Interim Order 14

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF Ms. KIRAN BANSAL, SPECIAL JUDGE
(PC ACT) (ACB01), RADC, NEW DELHI.
CC No. 35/2021
FIR No. 09/2009
PS : ACB
State Vs Rakesh Vaid etc.
24.02.2022
ORDER ON CHARGE
1. Brief facts of the case are that on 27.03.2009, a sting operation was
conducted by the complainant Sh. Jitender Sharma who deals in auto
rickshaw sale and purchase, at Transport Authority, Burari. It is stated that
25 autorickshaw files of the complainant were pending for clearance at
Transport Authority, Burari and therefore, the complainant went there and
came to know that without giving advance money/bribe money to the
officials of Transport Authority, his files would not be cleared. Thereafter,
the complainant approached the ACB where he was advised to make a sting
operation. It is further stated that the complainant thereafter, made a sting
operation at Transport Authority, Burari and submitted the recording with
the ACB. It is further stated that as per the video recording, the complainant
Sh. Jitender Sharma met one PLTI namely Rakesh Vaid regarding clearance
of his 25 autorickshaw files, who introduced the complainant to Sanjay at
the same time and the complainant met Sanjay outside the office of accused
Rakesh Vaid. Thereafter, Sanjay telephonically talked to accused Rakesh
Vaid and after receiving directions asked the complainant to deliver
whatever money he had brought as advance for his work. It is stated that the
complainant Jitender Sharma delivered him Rs.5,000/ which was accepted
by Sanjay as bribe money and this transaction was recorded in the sting
operation. However, the amount demanded by the accused was Rs.6,000/
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per file. It is further stated that from the contents of the video recording and
from the enquiry conducted, it is revealed that there is clear evidence of
corruption against accused Rakesh Vaid who was posted as inspector at
Transport Authority, Burari and whose tout Sanjay had accepted bribe
amount of Rs.5,000/ from the complainant and therefore, an offence U/s
7/8/13 PC Act read with section 120B IPC is made out against accused
Rakesh Vaid and Sanjay and therefore, the present FIR was registered.
After registration of the FIR, investigation was entrusted to Insp. Santosh
Kumar who recorded the statements of the complainant and other witnesses.
Both the accused persons were arrested and their mobile phones were seized
through their personal search memos alongwith other articles. During the
course of investigation, sample specimen voice of the accused persons were
obtained at FSL Rohini on 30.03.2009 and the sample voice alongwith
question voice audio/video CDs were sent to the FSL, Rohini for
comparison and examination and the FSL result was received from
FSL, Rohini on 09.06.2010 as per which the result was positive that the
voice of exhibit of speakers marked ExhibitQ1 and ExhibitS1 are the
voice of same person i.e. Rakesh Vaid and the voice exhibit of speaker
marked ExhibitQ2 and ExhibitS2 are the voice of same person i.e.
Sanjay Kumar. It is further stated that during the course of investigation,
the sample specimen voice of the complainant Jitender Sharma also obtained
at FSL, Rohini on 02.04.2012 and the same alongwith the question voice
were sent to FSL, Rohini for comparison and examination and the result of
same was received on 24.04.2012 with the opinion that the voice of exhibit
of speaker marked ExhibitQ3 and ExhibitS3 are of the same person i.e.
Jitender Kumar Sharma. It is further stated that the biodata and posting
order of accused Rakesh Vaid was obtained. During the course of
investigation, CDRs, CAFs alongwith location chart of mobile phone
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numbers of accused persons were also obtained which revealed that accused
Rakesh Vaid was in touch with accused Sanjay Kumar on the day of sting
operation. During the course of investigation, Transport Department has
provided 23 files of TSRs which were purchased by the complainant. After
completion of the investigation, prosecution sanction against the accused
Rakesh Vaid was obtained and thereafter, the chargesheet for the offences
U/s 7/8/13 PC Act read with section 120B IPC has been filed against the
accused persons namely Rakesh Vaid and Sanjay Kumar.
2. I have heard Ld. Addl. PP for the State and Ld. Counsel for the accused and
also gone through the material placed on record.
3. Written arguments filed on behalf of both the accused persons have also
been perused. Ld. Counsel for the accused persons have relied upon
following judgments :
(i) State Vs Mukesh Kumar & Ors., MANU/DE/1274/2018.
(ii) Satish Mehra Vs Delhi Administration & Anr., (1996) 9 SCC 766.
4. Ld. counsel for accused has argued that the incident as alleged in the FIR is
stated to be of 25.09.2008 whereas the FIR was registered on 27.03.2009
and there has been an unexplainable delay in registration of FIR. However,
any delay in lodging FIR is not a sufficient ground for discharge.
5. It is also argued that as per the story of prosecution, accused had demanded
for clearance of 25 files related to his auto rickshaws. However, the
prosecution has failed to point out any files being dealt with by the accused
Rakesh Vaid during the relevant period.
6. It is a settled law that to attract a charge under Section 7 and 13 of P.C. Act,
it is not necessary that the accused should have actually done the work for
which the bribe was demanded. In Gopal Singh Vs CBI, Crl. Appeal No.
858/2001, Hon'ble High Court of Delhi observed that :
“It has to be added that in cases under Prevention of
Corruption Act, the prosecution is under no
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obligation to prove that a public servant demanding
bribe was in a position to help the person from
whom the bribe was being demanded. The
prosecution succeeds the moment it is shown that a
public servant had accepted some money from
someone, which was not legal remuneration, the
presumption under Section 20 of the Act comes into
play shifting the burden upon the public servant to
explain as to why he had received the money. A
public servant may misguide, mislead or befool his
victim to pay him illegal gratification knowing fully
well that he is not in a position to help him and as
such, it can be no defence for him to say that since he
was not in a position to help the complainant/victim,
the money received by him does not amount to illegal
gratification. Explanation (d) and (e) to Section 7 of
the Prevention of Corruption Act squarely cover such
cases.”
7. In Inder Dayaldas Advani Vs State of Bombai, AIR 1952, Bom 58, it has
been held that :
“It is not necessary that the act for which the bribe is
given, be actually performed. A representation by a
public servant that he has done or he will do an act,
impliedly includes a representation that it was or is
within his power to do that act”
8. Also in Dr. V. Sebastian Vs State, 1988 Cri L.J. 1150, it has been
observed that :
“A public servant may have power to do certain
official acts by virtue of the rank he holds as a public
servant. He may get other powers by virtue of the
office which he holds. When he exercises either of the
powers, his act is official. No line of distinction need
be made as between the acts in exercise of a
particular office and acts in exercise of his position as
a public servant. If the act is done in his official
capacity as distinguished from his purely private
capacity, it amounts to official act. Even if it does not
come within the scope of the functions of his office,
the act does not cease to become official act.”
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9. In view of the above judgments, it is clear that there is no need to prove that
the accused had any motive or occasion to demand bribe and mere
acceptance of bribe amount is sufficient to attract the charge for the offence.
10. It is also argued that the first sanction was obtained on 21.07.2010 and
thereafter, second sanction was obtained on 01.04.2021 on the ground that
new facts have come up in the present case. It is also argued that there was
nothing on record to suggest that the second sanction was obtained on the
basis of new facts. However, perusal of the file reveals that the FSL results
in the present case are dated 09.06.2010 and 24.04.2012. The FSL results
were also required to be placed before the sanctioning authority which were
not placed earlier at the time of obtaining first sanction and therefore, the
prosecution was dutybound to obtain sanction on the basis of entire facts
and documents.
11. It is also argued that audiovideo recordings cannot be taken into
account as the recording gadgets have not been seized by the IO. It is also
stated that the videography in the CD is not in continuity and contains
random video recordings. Moreover, both the accused persons are not seen
together in one frame at any point of time. It is also argued that the date of
the files of the recordings are of 1980 and thus, the recordings are not of
25.09.2008. It is also argued that no proper/admissible certificate U/s 65B
Indian Evidence Act has been provided. Also, there are more than one
transcriptions on record.
12. The court has perused the file as well as the relevant audiovideo
recordings. Even if for the sake of arguments, the audiovideo recordings
are taken to be inadmissible evidence for technical reasons still there is
ample evidence in the form of statement of the complainant U/s 161 Cr.P.C.
to frame charge against the accused persons.
13. It is also argued that the mobile phone no. 9953120056 is not in the
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name of accused Sanjay Kumar but in the name of one Amrinder Singh,
thus, both the accused persons cannot be connected together. The case of
the prosecution is that accused Sanjay Kumar was using the mobile phone
no. 9953120056.
14. As per the personal search memo of accused Sanjay Kumar, one mobile
phone make Fly having number 9953120056 was seized from him. Accused
Sanjay Kumar had also moved an application on 29.04.2009 for release of
his personal search articles in which he had also sought release of the said
mobile phone of make Fly having SIM card no. 9953120056. Though the
said mobile phone was not released by the concerned Ld. Special Judge,
vide order dated 04.05.2009 as it was stated that the said mobile phone with
SIM card is crucial piece of evidence. The fact that the mobile containing
the relevant SIM was seized from the accused during his personal search and
accused had also sought its release, is sufficient at this stage of framing of
charge to proceed further.
15. Moreover, also, as per the FSL report, the sample voices of accused
Rakesh Vaid and Sanjay Kumar have matched with the questioned voices.
The sample voice of complainant Jitender Sharma has also matched with the
questioned voice and therefore, at this stage, there is sufficient material on
record to proceed further and frame charge against the accused persons
namely Rakesh Vaid and Sanjay Kumar.
16. At the stage of charge, the court is not to see the probative value of the
evidence nor the sufficiency of material is to be gone into. Whether the trial
would eventually result into conviction of the accused or not is also not
material. It is settled legal position that prosecution is required to prove its
case beyond reasonable doubt. However, at the stage of framing of charge,
the Court has to see whether prima facie case is made out against the
accused. In this regard, it is held in Amit Kapoor Vs. Ramesh Chander,
2012 (9) SCC, 460 as under:
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“19. At the initial stage of framing of a charge,
the court is concerned not with proof but with
a strong suspicion that the accused has
committed an offence, which, if put to trial,
could prove him guilty. All that the court has
to see is that the material on record and the
facts would be compatible with the innocence
of the accused or not. The final test of guilt is
not to be applied at that stage.”
17. Section 227 of the new Code confers power on the Court to discharge an
accused at the threshold if upon consideration of the records and documents,
the Court find that “there is not sufficient ground” for proceeding against the
accused. In other words, the consideration of the record and document at
that stage is for the limited purpose of ascertaining whether or not there is
sufficient ground for proceeding against the accused. If the Court comes to
a conclusion that there is sufficient ground to proceed, it would frame a
charge under Section 228. Whether the materials at the hands of the
prosecution are sufficient or not are matters for trial.
18. In view of the aforesaid discussion and on the basis of chargesheet read
alongwith all the documents, prima facie case for the offences under section
120B IPC, section 7&8 of PC Act read with Section 120B IPC as well as
Section 13(1)(d) and 13(2) of Prevention of Corruption Act r/w Section
120B IPC is made out against accused persons Rakesh Vaid and Sanjay
Kumar. Accordingly, charge for the aforesaid sections be framed against
them.
Announced in the open court
on this 24th February 2022.
(KIRAN BANSAL)
Special Judge
(PC Act) (ACB-01)
RADC, New Delhi
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