Interim Order 4

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: IN THE COURT OF SPECIAL JUDGE (PC ACT) (ACB)-02,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI
Presided Over by:- Ashish Aggarwal, DHJS
CC No.49/2024
State v Ishwar Pal Singh & Ors.
FIR No.26/2010
PS Anti-Corruption Branch
09.10.2024
Present : Sh. Manoj Kumar Garg, Ld. PP for State.
1. This is a fresh charge-sheet. The charge-sheet and accompanying
documents have been perused and arguments have been heard.
2. A careful scrutiny is undertaken in line with the mandate given to Courts by
successive decisions of Hon’ble Supreme Court. One such decision, to
quote, is the case of Joshinder Yadav v State of Bihar, Crl. Appeal No. 259
of 2009 decided by Hon’ble Supreme Court on 20 January, 2014, in which
it was observed as follows:
“In a criminal trial the Investigating Officer, the
Prosecutor and the Court play a very important role.
The court’s prime duty is to find out the truth. The
Investigating Officer, the Prosecutor and the Courts
must work in sync and ensure that the guilty are
punished by bringing on record adequate credible
legal evidence. If the Investigating Officer stumbles,
the Prosecutor must pull him up and take necessary
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steps to rectify the lacunae. The Criminal Court must
be alert, it must oversee their actions and, in case, it
suspects foul play, it must use its vast powers and
frustrate any attempt to set at naught a genuine
prosecution.”
3. The genesis of this case lies with a complaint which was submitted by
Shakil Ahmad to the Additional Commissioner of Police, Anti-Corruption
Branch. As per the said complaint, the complainant and Sh. Irshad Khan,
when faced with a demand for bribe, went to Anti-Corruption Branch for
assistance. Instead of laying a trap and trying to catch the officers of MCD
red-handed, the Anti-Corruption Branch sent away the complainant asking
him to record the episode on a spy-camera.
4. When a helpless citizen who is a victim of a crime knocks at the door of a
law enforcement agency, he does so with the hope that the agency will
exercise its powers provided under the law and will provide redress. He
expects this because this is the statutory duty of the law enforcement
agency for which officers of the agency are being paid their salaries out of
tax payers’ money. Such an informant is required to be treated as one who
is helping the police perform its job of controlling crime. Informers are the
ears and eyes of the police.
5. A person who takes his complaint to the Anti-Corruption Branch expects
the Branch to reassure him and to use its resources to help him obtain
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justice by finding out the facts, gathering evidence and prosecuting the
offenders. On receiving a complaint, it is not the whims of the Anti-
Corruption Branch whether or not to initiate action.
6. The Hon'ble Supreme Court has stressed that registration of FIR, on
receipt of information of commission of cognizable offence, is mandatory.
As an exception, the Hon'ble Supreme Court has given liberty to hold a
preliminary inquiry within the prescribed time frame. It has also been
consistently held that when any police officer regardless of rank and cadre
neglects the aforesaid duty, he must be proceeded against through stern
departmental action.
7. In the present case, when the Anti-Corruption Branch received information
of the commission of the offence, it did not register an FIR. It also did not
initiate any preliminary inquiry. Instead, it drove away the informant leaving
him to fend for himself.
8. When a victim of a crime is pushed back, not only does he lose faith in the
police system, he is left without protection, support and justice. There is no
gainsaid that private individuals would find it hard to gather evidence and
this will also expose them to the risk of harm. Refusal of the then Additional
Commissioner of Anti-Corruption Branch to take up the complaint and
instead directing the complainant to himself collect evidence was clearly
calculated to subject him to mental and emotional distress, so that it
exacerbates feelings of helplessness, anxiety and frustration.
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9. A person who takes information of a crime to the police and is left to lick
his wounds by police officers is bound to feel discouraged from seeking
help in the future and this will only result in under-reporting of crime and
increase in acts of corruption. Some victims may try to take matters into
their own hands seeking vigilante justice, leading to further escalation and
lawlessness. On the other hand, a perpetrator may get away scot free and
he will then unhesitatingly continue with his corrupt ways. For all of this, it
is the inaction and indifference of the Anti-Corruption Branch that is
responsible.
10. In this case, after the victim was forced to collect evidence by himself, he
did take those steps and he tried to obtain evidence. He then submitted the
evidence to the Anti-Corruption Branch. Despite this, the officers of Anti-
Corruption Branch did not act for a long time subsequently.
11. The end result is that evidence came to be destroyed at different levels.
The investigating officers did not bothered to take over the spy camera in
which the complainant made the recordings. Eventually, in the year 2012,
the device was reported to have been lost/stolen. Call Detail Record was
not collected in time which also later became unavailable.
12. When the victim submitted a complaint to MCD, instead of trying to initiate
disciplinary action against the erring officers, the supervising MCD officers
handed over the complaint to the offenders who then advanced threats to
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the victim.
13. Not only this, in the final police report that has been filed, the names of
police officers against whom specific allegations were made and which
allegations are supported by eye-witness account have not even been
arraigned as accused. I have asked Ld. Public Prosecutor the reason why
police officers have not made accused persons inspite of there being
specific allegations of taking bribe. It is pointed out by Ld. Public
Prosecutor that the accusation of demand of bribe is supported by eye
witness account and statement dated 07.06.2010 of Irshad. It is appalling
that the statement dated 07.06.2010 is not on the judicial record. It appears
that the statement dated 07.06.2010, copy of which is in the police file, has
been deliberately withheld from the Court in order to protect the offending
police officers so that the prosecution can justify its refusal to array them
as accused.
14. This is the most brazen manner in which corrupt police officers are being
protected by the Anti-Corruption Branch. Documents are being deliberately
concealed and offenders have been removed from the list of accused
persons. This shows a shoddy state of affairs in the Branch, which is now
resorting to unashamedly and openly provide patronage to corrupt officers
by hiding incriminating evidence. Would it be expected that the Court
searches the office of Anti-Corruption Branch for documents that they may
withhold in order to protect the offenders.
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15. The record contains a statement dated 15.05.2013 of Irshad Khan in
which it is mentioned that the hidden camera was snatched by a police
officer named Roop Singh. This part also has been conveniently unheeded
by the Anti-Corruption Branch.
16. Vital evidence has been allowed to be lost. Not only this, an opportunity of
catching the offenders was allowed to wither away. This appears to have
been deliberately done with a view to let the accused persons get away
scot free. The offence was allowed to have been committed. The device
was not seized. The complainant was left was without remedy. Eventually,
the complainant was forced to approach the Municipal Corporation of Delhi
because the Anti-Corruption Branch failed to perform its duty.
17. For a span of fourteen years, the Anti-Corruption Branch let the case
remain at the stage of investigation. The Anti-Corruption Branch obviously
was not interested in finding out the offending police officers who are
referred to in the complaint. It is also not known as to who is the Additional
Commissioner of Police who had received the initial complaint and yet
failed to act on it, who are the persons responsible for not providing a
functional device for the recordings, who did not collect the evidence and
devices in time which led to loss of evidence. It is also relevant to note that
the Anti-Corruption Branch did not file the charge-sheet for over a decade
due to which now the complainant is stated to have expired and the Court
is deprived of eye-witness account to reconstruct events and find out the
truth.
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18. This Court is reminded of the observations of Hon’ble Supreme Court in
the decision of Zahira Habibullah Sheikh & Anr vs State of Gujarat & Ors
AIR 2006 SC 1367, where it was observed as follows:
“Right from the inception of the judicial system it has
been accepted that discovery, vindication and
establishment of truth are the main purposes
underlying existence of Courts of justice. The
operative principles for a fair trial permeate the
common law in both civil and criminal contexts.
Application of these principles involves a delicate
judicial balancing of competing interests in a criminal
trial, the interests of the accused and the public and to
a great extent that of the victim have to be weighed not
losing sight of the public interest involved in the
prosecution of persons who commit offences. In 1846,
in a judgment which Lord Chancellor Selborne would
later describe as "one of the ablest judgments of one
of the ablest judges who ever sat in this court," Vice-
Chancellor Knight Bruce said :
“The discovery and vindication and establishment of
truth are main purposes certainly of the existence of
Courts of Justice; still, for the obtaining of these
objects, which, however, valuable and important,
cannot be usefully pursued without moderation,
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cannot be either usefully or creditably pursued unfairly
or gained by unfair means, not every channel is or
ought to be open to them. The practical inefficacy of
torture is not, I suppose, the most weighty objection to
that mode of examination. Truth, like all other good
things, may be loved unwisely - may be pursued too
keenly - may cost too much."
The Vice-Chancellor went on to refer to paying "too
great a price .... for truth". This is a formulation which
has subsequently been frequently invoked, including
by Sir Gerard Brennan. On another occasion, in a joint
judgment of the High Court, a more expansive
formulation of the proposition was advanced in the
following terms: "The evidence has been obtained at a
price which is unacceptable having regard to the
prevailing community standards."
Restraints on the processes for determining the truth
are multi-faceted. They have emerged in numerous
different ways, at different times and affect different
areas of the conduct of legal proceedings. By the
traditional common law method of induction there has
emerged in our jurisprudence the principle of a fair
trial. Oliver Wendell Holmes described the process :
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"It is the merit of the common law that it decides the
case first and determines the principles afterwards .....
It is only after a series of determination on the same
subject- matter, that it becomes necessary to
"reconcile the cases", as it is called, that is, by a true
induction to state the principle which has until then
been obscurely felt. And this statement is often
modified more than once by new decisions before the
abstracted general rule takes its final shape. A well
settled legal doctrine embodies the work of many
minds, and has been tested in form as well as
substance by trained critics whose practical interest is
to resist it any every step."
The principle of fair trial now informs and energizes
many areas of the law. It is reflected in numerous rules
and practices. It is a constant, ongoing development
process continually adapted to new and changing
circumstances, and exigencies of the situation -
peculiar at times and related to the nature of crime,
persons involved - directly or operating behind, social
impart and societal needs and even so many powerful
balancing factors which may come in the way of
administration of criminal justice system. As will
presently appear, the principle of a fair trial manifests
itself in virtually every aspect of our practice and
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procedure, including the law of evidence. There is,
however, an overriding and, perhaps, unifying
principle. As Deane, J. put it:
It is desirable that the requirement of fairness be
separately identified since it transcends the context of
more particularized legal rules and principles and
provides the ultimate rationale and touchstone of the
rules and practices which the common law requires to
be observed in the administration of the substantive
criminal law."
This Court has often emphasised that in a criminal
case the fate of the proceedings cannot always be left
entirely in the hands of the parties, crime being public
wrong in breach and violation of public rights and
duties, which affect the whole community as a
community and are harmful to the society in general.
The concept of fair trial entails familiar triangulation of
interests of the accused, the victim and the society
and it is the community that acts through the State and
prosecuting agencies. Interests of society is not to be
treated completely with disdain and as persona non
grata. Courts have always been considered to have an
over-riding duty to maintain public confidence in the
administration of justice - often referred to as the duty
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to vindicate and uphold the 'majesty of the law'. Due
administration of justice has always been viewed as a
continuous process, not confined to determination of
the particular case, protecting its ability to function as
a Court of law in the future as in the case before it. If a
criminal Court is to be an effective instrument in
dispensing justice, the Presiding Judge must cease to
be a spectator and a mere recording machine by
becoming a participant in the trial evincing intelligence,
active interest and elicit all relevant materials
necessary for reaching the correct conclusion, to find
out the truth, and administer justice with fairness and
impartiality both to the parties and to the community it
serves. Courts administering criminal justice cannot
turn a blind eye to vexatious or oppressive conduct
that has occurred in relation to proceedings, even if a
fair trial is still possible, except at the risk of
undermining the fair name and standing of the judges
as impartial and independent adjudicators. The
principles of rule of law and due process are closely
linked with human rights protection. Such rights can
be protected effectively when a citizen has recourse to
the Courts of law. It has to be unmistakably
understood that a trial which is primarily aimed at
ascertaining the truth has to be fair to all concerned.
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There can be no analytical, all comprehensive or
exhaustive definition of the concept of a fair trial, and it
may have to be determined in seemingly infinite
variety of actual situations with the ultimate object in
mind viz. whether something that was done or said
either before or at the trial deprived the quality of
fairness to a degree where a miscarriage of justice
has resulted. It will not be correct to say that it is only
the accused who must be fairly dealt with. That would
be turning a Nelson's eye to the needs of the society
at large and the victims or their family members and
relatives. Each one has an inbuilt right to be dealt with
fairly in a criminal trial. Denial of a fair trial is as much
injustice to the accused as is to the victim and the
society. Fair trial obviously would mean a trial before
an impartial Judge, a fair prosecutor and atmosphere
of judicial calm. Fair trial means a trial in which bias or
prejudice for or against the accused, the witnesses, or
the cause which is being tried is eliminated. If the
witnesses get threatened or are forced to give false
evidence that also would not result in a fair trial. The
failure to hear material witnesses is certainly denial of
fair trial. A criminal trial is a judicial examination of the
issues in the case and its purpose is to arrive at a
judgment on an issue as to a fact or relevant facts
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which may lead to the discovery of the fact issue and
obtain proof of such facts at which the prosecution
and the accused have arrived by their pleadings; the
controlling question being the guilt or innocence of the
accused. Since the object is to mete out justice and to
convict the guilty and protect the innocent, the trial
should be a search for the truth and not a bout over
technicalities, and must be conducted under such
rules as will protect the innocent, and punish the guilty.
xxx
Broader public and societal interests require that the
victims of the crime who are not ordinarily parties to
prosecution and the interests of State represented by
their prosecuting agencies do not suffer even in slow
process but irreversibly and irretrievably, which if
allowed would undermine and destroy public
confidence in the administration of justice, which may
ultimately pave way for anarchy, oppression and
injustice resulting in complete breakdown and collapse
of the edifice of rule of law, enshrined and jealously
guarded and protected by the Constitution.”
19. It is in furtherance of the duty that this Court has been enjoined with that I
have tried not to simply retire the case to its fait accompli scripted by the
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Anti-Corruption Branch, and tried to delve deeper. The more the records
are scrutinized, the more palpable the deficiencies become.
20. This is not an isolated instance. Scores of cases have been kept pending
by Anti-Corruption Branch without completing investigations, apparently
waiting for complainants to die or to become unavailable or to finally give
up their pursuit in frustration. No action has been taken by the Anti-
Corruption Branch against the officers who were responsible for allowing
the evidence to be lost and who did not take any steps towards
investigation when they were first approached. Perhaps the Branch is
waiting for the Court to recommend action and to remind it of its duties.
This is another instance where, due to inaction of the Anti-Corruption
Branch, this Court is forced to bring the matters to the notice of the senior
officers, lest the matters would be pushed under the carpet. It is not known
as to how many more victims will have to die for the Anti-Corruption
Branch to give their cases a burial as a fall-out of absence of ocular
account.
21. The case attracts the following observations of Hon’ble Supreme Court in
the case of Dayal Singh & Ors. v State of Uttaranchal Criminal Appeal No.
529/2010 decided on 03.08.2012:
“Where the default and omission is so flagrant that it
speaks volumes of a deliberate act or such
irresponsible attitude of investigation, no court can
afford to overlook it, whether it did or did not cause
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prejudice to the case of the prosecution. It is possible
that despite such default/omission, the prosecution
may still prove its case beyond reasonable doubt and
the court can so return its finding. But, at the same
time, the default and omission would have a
reasonable chance of defeating the case of the
prosecution in some events and the guilty could go
scot-free. We may illustrate such kind of investigation
with an example where a huge recovery of opium or
poppy husk is made from a vehicle and the
Investigating Officer does not even investigate or make
an attempt to find out as to who is the registered
owner of the vehicle and whether such owner was
involved in the commission of the crime or not.
Instead, he merely apprehends a cleaner and projects
him as the principal offender without even reference to
the registered owner. Apparently, it would prima facie
be difficult to believe that a cleaner of a truck would
have the capacity to buy and be the owner, in
possession of such a huge quantity, i.e., hundreds of
bags, of poppy husk. The investigation projects the
poor cleaner as the principal offender in the case
without even reference to the registered owner.
Even the present case is a glaring example of
irresponsible investigation. It, in fact, smacks of
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intentional mischief to misdirect the investigation as
well as to withhold material evidence from the Court. It
cannot be considered a case of bona fide or
unintentional omission or commission. It is not a case
of faulty investigation simplicitor but is an investigation
coloured with motivation or an attempt to ensure that
the suspect can go scot free.
xxx
The police service is a disciplined service and it
requires maintenance of strict discipline. The
consequences of these defaults should normally be
attributable to negligence. Police officers and doctors,
by their profession, are required to maintain duty
decorum of high standards. The standards of
investigation and the prestige of the profession are
dependent upon the action of such specialized
persons.
xxx
With the passage of time, the law also developed and
the dictum of the Court emphasized that in a criminal
case, the fate of proceedings cannot always be left
entirely in the hands of the parties. Crime is a public
wrong, in breach and violation of public rights and
duties, which affects the community as a whole and is
harmful to the society in general.
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xxx
We hold, declare and direct that it shall be appropriate
exercise of jurisdiction as well as ensuring just and fair
investigation and trial that courts return a specific
finding in such cases, upon recording of reasons as to
deliberate dereliction of duty, designedly defective
investigation, intentional acts of omission and
commission prejudicial to the case of the prosecution,
in breach of professional standards and investigative
requirements of law, during the course of the
investigation by the investigating agency, expert
witnesses and even the witnesses cited by the
prosecution. Further, the Courts would be fully justified
in directing the disciplinary authorities to take
appropriate disciplinary or other action in accordance
with law, whether such officer, expert or employee
witness, is in service or has since retired.”
Similar observations have been made in the cases of
Dhanraj Singh @ Shera and Ors. v. State of Punjab JT
2004(3) SC 380, Karnel Singh v. State of M.P. 1995
(5) SCC 518 and Paras Yadav and Ors. v.State of
Bihar 1999 (2) SCC 126.”
22. In the case of Sahabuddin & Anr vs State of Assam 2013 AIR SCW 817,
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the Hon’ble Supreme Court held that where investigations are deficient,
“there is a greater responsibility on the court to seriously deal with persons
who are involved in creating designed investigation”. The Hon’ble Court
then directed “the Director General of Police, State of Assam and Director
General of Health Services, State of Assam to take disciplinary action
against PW1 and PW11, whether they are in service or have since retired.
If not in service, action shall be taken against them for deduction/stoppage
of pension in accordance with the service rules”.
23. Several orders have earlier been sent to different police officers of the
Anti-Corruption Branch but since there has been no improvement in the
functioning of the Branch, this Court has no option but to bring matters to
the notice of the Chief Secretary. Let copy of this order be sent to the Chief
Secretary, Government of NCT of Delhi with a request to look into the
working of Anti-Corruption Branch in which there is not only abdication of
duties but a calculated suppression of matters and neglect to allow
destruction of evidence that is taking place. It is expected that all officers
responsible for the aforesaid lapses are identified and disciplinary action is
recommended against them.
24. Let copy of this order alongwith relevant documents be also sent to the
Commissioner of MCD so that he could ascertain the officers who are
responsible for inaction over the earlier complaint which was submitted to
MCD regarding acts of corruption (which complaint was instead handed
over to the offenders so as to advance threats to the complainant).
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25. The case shall be now taken up before this Court on 23.12.2024.
(Ashish Aggarwal)
Special Judge (PC Act)(ACB)-02
Rouse Avenue District Courts, New Delhi
09.10.2024
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