[Cites 26, Cited by 0]
Delhi High Court
Manoj Kumar vs C.B.I on 2 February, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 27.01.2026
Judgment pronounced on: 02.02.2026
+ CRL.A. 733/2002
MANOJ KUMAR .....Appellant
Through: Mr. Manu Sharma, Sr. Advocate with
Mr. Arjun Kakkar, Advocate.
Versus
C.B.I. .....Respondent
Through: Mr. Atul Guleria, SPP for CBI with
Mr. Aryan Rakesh and Ms. Atreyi
Chatterjee, Advocates.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. This appeal under Section 27 of the Prevention of
Corruption Act, 1947 (the PC Act) read with Section 374of the
Code of Criminal Procedure, 1973 (the Cr.P.C.) has been filed by
the accused in C.C.No. 57/1996 on the file of the Court of Special
Judge, Tiz Hazari Court, Delhi challenging the conviction entered
and sentence passed against him for the offences punishable under
Sections 7 and Section 13(1)(d) r/w 13(2) of the PC Act.
2. The prosecution case is that on 25.09.1995, the accused,
while working as Sub Inspector, Delhi Police and posted at Jama
Masjid Police Station, demanded illegal gratification of ₹5,000 /-
from PW1, for not taking any adverse action against him in Crime
No. 187/95, which crime was being investigated by the accused.
3. On 06.10.1995, PW1 lodged a complaint, that is, Ext.
PW1/A, with the S.P., CBI, Anti-Corruption Branch, New Delhi,
based on which crime, RC No. 86(A)/95-DLI, that is, Ext. PW5/A
FIR was registered alleging commission of offence punishable
under Section 7 of the PC Act.
4. PW5, Inspector, Anti Corruption Branch, CBI, New Delhi,
conducted investigation into the crime and on completion of the
same, submitted the charge-sheet/ final report alleging commission
of the offences punishable under the aforementioned sections.
5. Ext. PW2/A sanction order for prosecuting the accused
was accorded by PW2, the then Deputy Commissioner of police,
Central District, Delhi.
6. When the accused on receipt of summons appeared before
the trial court, the Court after complying with the formality
contemplated under section 207 Cr.P.C, on 12.09.1997, framed a
charge against the accused for the offences punishable under
Sections 7 and 13(2) read with Section 13(1)(d) of the PC Act
which was read over and explained to the accused to which he
pleaded not guilty.
7. On behalf of the prosecution, PW1 to PW8 were examined
and Ext. PW1/A, Ext. PW2/A, Ext. PW3/A - H, PW4/A, PW5/A-
B, PW6/A, Mark A & B, PW8/A were marked in support of the
case.
8. After the closure of the prosecution evidence, the accused
was questioned under Section 313 of the Cr.P.C. regarding the
incriminating circumstances appearing against him in the evidence
of the prosecution. The accused denied all those circumstances and
maintained his innocence. He admitted that he was the
Investigating Officer in Crime No. 187/95 Jama Masjid, Police
Station in which one Om Prakash Tiwari had been arrested and
that the latter on questioning, disclosed the involvement of PW1
and so PW1 was also wanted in the said crime. He admitted his
presence at Tis Hazari Courts on the date of the trap in connection
with his official duties, but denied all other circumstances and
maintained his innocence.
9. After questioning the accused under Section. 313 Cr.P.C.,
compliance of Section 232 Cr.P.C. was mandatory. In the case on
hand, no hearing as contemplated under Section 232 Cr.P.C. is
seen done by the trial court. However, non-compliance of the said
provision does not, ipso facto vitiate the proceedings, unless
omission to comply with the same is shown to have resulted in
serious and substantial prejudice to the accused (See Moidu K. vs.
State of Kerala, 2009 (3) KHC 89 : 2009 SCC OnLine Ker
2888). Here, the accused has no case that non-compliance of
Section 232 Cr.P.C. has caused any prejudice to him.
10. On behalf of the accused, DW1 was examined and Ext.
DW1/A-B was marked.
11. On consideration of the oral and documentary evidence
on record and after hearing both sides, the trial court, vide the
impugned judgment dated 21.08.2003, held the accused guilty of
commission of offences punishable under Sections 7 and 13(2)
read with Section 13(1)(d) of the PC Act and accordingly,
sentenced him to undergo rigorous imprisonment for a period of
four years and to fine of ₹500/- under each provision and in default
of payment of fine, to rigorous imprisonment for three months on
each count. The substantive sentences of imprisonment have been
directed to run concurrently. Aggrieved, the accused has preferred
the present appeal.
12. In the FIR and charge-sheet, the appellant herein was
arrayed as the first accused and Head Constable Prem Pal Singh as
the second accused. However, the trial court discharged the second
accused, which order has now become final.
13. The learned Senior counsel appearing for the accused
submitted that insofar as the demand alleged to have been made on
the intervening night of 25.09.1995 and 26.09.1995 at about 3.00
AM is concerned, has not been established as none of the six
persons who were supposed to have accompanied the accused to
the house of the PW1, including Om Prakash Tiwari, was never
examined. Despite the admitted presence of the wife and son of the
PW1 at the house, neither of them was examined. None of the
officials of the Jama Masjid Police Station, in whose presence the
demand is alleged to have been made, was examined. The second
demand is alleged to have been made on 05.10.1995, to the son of
PW1, aged about 22 years, in the absence of the PW1. But the son
has also not been examined by the prosecution. Therefore, Crucial
and material witnesses were not examined by the prosecution,
which is a major factor to doubt the prosecution case.
13.1 Reliance was placed on the dictum in Mahmood v
State of U.P., (1976) 1 SCC 542 to canvass the point that the
audio cassette alleged to contain the recorded conversation
between PW1 and the accused wherein the demand is alleged to
have been reiterated is inadmissible in evidence as there exists a
clear possibility of tampering, inasmuch as the safe custody of the
said cassette has not been established. The prosecution has failed
to produce the Malkhana register and did not examine the
Moharrar Malkhana, thereby rendering the chain of custody
doubtful and thus making the electronic evidence unreliable.
13.2 It was further submitted that the original teletape
recorder, the audio cassette and the voice samples were never sent
for forensic examination, despite the accused having specifically
denied that the voice recorded was his. It was pointed out that the
tele-tape recorder itself was never produced before the Court.
Consequently, the mandatory conditions for admissibility of tape-
recorded evidence as given by the Hon'ble Apex Court in Ram
Singh and others v. Col Ram Singh (1985) Suppl SCC 611 were
not complied with, rendering the alleged recording inadmissible in
evidence. The prosecution has failed to comply with the mandatory
provisions of the CBI Manual, 1991, particularly Paras 52/313 to
56/318 of Chapter IX dealing with arrest, search and seizures in
relation to proper maintenance of the Malkhana, as well as
Annexure II, Para B(11) of Chapter XXI dealing with the
procedure prescribed for recording conversations through audio
recording systems.
13.3 It was also submitted by the learned senior counsel for
the accused that though the prosecution claims that the cassette
recorded on 06.10.1995 at the CBI office was sealed and handed
over to PW3, after a gap of 28 days, permission was sought from
the Court on 03.11.1995 and thereafter, vide memorandum dated
29.11.1995, the sealed cassette was reopened at the CBI office,
transcript was prepared and resealed with the same seal alleged to
have been retained by PW3. The cassette was thereafter deposited
in the malkhana and the seal was handed over to PW3 for the safe
custody. All these proceedings took place in the office of the CBI.
It was further pointed out that the cassette was not produced along
with the chargesheet filed before the court 11.04.1996, which is
clear breach of Section 170 Cr.P.C. The same was produced much
later pursuant to court directions, only on 04.10.1996, for
preparation of copies. It was also submitted that the second portion
of the recorded conversation in the tape is missing in the transcript,
rendering the transcript doubtful. These serious doubts arise
regarding the safe custody and sanctity of the cassette during the
period from 06.10.1995 to 03.11.1995 and thereafter from
03.11.1995 to 04.10.1996.
13.4 The learned senior counsel further pointed out that there
are material contradictions in the testimonies of PW1, PW3, PW4
and PW5 with regard to the very genesis of the alleged telephonic
conversation, namely, as to who had supplied the accused's
telephone number and who actually dialled the said number. PW1,
in his examination in chief, claimed that he himself dialled the
accused on the number mentioned on a visiting card on the
instructions of PW5. However, in his statement under Section 161
Cr.P.C., he stated that PW3 had dialled the number and thereafter
handed over the phone to him. Significantly, neither Ext. PW1/A
complaint, nor the statement under Section 161 Cr.P.C., nor the
handing over memo Ex PW3/B contains any reference to such a
visiting card, a fact admitted by PW1 in his cross examination. No
such visiting card was ever seized by the investigating agency.
PW4, in his examination-in-chief, deposed that the call was made
by PW1, but in cross examination contradicted himself by stating
that the call was dialled by a CBI Inspector at some undisclosed
number, without any reference to a visiting card. PW5, in his
examination-in-chief, stated that he had directed PW3 to dial the
number given by him and to hand over the phone to the PW1,
again without any mention of a visiting card. PW3, on the other
hand, merely stated in his chief examination that the PW1 was
talking to someone on the phone and made no assertion with
regard to the alleged visiting card. In view of the aforesaid
contradictions, it was submitted that the prosecution has failed to
establish the alleged demand, which constitutes the sine qua non
for the offences punishable under Sections 7 and 13(1)(d) of the
PC Act. Consequently, in the absence of proof of such
foundational facts, the statutory presumption contemplated under
Section 20 of the PC Act does not arise at all. Reliance was placed
on the dictum in P Satyanarayana Murthy v the Dist. Inspector
of Police & Ors, (2015) 10 SCC152.
13.5 The learned senior counsel for the accused pointed out
to certain 'contradictions', which according to him, goes to the
root of the matter. They are :- PW1, in his examination-in-chief,
was completely silent about any huge crowd gathering outside
Court No. 253; refusal of public persons to join the post trap
proceedings; the accused being taken to the scooter parking; or the
alleged firing of the service pistol of the accused, asserting instead
that the entire proceedings concluded inside Court No. 253. In total
contrast, PW4 and PW5 speak of a large crowd compelling
removal of the accused to the scooter stand, though they remain
silent on any firing incident. PW1 deposed that seven persons
came to his residence on the intervening night of 25.09.1995 and
26.09.1995, whereas his statement under Section 161 Cr.P.C. and
Ext. PW1/A complaint mention only six persons. There are further
contradictions regarding the handling of the currency notes, PW1
claiming that they were placed in the left pocket of his shirt, while
PW3 asserted they were first wrapped in paper and then put in the
PW1's pocket. Contradictions persist on whether the money was
wrapped before or after the alleged directions, whether the accused
was inside or outside the courtroom when instructions were given,
and even on whether the court was functioning at the relevant time.
Lastly, PW1 claims that after the alleged firing incident the pistol
and cartridges were deposited at Jama Masjid Police Post, whereas
the recovery memo records their retention. PW5 is completely
silent on any firing incident, there being no memo evidencing
deposit of the pistol and cartridges. It was further submitted that
since PW1 was not declared hostile, his version binds the
prosecution and must be treated as its admitted case as held in
Raja Ram v State, (2005) 5 SCC 272.
13.6 The learned senior counsel further submitted that the
prosecution failed to collect the voice samples of the accused and
the PW1 and did not send the currency notes, matchbox, transcript,
audio cassette, or the tele tape recorder for forensic examination or
handwriting analysis. Further, the agency failed to examine
Advocate Y.K. Sharma, who was a vital witness to the alleged trap
and recovery proceedings, as well as any court staff, lawyers, or
members of the public, despite the claim of a large crowd having
gathered outside Court No. 253 and at the scooter stand. Even in
such circumstances, no independent witness was associated with
the recovery memo, casting doubt upon the prosecution version.
14. Per contra, the learned Special Public Prosecutor
appearing for the CBI submitted that the trial court has duly
considered each and every ground raised in the present appeal and,
upon an overall appreciation of the materials on record,
adjudicated the matter on merits. It was therefore submitted that
the impugned judgment does not suffer from any infirmity
warranting interference by this court. With regard to the allegation
of the missing portion of the transcript, the learned SPP submitted
that such contention was rightly rejected by the trial court as it was
not germane to the incident on hand and therefore it is irrelevant. It
was also submitted by the learned SPP that, to the question of non-
examination of the PW1's son, the trial court was right in holding
that such non-examination cannot prove fatal since it was only
repetition of the demand of bribe that had been communicated
through him and it is the conduct of the public servant during the
trap which turns out to be clinching. It was further contended by
the learned SPP that the non-production of the matchbox, on which
the name of the lawyer and the chamber details were written by the
accused and handed over to PW1, is not a material lapse and that
the prosecution case does not rest solely upon the said
circumstance. It was further submitted that all due formalities were
duly complied with and the same stood verified through the
testimonies of PW6, PW7 and PW8. It was contended that except
minor discrepancies, PW1 consistently adhered to the version
stated in Ext. PW1/A complaint throughout the proceedings and,
therefore, no defect exists in the foundational facts of the
prosecution case, which were duly supported by the testimonies of
PW3 and PW4, thereby providing sufficient corroboration. It was
also contended that PW3 could not be treated as a wholly hostile
witness, as he merely stated that he was unable to witness the
transaction since he had been asked to sit outside the courtroom.
Under these circumstances, the learned SPP submitted that the
Court is entitled to draw the general presumption as well as the
statutory presumption contemplated under Section 20 of the PC
Act and that the same has not been rebutted. Reliance was placed
on the dictum in Neeraj Dutta v. State (NCT of Delhi), (2023) 4
SCC 731.
15. Heard Both sides and perused the records.
16. The only point that arises for consideration in the present
appeal is whether there is any infirmity in the impugned
judgment calling for an interference by this Court.
17. I shall first refer to the evidence on record relied on by
the prosecution in support of the case. PW1, in Ext. PW1/A
complaint dated 06.10.1995 based on which the crime was
registered, has stated thus:- "...on the night of 25.09.1995 at
about 3:00 AM, six men came to my house and called out to me.
When I came out, one man who was in police uniform asked me
if I knew Om Prakash Tiwari. I said that Om Prakash Tiwari
used to work in our university library. Sub-Inspector Manoj
Kumar (the accused) asked me to go to the police station. On
reaching Jama Masjid Post, Manoj Kumar said that Om
Prakash Tiwari who sells fake degrees has disclosed my name
also in the crime and so if I wanted to save myself, I was to
arrange for ₹15,000/-, if not he would send me to jail. When I
said that I could not arrange so much money, he beat me up
badly. After that, he asked me to arrange ₹5,000/- as soon as
possible. Last night, Sub-Inspector Manoj Kumar came to my
house when I was not at home and told my son that I should
contact him at Jama Masjid Police Post on 06.10.1995 after
arranging the money. I have been able to arrange only ₹4,000/-.
I do not want to give a bribe; therefore, legal action should be
taken."
17.1 PW1 when examined before the trial court stood by his
case in Exhibit PW1/A complaint. He further deposed in detail
regarding the pre-trap formalities undertaken by Inspector Sinha
(PW5) and the other officials. As directed by the officials of the
CBI, currency notes worth ₹4,000/- treated with chemical
powder was kept in the left front pocket of his shirt and he was
directed to pass on the notes to the accused as and when the
latter made a specific demand. PW4, Laxman Dass, was
directed to act as the shadow witness and to remain with him to
overhear his conversation the accused as well as for watching
the transactions. PW4 was also directed to give signal to the trap
party by putting both his hands on his head in the event the
accused accepted the bribe. According to PW1, he alongwith
the trap team left the office of the CBI at about 01:00 p.m. in the
official vehicle and reached Tis Hazari Court premises by about
01:50 p.m. He along with PW4 proceeded to Court No.253
while the other members followed them at a short distance in
small groups. By about 02:15 p.m., the accused arrived and
directly entered Court No.253, at which time he was standing at
the door of the Court room. On seeing the accused, he signaled
to the accused by folding his hands. The accused came out of
the Court room, took him to the gallery, at which time PW4
accompanied them. The accused inquired about the identity of
PW4, to which he replied that PW4 was his Saalu. Thereafter,
the accused instructed him to give the money to a lawyer in
chamber no.71. Accused referred to the name of a lawyer whose
initials are 'YK'. According to PW1, he then told the accused
that he might forget the name of the lawyer and so requested the
latter to write the name of the lawyer on a piece of paper. The
accused took out a match box and wrote the name of the lawyer
as well as the chamber number and signed it. The accused gave
the match box to him. PW1 further deposed that when such
instructions was given, he again contacted the CBI trap team
and informed them about the instructions given by the accused.
He, was then, instructed by the TLO (PW5) to go back to court
no. 253 and inform the accused that the lawyer was not
available in the Chamber. Therefore, as directed, he alongwith
PW4 went back to court no.253 and informed the accused that
the lawyer was not available in the Chamber. The accused then,
called Head Constable Prem Pal Singh, who was also present in
the Court room and directed the money to be given to the said
constable. As directed by the accused, he came out of the court
room proceeded to the gallery with Head Constable Prem Pal
Singh, took the money from his pocket and gave it to Prem Pal
Singh and asked him to count the same. Head Constable Prem
Pal Singh replied that he would not count the money but
directed that the same be handed over after wrapping it in a
paper. Prem Pal Singh, then give him a piece of paper in which
he wrapped the currency notes and passed it to the former who
accepted the same and kept it in the right side of his pant
pocket. PW4 gave the pre-appointed signal to the CBI team
pursuant to which the CBI officials arrived at the spot and
apprehended Constable Prem Pal Singh as well as the accused
herein. The TLO (PW5) disclosed his identity and confronted
the accused as well as Constable Prem Pal Singh. PW3, Man
Singh, recovered the notes from the pocket of Prem Pal Singh.
Both the accused as well as Constable Prem Pal Singh were
arrested. PW1 also deposed that the match box in which the
accused had written the name of the lawyer and chamber
number was recovered from him. The currency notes paper in
which notes were wrapped as well as the match box were seized
as per Exhibit PW3/F recovery memo in which he is an attestor.
The currency notes were marked as Exhibit P1 to P40. The
paper in which the notes were wrapped as Exhibit P41 and the
matchbox as Exhibit P42. PW1 also deposed that about 15-20
days thereafter he was summoned to the office of CBI and in his
presence, the sealed packet of the audio cassette in which his
conversation with the accused had been recorded during the pre
trap proceedings, was opened, the contents played and a
transcript prepared at which time PW3 Man Singh and PW4
Laxman Dass were present. Exhibit PW3/H is the memo
prepared in the said regard which contains his signature. The
transcript of the audio cassette has been marked as Exhibit
PW3/G.
17.2 In the cross examination PW1 deposed that during the
course of investigation, the CBI officials had not taken him to the
Jama Masjid Police Station for identification of the other police
officials who were present alongwith the accused when they came
to his residence during the intervening night of 25.09.2015 and
26.09.2015. He denied the suggestion that the Department in
which he was working also had suspicion about him also being
involved in the crime relating to issuance of forged degrees of the
University. PW1 admitted that when the accused along with Om
Prakash and others came to his residence, his wife as well as his
son aged 22 years were present and that he was taken away from
his residence in their presence. He further deposed that when the
accused demanded the bribe at Jama Masjid Police Station, Om
Prakash was not present. He also admitted that the CBI officials
has not recorded the statement of his son or his wife. He denied the
suggestion that he was apprehending his arrest by the police in the
crime pertaining to fake degrees and so in order to save himself he
has lodged a false complaint against the accused herein. PW1 also
deposed that a visiting card had been given by the accused which
contained the telephone number of the latter. He had handed over
the visiting card to the TLO, who had thereafter returned the same
to him and that the visiting card had not seized by the TLO. PW1
admitted that he had not made a reference to the visiting card in
Exhibit PW1/A, complaint. He denied the suggestion that the
accused had not given his visiting card. He denied the suggestion
that he never had any telephonic conversation with the accused
from the office of the CBI and that Exhibit P45 audio cassette is a
fabricated document. He further deposed that when he reached
room no. 253 in Tis Hazari Court, the Court was functioning and
the Judge was on his seat. According to PW1, the CBI officials had
first apprehended Constable Prem Pal Singh at which time a crowd
had gathered. The accused did not come out of the court room but
he was apprehended from the inside the court room. PW1 further
deposed that he does not recall whether the accused had resisted or
protested his arrest. The accused at the said time was carrying a
pistol with him. He also deposed that he cannot recall whether the
accused had resisted the attempt of the officials of the CBI, when
they were trying to bring him out of the court room. He also
deposed that he cannot recall as to whether or not the service
revolver of the accused had fired when the CBI officials tried to
snatch the pistol from the accused. According to PW1 after the
accused and Head Constable Prem Pal Singh were apprehended,
they were brought down stairs and taken to the Jama Masjid Police
post from where they proceeded to the office of CBI.
18. PW2, the then, Deputy Commissioner of Police, Central
District Delhi, deposed that he was the appointing-cum-
disciplinary authority of Sub-Inspectors as well as Head
Constables of the Delhi Police. He had accorded sanction for
prosecution as per Exhibit PW2/A, Order. In the cross examination
of PW2 deposed that he could not recall whether any draft/sanction
order was received in his office alongwith the connected papers.
He denied the suggestion that Exhibit PW2/A was not prepared as
per his directions.
19. PW3 deposed that on 06.10.1995, he was posted in the
Vigilance Department, Head Office, NDMC. On the said day, two
officials from the CBI, visited his office by around 11:a.m., met
his Senior Officer and as per the directions of the latter he as well
as PW4 Laxman Dass were directed to proceed to the office of the
CBI. As directed, he alongwith PW4 proceeded to the Office of
CBI and met PW5, S.K. Sinha, Inspector, CBI, at which time,
PW1 was also present. PW3 further deposed about the complaint
of PW1 as well as the recording of the conversation that took place
between PW1 and the accused during which time the demand was
reiterated. PW3 also deposed regarding pre-trap formalities that
were completed in the office of the CBI, pursuant to which the
currency notes treated with chemical powder wrapped in a paper
was handed over to PW1 with direction to give the same to the
accused as and when a specific demand for the same was made.
PW3 deposed that he could not recall whether the currency notes
were kept in the shirt pocket or pant pocket of PW1. PW4, Laxman
Dass, was directed to act as a shadow witness and remain with
PW1 to hear the conversation and watch the transactions. PW4
was also directed that in the event of acceptance of bribe by the
accused, the former should give a signal by placing his hands on
his head. Pursuant to the formalities being completed, they left to
the office of the CBI and proceeded to Tis Hazari Courts. He does
not remember the number of the court room to which they had
gone. However, PW1 and PW4, Laxman Dass were directed to go
ahead and contact the accused. He had been directed to sit on a
bench in the gallery outside the court room, that is, the corridor.
The members of the trap team took position near by. By about 3:15
p.m., the accused came into the corridor and entered into the court
room also which time PW1 and PW4, Laxman Dass were not
visible to him. Five minutes thereafter, he saw PW1, accused and
PW4 Laxman Dass coming out of the court room talking to each
other. Thereafter PW1 and PW4 went stairs down at which time
the accused went back into the court room. 10 to15 minutes later,
he saw Shri S.K. Peshin, DSP, running towards the court room and
signalling him to follow him. He followed S.K. Peshin, DSP.
However, it took him some time to reach the court room because
there was a crowd in the corridor. At this juncture, the prosecutor
is seen to have requested the permission of the Court to "cross
examine" the witness on the ground that the latter had resiled from
his previous statement. The request was allowed.
19.1. On further examination by the prosecutor, PW3 denied
Inspector S.K. Sinha (PW5) having recorded his statement on
17.10.1995. According to PW3, he was actually called to the
office of CBI on 17.10.1995 and Inspector S.K. Sinha had written
out a statement on his own which statement had not been read over
to him. PW3 deposed that he could not admit or deny if
phenolphthalein powder had been applied to the currency notes.
He also denied the fact that the currency notes had actually been
handed over to PW1 as it was and not after wrapping the same in a
paper. PW3 admitted that the team had gone to the corridor near
room no.253 of Tis Hazari Court. PW3 deposed that he was not
shown the matchbox by PW1 and that neither he nor PW4 had
signed on the matchbox or returned the same to PW1. He could not
recall whether Inspector Sinha had directed PW1 and PW4 to go to
chamber no.71. He denied having given such a statement to the
CBI. He also denied having given a statement to the CBI that PW1
and PW4 had returned after some time and informed that Advocate
Y.K. Sharma was not present in his chamber. He admitted that
PW1 and the shadow witness had gone to room no. 253 and that
the remaining members of the trap team had taken positions near
the said room. He denied having stated to the CBI that at about
03:15 p.m. he had seen the accused coming out of the room no.
253 and talking to PW1. He also denied having given a statement
that he had seen the accused talking to Head Constable Prem Pal
Singh. He also denied having stated that he had seen Head
Constable accepting the money wrapped in paper from PW1 with
his left hand and putting the same in the left side pocket of his
pant. He did not see PW4 giving the pre-arranged signal. He also
denied having given a statement to the effect that when the trap-
team rushed to apprehend Prem Pal Singh and the accused, he had
followed them and that he had seen Inspector, CBI, catching hold
of the accused by his wrist and Sub-inspector J.B. Singh and
Constable Man Singh catching hold of Head Constable Prem Pal
Singh by his wrist. According to PW3, at that time he was sitting
on a bench ashad been earlier directed. He had seen S.K. Peshin,
DSP moving towards the crowd. As directed by the DSP, he
followed the former and when he reached the spot, he saw the
officials of the CBI holding a Constable in uniform and other
officials of the CBI bringing the accused out of the court room, at
which time money was lying on the floor. He denied having
witnessed the officials of the CBI apprehending the accused. He
also denied having stated to the CBI that on the direction of
Inspector Sinha (PW5) he had recovered 40 currency notes of the
denomination of ₹100/- each wrapped in a plain paper from the left
side pant pocket of Prem Pal Singh, Head Constable. He also
denied having stated that as a large crowd had gathered at the spot,
the accused and Prem Pal Singh had been brought down to the
Scooter's stand near the entrance of the Tis Hazari Court for
completing the post-trap formalities. According to PW3, when he
saw the court room, it was vacant and the Judge was not at his seat.
PW3, however, admitted that the serial number of the currency
notes when compared with the number that had already been noted
in Annexure-A did tally. He admitted that on a personal search of
PW-1, a matchbox has been recovered from the former which was
seized, then wrapped in cloth, sealed and that he had signed on the
same. He denied having witnessed the accused and Head
Constable Prem Pal Singh being searched. However, he admitted
his signature in the recovery memo marked as exhibit PW3/F.
PW3 also admitted that on 29.11.1995, he had been called to the
office of the CBI and that in his presence a sealed packet
containing audio cassette had been opened. The cassette played
and it transcript prepared. He also admitted that the transcript
marked as exhibit PW3/G bears the signature. The memo that was
prepared then, that is, exhibit PW3/H also bears his signature. He
further admitted that exhibits P1 to P40 are the currency notes
which were used for the trap and thereafter recovered. He also
admitted his signature in exhibit P41 paper. However, he denied
that exhibit P41 was same paper which was used for wrapping the
currency notes while the same was given to PW1. PW3 further
deposed that exhibit P41 paper was signed by him during the post
raid proceedings. He admitted his signature in Ext. P42 matchbox,
which was the same matchbox on which he had signed during the
trap proceedings at the Tis Hazari Court. He also admitted that
exhibit P43 is the cloth pertaining to the Pulanda of the matchbox
which also bears the signature. He admitted his signature in exhibit
P45 audio cassette also. In the cross examination PW3 admitted
that when the accused was apprehended by the officials of the CBI,
one Inspector Tokas had taken the service revolver of the accused
and while it was being checked, it accidentally fired.
20. PW4, Lakshman Das, the shadow witness, deposed that
he had gone to the office of CBI about 10-12 days after the trap at
which time, PW3 Man Singh was also there. On the said date, his
statement had been recorded. However, no other proceedings took
place on the said date. PW4 deposed that he could not recall
whether on the said date the transcript of the tape recording had
been prepared. At this juncture, the prosecutor sought the
permission of the trial court to "cross examine" the witness on the
ground that he was suppressing the truth and resiling from his
previous statement, which request is seen allowed by the trial
court. On further examination by the prosecutor PW4 deposed that
he could not admit or deny as to whether he had gone to the office
of the CBI on 29.11.1995. He admitted that his statement had been
recorded by the Inspector Ved Prakash, but he could not recall if
the said statement was recorded on 29.11.1995. He admitted the
presence of PW1 on his subsequent visit to the office of the CBI.
He also admitted that on the said day a sealed packet containing
the audio cassette was opened and the same played in his presence
at which time PW1 as well as PW3 were also present. Exhibit
PW3/G is the transcript of the same which contains the signature.
He also admitted that PW3/H is the memo prepared relating to the
aforesaid proceedings and that the same also contains his
signature. He also admitted that after preparing the transcript the
audio cassette was re-sealed with the seal of CBI by the Inspector,
CBI. He also admitted that the audio cassette was re-sealed with
the seal which was brought by PW3 Man Singh to the office of the
CBI, which seal had been handed over to the latter on the date of
the trap. PW4 identified exhibits P1 to P40 currency notes which
were used for the trap and recovered from the Head Constable. He
also identified Exhibit P42 matchbox as well as P45 audio cassette.
According to PW4, Exhibit P46 is the cloth piece that was used for
sealing the audio cassette during the post-raid proceedings. He also
admitted that on 29.11.1995, exhibit P46 cloth piece had been
sealed in exhibit P47 envelope when the audio cassette had been
taken out from the cloth wrapping for preparing the transcript.
20.1 PW4 in the cross examination deposed that during the
course of the pre-raid proceedings, the telephone number of Jama
Masjid, Police Station was dialled by Inspector, CBI. The said
telephone number had not been disclosed to him during the pre-
raid proceedings. He also did not hear the telephonic conversation
that took place between PW1 and the accused. PW4 further
deposed that on the day of the trap, when he and PW1 were
waiting for the arrival of the accused, the latter without stopping to
talk to PW1 had directly gone into the court room, at which time,
the Presiding Officer of the Court was not at his seat. PW1, went
inside the court room and spoke to the accused at which time, he
was standing outside the Court room near the door at about a
distance of 1 ½ feet from PW1 and the accused and, therefore, he
could not hear the conversation that took place between them.
After the conversation between PW1 and the accused, they came
out of the Court room, at which time PW1 offered the money to
the accused but latter did not accept the same. He denied the
suggestion that the accused had not written anything on the
matchbox. He also denied the suggestion that the accused had not
given any direction to PW1 to go the chamber of a lawyer and to
hand over the money to him. He had also not accompanied PW1 to
the chamber of the lawyer. PW4 further deposed that he had seen
Head Constable Prem Pal Singh for the first time when the latter
entered into Court room. Thereafter, a second conversation took
place between PW1 and the accused outside the court room after
which the accused again went inside the court room. Thereafter
Head Constable Prem Pal Singh who was inside the court room,
came out of the court room, at which time money was given by
PW1 to the former. PW4 deposed that he does not recall and,
therefore, he can neither admit or deny whether the accused had
directed PW1 to give the money to Head Constable Prem Pal
Singh. It was after Prem Pal Singh was apprehended by the
Officers of the CBI in the corridor of the court, the accused had
been brought out of the court room, at which time he was in his
uniform and was also having his service revolver. PW4 deposed
that he cannot recall whether or not one bullet got accidently fired
from the service revolver of the accused. When the accused was
apprehended outside the court hall, the Judge was not holding
Court. From the corridor of the court hall, both the accused as well
as Prem Pal Singh were brought to the Scooter parking of the Tis
Hazari Court, Complex, where the post-raid formalities were
completed. PW4 denied the suggestion that no post raid
proceedings had been conducted in his presence or that post raid
memos do not contain his signatures.
21. PW5, the TLO, deposed that on 06.10.1995, he was
working as Inspector, Anti Corruption Branch, CBI, New Delhi, at
which time, R.K. Dutta, was the S.P., CBI, ACB, New Delhi. PW5
identified the signature of R.K. Dutta in Exhibit PW1/A complaint.
PW5 deposed that SP had given him the complaint of PW1 with an
endorsement and thereafter as directed he arranged the presence of
PW3 and PW4 for whom requisition signed by the SP was sent
through the Duty Officer. PW5, described in detail the pre-trap
proceedings, the incident that took place at Tis Hazari Court and
the formalities post trap proceedings. In the cross examination
PW5 deposed that he had not questioned or recorded the statement
of PW1's son. He had requisitioned the chemical powder from the
Malkhana and the same had been brought by the in-charge of
Malkhana. He also did not record the statement of the Advocate to
whom the money was directed to be paid by the accused. When the
accused was apprehended, was in the uniform and was carrying a
pistol. The service pistol of the accused was seized and when it
was being unloaded at the Scooter parking by Inspector R.S.
Tokas, the last round accidentally fired. This fact has been
mentioned in the recovery memo as well as in the case diary. The
pistol was deposited at the Police Station and the DCP concerned
was duly intimated. He denied the suggestion that one round from
the pistol got accidentally fired when the trap team were trying to
snatch the service revolver of the accused forcibly in the gallery of
the court premises and that the firing incident attracted a large
crowd. At the time of the incident, Head Constable Prem Pal Singh
was posted at Chandni Mahal, Police Station and the accused at
Jama Masjid, Police Station. According to PW5, the trap took
place on the second floor of the Tis Hazari Court, Delhi, and the
post trap proceedings were conducted at the Scooter stand of the
Tis Hazari Court. He admitted that no hand wash of the accused or
Prem Pal Singh had been taken.
22. PW6, the then, SHO, Karol Bagh, Police Station deposed
that in response to letter No. RO 86(A)/95/ dated 06.12.1995
received from Inspector Ved Prakash, ACB, (CBI), Delhi, he had
given Exhibit PW6/A letter regarding the details of the posting of
the accused as Sub-Inspector and also regarding the posting of
Head Constable Prem Pal Singh.
23. PW7, the then, SHO, Jama Masjid, Police Station
deposed that investigation of Crime No. 187/1995, Jama Masjid,
Police Station, had been entrusted to SI Manoj Kumar (the
accused), who was at that time posted at the said station.
24. PW8, SHO, Chandni Mahal, Police Station, deposed that
on 06.10.1995, the accused persons in FIR No. 244, 247, 248, 249,
250 and 245 were produced before the Court and that custody of
all the said persons had been entrusted to Head Constable Prem Pal
Singh.
25. On behalf of the accused, DW1, Sub-Inspector, DCP,
(Central District), Delhi Police, was examined. He produced the
file relating to the sanction for prosecution of the accused. Exhibit
DW1/A is a letter addressed to P.N. Aggarwal, D.C.P. (Central
District) under the signature of S.P., C.B.I. and Exhibit DW1/B is
the draft performa order sent by the CBI.
26. Now the question is, whether the aforesaid evidence is
sufficient to find the accused guilty of the offences charged against
him. It is true that Om Prakash Tiwari; PW1's son, and the other
members of the group of officials present along with with the
accused, when he is alleged to have gone to the residence of PW1
in the intervening night of 25.09.1995 and 26.09.1995 were not
examined. Om Prakash Tiwari, according to the prosecution, was
an accused in Crime no. 187/95, Jama Masjid, police station
relating to sale of fake university degrees. The appellant/accused
admits that he was the Investigating Officer in the said crime.
According to PW1, the accused told him that the investigation
revealed that the former was also involved in the crime, pursuant
to the same, he was taken to the Police Station. PW1 deposed that
when the demand for bribe was first made by the accused in the
Police Station, Om Prakash Tiwari was not present. Moreover, as
rightly pointed out by the trial court, Om Prakash Tiwari, in the
light of his role in the crime would have been a reluctant witness in
this case.
26.1. As far as, the non-examination of the other officials
present alongwith the accused is concerned, is also of no
consequence in this case as evidence has to be weighed and not
counted. The complainant in a case of this nature is not an
accomplice and the question to be considered is whether his
testimony can be relied on or believed to substantiate the
prosecution case of demand of the bribe. It is not always necessary
that his testimony has to be corroborated by independent evidence.
27. I have already referred to in detail the testimony of PW1
which has not been discredited in any manner and no material(s)
have been brought in to doubt his version of the story. It is also
true that PW1's son has not been examined. This also appears
immaterial since PW1 stood by his case all throughout the
proceedings. The fact that the accused was the investigating officer
in the crime relating to fake degrees and the fact that he was the
Sub-Inspector, Jama Masjid, Police Station at the relevant time has
been brought out from the materials on record. Therefore, this is
not a case, in which the accused had no connection whatsoever
with the crime that was being investigated, in which crime, PW1's
involvement was suspected.
28. It was also pointed out that the authenticity of the audio
cassette is in doubt as it was not kept in proper custody. The
transcript that has been prepared also does not tally with the
contents of the audio cassette. It is true that a small portion of the
conversation at the end is not there in the transcript. This part
however does not deal with the relevant portion dealing with the
demand. As regards, the custody and the manner it was kept, I
have already referred to the testimony of the witnesses including
that of PW3 and PW4. Though, both of them are partially hostile
to the prosecution case, they have supported the prosecution case
in material particulars. Even if, a witness is partially hostile to the
prosecution case, is no reason to disbelieve or disregard his entire
testimony, if the remaining evidence or testimony is credible.
PW3 and PW4 also speak of the recording of the conversation that
took place during the pre-trap proceedings, the recording of the
same, as well as packing and sealing of the cassette. It is true that
for preparation of the transcript, the sealed packet containing the
audio cassette was opened in the office of the CBI. But this was
done after obtaining the order of the court. It was also in the
presence of PW1, PW3 and Pw4. According to PW4, after the
transcript was prepared, the audio cassette was again packed and
sealed with the seal brought by PW3. PW4 also deposed that the
said seal had been handed over to PW3 on the day of the trap.
Nobody has a case that the sealed packet had been tampered with
during the period from the pre-trap proceedings when the cassette
had been sealed and the day on which it was opened for preparing
the transcript.
29. Here, the accused has not been able to show as to why
PW3 and PW4 should also depose falsehood against him. PW3
and PW4 supports the prosecution case to a great extent relating to
the pre-trap proceedings including the recording of the
conversation, the proceedings that took place in Tis Hazari Court
and the post trap proceedings. Even assuming for argument sake
that the audio cassette and the transcript cannot be relied on, the
question that arises is-does the absence of the same in any way
result in discarding the entire remaining materials on record and
throwing out the prosecution case. The answer would certainly
have to be in the negative in the light of the other materials on
record. The purpose for which the telephonic conversation
between PW1 and the accused was recorded appears to be to
confirm and ascertain whether the complaint given by PW1 was
actually genuine or not. The demand for the bribe was not made
for the first time when the conversation was recorded, but it was
on an earlier date, that is, the day on which PW1 had been taken to
the police station on 25.09.1995/26.09.1995. Even if the audio
cassette and transcript are ignored, there are other materials on
record, which also needs to be taken into consideration by this
Court.
30. I have already referred to in detail the testimony of the
material prosecution witnesses which is relied on by the
prosecution to prove the case. As noticed earlier, though, PW3 and
PW4 are partially hostile, they have supported the prosecution in
material particulars. Their testimony to the extent of supporting the
prosecution case can certainly be accepted (Mohan Lal v. State of
Punjab; AIR 2013 SC 2408; Lella Srinivasa Rao v. State of
A.P.; AIR 2004 SC 1720). No materials have been brought in to
disbelieve or discard their testimony. Therefore, I find no reasons
to disbelieve to them also.
31. Further, the inconsistencies in the testimonies of PW1,
PW3 and PW4 highlighted on behalf of the appellant/accused to
which I have already referred to in paragraphs 13.4 and 13.5 of this
judgment are not material and has not in any way affected the core
prosecution case. As far as the firing incident is concerned, it is
true that PW1 is silent about it. PW4 deposed that he could not
recall such an incident. PW3 and PW5 admit the same. However,
this is also immaterial because this incident is admitted by the
accused himself. In fact, a suggestion was put to PW 5 on behalf of
the accused during cross examination that the gun had accidentally
fired when the CBI team tried to snatch it from the accused. That
being the position, the silence of PW1 on this aspect or the
inconsistent version of the other prosecution witnesses is also of no
consequence.
32. Another aspect that was pointed out is regarding the
matchbox on which the accused wrote the name of the lawyer and
the chamber number in which the money was directed to be
delivered. It would certainly have been ideal, had the Investigating
Officer (IO) got the handwriting on the same examined by an
expert and opinion obtained. However, for reasons best known to
the IO, the same was not done. Defects in the investigation cannot
automatically go to the benefit of the accused or result in
automatic acquittal unless materials are shown that the evidence
brought on record is unbelievable or that the prosecution case is so
improbable that it could never have occurred. That is not the
position in the case on hand. Here again, it is pertinent to mention
that PW3 and PW4 support this aspect of the prosecution case also.
33. Initially, PW3 deposed that PW1 had not shown him the
matchbox. But on further questioning, he admitted that the
matchbox had been recovered from PW1 and that the same had
been seized and sealed. PW3 also identified exhibit P42 matchbox.
PW3 admitted his signature on the same. Likewise, PW4 also
identified Ext. P42 matchbox. It is quite interesting to note that
when PW1 was cross-examined, there is not even a suggestion
seen put to him denying the endorsements stated to have been
made by the accused on the matchbox.
34. Yet another argument advanced is the non-examination
of Advocate Y. K. Sharma or any of the members of the public or
the court staff that were present on the day in the court premises,
also cast serious doubt of the prosecution case. According to PW1,
the accused had first instructed him to deliver the money to the
aforesaid advocate. In such circumstance, the prosecution cannot
be expected to examine such a person as their witness as there is
no likelihood of him supporting the prosecution case. The non-
examination of said witness has also not affected the prosecution
case because as stated earlier PW3 and PW4, who are in no way in
inimical terms with the accused has supported the prosecution case
in all material particulars. Their testimony corroborates the
testimony of the remaining prosecution witnesses, who also stood
by the prosecution case. Hence, I find no reason(s) to disbelieve
them or discard their testimony.
35. Further referring to Ext. PW1/A complaint and the
Section 161 statement as well as the testimony of PW1, it was
argued that there are contradictions in his version. This argument
is also liable to be rejected because a statement under Section 161
Cr.P.C. cannot be used for any purpose other than for the purpose
of contradiction. The statements made under Section 161 are
statements made to the police during the course of investigation
and the same cannot be used except for the purpose stated in the
proviso to the Section. Under the proviso to Section 162 (1)
Cr.P.C., such statements can be used only for the purpose of
contradicting a prosecution witness in the manner indicated in
Section 145 of the Evidence Act and for no other purpose. They
cannot be used for the purpose of seeking corroboration or
assurance for the testimony of the witness in Court. (See
Tahsildar Singh v. State of U.P., AIR 1959 SC 1012; Satpal v.
Delhi Administration, 1976 (1) SCC 727 and Delhi
Administration. v. Lakshman Kumar 1985 KHC 741: (1985) 4
SCC 476).
36. Further, no contradictions have been brought out or
proved in the manner contemplated under law. The procedure for
contradicting a witness is by resort to Section 145 of the Evidence
Act. Section 145 is in two parts :- the first part enables accused to
cross examine a witness as to the previous statement made by him
in writing or reduced to writing without such writing being shown
to him; the second part deals with a situation where the cross
examination assumes the shape of contradiction: in other words,
both parts deal with cross examination; the first part with cross
examination other than by way of contradiction, and the second
with cross examination by way of contradiction only. Resort to
Section 145 would only be necessary if the witness denies that he
made the former statement. In that event, it would be necessary to
prove that he did, and if the former statement has been reduced to
writing, then Section 145 requires that his attention must be drawn
to those parts which are used for the contradiction. But that
position does not arise when the witness admits the former
statement. In such a case, all that is necessary is look to the former
statement of which no further proof is necessary because of the
admission that it has been made. The procedure prescribed is that,
if it is intended to contradict a witness by the writing, his attention
must, before the writing can be proved, be called to those parts of
it which are to be used for the purpose of contradicting him. His
attention can be drawn to that part of the statement made before
the court which contradicts his statement in the witness box. If he
admits his previous statement, no further proof is necessary; If he
does not admit, the practise generally followed is to admit it
subject to proof by the police officer (See Tahasildar Singh
(supra) and State of Kerala versus Thomas, 2005 KHC 1823 :
2005 (4), KLT SN 103).
37. The aforesaid procedure is not seen followed in the case
and hence, the appellant/accused cannot take advantage of the
'contradictions' in the statement of the witness.
38. Another argument advanced is that the mandatory
provisions of the CBI manual was failed to be complied with,
which is yet another defect in the prosecution case. The Apex
Court in the Constitution Bench decision in Lalita Kumari v.
Govt. of U.P., 2013(4) KHC 552 : (2014) 2 SCC 1 has held that
the Crime Manual of the CBI is not a Statute and has not been
enacted by the legislature. It is a set of administrative orders issued
for internal guidance of the CBI officers. It cannot supersede the
code. Therefore, even assuming that there was violation(s) of the
Manual, that also cannot go against the prosecution. (See also
State of Rajasthan v. Ramsarai, 1964 KHC 568, AIR 1964 SC
1361).
39. In the light of the materials on record, I do not find any
reason to disbelieve the prosecution case. Hence, I find no
infirmity in the impugned judgement calling for an interference by
this court.
40. In the result, the appeal is dismissed. Application(s), if any,
pending shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
FEBRUARY 02, 2026
p'ma/rs/abp
