Interim Order 24

Order Details: COPY OF ORDER
Pdf Text: In the Court of Dr. Ruchi Aggarwal Asrani: Special Judge (PC Act)
(ACB-02), Rouse Avenue Courts, New Delhi.
CNR No.DLCT11-000686-2023
CC No. 55/2023 & IA No. 1/2024
State Vs. Devender Kumar & Anr.
FIR No. 55/2014
P.S. Anti Corruption Branch
ORDER ON CHARGE/ DISCHARGE
1. This order will decide the application for discharge filed on
behalf of the accused.
2. The prosecution has filed the present chargesheet against the
accused Sudesh Kumar, Devender Kumar, Subhash Sharma, Ms. Kavita,
Deepak Raj, Sushil Kumar and Mohit Panwar, under section 7/13 of
Prevention of Corruption Act, 1988 alleging that the accused persons,
being public servants, demanded and accepted illegal gratification as a
motive or reward for doing an official duty. Vide order dated 06.12.2023,
separate chargesheets were directed to be filed by Ld. Predecessor of this
Court which was duly complied with. Now, the present case pertains only
to accused Devender Kumar and Subhash Sharma. Accused Subhash
Sharma has already been discharged by Hon’ble High Court of Delhi vide
order dated 16.05.2024, therefore, this order pertains only to accused
Devender Kumar.
Brief facts:
3. As per the chargesheet, the factual matrix of the case is that a
complaint dated 11.10.2013 was received in the office of Anti Corruption
Branch, Delhi wherein it was stated that on 01.10.2013 at 08:00 PM, a
story under the caption “Operation Kala Paani” on News Nation Channel
CC No. 55/23 in FIR No. 55/14 State Vs. Devender Kumar & Anr.
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was telecast in which some Jail Officers/officials were shown accepting
illegal gratification in lieu of favour/facilities to be extended to the
prisoners lodged in jail in violation of the provisions of Delhi Prisons Act
and Delhi Jail Manual. A copy of the telecast version of compact disc of
the above said sting operation had been received pursuant to which, a
committee of the officers was constituted to identify the officials who
were shown accepting illegal gratification in lieu of the favour to be
extended to the prisoner lodged in jail in violation of the provisions of
Delhi Prisons Act and Delhi Jail Manual. The committee had given its
report and the officials namely (1) Sh. Subhash Sharma, Deputy Supdt.;
(2) Sh. Devender Kumar, Head Warden-471; (3) Ms. Kavita, Matron-
1314; (4) Sh. Sudesh Kumar, Driver; (5) Sh. Mohit Panwar, Data Entry
Operator; (6) Sh. Sushil Kumar, Data Entry Operator and (7) Sh. Deepak
Raj, Data Entry Operator were identified. It is further stated in the
complaint that the report of the Committee has also been filed and since
accepting illegal gratification/bribe in lieu of the illegal favour is an
offence under the Provisions of Prevention of Corruption Act, 1988, a
criminal case be registered against the erring officers/officials under the
provisions of law. The copy of the telecast version of the compact disc
had also been filed along with the complaint.
4. It is further stated in the complaint that another committee
was constituted of following members to identify the Prison Officials who
were shown in the telecast of Programme Operation Kala Paani by TV
Channel “News Nation” on 01.10.2013 from 08:00 PM onwards:- (1) Sh.
Lokesh Chandra, SCJ-II Asstt. Suptd., CJ-03 & (2) Sh. Parmod Gupta,
Office Suptd. (Estt.). The Vigilance Branch, PHQ had provided a CD of
telecast version of the sting operation “Kala Paani” shown by the TV
Channel “News Nation”. It is also averred that the committee had
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carefully perused the CD and it was of the considered view that the
following officials are clearly shown interacting with some outsiders and
along with them some officials, accepting money on the pretext of
extending some favours to the inmates:
S. No. Name of the
officer/official
Designation Remarks/present
posting
1. Sh. Subhash Sharma Dy. Suptd. Gr-II CJ-03
2. Sh. Davender
Kumar
Head Warder-471 CPRO-04
3. Ms. Kavita Matron-1314 CJ-06
4. Sh. Sudesh Kumar Driver CJ-02
5. Sh. Mohit Panwar DEO (on contract) CJ-02
6. Sh. Sushil Kumar DEO (on contract) CPRO-3
7. Sh. Deepak Raj DEO (on contract) CPRO-3
5. On the TV Channel, the person at Sr. No. 05 above has been
named as Sh. Rahul but as per record available in Establishment Branch
(PHQ), his name is Sh. Mohit Panwar. The verbatim description of the
narration between the outsider picture not shown on the channel and by
all the concerned Prison Officials has also been filed on record.
6. On the complainant filed by Mr. Dinesh Gandhi, Officer-in-
Charge (Vigilance) Prison Headquarter, Tihar, New Delhi dated
11.10.2013 along with photocopies of committee’s report, transcription
and CD/DVD received from the office of DOV, GNCT of Delhi, FIR was
registered u/s 7/13 P.C. Act at P.S. Anti Corruption Branch, GNCT of
Delhi and the investigation of the case was conducted by Insp. Ranvir
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Singh.
Investigation:
7. During the course of investigation, Sh. Joseph Baxla, Dy.
Suptd.-I/OIC (Vigilance), HQ Prison, Tihar New Delhi, produced the
DVD containing one folder consisting of 19 files out of which 7 files are
video files relating to this case. DVD was taken into possession through
seizure memo.
8. During the course of further investigation, the DVD was
played before the members of the committee (1) Sh. Lokesh Chandra,
SCJ-II (PHQ), (2) Sh. B.S. Jarial, Dy. Suptd., Gr.-I (Training & Project),
(3) Sh. S.G.K. Murthy, Asstt. Suptd., CJ-03 & (4) Sh. Parmod Gupta,
Office Suptd. (Estt.) constituted to identify the prison officials who were
shown in the telecast on TV Channel News Nation operation Kala Paani
and the alleged 7 persons were got identified as (1) Subhash Sharma, (2)
Davender Kumar, (3) Ms. Kavita, (4) Sudesh Kumar, (5) Mohit Panwar,
(6) Sushil Kumar & (7) Deepak Raj.
9. On 27.10.2014, Sh. Veerendra Vashishtha, reporter of News
Nation TV Channel, Plot No.14, Sector-126, Noida, Uttar Pradesh joined
investigation and he produced 05 DVDs of raw footage of ‘Kala Pani’
telecast on 01.10.2013 on News Nation TV Channel. The DVDs are
marked K-1 to K-5 and were played on the office computer. In the DVDs,
the staff of Tihar Jail Delhi is seen reportedly taking bribe money and
discussing about facilitating the inmates/prisoners in lieu of bribe. DVDs
were taken into police possession through seizure memo. On 14.11.2014,
the exhibits were deposited at FSL, Rohini to obtain opinion regarding
DVDs collected in the case.
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10. Further, the FSL result was collected and it was opined by
the examiner that the video recordings in the DVD marked “Exhibit-A”,
indicated to have been reproduced on the DVD from some other media.
The video recordings in DVD marked “Exhibit-A” is post production
edited version of TV programme “Operation Kala Pani” of channel
“News Nation”. The video files contains a number of video clips similar
to video footages in video recordings in DVDs marked “Exhibit-B (K-1)
to Exhibit-B (K-5)”. On laboratory examination of video recordings in
DVDs marked “Exhibit-B (K-1) to Exhibit-B (K-5)”, it was observed that
each video file contains one identified video shot. There is no indication
of alteration in the identified video shot on the basis of frame-by-frame
examination.
11. During further investigation, the voice samples of all alleged
persons and reporter were obtained/collected from FSL Rohini, Delhi,
while another reporter Deepak Tyagi refused to come to FSL to give
voice sample so his voice sample could not be got recorded.
12. The reporter, Sh. Veerendra Vashishtha, joined investigation
and in the presence of panch witness, five DVDs which are available on
the file and marked as K-1A to K-5A and transcription prepared from the
seized five unedited DVDs marked as K-1 to K-5 have been played. After
seeing the said DVDs, reporter, Sh. Veerendra Vashishtha, verified and
self-attested the transcription of conversation between him and alleged
staff of Tihar Jail. He identified the video played and transcription
prepared.
13. The certificate u/s 65B of Indian Evidence Act signed by Sh.
Ajay Verma, Executive Editor, News Nation Channel was collected.
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14. The voice sample exhibits and DVDs were deposited in FSL
and it was opined by the examiner that: the voice exhibit of speaker
marked “Exhibit-Q1” and “Exhibit-S1” are voice of the same persons (i.e.
Sh. Mohit Panwar), the voice exhibit of speaker marked “Exhibit-Q2” and
“Exhibit-S2” are voice of the same persons (i.e. Sh. Deepak Raj), the
voice exhibit of speaker marked “Exhibit-Q3” and “Exhibit-S3” are voice
of the same persons (i.e. Sh. Devender Kumar), the voice exhibit of
speaker marked “Exhibit-Q4” and “Exhibit-S4” are voice of the same
persons (i.e. Sh. Sudesh), the voice exhibit of speaker marked “Exhibit-
Q5” and “Exhibit-S5” are voice of the same persons (i.e. Sh. Subhash
Sharma), the voice exhibit of speaker marked “Exhibit-Q6” and “Exhibit-
S6” are voice of the same persons (i.e. Ms. Kavita), the voice exhibit of
speaker marked “Exhibit-Q7” and “Exhibit-S7” are voice of the same
persons (i.e. Sushil Kumar) & the voice exhibit of speaker marked
“Exhibit-Q8” and “Exhibit-S8” are voice of the same persons (i.e.
Virendra Vashishtha).
15. It is the case of the prosecution that from the investigation
conducted, it was found that all 07 officials of Tihar Jail (placed in
column No.11) accepted illegal gratification in lieu of favour/facilities to
be extended to prisoners lodged in Tihar Jail and thus, committed an
offence u/s 7/13 POC Act, 1988. Prosecution sanction u/s 19 POC Act
against the accused person Sh. Devender Kumar had been obtained from
the competent authority.
Submissions of the accused Devender Kumar:
16. Ld. Counsel for accused Devender Kumar submitted that
after registration of FIR No.55/2014 dated 11.07.2014, the co-accused
namely Sh. Subhash Sharma (Retd. Dy. Superintendent) approached
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Hon’ble Delhi High Court seeking quashing of FIR No. 55/2014 dated
11.07.2014 registered at PS ACB, New Delhi under Sections 7/13 of the
Prevention of Corruption Act, 1988 and the Hon’ble Delhi High Court
vide order dated 16.05.2024 in Crl.M.C. (Main) No.450/2017, quashed
the FIR No.55/2014 dated 11.07.2014 along with all other proceedings
emanating therefrom to the extent of the said co-accused. He submitted
that the Hon’ble Delhi High Court while passing Order/Judgment
observed at Para-19 as under:
“Since it is an admitted position that the Petitioner
has been exonerated in the disciplinary proceedings
in Article-I, which is identical to the allegation in the
chargesheet under Section 173 Cr.PC, therefore the
question that needs to be addressed is as to what is
the effect of petitioner on the criminal proceedings
arising out of FIR No.55/2014. However this
question need not detain this Court any longer in as
much as the same is no more res integra.
Para-17. A comparative reading of the chargesheet
under Section 173 Cr.PC and the charge alleged in
Article-I off the Memorandum dated 08.01.2016
whereby disciplinary proceedings were initiated
against the petitioner, makes it evident that the
allegation contained therein is identical viz.,
acceptance of illegal gratification/monetary
consideration for extending favour/ facilities to the
prisoners lodged in “Tihar Jail".
Para 18. “For the sake of completeness it may be
stated that in the departmental proceedings, there
was an additional charge contained in Article-II of
the Memorandum dated 08.01.2016 6 viz., the
petitioner "indulged in communication with a
person, unauthorisedly without permission of the
Superintendent of Jail", but the said charge has no
relevance for the purpose of deciding the
controversy involved in the present case as no
allegation analogous to aforesaid Article-II is there
in the charge sheet under Section 173 Cr.PC, though
the petitioner was exonerated from the charge in the
said Article-ll as well at Para-26” The legal position
that emerges is that if an accused has been
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exonerated and held innocent in the disciplinary
proceedings after the allegations have been found to
be unsustainable, then the criminal prosecution
premised on the same set of allegations cannot be
permitted to continue. The reasoning for this
recourse articulated in above decisions is that the
standard of proof in criminal cases is 'beyond
reasonable doubt' which is far higher than
'preponderance of probability', disciplinary
proceedings. In case the lower threshold could not
be met in the disciplinary proceeding, there is no
purpose in prosecuting the criminal proceedings
where the standard of proof higher”
Para 27. The reliability and genuineness of the
allegations against the petitioner has already been
tested during the disciplinary proceedings and the
petitioner has been exonerated of such allegations.
As noted Inquiry Officer, the Disciplinary Authority
as well as of the UPSC on the charge contained in
Article criminal case arising out of FIR No.55/2014
the present case can undisputedly be brought under
sub sub-paras (5) of para 102 of Bhajan Lal (supra).”
17. He further submitted that from bare perusal of the facts and
contents of complaint/FIR/Charge Sheet, transcript of conversation
between Reporter & Applicant/Accused, order dated 16.05.2024 passed
by Hon’ble Delhi High Court and the circumstances of the case, it
transpires that there is no element of connivance/collusion between the
accused Devender Kumar and Mr. Subhash Sharma (who already stands
discharged) as in the entire Charge Sheet, it has not been brought on
record as to whether the Applicant/Accused had ever
approached/contacted the said Mr. Subhash Sharma (Retd. Dy. Sup.) at
the request of the reporter. He also submitted that it is evident from the
transcript of conversation between the reporter and the Applicant/Accused
that the Accused on every occasion, denied accepting any
gratification/bribe and rather suggested that entire money shall be used
only for the welfare/benefit of the supposed prisoner. He submitted that
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thus, even if the Applicant/Accused had accepted any amount, the same
was meant for utilization of filling/refilling of Purchase Coupons to be
issued from Jail Authority and which were meant to be used by the
prisoner only for making purchase of essential products/goods in the Jail
Complex/Outlet. He submitted that the alleged money accepted was
subsequently returned to the Reporter at his request and the facts of which
have been deliberately concealed to falsely implicate the
Applicant/Accused in the present case and further, till today there is no
recovery of any money from the Applicant/Accused of whatsoever
amount as has been allegedly given by the reporter for personal
bribe/gratification to the Applicant/Accused in lieu of extending
benefits/facilities to the prisoner. He also submitted that there is nothing
on record to establish that the Applicant/Accused had acted at the behest
or on behalf of the alleged person namely Mr. Shubhash Sharma or even
the reporter and further this is also a matter of record that one of the
reporter namely Deepak Tyagi refused to come to FSL to give voice
sample so his voice sample could not be recorded.
18. Ld. Counsel for the Applicant/ Accused further argued that
for alleging the offence under Section 120B of IPC, there must be
meeting of mind or consensus between the alleged persons for hatching
conspiracy for committing alleged acts/offence and hence, allegation of
criminal conspiracy and accepting gratification for extending benefits to
the Prisoner in collusion with Shubhash Sharma cannot survive/sustain
because nothing as such has been brought on record by concerned IO. He
argued that for establishing criminal conspiracy as enshrined u/s 120B of
IPC, there should be an agreement between two and more persons to do
some illegal acts/offence or a legal act through illegal means which in the
present case, the prosecution has miserably failed to establish because the
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Applicant/Accused has nowhere been related/shown in the entire
investigation to be conspiring/discussing/agreeing to do some illegal act.
19. He further submitted that the entire gamut/story has allegedly
been formulated/constructed by the prosecution and is based upon the
video prepared by the reporter during sting operation “Kala Pani” and
conversation recorded therein and which by any parameter of imagination
cannot indicate any involvement of the Applicant/Accused in the alleged
Offence committed.
Analysis:
20. Ld. Counsel for the accused put forward multifold arguments
which shall be dealt with below one by one:
a. The Co-accused has been discharged:
21. It is the case of the Applicant/ Accused Devender Kumar that
since the co-accused Subhash Sharma has been discharged by Hon’ble
High Court, the present Applicant/ Accused should also be discharged.
His main contention rests on the point that the two accused persons have
been chargesheeted with the allegations of collusion which requires the
two people to agree to do a certain act and it is his case that if one of the
accused persons has been discharged then there can be no meeting of
minds or common agreement between them. He argued that an agreement
implies meeting of two minds with reference to a particular matter and so
long as matters are discussed and views are interchanged, but the plan of
action has not been settled by the concurrence of any two or more of the
conspirators, the stage of criminal conspiracy or collusion would not be
considered to have been reached. To establish the charge of criminal
conspiracy, knowledge about the involvement or indulgence in the illegal
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act, is necessary. He has relied upon the judgment Saju v. State of Kerala
(2001) 1 SCC 378, whereby explaining the concept of conspiracy, the
Apex Court held as follows:
“To prove the charge of criminal conspiracy the
prosecution is required to establish that two or more
persons had agreed to do or caused to be done, an
illegal act or an act which is not legal, by illegal
means. It is immaterial whether the illegal act is the
ultimate object of such crime or is merely
incidental to that object. To attract the applicability
of Section 120-B it has to be proved that all the
accused had the intention and they had agreed to
commit the crime. There is no doubt that
conspiracy is hatched in private and in secrecy for
which direct evidence would rarely be available…”
22. He has further relied upon the case of Mir Nagvi Askari v.
Central Bureau of Investigation (2009) 15 SCC 643, where the Hon’ble
Apex Court reiterated the various facets of ‘criminal conspiracy’ and laid
down that:
“60. Criminal conspiracy, it must be noted in this
regard, is an independent offence. It is punishable
separately. A criminal conspiracy must be put to
action; for so long as a crime is generated in the
mind of the accused, the same does not become
punishable. Thoughts even criminal in character,
often involuntary, are not crimes but when they
take a concrete shape of an agreement to do or
caused to be done an illegal act or an act which is
not illegal, by illegal means then even if nothing
further is done, the agreement would give rise to a
criminal conspiracy.”
23. He further stated that while dealing with the constituents and
applicability of criminal conspiracy in the case of Mukesh and Ors V.
State for NCT of Delhi and Ors MANU/SC/0575/2017, Hon’ble Apex
Court has observed that:
“274. It will be thus seen that the most important
ingredient of the offence of conspiracy is the
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agreement between two or more persons to do an
illegal act. The illegal act may or may not be done
in pursuance of agreement, but the very agreement
is an offence and is punishable. Reference to
Sections 120-A and 120-B Indian Penal Code
would make these aspects clear beyond doubt.
Entering into an agreement by two or more persons
to do an illegal act or legal act by illegal means is
the very quintessence of the offence of conspiracy.
…
283. In a criminal conspiracy, meeting of minds of
two or more persons for doing an illegal act is the
sine qua non but proving this by direct proof is not
possible. Hence, conspiracy and its objective can be
inferred from the surrounding circumstances and
the conduct of the accused. Moreover, it is also
relevant to note that conspiracy being a continuing
offence continues to subsist till it is executed or
rescinded or frustrated by the choice of necessity.
...
285. The rationale of conspiracy is that the required
objective manifestation of disposition of criminality
is provided by the act of agreement. Conspiracy is a
clandestine activity. Persons generally do not form
illegal covenants openly. In the interest of security,
a person may carry out his part of a conspiracy
without even being informed of the identity of his
co-conspirators. An agreement of this kind can
rarely be shown by direct proof; it must be inferred
from the circumstantial evidence of co-operation
between the accused. What people do is, of course,
evidence of what lies in their minds. To convict a
person of conspiracy, the prosecution must show
that he agreed with others that they would together
accomplish the unlawful object of the conspiracy.”
24. He further relied upon the case of Pratapbhai Hamirbhai
Solanki v. State of Gujrat and Anr. (2013) 1 SCC 613, where Hon’ble
Apex Court explained the ingredients of ‘criminal conspiracy’ as under:
“15. ... The most important ingredient of the
offence being the agreement between two or more
persons to do an illegal act. In a case where
criminal conspiracy is alleged, the court must
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inquire whether the two persons are independently
pursuing the same end or they have come together
to pursue the unlawful object. The former does not
render them conspirators but the latter does. For the
offence of conspiracy some kind of physical
manifestation of agreement is required to be
established. The express agreement need not be
proved. The evidence as to the transmission of
thoughts sharing the unlawful act is not (sic*-)
sufficient. A conspiracy is a continuing offence
which continues to subsist till it is executed or
rescinded or frustrated by choice of necessity.
During its subsistence whenever any one of the
conspirators does an act or a series of acts, he
would be held guilty under Section 120-B of the
Penal Code, 1860.”
25. Reliance was also placed on the case of Ram Narayan Popli
v. CBI (2003) 3 SCC 641 where while dealing with the conspiracy, the
majority opinion laid down that:
“342.... The essence of a criminal conspiracy is the
unlawful combination and ordinarily the offence is
complete when the combination is framed. … no
overt act need be done in furtherance of the
conspiracy, and that the object of the combination
need not be accomplished, in order to constitute an
indictable offence. Law making conspiracy a crime
is designed to curb immoderate power to do
mischief which is gained by a combination of the
means. The encouragement and support which co-
conspirators give to one another rendering
enterprises possible which, if left to individual
effort, would have been impossible, furnish the
ground for visiting conspirators and abettors with
condign punishment. The conspiracy is held to be
continued and renewed as to all its members
wherever and whenever any member of the
conspiracy acts in furtherance of the common
design.”
26. Ld. Counsel for the accused person also relied upon the case
of Ram Sharan Chaturvedi Vs. the State of Madhya Pradesh (Criminal
Appeal No.1066 of 2010-Order/Judgement dated 25.08.2022) wherein
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Hon’ble Supreme Court held as follows:
“22. The principal ingredient of the offence of
criminal conspiracy under Section 120B of the IPC
is an agreement to commit an offence. Such an
agreement must be proved through direct or
circumstantial evidence.”
27. He also relied upon the case of State of Kerala v. P. Sugathan
and Anr., where it was held as follows:
“12. ...As in all other criminal offences, the
prosecution has to discharge its onus of proving the
case against the accused beyond reasonable
doubt. ...A few bits here and a few bits there on
which the prosecution relies cannot be held to be
adequate for connecting the accused with the
commission of the crime of criminal conspiracy…
13. ... The most important ingredient of the offence
being the agreement between two or more persons
to do an illegal act. In a case where criminal
conspiracy is alleged, the court must inquire
whether the two persons are independently
pursuing the same end or they have come together
to pursue the unlawful object. The former does not
render them conspirators but the latter does. For the
offence of conspiracy some kind of physical
manifestation of agreement is required to be
established. The express agreement need not be
proved. The evidence as to the transmission of
thoughts sharing the unlawful act is not
sufficient…”
28. Ld. Counsel for the Accused also relied on the case of State
(NCT of Delhi) v. Navjot Sandhu, where it was held that:
“101. One more principle which deserves notice is
that the cumulative effect of the proved
circumstances should be taken into account in
determining the guilt of the accused rather than
adopting an isolated approach to each of the
circumstances. Of course, each one of the
circumstances should be proved beyond reasonable
doubt. Lastly, in regard to the appreciation of
evidence relating to the conspiracy, the Court must
take care to see that the acts or conduct of the
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parties must be conscious and clear enough to infer
their concurrence as to the common design and its
execution.”
29. In Praveen @ Sonu v. State of Haryana (Criminal Appeal
No. 1571 of 2021), it was held by Hon’ble Supreme Court that:
“It is fairly well settled, to prove the charge of
conspiracy, within the ambit of Section 120-B, it is
necessary to establish that there was an agreement
between the parties for doing an unlawful act. At
the same time, it is to be noted that it is difficult to
establish conspiracy by direct evidence at all, but at
the same time, in absence of any evidence to show
meeting of minds between the conspirators for the
intended object of committing an illegal act, it is
not safe to hold a person guilty for offences under
Section 120-B of IPC. A few bits here and a few
bits there on which prosecution relies, cannot be
held to be adequate for connecting the accused with
the commission of crime of criminal conspiracy.
Even the alleged confessional statements of the co-
accused, in absence of other acceptable
corroborative evidence, is not safe to convict the
accused. Section 26 of the Evidence Act makes all
those confessions inadmissible when they are made
by any person, whilst he is in the custody of a
police officer, unless such a confession is made in
the immediate presence of a Magistrate. The
findings recorded by the Trial Court in convicting
the appellant mainly on the ground that he was one
of the conspirators for the crime in question, is
erroneous and illegal. The High Court has not
considered the evidence on record in proper
perspective and erroneously confirmed the
conviction and sentence imposed on the appellant.
For the aforesaid reasons, this appeal is allowed.
Conviction recorded and sentence imposed on the
appellant is, hereby, set aside and he is acquitted of
the charges levelled against him.”
30. While it is trite law that for there to be an offence under
section 120B IPC, agreement between the two accused persons is
essential but it is also as true that in this case, the accused persons have
not been chargesheeted under section 120B IPC but under section 7/13 of
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Prevention of Corruption Act. The said offences are substantive in nature
and invoked individually against both the accused persons. Merely
because Subhash Sharma as co-accused has been discharged by Hon’ble
High Court, it will not
ipso facto result in the discharge of the other
accused person from the substantive offences and the charges against
accused Devender Kumar will have to be decided according to the
independent evidence against him. Therefore, the argument of
Ld. Counsel for the accused Devender Kumar that he should be
discharged merely because the co-accused Subhash Sharma has been
discharged is dismissed being untenable.
b. Allegations are general and vague in nature:
31. Ld. Counsel for the accused argued that there is no allegation
of any specific demand or acceptance by the accused and nothing has
been recovered from him, thus, the main conditions of sections 7 or 13 PC
Act are not met. Ld. Counsel for the accused laid emphasis on the case of
N. Vijayakumar v. State of T.N. (2021) 3 SCC 687, wherein Hon’ble
Supreme Court held that the demand for gratification and its acceptance
must be proved beyond reasonable doubt. He further relied upon the case
of Subash Parbat Sonvane v. State of Gujarat (2002) 5 SCC 86, where it
was observed by Hon’ble Supreme Court that mere acceptance of money
without there being any other evidence would not be sufficient for
convicting the accused under Section 13(1)(d). In Sections 7 and 13(1)(a)
and (b) of the Act, the legislature has specifically used the word “accepts”
or “obtains”. As against this, there is departure in the language used in
sub-section (1)(d) of Section 13 and it has omitted the word “accepts” and
has emphasized on the word “obtains”. In sub-clauses (i), (ii) and (iii) of
Section 13(1)(d), the emphasis is on the word “obtains”. Therefore, there
CC No. 55/23 in FIR No. 55/14 State Vs. Devender Kumar & Anr.
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must be evidence on record that the accused “obtains” for himself or for
any other person, any valuable thing or pecuniary advantage by either
corrupt or illegal means or by abusing his position as a public servant or
that he obtained for any person any valuable thing or pecuniary advantage
without any public interest.
32. Ld. Counsel for the accused submitted that the proof of
demand of public servant alleged by the prosecution is a
sine qua non in
order to establish the guilt of the accused public servant. Mere acceptance
of or the recovery of tainted notes is not sufficient to bring home the guilt
of the accused as the prosecution has to first prove that demand of illegal
gratification was made by the accused. Thereafter, the subsequent
acceptance and recovery of the tainted notes would complete the chain of
circumstances to bring home the guilt of the accused. For this, Ld.
Counsel for the accused placed reliance on the judgments of State of U.P.
v. Ram Asrey 1990 Supp SCC 12; Mukhtiar Singh v. State of Punjab;
(2017) 8 SCC 136 ; M.R. Purushotam v. State of Karnataka (2015) 3 SCC
247; C.M. Sharma v. State of Andhra Pradesh (2010) 15 SCC 1; State of
Maharashtra v. Dhyaneshwar Laxman Rao Wankhede (2009) 15 SCC
200; Sukumaran v. State of Kerala (2015) 11 SCC 314 and Sunkanna v.
State of Andhra Pradesh (2016) 1 SCC 713.
33. Ld. Counsel for the accused further argued that the
prosecution has not been able to make out a
prima facie case against
accused Devender Kumar. He further argued that it is settled law that if
two views are possible, then the accused should be discharged and
therefore, the accused Devender Kumar be discharged.
34. In contrast, Ld. Public Prosecutor for the State submitted that
the accused Devender Kumar should be charged with the commission of
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offences punishable under Sections 7/13 of Prevention of Corruption Act
because the complaint made by the complainant Dinesh Gandhi, Officer
In Charge (Vigilance), Prisons Headquarters, Delhi clearly shows the
involvement of the accused and clarifies the act of demanding and
accepting bribe to carry out an otherwise official duty. He also relied
upon the FSL report as per which the voice sample of the accused
Devender Kumar has matched. Ld. PP for the State submitted that the
accused Devender Kumar can be clearly seen in the video recording
receiving bribe money from the reporter and counting it and upon hearing
the conversation between him and the reporter, it is amply clear that the
accused demand and accepted bribe money from the reporter.
35. Since, as per the FSL report, the voice sample of the accused
Devender Kumar has matched the voice in the sting operation footage and
the transcript attached with the chargesheet
prima facie shows that some
conversation has taken place between the reporter and the accused
regarding an amount of money, the argument of Ld. Counsel for the
accused that the accused Devender Kumar has not demanded or accepted
bribe seems to be fallacious at this stage. Whether that money was illegal
gratification or not is a matter of trial but the transcript
prima facie shows
active participation of the accused in the entire episode of demanding and
accepting money.
Point of Law:
(a). Law on the point if two views are possible:
36. In the matter of P. Vijayan Vs. State of Kerala & Anr.,
(2010) 2 SCC 398, the Supreme Court took note of the Judgment in
Union of India Vs. Prafulla Kumar Samal (supra) and after quoting
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Section 227 Cr. P. C observed as under.
"10. Before considering the merits of the claim
of both the parties, it is useful to refer to Section
227 of the Code of Criminal Procedure, 1973,
which reads as under:
"227. Discharge. - If, upon consideration of the
record of the case and the documents submitted
therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the
Judge considers that there is not sufficient ground
for proceeding against the accused, he shall
discharge the accused and record his reasons for so
doing.”
If two views are possible and one of them gives rise
to suspicion only, as distinguished from grave
suspicion, the trial Judge will be empowered to
discharge the accused and at this stage he is not to
see whether the trial will end in conviction or
acquittal. Further, the words "not sufficient ground
for proceeding against the accused” clearly show
that the Judge is not a mere post office to frame the
charge at the behest of the prosecution, but has to
exercise his judicial mind to the facts of the case in
order to determine whether a case for trial has been
made out by the prosecution. In assessing this fact,
it is not necessary for the court to enter into the pros
and cons of the matter or into a weighing and
balancing of evidence and probabilities which is
really the function of the court, after the trial starts.
11. At the stage of Section 227, the Judge has
merely to sift the evidence in order to find out
whether or not there is sufficient ground for
proceeding against the accused. In other words, the
sufficiency of ground would take within its fold the
nature of the evidence recorded by the police or the
documents produced before the court which ex
facie disclose that there are suspicious
circumstances against the accused so as to frame a
charge against him.”
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37. In Dilawar Balu Kurane Vs. State of Maharashtra, (2002) 2
SCC 135, the Supreme Court after relying on Union of India Vs. Prafulla
Kumar Samal (supra) observed as under:
“12. Now the next question is whether a prima facie
case has been made out against the appellant. In
exercising powers under Section 227 of the Code of
Criminal Procedure, the settled position of law is
that the Judge while considering the question of
framing the charges under the said section has the
undoubted power to sift and weigh the evidence for
the limited purpose of finding out whether or not a
prima facie case against the accused has been made
out; where the materials placed before the court
disclose grave suspicion against the accused which
has not been properly explained the court will be
fully justified in framing a charge and proceeding
with the trial; by and large if two views are equally
possible and the Judge is satisfied that the evidence
produced before him while giving rise to some
suspicion but not grave suspicion against the
accused, he will be fully justified to discharge the
accused, and in exercising jurisdiction under Section
227 of the Code of Criminal Procedure, the Judge
cannot act merely as a post office or a mouthpiece of
the prosecution, but has to consider the broad
probabilities of the case, the total effect of the
evidence and the documents produced before the
court but should not make a roving enquiry into the
pros and cons of the matter and weigh the evidence
as if he was conducting a trial.”
38. In the matter of State of M. P. Vs S. B. Johari & Ors., (2000)
2 SCC 57, the Supreme Court has held that:
“
charge can be quashed if the evidence which the
prosecutor proposes to adduce to prove the guilt of
the accused, even if fully accepted before it is
challenged by cross-examination or rebutted by
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defence evidence, if any, cannot show that the
accused committed the particular offence and in
such case, there would be no sufficient ground for
proceeding with the trial.”
39. The Apex Court in Dipakbhai Jagdishchandra Patel Vs. State
of Gujarat & Anr., (2019) 16 SCC 547 opined as follows:
“At the stage of framing the charge in accordance
with the principles which have been laid down by
the Court, what the court is expected to do is, it
does not act as a mere post office. The Court must
indeed sift the material before it. The material to be
sifted would be the material which is produced and
relied upon the prosecution. The sifting is not to be
meticulous in the sense the court dons the mantle of
the trial judge hearing arguments after the entire
evidence has been adduced after a full-fledged trial
and the question is not whether the prosecution has
made out the case for the conviction of the accused.
All that is required is, the court must be satisfied
that with the materials available, a case is made out
for the accused to stand trial. A strong suspicion
suffices.”
b. Law Regarding Framing of Charge
40. The law regarding framing of charge was elaborated by
Hon’ble Supreme Court of India in the case of M.E. Shivalingamurthy v.
CBI (2020) 2 SCC 768, wherein it was observed as follows:
“Legal principles applicable in regard to an
application seeking discharge:
17.This is an area covered by a large body of case
law. We refer to a recent judgment which has
referred to the earlier decisions viz. P. Vijayan v
State of Kerala [P. Vijayan v. State of Kerala,
(2010) 2 SCC 398: (2010) 1 SCC (Cri) 1488] and
discern the following principles:
17.1. If two views are possible and one of them
gives rise to suspicion only as distinguished from
grave suspicion, the trial Judge would be
empowered to discharge the accused.
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17.2. The trial Judge is not a mere post office to
frame the charge at the instance of the prosecution.
17.3. The Judge has merely to sift the evidence in
order to find out whether or not there is sufficient
ground for proceeding. Evidence would consist of
the statements recorded by the police or the
documents produced before the Court.
17.4. If the evidence, which the Prosecutor
proposes to adduce to prove the guilt of the
accused, even if fully accepted before it is
challenged in cross-examination or rebutted by the
defence evidence, if any, “cannot show that the
accused committed offence, then, there will be no
sufficient ground for proceeding with the trial”.
17.5. It is open to the accused to explain away the
materials giving rise to the grave suspicion.
17.6. The court has to consider the broad
probabilities, the total effect of the evidence and the
documents produced before the court, any basic
infirmities appearing in the case and so on. This,
however, would not entitle the court to make a
roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the
probative value of the material on record cannot be
gone into, and the material brought on record by the
prosecution, has to be accepted as true.
17.8. There must exist some materials for
entertaining the strong suspicion which can form
the basis for drawing up a charge and refusing to
discharge the accused.
18. The defence of the accused is not to be looked
into at the stage when the accused seeks to be
discharged under Section 227 CrPC (see State of
J&K v. Sudershan Chakkar[State of J&K
v.Sudershan Chakkar, (1995) 4 SCC 181: 1995
SCC (Cri) 664: AIR 1995 SC 1954]). The
expression, “the record of the case”, used in Section
227 CrPC, is to be understood as the documents
and the articles, if any, produced by the
prosecution. The Code does not give any right to
the accused to produce any document at the stage of
framing of the charge. At the stage of framing of
the charge, the submission of the accused is to be
confined to the material produced by the police (see
State of Orissa v. Debendra Nath Padhi [State of
Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568:
2005 SCC (Cri) 415: AIR 2005 SC 359]).”
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41. It was further observed in the case of M.E. Shivalingamurthy
(
Supra) that:
“28. It is here that again it becomes necessary that
we remind ourselves of the contours of the
jurisdiction under Section 227 CrPC. The principle
established is to take the materials produced by the
prosecution, both in the form of oral statements and
also documentary material, and act upon it without
it been subjected to questioning through cross-
examination and everything assumed in favour of
the prosecution, if a scenario emerges where no
offence, as alleged, is made out against the accused,
it, undoubtedly, would enure to the benefit of the
accused warranting the trial court to discharge the
accused.”
42. Further, in the case of Akbar Hussain v. State of J&K (2018)
16 SCC 85, it was held as follows:
“
5...At the time of framing the charge, the trial
court has to consider the material before it by the
investigating officer and form a prima facie opinion
thereupon as to whether it is a fit case for framing
of charge under a particular provision. The standard
of proof test, which is to be applied at the final
stage, in order to find out as to whether the accused
is guilty or not on the basis of actual evidence
produced is not to be applied at the stage of framing
of the charge. Charge can be framed even when
there is a strong suspicion founded upon materials
before the Court, which leads the court to form a
presumptive opinion as to existence of the factual
ingredient constituting the offence alleged.”
43. Furthermore, in the case of Mauvin Godinho v. State of Goa
(2018) 3 SCC 358, it was held as follows:
“
12. At the outset it would be pertinent to note the
law concerning the framing of charges and the
standard which courts must apply while framing
charges. It is well settled that a court while framing
charges under Section 227 of the Code of Criminal
Procedure should apply the prima facie standard.
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Although the application of this standard depends
on facts and circumstance in each case, a prima
facie case against the accused is said to be made out
when the probative value of the evidence on all the
essential elements in the charge taken as a whole is
such that it is sufficient to induce the court to
believe in the existence of the facts pertaining to
such essential elements or to consider its existence
so probable that a prudent man ought to act upon
the supposition that those facts existed or did
happen. However, at this stage, there cannot be a
roving enquiry into the pros and cons of the matter
and weigh the evidence as if he was conducting a
trial.”
Analysis and Conclusion:
44. Even though it is trite law that if two views are possible and
the court is satisfied that the evidence gives rise to some suspicion but
not grave suspicion against the accused, it will be fully justified to
discharge the accused, however, it is also settled law that at the stage of
framing of charge, the Court is not required to conduct a meticulous
appreciation of evidence. It is sufficient if a
prima facie case is made out
showing grave suspicion that the accused has committed the offence.
45. The case of the prosecution is that the accused Devender
Kumar demanded and accepted money from the reporter as illegal
gratification. Ld. Counsel for the accused has presented multifold
arguments which have already been discussed above. Considering the
above arguments as well as the entire record including the complaint,
FSL reports and transcripts of the conversation, this court is of the view
that there are no two views possible in this case at this stage and there
exists a
prima facie case that the accused Devender Kumar, being a
government servant, has demanded and accepted bribe, whether for his
benefit or for someone else, from the reporter to provide facilities to the
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prisoners/inmates. Thus,
prima facie there is sufficient material to frame
charge against the accused Devender Kumar u/s 7/13 (1) (a)/13 (1) (d) of
Prevention of Corruption Act. Charge be framed accordingly.
Announced in the open court today
on this 18th day of September, 2025.
(Dr. Ruchi Aggarwal Asrani)
Special Judge (PC ACT)/(ACB)-02
Rouse Avenue Courts/New Delhi.
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