Order 10

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 by: Jay Thareja, DHJS
CC No.59/2023
State v HC Ajay Singh Malik & Anr.
FIR No.1/2015
PS Vigilance
06.04.2024
At 04:00 pm.
Present : None for the State.
Accused, HC Ajay Singh Malik in person.
Sh. Amit Yadav, Proxy Advocate for the accused, HC Subhash
alongwith the said accused.
1. This case is listed today for passing of order on charge. The
arguments qua the said aspect were heard, on 21.03.2024. During the hearing of
arguments, Sh. Girish Giri, Ld. Public Prosecutor had made submissions on
behalf of the State, Sh. Nadeem Qureshi, Ld. Advocate had made submissions
on behalf of the accused, HC Subhash and Sh. Manish Kumar Singh, Ld.
Advocate had made submissions on behalf of the accused, HC Ajay Singh Malik.
Submissions of the Ld. Public Prosecutor for the State
2. During the hearing of arguments, the Ld. PP for the State had
submitted that the accused, HC Ajay Singh Malik and HC Subhash should be
jointly charged with the commission of offences punishable under Section 7 and
Section 13(1)(d)/13(2) of the PC Act, 1988 read with Section 34 of the IPC, 1860
(a) because in his complaint dated 08.12.2014, the complainant, Sh. Irshad Khan
has specifically named the accused, HC Ajay Singh Malik and stated that
alongwith other police officials, he was regularly taking bribes from citizens at the
same spot near Anand Vihar Bus Depot; (b) because in his statements under
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Section 161 of CrPC, 1973 dated 13.03.2015 and 07.07.2015, the complainant,
Sh. Irshad Khan has supported his complaint dated 08.12.2014; (c) because in
the video of the incident/sting operation dated 09.11.2014, the accused, HC
Subhash can be seen taking Rs.300/ from Sh. Munna Ansari, associate of the
complainant; (d) because in the video of the incident/sting operation dated
09.11.2014, the accused, HC Ajay Singh Malik can be seen to be sitting in the
PCR Van No. DL1CP8164 (Romeo 44), when Sh. Munna Ansari, associate of the
complainant approaches it; (e) because the video of the subject incident/sting
operation dated 09.11.2014 has been found to be genuine by FSL, Rohini, Delhi
vide report dated 29.07.2016; (f) because the duty roster of both the accused
reflects that they were on duty on PCR Van No. DL1CP8164 (Romeo 44), on
09.11.2014 from 08:00 am to 08:00 pm, as alleged by the complainant, Sh.
Irshad Khan; (g) because during the investigation of this case, the accused, HC
Subhash had refused to give his voice sample in front of Sh. Dinesh Kumar, the
then Ld. MM08, THC, Delhi and (h) because all the said pieces of evidence,
when seen together, raise a grave suspicion that on 09.11.2014 at a spot near
Anand Vihar Bus Depot, the accused, HC Subhash, in furtherance of the
common intention shared by both the accused of this case, had taken a bribe of
Rs.300/ from Sh. Munna Ansari, associate of the complainant.
Submissions of Sh. Nadeem Qureshi, Ld. Advocate for the accused, HC
Subhash
3. During the hearing of arguments, the Ld. Advocate for the accused,
HC Subhash had submitted that the accused, HC Subhash should be discharged
in this case (a) because the complainant has not named him in his complaint
dated 08.12.2014; (b) because he has been implicated in this case only on the
basis of duty roster; (c) because the accused, HC Subhash, who was the driver of
the PCR Van, had absolutely no occasion to take any money from Sh. Munna
Ansari, associate of the complainant; (d) because during investigation, Sh.
Munna Ansari, alleged associate of the complainant, Sh. Irshad Khan has not
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supported the case of the State and (e) because in the chargesheet filed in this
case, the State has not explained the outcome of the intimation, allegedly given
by the complainant, Sh. Irshad Khan to Central Vigilance, before conducting sting
operations on the officials of PCR Van No. DL1CP8164 (Romeo 44) stationed
near Anand Vihar Bus Depot.
Submissions of Sh. Manish Kumar Singh, Ld. Advocate for the accused, HC
Ajay Singh Malik
4. During the hearing of arguments, the Ld. Advocate for the accused,
HC Ajay Singh Malik had submitted that the accused, HC Ajay Singh Malik
should be discharged in this case (a) because the accused, HC Ajay Singh Malik
had absolutely no role to play in the alleged act of the accused, HC Subhash of
taking Rs.300/ from Sh. Munna Ansari, associate of the complainant, on
09.11.2014; (b) because the complaint dated 08.12.2014 of the complainant is
remarkably vague and lacks specifics; (c) because the transcript filed by the State
is equally vague and does not identify, which police official is talking to Sh.
Munna Ansari, associate of the complainant; (d) because during investigation,
Sh. Munna Ansari, alleged associate of the complainant, Sh. Irshad Khan has not
supported the case of the State; (e) because it is not clear whether the memory
card(s) given by the complainant, on 07.07.2015 contain the original video of the
incident/sting operation dated 09.11.2014 or a copy thereof and (f) because in
similar circumstances, this Court has discharged the accused of CC No.22/2021,
arising from the FIR No.03/2015, PS Vigilance.
Law Regarding Framing of Charge
5. Before adverting to the aforesaid rival submissions made by the Ld.
PP for the State and the Ld. Advocate for the accused, I find it expedient to refer
to the law regarding framing of charge, as explained by the Hon’ble Supreme
Court in M. E. Shivalingamurthy v CBI, (2020) 2 SCC 768, Akbar Hussain v State
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of J&K, (2018) 16 SCC 85 and Mauvin Godinho v State of Goa, (2018) 3 SCC
358.
6. In M. E. Shivalingamurthy (supra), the Hon’ble Supreme Court has
culled out the legal principles to be followed by a Criminal Court, while deciding
the issue of framing of charge against an accused. The exact observation made
by the Hon’ble Supreme Court in M. E. Shivalingamurthy (supra), is reproduced
below:
“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.
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 crossexamination
or rebutted by the defence evidence, if any, “cannot
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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
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confined to the material produced by the police (see
State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC
568: 2005 SCC (Cri) 415: AIR 2005 SC 359).”
7. In Akbar Hussain (supra), while dealing with the law regarding
framing of charge upon an accused, the Hon’ble Supreme Court has observed:
“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.”
8. In Mauvin Godinho (supra) also, while dealing with the law
regarding framing of charge upon an accused, the Hon’ble Supreme Court has
observed:
“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. Although the
application of this standard depends on facts and
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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
9. After examining the aforesaid rival submissions made by the Ld. PP
for the State and the Ld. Advocate for the accused, in light of the aforesaid legal
principles, expounded by the Hon’ble Supreme Court, I find that both the
accused of this case are liable to be jointly charged with the commission of
offences punishable under Section 7 and Section 13(1)(d)/13(2) of the PC Act,
1988 read with Section 34 of the IPC, 1860, on account of the following reasons.
10. Firstly, both the accused of this case are liable to be charged as
aforesaid because all the pieces of evidence, highlighted by the Ld. PP for the
State and noted in paragraph 2 of this order raise a grave suspicion that on
09.11.2014 at a spot near Anand Vihar Bus Depot, the accused, HC Subhash, in
furtherance of the common intention shared by both the accused of this case, had
taken a bribe of Rs.300/ from Sh. Munna Ansari, associate of the complainant.
11. Secondly, both the accused of this case are liable to be charged as
aforesaid because all the pleas taken by the Ld. Advocate for the accused, HC
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Subhash (noted in paragraph 3 of this order) cannot be decided without hearing
the complainant, Sh. Irshad Khan, as a witness of the State and without hearing
Sh. Munna Ansari, as a Court Witness.1 In my view, all the said pleas, have the
potential of being explained by the complainant, Sh. Irshad Khan, his associate,
Sh. Munna Ansari as well as the IOs of this case.
12. Thirdly, both the accused of this case are liable to be charged as
aforesaid because the pleas taken by the Ld. Advocate for the accused, HC Ajay
Singh Malik (noted in paragraph 4 of this order) do not make out a clear case of
discharge of the said accused. In this regard, it is noteworthy that although in the
alleged video of the incident/sting operation dated 09.11.2014, the accused, HC
Ajay Singh Malik cannot be seen to be engaging with Sh. Munna Ansari,
associate of the complainant,2 he has been specifically named by the
complainant, Sh. Irshad Khan in his complaint dated 08.12.2014 and therefore,
before deciding the fate of the accused, HC Ajay Singh Malik, an opportunity has
to be given to the complainant, Sh. Irshad Khan to explain the role of the
accused, HC Ajay Singh Malik. Also, in this regard, it is noteworthy that the
complicity of the accused, HC Ajay Singh Malik in the subject crime, can equally
be established by the State through the testimony of Sh. Munna Ansari, associate
of the complainant. Lastly, in this regard, it is noteworthy that on 09.11.2014, the
accused, HC Ajay Singh Malik was the incharge of the PCR Van No.
DL1CP8164 (Romeo 44) and per se, it is unbelievable that he had absolutely no
knowledge about the act(s) being committed by the accused, HC Subhash,
inside the PCR Van No. DL1CP8164 (Romeo 44). In my view, during the trial of
this case, HC Ajay Singh Malik will have to explain the circumstances in which,
he had left PCR Van No. DL1CP8164 (Romeo 44) just when Sh. Munna Ansari,
associate of the complainant had approached it. For now, it appears that he had
1 It is a matter of record of this Court that during the trial of CC No.50/2021, CC No.51/2021 and
CC No.52/2021, arising from the FIR No.04/2015, PS Vigilance, Sh. Munna Ansari had
appeared in this Court and testified as Court Witness 1.
2 Contrary to the plea of his Ld. Advocate, at 1 minute 24 seconds of the alleged video of the
incident/sting operation dated 09.11.2014, the accused, HC Ajay Singh Malik can be seen to
be sitting in PCR Van No. DL1CP8164 (Romeo 44), which is the time at which, Sh. Munna
Ansari, associate of the complainant approaches the PCR Van No. DL1CP8164 (Romeo 44).
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left the said PCR, in order to give an opportunity to the accused, HC Subhash
(driver of the PCR Van No. DL1CP8164) to collect the bribe of Rs.300/ from Sh.
Munna Ansari, associate of the complainant.
13. As a net result of the aforesaid, it is directed that both the accused
of this case shall be jointly charged qua the commission of offences punishable
under Section 7 and Section 13(1)(d)/13(2) of the PC Act, 1988 read with Section
34 of the IPC, 1860, on 09.11.2014 at a spot near Anand Vihar Bus Depot.
14. The aforesaid charge has been framed against the accused
persons. They have pleaded not guilty and claimed trial. Let the complainant, Sh.
Irshad Khan and his associate, Sh. Munna Ansari be summoned through the IO,
for examination, on 13.05.2024.
(JAY THAREJA)
Special Judge (PC Act)(ACB)02
Rouse Avenue District Courts, New Delhi
06.04.2024
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