Interim Order 8

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA,
SPECIAL JUDGE
(PC ACT) (ACB-01), RADC, NEW DELHI.
CC No. 30/2022
FIR No. 46/2014
PS : ACB
State Vs. Rajesh Kumar Sharma
04.11.2022
ORDER ON CHARGE
1. Brief facts of the case are that on 13.06.2014, FIR of this case was
registered on the tehrir given by Insp. Satyender Dhull wherein it has
been stated that an FIR No.25/14, PS ACB, U/s 7/13(1)(d) PC Act was
registered on the complaint of Sh. Deepak Gupta, Chief Engineer,
PWD against nine officials of PWD Electric Division, M-352. It is
stated that the said complaint was based on sting operation aired by
India News Channel on 22.03.2014 at 08:00 pm and repeat telecast of
the same was aired on 23.03.2014 at 01:00 pm in which these officials
have been shown demanding/accepting bribe. It is further stated that
these stings were conducted at different times and different places and
the circumstances of each case are different and therefore, after seeking
legal opinion from prosecution branch, separate FIRs were registered
for each incident/sting operation for the purpose of further
investigation. Thereafter, separate case i.e. the present FIR was
registered in respect of sting of the present accused namely Rajesh
Kumar Sharma, Assistant Accounts Officer E.E. (ELEC) M-352 at
BSA Hospital U/s 7/13 (1)(d) PC Act and further investigation of this
case was entrusted to Insp. Jarnail Singh. During the course of
investigation, the report of FSL was obtained in which it has been
opined that video files contained in raw footage contain 28 video shots
and there is no indication of alteration in the identified video shots on
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the basis of frame by frame examination. The transcription of DVD
was prepared. As per conversation some bills of the sting video maker
were pending with accused Rajesh Kumar Sharma and he was pleading
with the accused to clear the same and accused was also seen putting
something in his coat pocket, which Sh. Sunil Kumar Chaudhary
claims that accused is putting bribe of Rs.1,500/- given by him. The
voice sample of complainant Sunil Chaudhary as well as of accused
Rajesh Kumar Sharma after taking consent were sent to FSL and it was
opined that the voice exhibits of complainant Sunil Chaudhary and of
accused Rajesh Kumar Sharma are same as voice on sting video. It is
case of the prosecution that complainant Sunil Chaudhary was running
business in the name and style of Hari Om Electronics and he used to
obtain contracts from PWD. Accused Rajesh Kumar Sharma was
working as AAO in the office of Executive Engineer (Electrical), M-
352 and at the time of sting first and final bill of complainant firm was
pending but release of payment of Rs.2,42,427/- was kept pending by
accused deliberately and same was released on 21.03.2014 through
cheque only when complainant had given bribe of Rs.1,500/- to the
accused. Sanction to prosecute accused U/s 19 of PC Act was obtained
and after completion of investigation chargesheet was filed.
2. I have heard arguments of Sh. Vikash Kumar, Ld. Addl. PP for the
State and also of Sh. Amit Khanna, Ld. Defence Counsel for the
accused.
3. Ld. Defence counsel argued that there is no specific demand of
bribe by the accused in the sting operation and as per the case of the
prosecution the accused asked the complainant “dena duna aapki
shradha par hai, kuch kahne ki baat nahi”. Ld. Defence counsel
argued that two transcripts are on record and in one of the transcript
these words are not mentioned. It has been submitted that the
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transcript itself shows that the provocative chat between the
complainant and accused and admittedly the correspondent/reporter
Mr. Farooque Newazi was not present in the room when the sting
operation was conducted by the complainant.
4. Per contra, Ld. Addl. PP for the State argued that apart from CD of
sting operation complainant has specifically stated that accused was
not clearing his pending bill regarding the work done for want of bribe
and he cleared the bill only after receiving bribe of Rs.1,500/-. Ld.
Addl. PP for the State vehemently contended that the voice sample of
complainant as well as of accused are matched with the voices
recorded in the CD of sting operation. It has been submitted that
accused is seen while accepting and keeping the bribe amount in his
pocket. Ld. Addl. PP for the State further argued that at the stage of
charge court has to see prima facie case and not the probative value of
the evidence produced by the prosecution.
5. In Settu Vs. State of NCT of Delhi, CRL. REV.P. 13/2022 dated
10.03.2022, Hon’ble High Court has observed that :
“It is well settled law that at the stage of framing
of charge, the court has power to shift and weigh
the evidence for the limited purpose of finding out
whether or not a prima-facie case against accused
has been made out. When the material placed
before the court discloses great suspicion against
the accused which has not been properly
explained, the court will be justified in framing
charge. No roving inquiry into the pros and cons
of the matter and evidence is not to be weighed as
if a trial was being conducted. If on the basis of
materials on record a court could come to the
conclusion that commission of the offence is a
probable consequence, a case of framing of
charge exists.
9.To put it differently, if the courts were to think
that the accused might have committed the offence
it can frame a charge, though for conviction the
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conclusion is required to be that accused has
committed the offence. At the stage of framing of a
charge, probative value of the materials on
records cannot be gone into, the material brought
on record by the prosecution has to be accepted as
true at that stage. The truth, veracity and effect of
the evidence which the prosecutor proposes to
adduce are not to be meticulously judged, nor any
weight is to be attached to the probable defence of
the accused. It is not obligatory for the judge at
that stage of the trial to consider in any detail and
weigh in a sensitive balance whether the facts, if
proved, would be incompatible with the innocence
of the accused or not.
10.The standard of test and judgment which is to
be finally applied before recording a finding
regarding the guilt or otherwise of the accused is
not exactly to be applied at this stage of deciding
the matter under Section 227 or under Section
228 of the Code. But at the initial stage, if there is
a strong suspicion which leads the court to think
that there is ground for presuming that the
accused has committed an offence, then it is not
open to the court to say that there is no sufficient
ground for proceeding against the accused. While
deciding the question of framing of charge in a
criminal case, the court is not to apply exactly the
standard and test which it finally applies for
determining the guilt or otherwise.
11. What is required to be seen is whether there
is strong suspicion which may lead to the court
to think that there is ground for presuming that
the accused has committed an offence. The
above proposition is supported with law laid
down by the Hon'ble Apex Court and Hon'ble
High Court reported as “Union of India vs
Prafulla Kumar”, AIR 1979 Supreme Court 366,
“State of Maharashtra and others vs Som Nath
Thapa and other” JT 1996 (4) SC 615, “State of
Bihar vs RameshSingh”, AIR 1997 SC 2018:
(1997 CRI LJ 1606), “Umar Amdula Sakoor
Sorathia vs. Intelligence Officer Narcotic
Control Bureau” JT 1999 (5) SC 394, “Kalu Mal
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Gupta vs. State” 2000 I AD Delhi 107.”
6. It is a 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 only 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:
“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.”
7. Thus, 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.
8. Complainant has specifically stated in his statement that accused
Rajesh Kumar Sharma used to demand 1.5% commission on all the
pending bills and without accepting bribe, he was not processing his
bills, therefore, he conducted the sting operation with Sh. Farooque
Newazi and he had received bribe of Rs.1,500/- i.e. 15 notes of
Rs.100/- denomination as commission/bribe from him and this fact can
be seen in the CD of sting operation at 8:12 minutes. Regarding the
plea of Ld. Defence counsel that accused has not made specific
demand of bribe and as per the case of prosecution, he only asked
“dena duna aapki shradha par hai, kuch kahne ki baat nahi”, the
complainant has specifically stated that accused used to demand bribe
of 1½ % of bribe/commission for processing each bill of the
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complainant and pursuant to that demand, he accepted bribe of
Rs.1,500/- for processing his pending bill. The competent authority has
granted sanction u/s 19 of PC Act against accused Rajesh Kumar
Sharma.
9. After considering the rival submissions as well as going through
the CD of sting operation, transcripts, chargesheet and other material
placed on record, I am of the considered opinion that prima facie a case
for the offences under section 7 & 13 (1) (d) of Prevention of
Corruption Act punishable under Section 13 (2) of PC Act is made out
against accused Rajesh Kumar Sharma. Accordingly, charge for the
aforesaid sections be framed against him.
Announced in the open court
on 4th November 2022.
(Sanjeev Kumar Malhotra)
Special Judge, PC Act (ACB-01)
RADC, New Delhi.
04.11.2022
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