was prepared.
Pertinent to note here that as per the said verification exercise the
dates of creation of some of the files were found to be of January-
February 1980, the latest in time being dated 12.08.2008, quite a few
of year 2003, and one of 31.12.2007.
16. On 06.03.2010, A1 moved an application, A2 and A3 also filing
similar applications, challenging the first sanction order for
prosecution granted on 09.02.2009 under Section 19 of POC Act.
17. On 19.07.2010 the Special Judge, dealing with an application
that had been moved, passed the order which reads thus :-
"...An application has been moved wherein it is stated
that no cognizance had been taken against the accused
Ravinder Chaddha as he is a private person and not
being a public servant section 7 and 13 do not apply.
Legally the said assertion is correct. However, it has
been observed that the charge sheet filed manifests
complicity between accused K.G. Tyagi and Ravinder
Chaddha.
At this juncture, when charge has not been framed and
the accused has not been discharged, the inadvertent
omission is hereby rectified and accordingly, I take
cognizance of the offence u/s. 7, 8, 13 (1)(d) r/w 13 (2)
POC Act and 384, 120B/34 against all the accused
persons.
Application moved by Ravinder Chaddha becomes
redundant in view of the fact that this court has taken
cognizance of the offence against him. No notice is
required to be served as the accused is already
appearing.
Documents have been filed by the accused.
To come up on 07.08.2010 for remaining arguments as
well as order on application u/s. 19 of POC Act."
18. Meanwhile, A1 had made a representation to his superior
authorities in the police department requesting for "fair" enquiry into
the "fraud committed" by the investigating agency (i.e. ACB). An
enquiry was instituted pursuant to the said representation and was
conducted by Mr. P.S. Kushwah, Additional Deputy Commissioner of
Police (Additional DCP) in Crime Branch (Headquarter). In the
course of the said enquiry, A1 placed on record certain other material
including copies of the documents that he had obtained under Right to
Information Act, 2005 (RTI Act). The enquiry culminated in report
dated 29.12.2011 (Ex.PW-1/D7). The enquiry officer Mr. P.S.
Kushwah, Additional DCP, in his said report noted that he had gone
through the police records and the records pertaining to prosecution
sanction besides police file pertaining to the period after grant of such
sanction, it including opinion of the Chief Public Prosecutor in
December, 2008 raising issue as to "why the apparatus/instrument
used in videography and audiography were not seized" and the
supplementary statement under Section 161 Cr.P.C. dated 16.02.2009
of Abhinav Krishan Aggarwal - recorded after the grant of sanction
on 09.02.2009 (received by ACB on 12.02.2009) - stating, inter alia,
that "three devices/instruments used in the recording are not
available" he having used one MP3 player (which had since been
"destroyed"), pen camera and one mobile phone Nokia E90 (both of
which he had "returned" to the source from where he had
"borrowed" the same).
Enquiry Report
19. Taking note, inter alia, of DD No.11 dated 09.05.2008, DD
No.20 dated 14.07.2008, DD No.27 dated 23.07.2008 and DD No.14
dated 28.08.2008 (contents whereof have been noted earlier), and the
allegations of forgery vis-à-vis the contents of the DVDs and the
alleged manipulation of records respecting their submission for
forensic opinion of APFSL for consideration in the light of above
background, the Additional DCP, in his report dated 29.12.2011
(Ex.PW-1/D7) concluded as under:-
"..... The material on record establishes that Insp. K.G.
Tyagi had conducted the investigation of case FIR
No.356/07 u/s 302/201/120B IPC Hauz Qazi and arrested
10 accused persons including Gopal Krishan, father of the
complainant, Avinabh Aggarwal in case FIR No.38/08 PS
ACB. It is also on record that Insp. K.G.Tyagi made efforts
in filing an SLP against the order of Delhi High Court
granting bail to Gopal Krishan in the month of Aug. 2008,
much before the registration of case FIR No.34/08 against
him.
THE DOCUMENTS ON WHICH THE SANCTION WAS
ACCORDED
The perusal of prosecution sanction file reveals that the
following documents were sent to sanctioning authority for
perusal along with request to grant sanction dated 5/12/08:
1. Copy of FIR No.34/08 PS-ACB
2. Copy of complaint
3. Copy of transcription
4. Copy of DVD
5. Copy of seizure memo of DVD
6. Copy of voice identification memo
7. Copy of medical record of Sh. Jagdish Tyagi (brother-in-
law of K.G. Tyagi)
8. Statements recorded u/s 161 CPC.
(i) Sh. Pawan Dabas dated 17/10/08
(ii) Sh. Gopal Krishan Aggarwal dated 18/10/08
(iii) Sanjeev Kumar dated 22/10/08
(iv) ACP Joy Tirkey dated 22/10/08
(v) Insp. Yashpal dated 26/12/08
PROSECUTION SANCTION ACCORDED ON
INCOMPLETE INVESTIGATION
After receipt of above documents, a letter no.365/P.Cell/Vig.
(P-IV) dated 16-01-09 was sent to DCP/ACB GNCT of Delhi
asking therein to supply (a) memo of evidence (b) opinion of
prosecution branch (c) case diaries (d) A report containing
facts of the case, allegations and result of investigation
along with necessary annexures for perusal of sanctioning
authority (e) copies of statements of witnesses obtained
during investigation but no follow up action was found on
record. Further perusal revealed that the sanctioning
authority had called the IO/ACB on 06/02/09 with the case
file and the same was perused by him but the IO/ACB chose
to remain silent about this the case diary.
It is on record that the investigation of case FIR no.34/08 PS
ACB was not complete when the sanction for prosecution
against Insp. K.G. Tyagi and others was sought from the
sanctioning authority by the IO/ACB on 5/12/08. The fact is
that the main charge sheet was filed on 25/03/09 and
subsequently the supplementary charge sheet was filed on
10.02.10. The sanction was granted on 09/02/09 by the
sanctioning authority. It is clear that sanction was sought
and accorded much before the investigation was concluded.
MISLEADING THE SANCTIONING AUTHORITY BY THE
IO/ACB:
It is also on record that the instant case was based on a
sting operation allegedly carried out by the complainant
himself only, who was the son of an accused in a murder
case investigated by Insp. K.G. Tyagi. The IO/ACB neither
seized the original gadgets used in sting operation, nor
made any enquiry/investigation in this regard. However on
13.12.08 Ld. Chief PP/ACB raised the objection that they be
seized now which was well before the grant of sanction. In
compliance of said objection, IO/ACB showed inability to
seize the same for the purpose of secrecy. But in a very
strange and calculated manner, after receiving the sanction
on 13.02.09, he subsequently recorded a supplementary
statement of complainant on 16.02.09 in which he not only
described the make and mode of sting operation of the
original recording equipments and other gadgets, but also
brought on record the fact of non availability of this vital
piece of evidence.
The Hon‟ble High Court in State v. Karim Bux, AIR 1950 all
494: 1951 Cr.LJ 323 held as under:-
xxx xxx xxx
VITAL ILLEGALITIES COMMITTED DURING THE
INVESTIGATION REQUIRES CONSIDERATION SINCE
THE FOLLOWING DOCUMENTARY EVIDENCE WAS
PART OF INVESTIGATION BUT NOT BROUGHT
BEFORE THE COMPETENT AUTHORITY:
i) DD No.5A dt. 17.10.08 PS ACB and search cum seizure
memo dt. 17.10.08. He contented that as per memo ASI
Rajbir was present at his house No.A-224, Vijay Nagar
Colony, Bawana till 10.15 on 17.10.08 but as per DD No.5A
dt. 17.10.08 PS ACB ASI Rajbir is shown present in the
office of ACB at Old Secretariat, Civil Lines at 10.10 AM on
the same day and the distance between the two places is
about 30 kms.
ii) Arrest memo dt. 17.10.08 and house search cum
inventory memo dt. 17.10.08. He contended that SI Mukesh
Kumar is shown arrested at 12.30 PM on 17.10.08 at the
office of ACB at Old Secretariat, Civil Lines and at the same
time he is shown present at his house at E-307, Aastha Kunj,
Sector 18, Rohini at 12.15 PM as per search cum inventory
memo. He further contended that it is impossible that a
distance about 22 kms could have been covered in 15
minutes.
iii) The objections raised by the Ld. Chief PP on 13.12.08
and the compliance made by the IO/ACB dated 15.12.08
implies that at the time of grant of sanction, the competent
authority was either kept in dark or misled about the facts of
non availability of original gadgets used in sting.
iv) A DVD could not have been made without the use of a
computer because original data has to be transferred into
hard disk but the complainant and investigation agency are
silent about this aspect.
v) Copy of details of two DVDs opened and prepared before
the Special Judge on 06.03.10 and copy of the same
provided to the applicant mentioning the files name, date of
creations and modifications, which reveals certain
irregularities and abnormalities as most of the files were
created between the years 1980, 2003 etc.
VITAL DOCUMETNS EITHER PREPARED OR BROUGHT
ON RECORD AFTER GRANT OF SANCTION DATED
09.02.09 THROUGH SUPPLEMENTARY CHARGE SHEET
DATED 10.02.10 HENCE THERE WAS NO OCCASION TO
SANCTIONING AUTHORITY TO EXAMINE THESE
DOCUMENTS:
It is also on record that ACB filed supplementary charge
sheet on 10.02.10 along with following relied documents
and there was no occasion for sanctioning authority to
peruse these vital documents:
(a) Copy of letter no.7499/KRM/ACP/ACB Dt.15.12.08
regarding expert opinion in RC no. 38/04 of PS ACB.
(b) Copy of forwarding letter vide Memo No. 7500/KRM/
ACP/ACB Dt. 15.12.08 addressed to Director, C.F.S.L.,
Hyderabad along with request for expert opinion.
(c) Copy of R/C No.71/21/08. Dt.15.12.08 issued by MHC/M
PS Civil Lines to Director C.F.S.L. Hyderabad.
(d) Copy of entry in register No.19 PS Civil Lines dt.
15.12.08 showing that the exhibits has been sent to
C.F.S.L. Hyderabad.
(e) Copy of statement of HC Jitender MHC/M PS Civil Lines
u/s 161 Cr.PC dated 5/12/09.
(f) Copy of statement of Insp. Yashpal of ACB u/s 161 Cr.PC
dated 5/12/09.
(g) Copy of APFSL Report (File No.ENG/13/2008 Dt.
01.12.09.
(h) Copy of R/C No.95/08 dt.15.12.08 issued by ACB
showing the receipt of parcel by expert on 18.12.09 on
the rear side of R/C.
(i) Copy of computerized receipt issued by APFSL DT.
20.12.08. showing that two sealed cloth parcels were
received on 20.12.08.
The Hon‟ble Apex Court in V. Venkata Subbarao v. State
AIR 2007 SC 489 held that,
xxx
TAMPERING, INTERPOLATION NOTICED ON THE
DOCUMENT FOUND IN THE SUPPLEMENTARY
CHARGE SHEET DATED 10.02.10.
i. Perusal of copy of priority letter no. 7499/KRM/ACP/ACB
dt. 15.12.08 supplied along with supplementary charge sheet
and the copy of letter bearing same diary number supplied
under RTI Act reveal that these two letters are apparently
different and in the letter supplied under RTI Act from
APFSL Hyderabad some cutting and counter signature of
unknown person have been noticed. It is found that two
letters bearing same diary numbers were prepared. It is also
noticed that no explanation of this has been given in any
case diary by the IO/ACB.
ii. Perusal of copy of forwarding letter no.7500/KRM/
ACP/ACB dt. 15.12.08 supplied along with supplementary
charge sheet and copy of letter bearing same diary number
supplied under RTI Act from APFSL Hyderabad reveals that
the former was addressed to Director, Central Forensic
Science Laboratory, MHA, Govt. of India, Hyderabad
whereas the latter was addressed to Director, AP Forensic
Science Laboratory, Hyderabad. It is also found that the two
forwarding letters on record bear the same Memo number
i.e. 7500/KRM/ACP/ACB dated 15.12.08. It is also noticed
that no explanation of this has been given in any case diary
by the IO/ACB.
It is also not out of place to mention here that the applicant
sought information from ACB under RTI Act regarding the
regular format of forwarding letter to FSL/CFSL and the
perusal of this record indicates that the format of forwarding
letter sent to CFSL/APFSL is apparently different from the
regular format.
iii. Perusal of road certificate no. 71/21/08 dated 15.12.08
supplied along with supplementary charge sheet and copy of
same road certificate received through RTI from North
district reveals that letter "C" of CFSL was found to be
changed into "comma(,)" thereby converting Director CFSL
Hyderabad to Director, FSL Hyderabad. It is an apparent
interpolation of the documentary evidence. How it came
about is neither explained in any case diary nor in any
statements of Insp. Yashpal, who had taken and deposited
the exhibits in this case.
It is a well settled law that the sanction is a solemn and
sacrosanct act which affords protection to govt. servant
against frivolous prosecutions. The validity of sanction
ultimately depends upon the entire material, relevant facts
and evidence placed before the competent authority so that
the competent authority has full knowledge of facts to take a
decision either to grant the sanction or deny the same in
relation to the public servant against whom the sanction is
sought.
In the instant case, the information, received through RTI
Act from various authorities and documents provided in
supplementary charge sheet, reveals certain illegalities and
irregularities that have been discussed in detail in the
enquiry report and involves misrepresentation of facts before
the competent authority in order to obtain sanction against
the applicant by the IO/ACB. The Hon‟ble Supreme Court in
Maghmala & Ors. V.G. Narasimha Reddy & Ors.
Manu/SC/0608/2010 held as:
xxx.
As discussed above, the instant enquiry reveals that in
relation to the legal proposition on the subject, the fact of
the case confirm that certain important documents and
evidence were not brought before the competent authority
i.e. sanctioning authority. Hence there was no occasion for
the sanctioning authority to examine and peruse the full facts
which one can say is against the principles of the natural
justice."
(emphasis supplied)
20. The report dated 29.12.2011 of Additional DCP Crime Branch
based on the aforementioned enquiry was submitted before Mr. Ashok
Chand (PW-1) who was then posted as DCP (Crime and Railways).
He made endorsement on the said report (Ex.PW-1/D7) on 30.12.2010
as under:-
"I agree with the report and conclusion arrived at by Addl
DCP/Crime/HQ Shir P.S. Kushwah. In the interest of
natural justice all facts should have been brought before the
competent authority according sanction."
Judicial View on first Prosecution Sanction
21. The above mentioned applications moved on 06.03.2010
challenging the validity of sanction for prosecution were considered
by the Special Judge, in which context the Additional Public
Prosecutor representing the State placed on record "Written
Submissions on behalf of the State" dated 18.05.2012, the contents of
para 9 whereof being relevant may be extracted as under:-
"9. The discrepancies as pointed out by the accused in the
following documents, relied upon by the prosecution may be
vital and relevant to the issue of sanction.
a. A letter dated 15.12.2008 bearing no.
7500/KRM/ACP/ACB was issued by Sh. I.D. Shukla
DCP/ACB. The said letter was forwarded to the Director
CFSL, CFI‟s Complex, Ramanthapur, Amabarpet Post,
Hyderabad and needless to say that it authorized the said
authority to examine the exhibits sent.
b. A letter dated 15.12.08 bearing no. 7499/KRM/ACB
was issued by Dr. N. Dilip Kumar, Addl. CP/ACB. The said
letter is addressed to Sh. O.N. Murthy, Director APFSL,
Lakhri Ka Pul, opposite Nilofer Hospital, Hyderabad and
sought expert opinion in RC- 38/04 while the present case is
FIR No.34/2008. How it is happened there is no explanation
as per prosecution record.
c. Admittedly, FSL report in this case is received from
APFSL Hyderabad while the record of charge sheet shows
that the exhibits were sent to CFSL Hyderabad but there is
no explanation on record about the same, it is not clear if
these documents were put up before sanctioning authority or
not.
d. The copy of Road Certificate number 71/21/08 dated
15.12.08 issued by MHC(M), PS: Civil Lines filed along
with the supplementary charge-sheet shows that the same is
addressed to Director 9 FSL, Hyderabad.
It is matter of record that the relied documents of the
prosecution i.e. entry made in register number 19 of
Malkhana as well as the statement of HC Jitender,
MHC(M), PS: Civil Lines under section 161 Cr.P.C. shows
that the exhibits of the present case were sent to CFSL,
Hyderabad. Also the word „C‟ is looking like number 9 or a
Comma (,) on the receiving copy of RC No.71/21/08. From
the case file there is no explanation how these vital
discrepancies and irregularities arose in the relied
documents of prosecution.
e. It is matter of record that on the back of receiving
copies of RC no.71/21/08 and 95/08, both dated 15.12.08,
the receiving date of exhibits is mentioned as 18.12.08.
Whereas the date of receive in computerized generated
receipt is shown as 20.12.2008. This is very vital
discrepancy but it is also a matter of record that in total
investigation there is no explanation how and why it is
happened.
The aforesaid irregularities have not been explained by the
IO in the charge sheet. Moreover it is not clear that these
irregularities were brought in the knowledge of the
sanctioning authority."
(emphasis supplied)
22. On 30.07.2012, the Special Judge passed a detailed order taking
note of the law declared in S. N. Bose vs. State of Bihar, AIR 1968 SC
1292; N.M. Rajendram vs. State, 1995 Crl.L.J. 4195; Mansukhlal
Vithaldas Chauhan vs. State of Gujrat (1997) 7 SCC 622; KC. Singh
vs. CBI, Criminal Appeal No.976/2010, decided on 10.08.2011; Ram
Krishan Prajapati vs. State of U.P. (2000) 10 SCC 43; and K.
Narsimhachari vs. State, Inspector of Police ACB Cuddapha District,
2003 Crl.L.J. 3315. She also took note of the fact that the prosecution
had conceded that vital and relevant documents had not been filed
with the initial charge-sheet, observing and concluding thus:-
"7....The Ld. Prosecutor further conceded that following
documents were obtained after the sanction was accorded
being:
i) Supplementary statement of complainant Abhinav dated
16.02.2009 to the effect of non-availability or destruction of
originals.
ii) FSL report collected from APFSL, Hyderabad.
iii) Statement of HC Jitender, MHC(M) PS-Civil Lines dated
05.12.2009.
iv) Statement of Inspector Yashpal of ACB dated 05.12.2009.
8. Perusal of the record reveals that the investigating
agency recorded the supplementary statement of the
complainant under Section 161 Cr.P.C. to the effect that the
device/instrument used in recordings has either been
destroyed or not available after sanction for prosecution
was accorded on 16.02.2009. Prosecution did not seize the
original equipment/instrument/devise used for the sting
operation by the complainant and the statement under
Section 161 Cr.P.C. of the complainant which was a vital
piece of evidence was recorded after according the sanction
making it clear that the sanctioning authority was never
appraised of the destruction of recording equipment/device
as stated by the complainant. It is also pertinent to note that
FSL report was received by the investigating agency on
05.12.2009 from APFSL, Hyderabad but the sanction was
accorded on 09.02.2009 and the FSL report was not placed
before the sanctioning authority at the time of according
sanction but was made a part of the supplementary
chargesheet filed on 10.02.2010...
"9. ...amply clear that the investigation was incomplete on
09.02.2009 at the time of according sanction and number of
material documents came into existence after according
sanction till the filing of supplementary charge sheet on
10.02.2010 which were not placed before the sanctioning
authority and vitiates the entire proceedings..."
"... I hold that the sanction order dated 09.02.2009 does not
stand the scrutiny of law and the Ld. APP fairly conceded
that the sanction order dated 09.02.2009 is invalid and the
merits of the case need not be gone into as the sanction is
non-est in law and strikes at the root of the prosecution
case.
11. As a result of the above discussion, accused Krishan
Gopal Tyagi, Mukesh Kumar Singh and Rajbir Singh are
hereby discharged of the offences under the Prevention of
Corruption Act...."
23. Though, by virtue of the order dated 30.07.2012, the three
public servants, i.e. A1, A2 and A3 stood discharged for the offences
under the POC Act, the discretion of the State to file fresh charge-
sheet for such offences after obtaining valid sanction having been kept
open, the proceedings in the criminal case continued before the
Special Judge for consideration of the issue as to whether charge was
made out for offences under Section 8 of POC Act and Section 384/34
read with Section 120-B IPC.
Developments after rejection of Prosecution Sanction
24. By order dated 18.05.2013, the Special Judge held a case for
charge to be made out against A1, A2, A3 and Mr. Ravinder Chadha,
Advocate for offences under Section 120B IPC, Section 384 read with
Section 120-B IPC and Section 8 of POC Act read with Section 120-B
IPC. Besides this, he also found a case made out for separate charge to
be framed against A1 for offences punishable under Sections 388 and
389 IPC. As noted earlier, on the SLP (Crl.) 7210-7211 of 2013
moved by him, the Supreme Court by its order dated 16.12.2013
stayed the proceedings in the case against Mr. Ravinder Chadha,
Advocate.
25. It appears that on 06.01.2014 the Special Judge decided to stay
the entire trial (i.e. against A1, A2 and A3 as well) observing that it
could not be "segregated", the proceedings against one accused (Mr.
Ravinder Chadha, Advocate) having been stayed. But taking note of
supplementary charge-sheet that had also come to be filed, he decided,
by his subsequent order dated 03.12.2014, to proceed ahead to hear
arguments on charge in light to such supplementary charge-sheet. The
reasons why the earlier approach was abandoned cannot be fathomed
from the record.
26. Be that as it may, A1, A2 and A3 moved this Court to challenge
the order dated 18.05.2013 directing charges to be framed. The issue
of charge, however, stood remanded to the trial court by order dated
26.07.2016 passed by a learned single judge of this court in W.P.
(Crl.) 1236 and 1240-1/2013.
27. After the Special Judge had directed discharge of A1, A2 and
A3 from the offences under POC Act by order dated 30.07.2012, the
additional public prosecutor, in charge of the case had submitted a
report (mark PW1/Z2) on 09.08.2012 before the Director of
Prosecution (DoP). The DoP, in turn, submitted his final opinion
(mark PW-1/Z3) on 30.10.2012 to ACB for Directorate of Vigilance,
GNCTD, observing, inter alia, that "(I)n the absence of any fresh
material to meet out or to remove the aforesaid defects in the
investigation/case, it would be a futile exercise, in seeking fresh
sanction in this matter on the basis of the available material at
present."
28. The Special Secretary (Vigilance), GNCTD addressed letter
(mark PW-2/X1) dated 07.01.2013 to Special Commissioner of Police
(Crime), Delhi Police conveying, inter alia, the opinion as aforesaid
of DoP and also of Directorate of Vigilance to the effect that "the
defect of non-availability or destruction of original equipment
/instrument/ device, used for sting operation cannot be cured in any
manner."
Move for fresh Sanction
29. On 18.05.2013, however, the Special Judge, while framing
charges as aforesaid sought "status report" from Additional
Commissioner of Police of ACB as regards "fresh sanction" under
Section 19 of POC Act to be submitted on the next date, i.e.,
04.07.2013.
30. On 17.06.2013, the Additional Commissioner of Police/ACB
addressed a letter (Ex.PW-2/D3 - also Ex.PW-2/D6) to Special
Commissioner of Police (Crime) asking for "the present position of
the fresh prosecution sanction" with reference to the order dated
18.05.2013 of the Special Judge.
31. It may be mentioned here that it has been fairly conceded at the
hearing that on the date of above-said communication being sent (i.e.,
17.06.2013), and some of the subsequent correspondence in its wake,
there was no request made or pending for fresh sanction to be
accorded, such a request eventually being formally made on
31.07.2013 by letter (Ex.PW-2A) of the investigating officer (PW-2),
this position expressly so communicated by letter dated 01.07.2013
(mark PW-2/X) of DCP, Vigilance to Additional CP (ACB).
32. The status report dated 04.07.2013 submitted in compliance
with order dated 18.05.2013 of the Special Judge came up for
consideration on 10.07.2013. The Special Judge recorded the
following order on that date :-
"IO has appeared and filed and undated report in the court,
which is totally unsatisfactory and not disclosing any
details. Liberty was granted by this court as late on
30.07.2012, to seek sanction for prosecution, which was
followed by directions dated 18.05.2013 to submit status
report. There seems absolutely no progress in the matter.
There is apparently some deliberate maneuvering at the end
of IO. The status report was sought from Addl.
Commissioner, PS-ACB, but the report submitted is neither
signed nor forwarded by the Addl. Commissioner.
IO submit that the status report is filed after approval of the
Addl. Commissioner.
The report filed in the court does not indicate if the same
has approval of Addl. Commissioner. The report is as
sketchy as it can be, furnishing absolutely no details. There
is absolutely no explanation as regards the progress of file
over a period of almost one year.
Let the Addl. Commissioner, PS-ACB be present in court on
15.07.2013 with the entire record and correspondence on
this subject...."
33. The directions were communicated on the same date by the IO
(PW-2) to the Directorate of Vigilance by a formal communication
(Ex.PW-2/D2). On 15.07.2013, the Additional CP/ACB appeared
before the Special Judge in compliance with the directions and
produced for perusal the record containing correspondence on the
subject of fresh sanction. The Special Judge recorded the following
order:-
"Addl. Commissioner has appeared in court and produced
before this court the file of correspondence between the
office of ACB, Directorate of Vigilance and the office of
Commissioner of Police to show that there has been series
of communication with respect to sanction of prosecution
against the accused persons for offence punishable under
the PC Act. It is also submitted that the file seeking sanction
lies with the Spl. Commissioner of Police since January-
2013.
Sh. Dwivedi submits that a reminder shall be issued to the
Spl. Commissioner, on this aspect, requesting him to take a
decision for grant or refusal for sanction, within 15 days
from today.
IO submits that the observations of this court dated
10.07.2013 indicating maneuvering at his end be expunged,
as the relevant file has been shown to the court by the Addl.
Commissioner.
I have seen the relevant file and am convinced that the delay
is not on account of the IO. Remarks qua him, in the order
sheet 10.07.2013, are expunged. ..."
34. On the same date, the Additional Secretary (Vigilance) in
GNCTD sent a letter (Ex.PW-1/D10) to the Special Commissioner of
Police (Crime) and communicated, inter alia, that "Hon‟ble Court has
again directed to take a decision within 15 days from today vide their
order dated 15/7/2013 in the aforesaid case." The Special
Commissioner of Police (Crime), by his endorsement on this
communication, confirmed that the "Court (is) repeatedly asking
Crime Branch to decide" on the sanction against A1 and had given
"last 15 days". The Commissioner of Police recorded his minutes on
this communication (Ex.PW1/D10) as under:-
"Please send it to Br. Prosecution Sanction must be
granted."
35. It is not clear as to what was the basis of the letter dated
15.07.2013 (Ex.PW1/D10) informing the Special CP, Crime, that
decision on the issue of sanction was to be taken as per directive of the
court "within 15 days" since formal order dated 15.07.2013 of the
court, as noted above, does not show any such timeline having been
set by the court.
36. Concededly, as noted earlier, while above noted correspondence
was being exchanged, there was no formal request yet made by the
investigating agency (ACB) for sanction for prosecution. This was
reiterated by another letter dated 19.07.2013 (mark PW-2/X5) sent by
Joint CP (Crime) to Additional Secretary, Vigilance, GNCTD.
37. The formal request for sanction was finally submitted on
31.07.2013 (Ex.PW-2/A) by the IO (PW-2) to Additional CP (Crime),
it being pointed out by the defence that this communication dated
31.07.2013 was conspicuously silent about the view taken by the
Special Judge on the previous order of sanction holding it invalid and
the reasons for such conclusion.
38. On 02.09.2013, the sanctioning authority made a request
(Ex.PW-1/D5) for deficient documents including DVDs to be made
available and certain queries to be answered for clarity on facts. Since
there was no reply, the request was reiterated by another
communication dated 18.09.2013. The reply (Ex.PW-1/D9) was sent
on 31.10.2013 by the IO, inter alia, stating that copies of DVDs were
"not available" with ACB. The sanctioning authority made another
request on 18.11.2013 (Ex.PW-1/D6) for clarity on facts and for
supply of copy of the DVDs. Though the IO sent a reply on
25.11.2013, the request of sanctioning authority for DVDs remained
unaddressed. Therefore, there was yet another communication
(Ex.PW-1/D2) on 26.02.2014 from the sanctioning authority on the
subject. The DVDs were not made available and instead the
investigating agency statedly addressed another communication on
20.06.2014 requesting for early grant of sanction.
39. Meanwhile, A-1 had moved another representation (Ex.PW-
1/D13) dated 03.09.2013 to Special CP (Crime) on the subject which
was considered and as per file noting (Ex.PE-1/D12 - colly) it was
recorded on 04.11.2013 that the same "shall be looked into before
taking final decision of prosecution sanction."
40. Mr. Ashok Chand (PW-1), Additional CP, who had earlier been
DCP (Crime) and who had "agreed" with the report dated 29.12.2011
(Ex.PW-1/D7) of Mr. P.S. Kushwah, on 30.12.2011, in the meantime,
had taken over as Additional CP (Crime) thereby becoming the
sanctioning authority qua the public servants who are named herein as
the accused persons. He sent yet another communication on
01.07.2014 (Ex.PW-1/D1) to Additional CP (ACB) for copy of the
DVD to be provided.
41. On 14.07.2014, the Directorate of Vigilance of GNCTD
addressed a letter (Annexure „Q‟ to second captioned petition) to the
sanctioning authority (PW1) on the subject of sanction for prosecution
in the case of ACB, inter alia, stating as under:-
"... It has been reported by Addl. CP, Anti-Corruption
Branch that the requisite prosecution sanction (s) is/are still
awaited from your Department/Organization. The Chief
Secretary, being CVO of Govt. of NCT of Delhi has
expressed serious concern about the delay of grant of
prosecution sanction.
In this connection, kindly refer to the decision of Hon‟ble
Supreme Court in the case of Vineet Narain, in which it was
directed that the competent authority has to convey the
decision regarding grant of prosecution sanction within a
period of three months.
You are, therefore, requested to kindly take appropriate
action in the matter of grant of prosecution sanction in
respect of above mentioned official(s) immediately, and
furnish the action taken report to this Directorate within 15
days; so that Chief Secretary could be apprised of the
position. ..."
(emphasis supplied)
42. The letter was received by the office of sanctioning authority
(PW1) on 18.07.2014 and, on the same date, sanction for prosecution
(Ex.PW-1/A) was accorded under Section 19 of POC Act against A1,
A2 and A3. The sanction order was submitted with the supplementary
charge-sheet on 10.10.2014 in the court of Special Judge and
cognizance thereupon was taken for offences under Sections 7, 8 and
13 of POC Act.
Court proceedings after fresh Sanction
43. The question of charge, thus, came up for consideration again
before the Special Judge after the grant of fresh sanction for
prosecution (Ex.PW-1/1) on 18.07.2014 and in the wake of remit of
the issue by this court by order dated 26.07.2016. The defence raised
the issue of invalidity of the fresh sanction as also the absence of any
sanction under Section 197 Cr.P.C. The Special Judge, by order dated
02.03.2017, held that the fresh sanction under Section 19 of POC Act
was "valid" and further that there was no requirement of sanction
under Section 197 Cr.P.C. in this case. Crucially, the Special Judge
rejected the electronic evidence (i.e., the contents of DVDs) as
inadmissible and, therefore, held the same to be not available to the
prosecution at the stage of framing of charge.
44. The Special Judge recorded her opinion in order dated
02.03.2017 that the "exoneration of the accused persons in
departmental proceedings" was of no consequence and would not
stand in the way of criminal trial. Though the order does not expressly
so state, it was conceded by the learned additional standing counsel at
the hearing before this court that these observations have been made
by the Special Judge with reference to the enquiry report dated
29.12.2011 (Ex.PW-1/D7) of Additional DCP Mr. P.S. Kushwah.
45. The Special Judge, by her order dated 02.03.2017, found no case
made out for putting A2 and A3 on trial and, thus, proceeded to discharge
them. She found charges made out against A1 for offences punishable
under Section 7 read with Section 13(1)(d) of POC Act and under Sections
384 read with Section 120 B of IPC besides under Section 389 read with
Section 120 B IPC.
46. As mentioned earlier, in the wake of the evidence on the issue
of sanction having been adduced by the prosecution, though the
depositions of PW-1 (sanctioning authority) and PW-2 (IO), A1 had
moved a fresh application challenging the validity of the fresh
sanction for prosecution (Ex.PW-1/A) on 18.03.2016. The said
application has been dismissed by the Special Judge, by order dated
11.10.2017, inter alia, observing that the argument of "failure of
justice" can "only be ascertained after the completion of trial" ,
referring in the discussion to the rulings of the Supreme Court in
Central Bureau of Investigation vs. V.K.Sehgal, (1999) 8 SCC 501; R.
Sundarajan vs. State by DSP, SPE, CBI, Chennai, (2006) 12 SCC 749;
Prakash Singh Badal vs. State of Punjab & Ors., (2007) 1 SCC 1;
State of Karnataka vs. Ameerjan, (2007) 11 SCC 273; R.
Venkatkrishnan vs. CBI, (2009) 11 SCC 737; State of Madhya
Pradesh vs. Virender Kumar Tripathi, (2009) 15 SCC 533; Ashok
Tshering Bhutia vs. State of Sikkim, (2011) 4 SCC 402; State of
Maharashtra through CBI vs. Mahesh G. Jain, (2013) 8 SCC 119;
State of Bihar & Ors. vs. Raj Mangal Ram, (2014) 11 SCC 388; CBI
vs. Ashok Kumar Aggarwal, (2014) 14 SCC 295; Vivek Batra vs.
Union of India & Ors., AIR 2016 SC 4770; and Girish Kumar Suneja
vs. CBI, (2017) 14 SCC 809.
47. The charge-sheet submitted in the case of ACB reveals the steps
taken by ACB and the evidence gathered during investigation. The
case of the prosecution as set out in the said charge-sheet rested
primarily on the contents of the audio / video recordings which were
submitted in the form of DVD, which had statedly been cross-checked
with the written transcript, the voices having been identified and
confirmed by Mr. Joy Tirkey, ACP and SI Sanjeev Kumar of Crime
Branch, A1 having refused to give sample of his voice. The
prosecution would also rely on the call details record (CDR) of mobile
cell phone no.997127990 allegedly in use of A1 showing his presence
in the area of City Hospital on 08.12.2007 when the first alleged
payment was made, this being connected to CDR of mobile phone
no.9811103338 statedly in use of the complainant. The charge-sheet,
however, itself stated that the said mobile phone no.997127990 was
registered in the name of Avinash Tyagi, a resident of Inder Puri,
Delhi who, it is stated, never joined the investigation in spite of the
notices being sent to him several times. The allegation that the said
mobile no.997127990 (admittedly of Avinash Tyagi) was in use of A1
is sought to be proved on the basis of supplementary statement dated
06.03.2009 of Mr. Joy Tirkey, ACP to the effect that the said mobile
number was called by him frequently for talking to A1.
48. The request for sanction sent on 31.07.2013 (Ex. PW2/A) has
been proved by the IO (PW-2) before the trial court. It summarizes
the evidence on the basis of which prosecution is pressed as under :-
"During the course of investigation, the audio / video
recordings of the conversation made between the
complainants, his father and the alleged police officials
were viewed, heard and examined. During the
investigation the voice of the police officials got identified
through Sh. Joy Tirkey, ACP and SI Sanjeev Kumar of
Crime Branch, who were their supervisory officer /
colleague at the relevant time, in the presence of Panch
Witness.
During the course of investigation, letter was
written to the City Hospital, Pusa Road, Karol Bagh, Delhi
to get the medical record of Sh. Jagdish Tyagi (brother-in-
law of K.G. Tyagi). The record had been supplied, as per
which Jagdish Tyagi remained admitted in that Hospital
from the period 07.12.2007 to 12.12.2007 for the treatment
of the compound fractures. Complainant had alleged in
his complaint that he paid the amount of Rs.8 lacs as first
installment of bribe at that Hospital on 08.12.2007.
The DVD‟s seized during the course of investigation
were sent to Andhra Pradesh Forensic Science
Laboratories and the opinion thereof has been received
vide file No.ENG/13/2008 dated 01.12.2009 which shows
that there content are continuous without any tempering.
The statements of Inspr. Yashpal of PS A.C. Branch and
HC Jitender, MHC (M), PS Civil Lines were recorded u/s.
161 Cr. PC.
Sufficient evidence have come on record to initiate
prosecution against Inspr. K.G. Tyagi, SI Mukesh Kumar
and ASI Rajbir Singh of Anti Homicide Section, Crime
Branch. The prosecution sanction of the competent
authority as envisaged u/s. 19(1) of POC Act, 1988 may
kindly be accorded to prosecute accused persons Inspr.
K.G. Tyagi, SI Mukesh Kumar and ASI Rajbir Singh of
Anti Homicide Section, Crime Branch, Delhi for the above
mentioned offences..."
49. The IO (PW-2), during his cross-examination, conceded that
he had not ascertained if APFSL, Hyderabad was authorized to give its
opinion on the exhibits relating to the case of ACB in Delhi. He was
confronted with the case diary and in that context he admitted that on
the request of A1, the Special Judge at the time of remand proceedings
on 22.12.2008 had signed 104 pages of the case diary, endorsement to
this effect having been made on the last (third) leaf of case diary no.25
dated 15.12.2008. He conceded that the police file, as later presented,
also contains a case diary bearing no.26 (one leaf) purporting to be of
17.12.2008 which, chronologically, would be a case diary that in
ordinary course also would have been part of the police file made
available to the Special Judge at the time of proceedings dated
22.12.2008. The said case diary bearing no.26, however, admittedly
does not bear the signatures, or any endorsement, recorded by the
Special Judge.
50. It may be added here that in case diary no.27 of 22.12.2008
which immediately follows the last above mentioned case diary, there
is an explanation added that the case diary no.26 dated 17.12.2018 had
been mixed up in some other file for which reason it could not signed
by the Special Judge.
51. The case diary no.26 dated 17.12.2008, about which questions
are raised purports to note that A1 had been admitted to bail by default
by the Special Judge for the reason the charge-sheet had not been
submitted within the period of sixty days, it having been explained in
the course of proceedings in the court of Special Judge at that stage
that the default was for the reason prosecution sanction had not been
obtained till then. It may also be added in this very context that PW-2
was confronted with copy of the reply dated 17.12.2008 (mark
PW2/X-3), submitted in answer to the application for bail by default
wherein it was indicated to the Special Judge that the challan had
already been prepared on 13.12.2008, such proposed charge-sheet not
having been shown the light of the day.
52. PW-2, under cross-examination, pleaded ignorance as to at
whose instance the case under MCOCA was registered against the
father of the complainant. He admitted that no formal request for
sanction had been sent to the sanctioning authority during the period
30.07.2012 to 29.07.2013. He conceded that the sanctioning authority
had asked for certain documents and clarifications though he would
claim that he had sent a reply he was unable to show any such reply on
record.
53. PW-2 admitted that two DVDs had been seized by the original
investigating officer Mr. H.P.S. Sodhi (ACP), one having been kept in
sealed condition while the second was kept in open condition "for
investigation purposes", also admitting that the sanctioning authority
was time and again asking for copy of the DVD to be made available
and that he had not supplied the same. He did not come with any clear
answer as to why the said DVD which was available could not be
shared with the sanctioning authority.
54. PW-2 admitted that the original device whereby the
complainant would have made the audio-video recordings was "never
available" nor sent to FSL. He conceded that the position taken by the
complainant that the original device was not available or that it had
been destroyed was not communicated in the letter requesting for
sanction (Ex. PW2/A).
55. PW-2 would not remember whether any CDRs of the mobile
phone of A1 were collected. He avoided giving a clear answer as to
whether Avinash Tyagi in whose name the above mentioned mobile
phone is registered had made a representation in response to the notice
under Section 160 Cr. PC to the effect that such phone was in his use.
He admitted that A1 was the investigating officer of the case of
murder in the course of which he had arrested the father of the
complainant and further that this fact was not mentioned in the letter
(Ex. PW2/A) requesting for sanction for prosecution.
56. The sanctioning authority (PW-1) has deposed before the
Special Judge proving the sanction order (Ex. PW1/A). It may be
mentioned here that the prime evidence on the basis of which such
sanction was granted under Section 19 of POC Act is noted in the said
sanction order as under :-
"...And whereas, during the course of investigation, the
audio / video recordings of the conversation made between
the complainants, his father and the alleged police officials
were viewed, heard and examined. During the investigation,
the voice of the police officials were got identified through
Shri Joy Tirkey, ACP and SI Sanjeev Kumar of Crime
Branch, who were their supervisory officer/ colleague at the
relevant time, in the presence of Punch witness.
And whereas, letter was written to the City Hospital, Pusa
Road, Karol Bagh, Delhi to get the medical record of Sh.
Jagdish Tyagi (brother-in-law of K.G. Tyagi). The record
had been supplied, as per which Jagdish Tyagi remained
admitted in that Hospital from the period 07.12.2007 to
12.12.2007 for the treatment of the compound fractures.
Complainant had alleged in his complaint that he paid the
amount of Rs.8 Lacs as first installment of bribe at that
Hospital on 08.12.2007.
And whereas, the DVD‟s seized during the course of
investigation were sent to Andhra Pradesh Forensic Science
Laboratories and the opinion thereof has been received vide
file No.ENG/13/2008 dated 01.12.2009 which shows that
there contents are continuous without any tampering. The
statements of Inspr. Yashpal of PS A.C. Branch and HC
Jitender, MHC (M), PS Civil Lines were recorded u/s. 161
Cr. P.C.
And whereas, I Ashok Chand, Addl. CP/Crime, being the
authority to remove Inspr. K.G. Tyagi, SI Mukesh Kumar and
ASI Rajbir Singh of Crime Branch from service / office after
fully and carefully examining the material i.e. FIR, Memos,
Statement of witnesses, CFSL Report, transcription of audio
cassettes and other documents collected during investigation
and placed before me in respect to the said allegations and
circumstances of the case, consider that the said Inspr. K.G.
Tyagi, SI Mukesh Kumar ASI Rajbir Singh of Crime Branch
should be prosecuted in the court of law for the aforesaid
offences."
57. During his cross-examination, the sanctioning authority (PW-1)
conceded that the case of ACB is not a "trap case". He conceded that
the Crime Branch where A1, A2 and A3 were posted at the relevant
point of time is a specialized unit tasked with the duty of investigating
sensitive cases. He pleaded ignorance as to whether there was any
material collected by the ACB to substantiate the allegation that A1
had called the complainant or his father several times to the Crime
Branch office. He confirmed that no evidence had been placed before
him by ACB regarding the source of Rs.8,00,000/- or its payment by
the complainant to A1, other than the statement under Section 161 Cr.
PC. He stated the police file pertaining to the case of murder was not
made available to him.
58. PW-1 conceded that there is no evidence gathered to confirm
the identity of the person from whom the complainant would have
arranged the devices used in the recording. He also conceded that
there was a claim that DVDs had been prepared "by merging the data
of three equipments", the description of equipment thus used having
been given. He further admitted that neither any equipment used in
recording had been sent to forensic lab nor any certificate under
Section 65B of Evidence Act produced. Admitting the exchange of
correspondence on the subject of prosecution which has been
elaborated earlier, PW-1 conceded that DVDs were not made
available.
59. The sanctioning authority (PW-1) admitted that the proposal for
registration of a case under MCOCA is initiated by an officer of the
rank of ACP only, the file of the case of such nature registered against
the father of the complainant not having been shown to him by ACB.
60. While not disputing that discrepancies existed in the road
certificates respecting dispatch of the DVDs to APFSL, or CFSL, PW-
1 declined to give any explanation stating this would be the burden of
the investigating officer. He confirmed that he had asked for the copy
of the DVDs but the same were not made available.
61. PW-1 conceded that the CDRs of the mobile phone registered in
the name of Avinash Tyagi and alleged to be in use of A1 were not
duly authenticated, in that particulars thereon had been hand-written
and the same are not supported by any certificate under Section 65B of
the Evidence Act nor any customer application form collected.
According to him, no statement of Avinash Tyagi under Section 161
Cr. PC was shown to him.
62. PW-1 admitted his noting dated 30.12.2011 below the enquiry
report dated 29.12.2011 (Ex. PW2/D-7) submitted by Mr. PS
Kushwaha, Additional DCP. He admitted that he had agreed with the
said enquiry report and further that the said report was not part of the
file which was put up before him for according sanction. He admitted
that earlier, on 04.11.2013, it had been recorded (Ex. PW1/D12) on
the representation (Ex. PW1/D13) of A1 that the same would be
considered at the time of taking a final decision on the prosecution
sanction and further that such representation was neither put up before
him nor perused by him while granting sanction.
63. The sanctioning authority (PW-1), under cross-examination,
admitted that A1 had arrested the father of the complainant in the case
of murder "while performing official duty". He conceded that as per
the in-house instructions of Delhi Police, in a case of such nature,
before granting sanction for prosecution against police officials for
acts committed during the performance of official duty, parawise
comments duly vetted by the Chief Public Prosecutor were to be
called for. Concededly, no such comments were called by him.
64. PW-1 admitted that the letter dated 14.07.2014 of the Director
of Vigilance of Government of NCT of Delhi, referred to earlier,
expressing "serious concern" of the Chief Secretary over the delay in
sanction for prosecution had been received in his office on
17.07.2014, he having dealt with it on 18.07.2014 granting sanction on
the same day.
Pre-requisite of Sanction in law
65. The Indian Penal Code, enacted in 1860, contained provisions
to deal with offences of corruption amongst public servants. The
existing law in the Indian Penal Code having been found to be not
adequate, special legislation with a view to eradicate the bribery of
corruption came to be enacted, it eventually taking the shape of
Prevention of Corruption Act, 1988 (POC Act).
66. In the present proceedings, inasofar as A1, A2 and A3 are
concerned, the penal clauses contained in sections 7 and 13 of POC
Act are relevant which, to the extent necessary, may be quoted as
under:-
"7. Public servant taking gratification other than legal
remuneration in respect of an official act -- Whoever, being,
or expecting to be a public servant, accepts or obtains or
agrees to accept or attempts to obtain from any person, for
himself or for any other person, any gratification whatever,
other than legal remuneration, as a motive or reward for
doing or forbearing to do any official act or for showing or
forbearing to show, in the exercise of his official functions,
favour or disfavour to any person or for rendering or
attempting to render any service or disservice to any person,
with the Central Government or any State Government or
Parliament or the Legislature of any State or with any local
authority, corporation or Government company referred to in
clause (c) of section 2, or with any public servant, whether
named or otherwise, shall be punishable with imprisonment
which shall be not less than six months but which may extend
to five years and shall also be liable to fine
13. Criminal misconduct by a public servant --
(1) A public servant is said to commit the offence of criminal
misconduct,--
(a) if he habitually accepts or obtains or agrees to accept or
attempts to obtain from any person for himself or for any
other person any gratification other than legal remuneration
as a motive or reward such as is mentioned in section 7; or
xxx
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or for any
other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for
himself or for any other person any valuable thing or
pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any
person any valuable thing or pecuniary advantage without
any public interest; or
xxx"
67. But, prosecution of a public servant for the afore-mentioned
offences is subject to "previous sanction" as required by Section 19
which reads thus:
"19. Previous sanction necessary for prosecution.--
(1) No court shall take cognizance of an offence punishable
under sections 7, 10, 11, 13 and 15 alleged to have been
committed by a public servant, except with the previous
sanction,--
(a) in the case of a person who is employed in connection
with the affairs of the Union and is not removable from his
office save by or with the sanction of the Central
Government, of that Government;
(b) in the case of a person who is employed in connection
with the affairs of a State and is not removable from his
office save by or with the sanction of the State Government,
of that Government;
(c) in the case of any other person, of the authority competent
to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to
whether the previous sanction as required under sub-section
(1) should be given by the Central Government or the State
Government or any other authority, such sanction shall be
given by that Government or authority which would have
been competent to remove the public servant from his office
at the time when the offence was alleged to have been
committed.
(3) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),--
(a) no finding, sentence or order passed by a special Judge
shall be reversed or altered by a court in appeal,
confirmation or revision on the ground of the absence of, or
any error, omission or irregularity in, the sanction required
under sub-section (1), unless in the opinion of that court, a
failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the
ground of any error, omission or irregularity in the sanction
granted by the authority, unless it is satisfied that such error,
omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any
other ground and no court shall exercise the powers of
revision in relation to any interlocutory order passed in any
inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence
of, or any error, omission or irregularity in, such sanction
has occasioned or resulted in a failure of justice the court
shall have regard to the fact whether the objection could and
should have been raised at any earlier stage in the
proceedings.
Explanation.--For the purposes of this section,--
(a) error includes competency of the authority to grant
sanction;
(b) a sanction required for prosecution includes reference to
any requirement that the prosecution shall be at the instance
of a specified authority or with the sanction of a specified
person or any requirement of a similar nature".
(emphasis supplied)
68. Since the case also involves offences under the general criminal
law, particularly with reference to the penal clauses contained in
Section 384 IPC (extortion) and Section 389 IPC (putting person in
fear of accusation of offences, in order to commit extortion), the
conditions requisite for initiation of such proceedings against such
public servants as mandated by the general criminal procedure also
needs to be borne in mind and, for this purpose, it is necessary to take
note of the provision contained in Section 197 Cr.P.C. which, to the
extent relevant, reads thus:-
"197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or
a public servant not removable from his office save by or
with the sanction of the Government is accused of any
offence alleged to have been committed by him while acting
or purporting to act in the discharge of his official duty, no
Court shall take cognizance of such offence except with the
previous sanction-
(a) in the case of a person who is employed or, as the case
may be, was at the time of commission of the alleged offence
employed, in connection with the affairs of the Union, of the
Central Government;
(b) in the case of a person who is employed or, as the case
may be, was at the time of commission of the alleged offence
employed, in connection with the affairs of a State, of the
State Government:"
(emphasis supplied)
69. For purposes of discussion that must follow, the provision
contained in Section 465 Cr.P.C. also needs to be noted:-
"465. Finding or sentence when reversible by reason of
error, omission irregularity.
(1) Subject to the provisions hereinbefore contained, no
finding, sentence or order passed by a Court of competent
jurisdiction shall be reversed or altered by a Court of appeal,
confirmation or revision on account of any error, omission or
irregularity in the complaint, summons, warrant,
proclamation, order, judgment or other proceedings before
or during trial or in any inquiry or other proceedings under
this Code, or any error, or irregularity in any sanction for
the prosecution, unless in the opinion of that Court, a failure
of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or
irregularity in any proceeding under this Code, or any error,
or irregularity in any sanction for the prosecution has
occasioned a failure of justice, the Court shall have regard to
the fact whether the objection could and should have been
raised at an earlier stage in the proceedings."
(emphasis supplied)
The Arguments
70. The prime contention urged by A1 is that the fresh sanction for
prosecution under Section 19 of POC Act (Ex.PW-1/A) is vitiated
since it was granted under compulsion, crucial material having been
withheld, material of import showing "frame-up" having been
excluded, inadmissible evidence being the foundation and there being
no proper application of mind. It is also his contention that the
prosecution for offences under the general law (i.e., IPC offences) in
the present case is also impermissible, there being no sanction under
Section 197 Cr.P.C. The State, on the other hand, argues that the
Special Judge has taken an appropriate view in the absence of sanction
under Section 197 Cr.P.C., the acts statedly committed constituting
IPC offences being such as cannot be said to have been committed "in
discharge of official duty". It is also the argument of the State that the
Special Judge by the impugned order has taken a correct approach on
the issue of validity of sanction under Section 19 of POC Act, it being
inadvisable for the court to interdict at this stage. In response, A1‟s
case is that he having raised the issue of invalidity of sanction under
Section 19 of POC Act at the threshold, the evidence on this issue
having been adduced by the prosecution, he is within his rights to seek
intervention by the court to put an end to criminal proceedings which
are wholly unauthorized and illegal for want of proper and valid
sanction, it not being a case merely of "error, omission or
irregularity" but of invalidity and want of sanction which would
occasion or result in "failure of justice", if the prosecution is permitted
to continue and, therefore, the question requires to be determined at
this very stage.
Judicial view on validity of Sanction
71. In Yusofalli Mulla Noorbhoy v. King, 1949 SCC OnLine PC 20:
AIR 1949 PC 264, the Privy Council ruled that prosecution launched
without a valid sanction is a nullity observing that a court cannot be
competent to hear and determine a prosecution the institution of which
is prohibited by law. In R.S. Nayak vs. A.R. Antulay, (1984) 2 SCC
183, a Constitution Bench of five Hon‟ble Judges of the Supreme
Court held that "trial without a sanction renders the proceedings ab
initio void. But the terminus a quo for a valid sanction is the time
when the court is called upon to take cognizance of the offence. ...
"the existence of a valid sanction" being prerequisite to the taking of
cognizance of the enumerated offences alleged to have been
committed by a public servants", the court "called upon to take
cognizance of such offences," being bound to "enquire whether there
is a valid sanction to prosecute the public servant for the offence
alleged to have been committed by him as public servant.". It has,
however, also been consistent view of the courts that protection
available under the statutory provisions rendering grant of sanction to
prosecute a public servant - a condition precedent to the institution of
the prosecution - is not absolute.
72. In Mansukhlal Vithaldas Chauhan vs. State of Gujarat, (1997) 7
SCC 622, the Supreme Court noted the observations of the Privy
Council in Gokulchand Dwarkadas Morarka v. King, AIR 1948 PC
82, to the effect that the administrative authority conferred with the
power to grant sanction could not "adequately discharge the
obligation of deciding whether to give or withhold a sanction without
a knowledge of the facts of the case." The court noted that sanction
lifts the bar for prosecution, it being "a weapon to ensure
discouragement of frivolous and vexatious prosecution" and "is a
safeguard for the innocent but not a shield for the guilty." The
conclusion was that "grant of sanction is not an idle formality or an
acrimonious exercise but a solemn and sacrosanct act which affords
protection to government servants against frivolous prosecutions".
The court held:-
"18. 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. (See also Jaswant Singh v. State of
Punjab [AIR 1958 SC 124 : 1958 SCR 762] and State of
Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC
(Cri) 192 : 1991 Cri LJ 1438] .)
19. 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 be acting upon it to
take a decision one way or the other. Since the discretion to
grant or not to grant sanction vests absolutely in the
sanctioning authority, its discretion should be shown to have
not been affected by any extraneous consideration. If it is
shown that the sanctioning authority was unable to apply its
independent mind for any reason whatsoever 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."
(emphasis supplied)
73. It may be added here that in Mansukhlal Vithaldas Chauhan
(supra) the prime issue raised was as to whether the High Court could
have issued a mandamus on the question of sanction for prosecution
and as to whether against such backdrop the order of sanction was
valid. Holding the sanction for prosecution in that case to be bad in
law on such account, the direction of the High Court on the subject
having "closed all other alternatives" for the competent authority, the
court observed thus:-
"23. In the performance of this duty, if the authority in
whom the discretion is vested under the statute, does not act
independently and passes an order under the instructions
and orders of another authority, the Court would intervene
in the matter, quash the order and issue a mandamus to that
authority to exercise its own discretion."
74. The questions about validity of sanction in a prosecution for
offences punishable under POC Act and IPC had also been raised in
Parkash Singh Badal vs. State of Punjab, (2007) 1 SCC 1, and in that
context the Supreme Court observed thus:-
"47. The sanctioning authority is not required to separately
specify each of the offences against the accused public
servant. This is required to be done at the stage of framing
of charge. Law requires that before the sanctioning
authority materials must be placed so that the sanctioning
authority can apply his mind and take a decision. Whether
there is an application of mind or not would depend on the
facts and circumstances of each case and there cannot be
any generalised guidelines in that regard."
(emphasis supplied)
75. In V. Venkata Subbarao vs. State, (2006) 13 SCC 305, on
facts, it was found that vital documents respecting complicity had not
been produced and in that view of the matter the sanction was found
"vitiated in law" for the reason the sanctioning authority "did not
have any occasion to apply their mind to the entire materials on
record".
76. In State of Karnataka v. Ameerjan, (2007) 11 SCC 273, it was
observed that order of sanction is not to be "construed in pedantic
manner" and that "application of mind on the part of sanctioning
authority is imperative for the sanction to be held to be valid" and
further "ordinarily, before passing an order of sanction, the entire
records containing the materials collected against the accused should
be placed before the sanctioning authority".
77. In State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119,
the singular question addressed by the Supreme Court was as to
whether the High Court was justified in refusing to grant leave to file
an appeal against acquittal rendered principally on the foundation that
the sanction for prosecution was defective and illegal on account of
non application of mind, showing lack of satisfaction and the court
examined the previous rulings and summarized the law relevant for
the present discussion as under:-
"14. From the aforesaid authorities the following principles
can be 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 prima 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."
(emphasis supplied)
78. In CBI v. Ashok Kumar Aggarwal, (2014) 14 SCC 295, the
Supreme Court examined the issue again and observed that
"prosecution has to satisfy the court that at the time of sending the
matter for grant of sanction by the competent authority, adequate
material for such grant was made available to the said authority",
holding thus:-
"16. In view of the above, the legal propositions can be
summarised as under:
16.1. 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 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.
16.2. 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 withhold the sanction.
16.3. 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.
16.4. The order of sanction should make it evident that the
authority had been aware of all relevant facts/materials and
had applied its mind to all the relevant material.
16.5. 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."
(emphasis supplied)
79. The Supreme Court by its decision in the case reported as Vineet
Narain Vs. Union of India, (1998) 1 SCC 226, had laid down certain
guidelines for the authorities conferred with the power to grant sanction for
prosecution, particularly against the backdrop of complaint of inertia in
matters where accusations are made against high dignitaries, the prime
concern being as to whether judicial review could be an effective instrument
for activating the investigative process which is under the control of the
executive. The time limit of three months for grant of sanction for
prosecution was part of the reforms that were introduced. The defence has
placed reliance on circular no.08/05/15 issued by Central Vigilance
Commission on 25.05.2015 on the subject of guidelines to be followed by
administrative authorities competent to accord sanction for prosecution
under Section 19 of the POC Act taking note further, inter alia, of the
directions of the Supreme Court in CBI Vs. Ashok Kumar Aggarwal (supra),
as quoted above, in terms of which the sanctioning authority is under an
obligation to discharge its duty to give or withhold sanction only after
having full knowledge of the material facts of the case.
"Failure of justice"
80. Having regard, inter alia, to the provisions contained in Section
19 (3) (a) and (4) of the POC Act and Section 465 Cr.P.C. which have
been quoted earlier, it is clear that mere fact that there is "error,
omission or irregularity" in the order of sanction cannot result in the
cognizance being held to be bad or prosecution to be interdicted unless
it is demonstrated that such defects in the sanction for prosecution
have occasioned "failure of justice".
81. In State vs. T. Venkatesh Murthy, (2004) 7 SCC 763, the
Supreme Court observed thus:-
"11. The expression "failure of justice" is too pliable or
facile an expression, which could be fitted in any situation of
a case. The expression "failure of justice" would appear,
sometimes, as an etymological chameleon (the simile is
borrowed from Lord Diplock in Town Investments Ltd.
v. Deptt. of Environment, (1977) 1 All ER 813). The criminal
court, particularly the superior court, should make a close
examination to ascertain whether there was really a failure
of justice or it is only a camouflage. (See. Shamnsaheb M.
Multtani v. State of Karnataka, (2001) 2 SCC 577)."
82. In CBI v. Ashok Kumar Aggarwal, (2014) 14 SCC 295, the
Supreme Court while dwelling on the issue of "failure of justice",
inter alia, observed thus:-
"19 ...It has to be shown that the accused has suffered some
disability or detriment in the protections available to him
under the Indian criminal jurisprudence. "Prejudice" is
incapable of being interpreted in its generic sense and
applied to criminal jurisprudence. The plea of prejudice has
to be in relation to investigation or trial and not matters
falling beyond their scope. Once the accused is able to show
that there has been serious prejudice caused to him with
respect to either of these aspects, and that the same has
defeated the rights available to him under legal
jurisprudence, the accused can seek relief from the court.
(Vide Nageshwar Shri Krishna Ghobe v. State of
Maharashtra [(1973) 4 SCC 23 : 1973 SCC (Cri) 664 : AIR
1973 SC 165] , Shamnsaheb M. Multtani v. State of
Karnataka [(2001) 2 SCC 577 : 2001 SCC (Cri) 358]
, State v. T. Venkatesh Murthy [(2004) 7 SCC 763 : 2004
SCC (Cri) 2140] , Rafiq Ahmad v. State of U.P.[(2011) 8
SCC 300 : (2011) 3 SCC (Cri) 498] , Rattiram v. State of
M.P. [(2012) 4 SCC 516 : (2012) 2 SCC (Cri) 481]
, Bhimanna v. State of Karnataka [(2012) 9 SCC 650 :
(2012) 3 SCC (Cri) 1210] , Darbara Singh v. State of
Punjab [(2012) 10 SCC 476 : (2013) 1 SCC (Cri) 1037 :
AIR 2013 SC 840] and Union of India v. Ajeet Singh[(2013)
4 SCC 186 : (2013) 2 SCC (Cri) 347 : (2013) 2 SCC (L&S)
321] .)"
(emphasis supplied)
The appropriate stage to raise objection on sanction
83. But as is clear from plain reading of provisions contained in
Section 19 of POC Act, the plea of the public servant who is accused
of such offences as are involved herein about the "error, omission or
irregularity" in the sanction for his prosecution occasioning or
resulting in "failure of justice" cannot result in the court intervening
unless such objection is raised at "earlier stage in the proceedings".
This also is the spirit of the law contained in Section 465 Cr.P.C.
whereunder the court while determining the effect of such defect in
the sanction order is required to "have regard to the fact whether the
objection could and should have been raised at an earlier stage of the
proceedings." The discourse on this aspect in the authoritative
pronouncements in the past would be of advantage and, therefore,
must be noted hereinafter.
84. The State relies on rulings in Central Bureau of Investigation v.
V.K. Sehgal, (1999) 8 SCC 501, where the respondent before the
Supreme Court had been held guilty and convicted by the Special
Judge in a case involving offences under POC Act. The High Court
had set aside the order of conviction and sentence finding defect in the
sanction for prosecution. In that context, the Supreme Court while
allowing the appeal of the investigating agency observed that the
appellate or revisional court were "debarred" from reversing such an
order on such ground, the objection as to the validity not having been
taken at the trial stage, holding that "once the judicial filtering process
is over on completion of the trial the purpose of providing for the
initial sanction would bog down to a surplusage".
85. Similarly in Ashok Tshering Bhutia v. State of Sikkim, (2011) 4
SCC 402, on which reliance is placed by the State, the appellant had
been held guilty and convicted for offence under Section 13(2) read
with Section 13(1)(e) of POC Act, the appeal against conviction
having been dismissed by the High Court on the question of validity of
sanction which was raised and the Supreme Court observed that
"where the cognizance of the case has in fact been taken and the case
has proceeded to termination, the invalidity of the precedent
investigation does not vitiate the result, unless a miscarriage of justice
has been caused thereby".
86. Though in the context of prerequisite of sanction under Section
197 Cr.P.C., in the judgment reported as Abdul Wahab Ansari v. State
of Bihar, (2000) 8 SCC 500, the Supreme Court made certain
observations which are crucial for just decision of the present case and
which may be quoted as under:-
"7. Previous sanction of the competent authority being a
precondition for the court in taking cognizance of the offence if
the offence alleged to have been committed by the accused can
be said to be an act in discharge of his official duty, the
question touches the jurisdiction of the Magistrate in the matter
of taking cognizance and, therefore, there is no requirement
that an accused should wait for taking such plea till the charges
are framed. In Suresh Kumar Bhikamchand Jain v. Pandey Ajay
Bhushan [(1998) 1 SCC 205 : 1998 SCC (Cri) 1] a similar
contention had been advanced by Mr Sibal, the learned Senior
Counsel appearing for the appellants in that case. In that case,
the High Court had held on the application of the accused that
the provisions of Section 197 get attracted. Rejecting the
contention, this Court had observed: (SCC pp. 217-18, para 23)
"The legislative mandate engrafted in sub-section
(1) of Section 197 debarring a court from taking
cognizance of an offence except with a previous
sanction of the Government concerned in a case
where the acts complained of are alleged to have
been committed by a public servant in discharge of
his official duty or purporting to be in the discharge
of his official duty and such public servant is not
removable from his office save by or with the
sanction of the Government touches the jurisdiction
of the court itself. It is a prohibition imposed by the
statute from taking cognizance, the accused after
appearing before the court on process being issued,
by an application indicating that Section 197(1) is
attracted merely assists the court to rectify its error
where jurisdiction has been exercised which it does
not possess. In such a case there should not be any
bar for the accused producing the relevant
documents and materials which will be ipso facto
admissible, for adjudication of the question as to
whether in fact Section 197 has any application in
the case in hand. It is no longer in dispute and has
been indicated by this Court in several cases that the
question of sanction can be considered at any stage
of the proceedings."
The Court had further observed: (SCC pp. 218-19, para 24)
"The question of applicability of Section 197 of the
Code and the consequential ouster of jurisdiction of
the court to take cognizance without a valid sanction
is genetically different from the plea of the accused
that the averments in the complaint do not make out
an offence and as such the order of cognizance
and/or the criminal proceedings be quashed. In the
aforesaid premises we are of the considered opinion
that an accused is not debarred from producing the
relevant documentary materials which can be
legally looked into without any formal proof, in
support of the stand that the acts complained of were
committed in exercise of his jurisdiction or
purported jurisdiction as a public servant in
discharge of his official duty thereby requiring
sanction of the appropriate authority."
8. In the case of Ashok Sahu v. GokulSaikia [1990 Supp SCC 41
: 1990 SCC (Cri) 611] this court had said that want of sanction
under Section 197 of the Code is a prohibition against
institution of the proceedings, and the applicability of the
section must be judged at the earliest stage of the proceedings
and in that case, the Court directed the Magistrate to consider
the question of sanction before framing a charge. In yet another
case, in the case of B. Sahav. M.S. Kochar [(1979) 4 SCC 177 :
1979 SCC (Cri) 939] a three-Judge Bench of this Court had
held that the question of sanction under Section 197 CrPC can
be raised and considered at any stage of the proceedings and
further in considering the question whether or not sanction for
prosecution was required, it is not necessary for the court to
confine itself to the allegations in the complaint, and it can take
into account all the material on the record at the time when the
question is raised and falls for consideration. This being the
position, we are of the considered opinion that the decision of
this Court in Birendra K. Singh case [(2000) 8 SCC 498 : JT
(2000) 8 SC 248] does not lay down the correct law by
directing that the objection on the question of sanction can be
raised at the stage of framing of charge and not at any prior
point of time."
(emphasis supplied)
87. In State of Karnataka v. C. Nagarajaswamy, (2005) 8 SCC 370,
it was held that:-
"14. Ordinarily, the question as to whether a proper
sanction has been accorded for prosecution of the accused
persons or not is a matter which should be dealt with at the
stage of taking cognizance. But in a case of this nature
where a question is raised as to whether the authority
granting the sanction was competent therefor or not, at the
stage of final arguments after trial, the same may have to be
considered having regard to the terms and conditions of
service of the accused for the purpose of determination as to
who could remove him from service.
15. Grant of proper sanction by a competent authority is a
sine qua non for taking cognizance of the offence. It is
desirable that the question as regards sanction may be
determined at an early stage. (See Ashok
Sahu v. GokulSaikia [1990 Supp SCC 41 : 1990 SCC (Cri)
611] and Birendra K. Singh v. State of Bihar [(2000) 8 SCC
498 : 2001 SCC (Cri) 17 : JT (2000) 8 SC 248] .)
16. But, even if a cognizance of the offence is taken
erroneously and the same comes to the court's notice at a
later stage a finding to that effect is permissible. Even such
a plea can be taken for the first time before an appellate
court. (See B. Saha v. M.S. Kochar [(1979) 4 SCC 177:
1979 SCC (Cri) 939] SCC para 13 and K.
Kalimuthu v. State [(2005) 4 SCC 512 : 2005 SCC (Cri)
1291] .)"
(emphasis supplied)
88. In Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1,
certain observations on the question of appropriate stage were made
by the Supreme Court which may be noted as under:-
"47. The sanctioning authority is not required to separately
specify each of the offences against the accused public
servant. This is required to be done at the stage of framing
of charge. Law requires that before the sanctioning
authority materials must be placed so that the sanctioning
authority can apply his mind and take a decision. Whether
there is an application of mind or not would depend on the
facts and circumstances of each case and there cannot be
any generalised guidelines in that regard.
48. The sanction in the instant case related to the offences
relatable to the Act. There is a distinction between the
absence of sanction and the alleged invalidity on account of
non-application of mind. The former question can be
agitated at the threshold but the latter is a question which
has to be raised during trial."
(emphasis supplied)
89. In Ashok Kumar Aggarwal (supra), the Supreme Court held
that "the stage of examining the validity of sanction is during the trial
and we do not propose to say that the validity should be examined
during the stage of inquiry or at pre-trial stage", and quoted the
following passage from the previous ruling in Dinesh
Kumar v. Airport Authority of India, (2012) 1 SCC 532:
"13. In our view, having regard to the facts of the present
case, now since cognizance has already been taken against
the appellant by the trial Judge, the High Court cannot be
said to have erred in leaving the question of validity of
sanction open for consideration by the trial court and giving
liberty to the appellant to raise the issue concerning validity
of sanction order in the course of trial. Such course is in
accord with the decision of this Court in Parkash Singh
Badal ...."
(emphasis supplied)
90. In State of Bihar v. Rajmangal Ram, (2014) 11 SCC 388, the
High Court of Patna had intervened in the criminal prosecution of
public servant finding substance in the objection raised as to the
validity of sanction for prosecution, the error pointed out pertaining to
competency of the sanctioning authority. Against this backdrop, the
Supreme Court examined "the circumference of the Court's power to
interdict a criminal proceeding mid-course on the basis of the
legitimacy or otherwise of the order of sanction to prosecute". Taking
note of the previous decisions on the subject including T. Venkatesh
Murthy (supra) and Prakash Singh Badal (supra), the court held thus:-
"10. The High Court in both the cases had also come to the
conclusion that the sanction orders in question were passed
mechanically and without consideration of the relevant facts
and records. This was treated as an additional ground for
interference with the criminal proceedings registered
against the respondents. Having perused the relevant part of
the orders under challenge we do not think that the High
Court was justified in coming to the said findings at the
stage when the same were recorded. A more appropriate
stage for reaching the said conclusion would have been only
after evidence in the cases had been led on the issue in
question."
(emphasis supplied)
91. It has been pointed out by the learned senior counsel appearing
for A1 that though the above passage from the judgment in Rajmangal
Ram (supra) has been noted by the Special Judge in (Para 11 of) her
order dated 11.10.2017, she has misquoted the last sentence so as to
read it thus:-
"A more appropriate stage for reaching the said
conclusion would have been only after evidence in the
case had been led on the issue of question."
(emphasis supplied)
92. The emphasis of the Supreme Court in above quoted passage
from the decision in Rajmangal Ram (supra) is on conclusion to be
reached "after evidence....had been led on the issue in question".
Since the Special Judge has mis-read the sentence by replacing the
words "issue in question" by the words "issue of question", it is clear,
the true import and effect of the ruling was lost. Instances are galore
of cases where this court has issued directions to the trial courts to
examine and return findings on the objection as to the validity of
sanction raised at initial stages and for this purpose requiring resort to
be had to the provision of Section 311 Cr. PC to summon and examine
the sanctioning authority as a witness even before considering the
question of charge. [For illustration, see Ashok Kumar Aggarwal Vs.
Central Bureau of Investigation, 2007 (4) JCC 2829]
93. In Chandan Kumar Basu v. State of Bihar, (2014) 13 SCC 70,
albeit in the context of Section 197 Cr.P.C., it was reiterated that
question of validity of sanction "can be raised at any time after
cognizance had been taken and may have to be determined at different
stages of the proceeding/trial."
94. The ruling in Nanjappa v. State of Karnataka, (2015) 14 SCC
186, summarises the legal position thus:
"22. The legal position regarding the importance of
sanction under Section 19 of the Prevention of Corruption
Act is thus much too clear to admit equivocation. The statute
forbids taking of cognizance by the court against a public
servant except with the previous sanction of an authority
competent to grant such sanction in terms of clauses (a), (b)
and (c) to Section 19(1). The question regarding validity of
such sanction can be raised at any stage of the proceedings.
The competence of the court trying the accused so much
depends upon the existence of a valid sanction. In case the
sanction is found to be invalid the court can discharge the
accused relegating the parties to a stage where the
competent authority may grant a fresh sanction for the
prosecution in accordance with law. If the trial court
proceeds, despite the invalidity attached to the sanction
order, the same shall be deemed to be non est in the eyes of
law and shall not forbid a second trial for the same offences,
upon grant of a valid sanction for such prosecution.
xxx
23.2. A careful reading of sub-section (3) to Section 19
would show that the same interdicts reversal or alteration of
any finding, sentence or order passed by a Special Judge, on
the ground that the sanction order suffers from an error,
omission or irregularity, unless of course the court before
whom such finding, sentence or order is challenged in
appeal or revision is of the opinion that a failure of justice
has occurred by reason of such error, omission or
irregularity. Sub-section (3), in other words, simply forbids
interference with an order passed by the Special Judge in
appeal, confirmation or revisional proceedings on the
ground that the sanction is bad save and except, in cases
where the appellate or revisional court finds that failure of
justice has occurred by such invalidity. What is noteworthy
is that sub-section (3) has no application to proceedings
before the Special Judge, who is free to pass an order
discharging the accused, if he is of the opinion that a valid
order sanctioning prosecution of the accused had not been
produced as required under Section 19(1).
23.3. Sub-section (3), in our opinion, postulates a
prohibition against a higher court reversing an order passed
by the Special Judge on the ground of any defect, omission
or irregularity in the order of sanction. It does not forbid a
Special Judge from passing an order at whatever stage of
the proceedings holding that the prosecution is not
maintainable for want of a valid order sanctioning the same.
23.4. The language employed in sub-section (3) is, in our
opinion, clear and unambiguous. This is, in our opinion,
sufficiently evident even from the language employed in sub-
section (4) according to which the appellate or the
revisional court shall, while examining whether the error,
omission or irregularity in the sanction had occasioned in
any failure of justice, have regard to the fact whether the
objection could and should have been raised at an early
stage. Suffice it to say, that a conjoint reading of sub-
sections 19(3) and (4) leaves no manner of doubt that the
said provisions envisage a challenge to the validity of the
order of sanction or the validity of the proceedings including
finding, sentence or order passed by the Special Judge in
appeal or revision before a higher court and not before the
Special Judge trying the accused.
23.5. The rationale underlying the provision obviously is
that if the trial has proceeded to conclusion and resulted in
a finding or sentence, the same should not be lightly
interfered with by the appellate or the revisional court
simply because there was some omission, error or
irregularity in the order sanctioning the prosecution under
Section 19(1). Failure of justice is, what the appellate or
revisional court would in such cases look for. And while
examining whether any such failure had indeed taken place,
the Court concerned would also keep in mind whether the
objection touching the error, omission or irregularity in the
sanction could or should have been raised at an earlier
stage of the proceedings meaning thereby whether the same
could and should have been raised at the trial stage instead
of being urged in appeal or revision."
(emphasis supplied)
95. In Girish Kumar Suneja v. CBI, (2017) 14 SCC 809, it has been
observed as under:-
"66. Sub-section (4) of Section 19 of the PC Act is also
important in this context inasmuch as the time lapse in
challenging an error, omission or irregularity in the
sanction resulting in a failure of justice is of considerable
significance. Unless the challenge is made at the initial
stages of a trial and within a reasonable period of time, the
court would not be obliged to consider the absence of, or
any error, omission or irregularity in the sanction for
prosecution. Therefore, it is not as if the accused can, after
an unreasonable delay, raise an issue about the sanction;
but if that accused does so, the court may not decide that
issue both at the appellate stage as well as for the purposes
of stay of the proceedings".
(emphasis supplied)
The principles
96. From the above, it can be summed up that:
(a) A valid sanction for prosecution under Section 19 of
the POC Act granted by the competent authority is a pre-
requisite, it being a safeguard for the innocent public
servants to ensure discouragement of frivolous or
vexatious prosecutions, the absence of such valid sanction
rendering the prosecution that is launched a nullity;
(b) The grant of sanction is an administrative function
and the court would not sit in appeal over it by embarking
upon an exercise of examining the adequacy of material
placed before the sanctioning authority;
(c) The judicial scrutiny is more of the decision making
process it, however, being incumbent on the prosecution
to prove that the appropriate authority had granted the
sanction having regard to all the relevant facts and after
perusing the materials placed before it in entirety, such
material comprising all the vital documents including
those which may "tilt the balance in favour of the
accused". The material on which the sanctioning
authority proceeds to accord its approval for prosecution
must be relevant to the case against the public servant and
also be admissible in law;
(d) It is also sine qua non for the validity of the sanction
that the competent authority on which the power to grant
sanction is conferred does not treat it as an idle formality
and applies its own independent mind undertaking the
task in a manner that does not reflect mechanical
approach, not the least being under pressure, compulsion
or constraint from any external force or quarter;
(e) While mere error, omission or irregularity may not
be of any consequence, withholding of vital documents or
material from the sanctioning authority, particularly such
material as may tilt the balance in favour of the accused
public servants causes serious prejudice which may
occasion failure of justice vitiating the sanction for
prosecution;
(f) While absence of sanction for prosecution is a
question to be agitated at the threshold, objection to the
validity of sanction may be raised by the accused public
servant "at any time" or "at any stage" in the course of or
during trial, it being incumbent on the Special Judge
presiding over the trial to find, and determine, if there is
any invalidity attached to the sanction order and further
as to whether failure of justice has occurred on such
account and pass the necessary order thereupon - more
appropriate stage for reaching such conclusion being after
evidence has been adduced on the "issue in question"
which means evidence having been adduced on the issue
of validity of sanction;
(g) If such objection is raised belatedly, the time lapse
being of considerable significance, the court is not
obliged to consider the effect of any such error, omission
or irregularity. In order to claim the protection of law
against prosecution without valid sanction, the public
servants, however, is expected to raise the issue at the
earliest stage of the trial. The objection of such nature
pressed when the trial is near termination would render
the issue inconsequential. To put it simply, if the
challenge to the validity of sanction is made at the initial
stage of trial, and within reasonable period of time, the
Special Judge is duty bound to examine the issue, being
"free" to pass an appropriate order thereupon, the
inhibition of Section 19(3)(a) of the POC Act and Section
465 Cr. PC being inapplicable to the trial court, such
provision forbidding the appellate or revisional court
from entertaining such objection for the first time at later
stages. It must, however, be added here that the
determination of the issue by the Special Judge in the
course of the trial is subject to judicial scrutiny by this
court in the supervisory jurisdiction; and
(h). Further, it is necessary that the objection to the
validity of sanction is considered and the issues raised are
determined at the earliest for the reason continuation of
criminal prosecution on invalid sanction is not desirable
since such proceedings are void ab initio. Rather, if the
objection is raised at an early stage, the court is duty
bound to consider and decide upon it instead of relegating
it to the concluding stage of final determination of the
case, it being not just or fair to do so since that approach
would render the statutory protection illusory.
Inadmissible Electronic Evidence
97. Before applying the above principles to the objection as to the
validity of sanction for prosecution in the present case, it needs to be
noted that the Special Judge has found the electronic evidence
presented with the charge-sheet in the case of ACB to be inadmissible
and, therefore, not available to the prosecution, observing thus:
"Admissibility of Electronic Evidence
25. The second limb of arguments of learned counsels
for accused persons pertained to the electronic evidence
provided by the complainant Abhinav Krishan Aggarwal
on 16.10.2008 to H.P.S. Sodhi, the then ACP/ACB Delhi
in the shape of two DVDs containing audio-video
recordings. It was very strenuously argued by learned
counsels for accused persons that the only basis for
supporting the allegations against the accused persons is
the conversation that is said to have been recorded by the
complainant Abhinav Krishan Aggarwal with the help of
(i) MP3 player, (ii) Pen camera and (iii) Mobile phone
Nokia E90. Since none of these devices were handed
over to Anti Corruption Branch and consequently were
not subjected to analysis, the secondary evidence in the
shape of DVDs in the absence of certificate u/s 65B of
Indian Evidence Act is inadmissible.
26. It is not in dispute that the complainant in his
statement u/s 161 Cr.P.C. had categorically stated that
the original instruments (MP3 player, Pen camera,
Mobile phone Nokia AEA90) which were used to record
the audio-video of the conversations were not handed
over by him to Anti Corruption Branch as the same had
been either destroyed or returned. He had also stated
that the entire data relating to sting operation was
transferred by him in the CDs which he has handed over
to ACB. It is also the admitted case of the prosecution
that no certificate u/s 65B of Indian Evidence Act was
given by the complainant at the time of handing over the
said CDs.
27. The law regarding the admissibility of electronic
evidence has been laid down in the celebrated judgment
of ANWAR P.V. VS P.K. BASHEER reported as (2014)
10 SCC 473 wherein it has been held by the Hon‟ble
Supreme Court that:
"The evidence relating to electronic record, as noted
herein before, being a special provision, the general law
on secondary evidence under Section 63 read with
Section 65 of the Evidence Act shall yield to the same.
Generalia specialibus non derogant, special law will
always prevail over the general law. It appears, the court
omitted to take note of Sections 59 and 65A dealing with
the admissibility of electronic record. Sections 63 and 65
have no application in the case of secondary evidence by
way of electronic record; the same is wholly governed by
Sections 65A and 65B. To that extent, the statement of
law on admissibility of secondary evidence pertaining to
electronic record, as stated by this court in Navjot
Sandhu Case (supra), does not lay down the correct legal
position. It requires to be overruled and we do so. An
electronic record by way of secondary evidence shall not
be admitted in evidence unless the requirements under
Section 65B are satisfied. Thus, in the case of CD, VCD,
chip, etc., the same shall be accompanied by the
certificate in terms of Section 65B obtained at the time of
taking the document, without which, the secondary
evidence pertaining to that electronic record, is
inadmissible."
28. The only inevitable conclusion qua the electronic
evidence produced by the complainant which can thus be
arrived at is that the same is inadmissible in law and
cannot be looked into even at the stage of framing of
charge."
98. The learned additional standing counsel arguing for the State
fairly conceded that the electronic evidence referred to in the charge-
sheets is not admissible and, therefore, was not available even for
purposes of the sanctioning authority, such electronic evidence
inclusive of not only the DVDs presented by the complainant with or
after the FIR but also the CDRs of the mobile phones mentioned in the
case of ACB. No certificates under Section 65B of Indian Evidence
Act, 1872 have been obtained or can possibly be secured now in
respect of the alleged audio / video recordings made by the
complainant - this, for the simple reason the equipment statedly used
by him has not been shared even with the investigating agency, the
specious plea offered on 09.02.2009, more than three and a half
months after lodging of the FIR, being unacceptable. There is neither
any explanation given by, nor any anxiety shown by the investigating
agency to ascertain from, him as to why he chose to destroy the MP3
player. Destruction of the equipment implies a conscious decision to
render the equipment unavailable. An adverse inference is bound to be
raised that if such equipment were to be brought before the forensic
experts or the investigating agency or the court, its testing would not
have affirmed its use for the purposes claimed. This would have a
direct bearing on the authenticity or credibility of the material which is
shown to be the product of the concerned device. The charge-sheet
itself shows that the complainant has scrupulously avoided even
identifying the source of other equipment which could have been
utilized in putting together the audio / video tracks which were
presented in the form of DVD. The source, if revealed, might have
corroborated the word of the complainant. Further, it is only such
source as would have been in a position to provide the necessary
authentication in terms of Section 65 B. The non-disclosure of the
source renders the possibility of such certification nugatory.
99. The chronology of events has been taken note of in earlier part
of this judgment. It unmistakably shows that ACB was gullible
enough to accept the audio / video recording presented to it by the
complainant in the form of DVD without any endeavour to secure its
confirmation including by certification under Section 65B. The
sanctioning authority at all stages, including just before the time of
fresh sanction, was persisting with the demand for such material to be
made available. Though one spare copy of DVD (mark „B‟) was
available all along, ACB scrupulously avoided giving any clear
answer, not accounting for either the DVD or the equipment
connected thereto. It was, as noted earlier, after a long gap of over
three months that the statement of the complainant under Section 161
Cr. PC was recorded about the destruction of one device and return of
the others to the source of procurement. Such statement, ex facie, is an
after-thought.
100. In the above facts and circumstances, the inconsistencies in the
audio / video files contained in the DVD assume significance. As
noted earlier, the properties of the said files have already been
scrutinized by the special court at the request of A1. Such scrutiny
brought out a large number of such files pertaining to a period with
which the case at hand can have not even a remotest connection.
There is no explanation offered for such incongruency.
101. The above renders not only the audio / video files contained in
the DVD but also the transcripts and the oral evidence as to
identification of voices, as indeed the opinion of APFSL, irrelevant
and inadmissible. This court, thus, upholds the view taken by the
Special Judge on the subject of admissibility of electronic evidence of
such nature. That part of the evidence relied upon by the prosecution
consequently must be excluded from consideration.
Mobile phone connection
102. It was fairly conceded by the additional standing counsel at the
hearing that there is no evidence of any mobile phone held in the name
of any of the public servants accused in the case to be involved in any
incriminating contact. The CDR on which reliance is placed pertains
to the mobile phone of Avinash Tyagi, there concededly being no
evidence whatsoever of any connection between such person and A1.
The word of Mr. Joy Tirkey, ACP about some contact with A1
through such mobile phone is not based on any confirmed or authentic
material. It has to be borne in mind that in the FIR, some role around
the crucial time of arrest of Gopal Krishan Aggarwal was attributed to
the said ACP as well. Be that as it may, even the CDR placed on
record admittedly is not issued formally by the service provider nor is
it supported by any certificate under Section 65B. As conceded in the
evidence, no customer application form in its respect has been
collected, the word of the registered owner of the phone in question
being totally amiss. The allegations that such phone was in use around
the City Hospital on 08.12.2007 are consequently unfounded. Even
otherwise, in absence of any evidence showing relationship between
A1 and Jagdish Tyagi, the person who statedly was then under
treatment in that facility as an indoor patient, the CDRs do not have
any relevance.
Effect of Enquiry Report
103. As noted earlier, the public servants (A1, A2 and A3) who face
the criminal prosecution in the matter from which these petitions arise
also rely on the report (Ex. PW1/D7) dated 29.12.2011 of Mr. P.S.
Kushwaha, Addl. DCP, reference to which has been found by the
Special Judge in the impugned order to be of no consequence on the
reasoning that exoneration in the departmental proceedings would not
stand in the way of criminal trial. Arguing that such approach of the
Special Judge was erroneous, it has been submitted that the report of
inquiry by the Additional DCP has been wrongly equated with
departmental disciplinary proceedings. Reliance is placed on the
decision in Nitya Dharmananda Vs. Gopal Sheelum Reddy, (2018) 2
SCC 93, the reference being made particularly to the following
observations :-
"8. ...Thus, it is clear that while ordinarily the
Court has to proceed on the basis of material
produced with the charge-sheet for dealing with the
issue of charge but if the court is satisfied that there
is material of sterling quality which has been
withheld by the investigator/prosecutor, the court is
not debarred from summoning or relying upon the
same even if such document is not a part of the
charge-sheet. It does not mean that the defence has a
right to invoke Section 91 CrPC dehors the
satisfaction of the court, at the stage of charge...."
(emphasis supplied)
104. Per contra, the learned additional standing counsel submitted
that the reasons given in the impugned order cannot be faulted and, in
this context, reliance was placed by him on Noida Entrepreneurs Assn.
vs. Noida, (2007) 10 SCC 385 and State v. M. Krishna Mohan, (2007)
14 SCC 667 . In Noida Entrepreneurs Assn. (supra), the court had
quoted the following observations of a bench of three Hon‟ble Judges
of the Supreme Court in Depot Manager, A.P. SRTC v. Mohd. Yousuf
Miya (1997) 2 SCC 699 as under :
"...The purpose of departmental enquiry and of
prosecution are two different and distinct aspects.
The criminal prosecution is launched for an offence
for violation of a duty, the offender owes to the
society or for breach of which law has provided that
the offender shall make satisfaction to the public. So
crime is an act of commission in violation of law or
of omission of public duty. The departmental enquiry
is to maintain discipline in the service and efficiency
of public service..."
(emphasis supplied)
105. In M. Krishna Mohan (supra), it was observed that exoneration
of the public servants in the departmental proceedings (disciplinary
inquiry) could not lead to the conclusion that he was not guilty of
commission of the offences wherefor he was charged.
106. In the present case, the report (Ex. PW1/D7) dated 29.12.2011
of Mr. P.S. Kushwaha, Addl. DCP, cannot be equated with a report of
departmental disciplinary proceedings. As noted earlier, the enquiry
conducted by the Additional DCP was under the directions of superior
authorities in the department of Delhi Police on the representation of
A1 that he was being falsely framed. This was a high-powered enquiry
conducted by an officer at the supervisory level, much senior in rank
and hierarchy than the investigating officer of ACB. The enquiry of
Mr. Kushwaha was conducted after the charge-sheet had been
submitted in the court and at a time when the validity of the first
sanction for prosecution was yet to be considered by the Special
Judge. As is clear from record, Mr. Kushwaha did a comprehensive
job by taking into account the record of investigation in entirety. He
found substance in the grievance of A1. He noted a number of
discrepancies in the evidence gathered by ACB. He found
incongruency in the evidence and unfairness of investigation. A report
of such enquiry cannot be sidelined with reference to the rulings in M.
Krishna Mohan and Mohd. Yousuf Miya (supra). The said report
provides "material of sterling quality", which cannot be brushed aside.
Testing validity of fresh sanction
107. The Court doesn‟t find anything turning on the facts concerning
unsigned CD. The draft charge-sheet that may have been prepared did
not see formal action.
108. Though questions have been raised by the defence as to the
propriety on the part of the Special Judge to suo motu bring up the
issue of sanction through proceedings recorded on 18.05.2013 and
persisting with the said subject over the proceedings that followed till
the time the fresh sanction was accorded on 18.07.2014 - this, as per
the submissions, being uncalled for - this court would not read much
into the said record to find fault with the sanction which is under
challenge here for the reason the trial court has couched its directions
in neutral terms ("status report"). But, there is merit in the contention
of the public servants that the manner in which the ACB went about
the process for securing fresh sanction demonstrates that the order
ultimately secured on 18.07.2014 from the sanctioning authority
(PW1) was the product more of extraneous influences and constraints
rather than independent exercise of discretion.
109. The chronology of events tells it all. After the first sanction for
prosecution had been found to be vitiated by the Special Judge by her
order dated 30.07.2012, the matter had rested till ACB took the cue
from the order dated 18.05.2013. Though in its communications to
various quarters, it would try to show that the sanctioning authority
was sitting over the issue of fresh sanction, the fact of the matter is
that there was no formal request for fresh sanction till 31.07.2013. All
along, prior to the said formal request and even thereafter till the last
effective communication dated 01.07.2014 of the sanctioning
authority, it was repeatedly calling for the requisite material (including
DVD) with no clear answer from ACB. Though the proceedings of the
special court do not indicate any timeline having been set, ACB built
up pressure by indicating to the sanctioning authority that the court
had mandated the sanction to be granted within 15 days. The need for
expedition could have been communicated with reference to the
relevant law on the subject but not in the manner done. This was, if
not false, wholly misleading communication. The question of sanction
had to be decided independently by PW1. Yet, the Commissioner of
Police felt constrained to record - noticeably even before formal
request had come, that the sanction "must be granted". After this
mandate, there was virtually no discretion left with the sanctioning
authority to apply its own independent mind. No wonder, when the
"serious concern" of the Chief Secretary was communicated, the
sanctioning authority (PW1) readily obliged by granting the fresh
sanction on the same day (18.07.2014) as on which such
communication had been received by him, forgetting that his requests
to the ACB for entire material to be made available (on which account
the matter had been held up at his end all along) were still not
addressed. The constraints under which the sanctioning authority
(PW1) obliged the investigating agency (ACB) in the wake of the
pressure, built up by the latter, is writ large on the record.
110. The sanctioning authority (PW1) has conceded during the
course of evidence that the "in-house" instructions required him to
obtain the comments from the prosecution branch in the matter in a
case where accusations of such nature had arisen against the backdrop
of the public servants being engaged in discharge of their official
duties. He admitted that A1 had arrested the father of the complainant
while performing his official duty. There is no explanation even
offered as to why such precaution of obtaining views of the
prosecution branch was not taken in the case at hand. Noticeably, as
already mentioned, after the first sanction had been found to be
vitiated, the prosecution had already communicated its views that any
further pursuit of the matter would be futile given the discrepancies in
the evidence. Even such previous opinion of the prosecution was not
considered when fresh sanction accorded.
111. The scrutiny of the charge-sheets would show that the evidence
on which the fresh order of sanction has been obtained remains
virtually the same on which the first sanction had been accorded, the
additional material essentially being the report of APFSL and some
statements under Section 161 Cr. PC. There is nothing in the reports
under Section 173 Cr. PC presented before the special court from
which answer to the discrepancies or inconsistencies or allegations of
unfair investigation, as noted in the report (Ex. PW1/D-7) of the Addl.
DCP, could be found. The gist of the proceedings in the case so far
conducted before the trial court shows that it is the conclusions
reached in the said enquiry report (Ex. PW1/D-7) which formed the
basis for the prosecution to concede the first order of sanction to be
bad leading to the Special Judge returning findings to such effect by
the order dated 30.07.2012. The defects in the prosecution case,
particularly the incongruency of some crucial allegations made
therein, have thus persisted, there being no endeavour made to
overcome their effect. Yet, while sending the request for fresh
sanction to be accorded, the ACB scrupulously avoided making any
reference to the fate of the previous sanction or the reasons why it had
failed the judicial scrutiny and the sanctioning authority (PW1) also
did not feel it necessary to seek clarity or explanation on any of the
relevant aspects connected thereto. This was not fair, not the least on
the part of the ACB.
112. It is not that the ACB or the sanctioning authority (PW1) were
not aware or conscious of the enquiry report (Ex. PW1/D-7) or its
import. The sanctioning authority was heading the unit where these
public servants were posted during the relevant period. The enquiry
had been conducted in the head-quarters of Delhi Police within the
knowledge of the entire hierarchy. The report of enquiry had been
formally brought to the notice of the sanctioning authority (PW1) who
had even recorded that he was in full agreement with it. There were
official notings mandating that such report would be considered at the
stage of consideration for fresh sanction, this also in the context of
another representation made by A1. But, concededly, the report was
not part of the material on which fresh sanction for prosecution was
granted. Since the enquiry report (Ex. PW1/D-7) was crucial material,
an official report of a superior officer and consequently material of
"sterling quality", its exclusion from consideration vitiates the fresh
sanction for prosecution - particularly because the said report
highlighting not merely discrepancies or inconsistencies but also, and
more importantly, illegalities committed by the investigating agency
(ACB) including by tampering and interpolation of records rendering
the "frame-up" (which A1 had been apprehending and bringing to the
notice of his superiors at the crucial point of time) highly probable, is
a material that "tilts the balance in favour of the accused".
113. The fact that the core material on which fresh sanction has been
accorded is inadmissible evidence renders it bad in law. The
sanctioning authority (PW1) was well aware that A1 was not
competent in law to initiate registration of a case under MCOCA. The
ACB and the sanctioning authority (PW1) have been gullible to take
the word of the complainant in this regard treating his allegation of
threat by A1 of false implication in such case as acceptable on its face.
So much so that even the file of the case under MCOCA was not
perused to confirm if A1 had any role to play in such regard.
114. There is, thus, sufficient material available on record to
conclude that the fresh sanction under Section 19 of POC Act is
vitiated, continuation of prosecution on its basis bound to lead to
failure of justice. Since the issue of invalidity of fresh sanction was
raised by the public servants at the threshold - the earliest possible
stage, the Special Judge was duty bound to consider the objection in
all its hues on the basis of evidence on the issue already adduced,
rather than short shrifting it by misreading and misapplying the ruling
of Rajmangal Ram (supra). Since the Special Judge has committed a
grave error, this court is duty bound in its supervisory jurisdiction to
interdict, lest the futile and non-est prosecution on the charge of
offences under POC Act against these public servants continues as
persecution.
On sanction under Section 197 Cr.PC
115. Since the questions raised in these petitions also concern the
pre-requisite of sanction under Section 197 Cr. PC and the overlap of
such statutory provision with the one under Section 19 of the POC
Act, the rulings cited at the bar in that context may be considered at
this stage.
116. In Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44, a
Constitution Bench ruled that the "complaint may not disclose that the
acts constituting the offence was done or purported to be done in the
discharge of official duty; but facts subsequently coming to light on a
police or judicial inquiry or even in the course of the prosecution
evidence at the trial, may establish the necessity for sanction", the
question as to whether sanction is necessary or not may have to be
determined from stage to stage, necessity revealing itself in the course
of the progress of the case. The court ruled on the test for invocation
of the protection under Section 197 Cr. PC thus :-
"There must be a reasonable connection between the act
and the discharge of official duty; the act must bear such
relation to the duty that the accused could lay a reasonable,
but not a pretended or fanciful claim, that he did it in the
course of the performance of his duty..."
(emphasis supplied)
117. In Centre for Public Interest Litigation Vs. Union of India,
(2005) 8 SCC 202, a bench of three Hon‟ble Judges of the Supreme
Court ruled in the context of protection under Section 197 Cr. PC as
under :-
"...This protection has certain limits and is available
only when the alleged act done by the public servant is
reasonably connected with the discharge of his official
duty and is not merely a cloak for doing the
objectionable act. If in doing his official duty, he acted
in excess of his duty, but there is a reasonable
connection between the act and the performance of the
official duty, the excess will not be a sufficient ground to
deprive the public servant from the protection. The
question is not as to the nature of the offence such as
whether the alleged offence contained an element
necessarily dependent upon the offender being a public
servant, but whether it was committed by a public
servant acting or purporting to act as such in the
discharge of his official capacity. Before Section 197
can be invoked, it must be shown that the official
concerned was accused of an offence alleged to have
been committed by him while acting or purporting to act
in the discharge of his official duties. It is not the duty
which requires examination so much as the act, because
the official act can be performed both in the discharge
of the official duty as well as in dereliction of it. The act
must fall within the scope and range of the official duties
of the public servant concerned. It is the quality of the
act which is important and the protection of this section
is available if the act falls within the scope and range of
his official duty. There cannot be any universal rule to
determine whether there is a reasonable connection
between the act done and the official duty, nor is it
possible to lay down any such rule. One safe and sure
test in this regard would be to consider if the omission
or neglect on the part of the public servant to commit the
act complained of could have made him answerable for
a charge of dereliction of his official duty. If the answer
to this question is in the affirmative, it may be said that
such act was committed by the public servant while
acting in the discharge of his official duty and there was
every connection with the act complained of and the
official duty of the public servant.."
(emphasis supplied)
118. In Kalicharan Mahapatra Vs. State of Orissa, (1998) 6 SCC
411, the Supreme Court noted :-
"...The sanction contemplated in Section 197 of the
Code concerns a public servant who „is accused of any
offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official
duty‟, whereas the offences contemplated in the PC Act
are those which cannot be treated as acts either directly
or even purportedly done in the discharge of his official
duties. Parliament must have desired to maintain the
distinction and hence the wording in the corresponding
provision in the former PC Act was materially imported
in the new PC Act, 1988 without any change in spite of
the change made in Section 197 of the Code..."
(emphasis supplied)
119. Quoting the above position of law from Kalicharan Mahapatra
(supra), the Supreme Court in the case reported as Lalu Prasad Vs.
State of Bihar, (2007) 1 SCC 49, held thus :-
"10. ...It may be noted that Section 197 of the Code and
Section 19 of the Act operate in conceptually different
fields. In cases covered under the Act, in respect of public
servants the sanction is of automatic nature and thus
factual aspects are of little or no consequence. Conversely,
in a case relatable to Section 197 of the Code, the
substratum and basic features of the case have to be
considered to find out whether the alleged act has any
nexus with the discharge of duties. Position is not so in
case of Section 19 of the Act..."
(emphasis supplied)
120. From the above, it can be concluded that there can be no thumb
rule that in a prosecution before the court of Special Judge, the
previous sanction under Section 19 of the POC Act would invariably
be the only pre-requisite. If the offences on the charge of which the
public servant is expected to be put on trial include offences other than
those punishable under the POC Act, that is to say under the general
law (i.e. penal code), the court is bound to examine, at the time of
cognizance and also, if necessary, at subsequent stages (as the case
progresses) as to whether there is a necessity of sanction under Section
197 Cr. PC. There is a material difference between the statutory
requirements of Section 19 of the POC Act, on one hand, and Section
197 Cr. PC, on the other. In prosecution for offences exclusively under
the POC Act, the sanction is necessary qua the public servant. In cases
under the general penal law against the public servant, the necessity
(or otherwise) of sanction under Section 197 Cr. PC depends on the
factual aspects. The test in the latter case is of the "nexus" between the
act of commission or omission and the official duty of the public
servant. To commit an offence punishable under law can never be part
of the official duty of a public servant. It is too simplistic an approach
to adopt and to reject the necessity of sanction under Section 197 Cr.
PC on such reasoning. The "safe and sure test", as laid down in the
case of Centre for Public Interest Litigation (supra), is to find if the
omission or neglect to commit the act complained of would have made
the public servant answerable for charge of dereliction of his official
duty. He may have acted "in excess of his duty", but if there is a
"reasonable connection" between the impugned act and the
performance of the official duty, the protective umbrella of Section
197 Cr. PC cannot be denied, so long as the discharge of official duty
is not used as a cloak for illicit acts.
121. In the present case, it has been fairly conceded by the
sanctioning authority (PW1) in his deposition that the allegations
pertain to the period when A1 was investigating the case of murder, it
being part of his official duty. He had caused the arrest of Gopal
Krishan Aggarwal, the father of the complainant, on 07.12.2007.
Whether or not the allegations against Gopal Krishan Aggarwal in the
case of murder are "proved" at the trial of the concerned sessions case
is beside the point. For the present, it is sufficient to note that
cognizance was taken by the competent court on the charge-sheet
presented in the case of murder, it resulting in Gopal Krishan
Aggarwal being not only summoned (with others) as an accused but
also put to trial on formal charges framed. The fact that the Supreme
Court found it necessary to cancel the bail which had been granted to
Gopal Krishan Aggarwal in the case of murder only reinforces the
argument of the defence in the present case that the case of murder
against Gopal Krishan Aggarwal is well founded. The fact remains
that there can be no denial - rather it has been fairly conceded at the
hearing before this court - that A1 was within the bounds of law,
rather duty bound, in causing the arrest of Gopal Krishan Aggarwal in
the case of murder, this being in the discharge of his official duty. It is
inherent in this fact-situation that if A1 had refrained from causing the
arrest of Gopal Krishan Aggarwal, such omission or neglect would
have made him answerable for charge of dereliction of his official
duty. Pertinent to note here that A1 had felt constrained to bring on
official record his apprehension that he was likely to be framed in a
false case on account of he not having succumbed to the pressure that
was being exerted at the time of investigation of the case of murder.
The case of ACB is not based on recovery of any incriminating
material from these public servants. It is mere on the oral word of the
complainant who, given the background facts, cannot be treated as
independent or without motive. The report (Ex. PW1/D-7) of Mr. P.S.
Kushwaha, Addl. DCP is a serious adverse comment on the fairness of
the investigation of the case of ACB. The said report, particularly,
within the knowledge of the sanctioning authority (PW1) should have
made it alive to the need to scrutinize the case even more closely and
carefully so as to ensure that the protective umbrella of law was not
unreasonably taken away. No thought towards this sacred duty seems
to have crossed the mind of the authorities that be.
122. From the above perspective, there can be no denial that the
prosecution in the case of ACB for offences under the general law (i.e.
IPC) cannot also be permitted without a formal sanction under Section
197 Cr. PC.
On Charge
123. The Special Judge, by order dated 02.03.2017, discharged A2
and A3 on the following reasoning:-
"32. Now adverting to the complaint filed by Abhinav
Krishan Aggarwal and the evidence collected during the
investigation sans the electronic evidence and the
transcriptions; the only allegation against accused SI
Mukesh and ASI Rajbir Singh as per the complaint are that
they used to contact the complainant telephonically and
meet him frequently. Also, that they even tried to mediate the
issue of bribe already given to Insp. K.G. Tyagi. The
material placed on record reflects that except for this bald
allegation against SI Mukesh and ASI Rajbir Singh, neither
the complainant provided their mobile/telephone numbers
nor any call detail record was collected by the IO to
substantiate these allegations. The allegation; "They even
tried to mediate the issue of bribe already given to Insp.
K.G. Tyagi" is extremely vague and non-explanatory. No
elaboration was given by the complainant so as to infer
commission of any offence by them under Prevention of
Corruption Act or the provisions of IPC.
xxx
35. Qua accused SI Mukesh and ASI Rajbir Singh, therefore,
I am of the view that there is no material on the record from
which they can be suspected of committing any offence,
leave alone existence of strong suspicion. Hence, both
accused persons are hereby discharged. ..."
124. The State challenges the discharge of A2 and A3 on the ground that
the case against these public servants was based on same material which has
led to A1 being put to trial.
125. Charges have been found made out by the Special Judge against
A1 for the reasons recorded as under:-
"36. With respect to accused K.G. Tyagi, it was very
specifically alleged by the complainant that accused K.G.
Tyagi had extorted an amount of Rs.26-27 lakhs from him.
Out of which Rs.8 lakhs were extorted directly from him on
08.12.2007 and the remaining amount was extorted through
accused Advocate Ravinder Chadha (private person).
According to the allegations of the complainant, accused
K.G. Tyagi had asked him to deliver the said money at his
residence at Shahdara, however, after arranging Rs.8 lakhs
when the complainant went to the residence of accused K.G.
Tyagi, he was informed that Insp. K.G. Tyagi was at city
hospital, Pusa Road where his brother-in-law was admitted.
Consequently, he delivered the amount of Rs.8 lakhs to
accused K.G. Tyagi at City Hospital, Karol Bagh. The
allegations of the complainant regarding the said extortion
of Rs.8 lakhs on 08.12.2007 are prima facie supported by
the call detail records of accused K.G. Tyagi and the
complainant which reveal that at the relevant time accused
K.G. Tyagi was in the area of Karol Bagh (city Hospital Cell
ID). During investigation, documents pertaining to
hospitalization of Jagdish Tyagi (brother-in-law of accused
K.G. Tyagi) were also collected which also corroborated the
aforesaid fact. It was also specifically alleged by the
complainant Abhinav Krishan Aggarwal that Insp. K.G.
Tyagi threatened him and his father that if they do not pay a
further sum of Rs.25 lakhs to Insp. K.G. Tyagi, he would get
his father falsely implicated in some other case. When
complainant and his father refused to pay the amount to
Insp. K.G. Tyagi and his associate Adv. Ravinder Chadha,
Insp. K.G. Tyagi threatened them to face the consequences
and on 01.08.2008, a case under MCOCA was got
registered against his father in PS Hauz Qazi.
37. In view of the said material on record, I am of the
opinion that there is existence of strong suspicion which
inculpates accused K.G. Tyagi for commission of offences
punishable u/ss 7/13(1)(d) of PC Act read with Sections 384,
389, 120-B IPC."
126. For the benefit of the discussion on the subject of charge that is
bound to follow, it may be noted that the formal charges have been
framed against A-1, under three heads, on 04.03.2017, thus:-
"That during the year 2007 at the office of Crime Branch or
elsewhere at unknown time, you accused entered into
criminal conspiracy to extort money from complainant
Abhinav Krishan Aggarwal and his father Gopal Krishan
Aggarwal by putting them in fear of detaining Gopal
Krishan Aggarwal in custody and thereby dishonestly
induced complainant to deliver you Rs.26-27 lacs and
complainant handed over you Rs.8 lacs on 8.12.2007 at City
Hospital, Pusa Road, Delhi and remaining amount was
given by complainant through your co-accused Ravinder
Chadha who was engaged as counsel for defending Gopal
Krishan Aggarwal at your instruction as part of your
criminal conspiracy. Thus you thereby committing offence
punishable u/s. 384/120B IPC and within the cognizance of
this court.
Secondly, during the period 2007 and 2008 at unknown
place, unknown time you accused entered into criminal
conspiracy with co-accused Ravinder Chadha to extort
money from complainant Abhinav Krishan Aggarwal by
putting him under fear to implicate him and his father in
case of MCOC Act and demanded Rs.25 lacs for above
stated purpose. Thus you thereby committed offence
punishable u/s. 389/120B IPC and within the cognizance of
this court.
Thirdly, that you accused K.G. Tyagi while working as
Inspector in Delhi Police, Crime Branch (public servant)
entered into conspiracy with your co-accused Ravinder
Chadha, an advocate by profession to commit illegal act
namely demand and accept illegal gratification other than
legal remuneration from complainant Abhinav Krishan
Aggarwal during the period 2007-2008 and besides the
above said agreement you did some act in pursuance of the
said agreement i.e. demanded and accepted amount of
Rs.26-27 lacs thereby committing criminal misconduct. Thus
you thereby committed offence punishable u/s.7/13(1)(d) PC
Act read with 120B IPC and within the cognizance of this
court...."
127. The learned counsel appearing for the defence, however, argued that
the order framing the charge as aforesaid against A1 is erroneous, it being
based on mere allegations in the FIR, there being no corroboration by any
independent material, the electronic evidence being inadmissible, the
inquiry report of the Additional DCP showing the taint in the investigation
and the inconsistencies in its conclusions having been totally ignored, the
allegations of criminal conspiracy with co-accused Mr. Ravinder Chadha
being wholly impermissible on account of stay against his prosecution. The
learned counsel relied upon the law on the subject of consideration of
charge as declared and summarized in Union of India Vs. Prafulla Kumar
Samal, (1979) 3 SCC 4 thus :
"10. Thus, on a consideration of the authorities
mentioned above, the following principles
emerge:
(1) That the Judge while considering the question
of framing the charges under Section 227 of the
Code has the undoubted power to sift and weigh
the evidence for the limited purpose of finding out
whether or not a prima facie case against the
accused has been made out.
(2) Where the materials placed before the Court
disclose grave suspicion against the accused
which has not been properly explained the Court
will be, fully justified in framing a charge and
proceeding with the trial.
(3) The test to determine a prima facie case
would naturally depend upon the facts of each
case and it is difficult to lay down a rule of
universal application. By and large however if
two views are equally possible and the Judge is
satisfied that the evidence produced before him
while giving rise to some suspicion but not grave
suspicion against the accused, he will be fully
within his right to discharge the accused.
(4) That in exercising his jurisdiction under
Section 227 of the Code the Judge which under
the present Code is a senior and experienced
Judge cannot act merely as a Post office or a
mouth-piece of the prosecution, but has to
consider the broad probabilities of the case, the
total effect of the evidence and the documents
produced before the Court, any basic infirmities
appearing in the case and so on. This however
does not mean that the Judge should make a
roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was
conducting a trial..."
(emphasis supplied)
128. The Special Judge has given appropriate reasons in the order
dated 02.03.2017 to direct discharge of A2 and A3. The other accused
(A1), on the other hand, is right in submitting that the same reasons
based on same material would also equally apply to him.
129. The proceedings against Mr. Ravinder Chadha, advocate having
been stayed by the Supreme Court, it was wholly impermissible for he
to be shown as a conspirator in the charge framed against A1. The
other public servants (A2 and A3) having been discharged, the formal
charge of criminal conspiracy (under Section 120-B IPC) cannot be
framed with reference to any specific individual as being party to the
design allegedly of A1, in absence of a case to such effect even of the
prosecution. The complainant did allege that after the incident of
08.12.2007 he had been asked by A1 to contact the said advocate who,
in turn, had collected certain amounts of money on various occasions,
it totaling up to Rs.26-27 Lakhs which included Rs.4 Lakhs as the
share of the said advocate and rest as of A1. It was fairly conceded
that such allegations of the respective shares are not based on any
evidence and, therefore, seem to be product of assumptions.
130. At the cost of repetition, it may be mentioned here that the case
at hand is not of any recovery of incriminating material from A1, A2
or A3. The electronic evidence, as already noticed, is inadmissible
and, therefore, not available to the prosecution. This should result in
material in the nature of audio / video recordings, the transcripts,
APFSL report, oral evidence as to voice identification, CDRs or
circumstances relating to hospitalization of Jagdish Tyagi irrelevant
and inconsequential. The allegation of the complainant having handed
over Rs.8 Lakhs to A1 on 08.12.2007 to desist from arresting his
father in the case of murder, without corroboration, is per se not
credible for the simple reason A1 had already effected the arrest on
07.12.2007. The alleged exchanges after 08.12.2007 are vaguely
mentioned with no specifics as to the amounts involved or the date,
time or place indicated.
131. By referring to the threats attributed to A1 of false implication
in the case of MCOCA, the Special Judge has committed the same
error as done by the sanctioning authority (PW1). A case under
MCOCA cannot be registered except at the instance of an officer of
the rank of ACP. Unless there was material to show that his superiors
were also involved, which is missing here, inferences against A1
cannot be drawn only because a case of MCOCA had been registered
on 01.08.2008, inter alia, against the father of the complainant. For
such circumstances to be used against A1 as corroborative of the case
of ACB, something more than mere registration of FIR of MCOCA
case had to be brought on record, particularly such material as would
reflect pro-active and dishonest role played by him in setting up a false
case under the said special law. Since the reports under Section 173
Cr. PC in the case of ACP are admitted to be silent in this regard, it
appears naïve to act on mere allegation in the complaint lodged (on
16.10.2008) admittedly ten months after the alleged illicit demands
(December 2007) were made for the first time.
132. The report (Ex. PW1/D-7) of Mr. P.S. Kushwaha, Addl. DCP
(HQ), as submitted on 29.12.2011, upon conclusion of enquiry,
pursuant to directions of the superior authorities, based on
comprehensive scrutiny of not only the record of investigation of the
case of ACB but also of the other relevant official records renders the
investigation report of ACB tainted. It bears repetition to note here in
the context of charge that the enquiry found illegalities committed by
the investigating agency on vital issues. Tampering and interpolation
of crucial records has been vividly noticed and findings to that effect
returned, there being no effort worth the name by ACB to explain the
same to be attributable to some innocuous reasons. Such report
containing such serious indictment castigating the ACB for unfair
investigation is an official record which cannot be overlooked. After-
all, the criminal court is not merely a post office or a mouth-piece of
the prosecution. Since such material renders the plea of false
implication highly probable, the case at hand can hardly be said to be
one which is based on materials that give rise to grave suspicion
against A1, A2 or A3.
Conclusions
133. For the foregoing reasons, this court finds the fresh sanction
under Section 19 of POC Act to be vitiated rendering the proceedings
in the criminal case based thereupon impermissible. In the given facts
and circumstances, this court also holds that the prosecution of A1, A2
or A3 for offences under the general criminal law (IPC offences) is
also impermissible, there being no sanction under Section 197 Cr. PC.
Further, this court concludes that no case of charge is made out on the
available material to put A1, A2 or A3 on trial on the reports under
Section 173 Cr. PC presented in the case of ACB.
134. In the result, the criminal revision petition (no.462/2017) of the
State is dismissed. The criminal writ petitions (nos.942/2017 and
3012/2017) of A1 are allowed. The impugned orders of the Special
Judge passed on 02.03.2017 and 11.10.2017, to the extent thereby
charges were found made out against A1 and his plea against fresh
sanction was rejected, are set aside. The writ petitioner (A1) is
discharged. The proceedings arising out of the case of ACB in the
court of the Special Judge against him are dropped.
135. This also disposes of the pending applications.
R.K.GAUBA, J.
APRIL 03, 2018
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