Interim Order 15

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH.PRASHANT KUMAR,
SPECIAL JUDGE (PC ACT) (CBI)-07,
ROUSE AVENUE COURTS
NEW DELHI
CC No.112/2023
CBI Vs. Seema Devi & Ors.
CNR No.: DLCT11-000850-2023
O R D E R O N C H A R G E
1. Vide this order, I shall pass order on charge in the present
case explaining the role of all the accused persons, who
are charged with, under relevant provisions along with
applications seeking discharge filed on behalf of A-1, A-2
and A-3 which is also disposed of along with this order.
2. Facts of the present case in brief are that RC
No.0032023A0013 has been registered by CBI, ACB
against Seema Devi ASI, Delhi Cyber Crime Police Station
Outer North, Bawana, Delhi on 27.04.2023 U/s 7 of PC
Act 1988 on the basis of written complaint dated
26.04.2023 lodged by Smt. Rupali Vicky Pounikar W/o
Vicky Pounikar and verification of complaint conducted by
Mohinder Inspector, CBI/ACB. As per the complaint,
complainant Smt. Rupali Vicky Pounikar stated that on
13.04.2023 when she was at home i.e. 263, Swami
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CBI Vs. Seema Devi & Ors.
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Nayaran Nagar, Near Aas Paas Mandir, Godadara, Surat
City, Gujrat-35010, two persons namely Ms. Seema Devi
and Jagbir Singh, who introduced themselves from Delhi
Police Cyber Crime Police Station, Outer North, Bawana,
Delhi came and conducted search of their house alleging
that her husband Vicky Pounikar and her brother Kuldeep
Sangole has committed a fraud and they have come to
arrest them. After conducting search both these above
named persons were arrested. Thereafter on 19.04.2023
complainant received a phone call from Jasbir, Head
Constable, Cyber Crime Police Station, Outer North,
Bawana, Delhi from his mobile no. 8476026937 who
threatened her to give a bribe of RS. 1 lakh for
facilitating the relief to her husband and her brother on
bail. On demand she gave bribe of Rs. 1 lakh to Hc Jasbir
on 20.04.2023. HC Jasbir again demanded bribe on phone
from the complainant as rent of hotel, of which she sent
25,000/- through her brother-in-law to Jasbir in hotel at
Nagpur. Complainant further stated that Seema Devi, ASI
and Jasbir HC again demanded Rs. 7,50,000/-, so that her
husband and her brother could be released. Complainant
did not want to pay the bribe, therefore, complaint was
lodged with SP, CBI, ACB.
3. The complaint was verified by the verification officer Sh.
Mohinder Singh, Inspector, CBI on 26.04.2023 which was
conducted in the presence of complainant, independent
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CBI Vs. Seema Devi & Ors.
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witnesses Krishna Poonia, MTS ESIC Hqrs,New Delhi.
During the verification process conversation between the
complainant and accused are stated to have been recorded.
It is further reflected from the record that accused Seema
Devi had demanded bribe amount of Rr. 7,50,000/-
whereas Dilip Kumar HC Cyber Crime Police Station,
Outer North, Bawana, Delhi had persuaded the complaint
to pay the same. Thereafter, the FIR in the present case
was registered on 27.04.2023 U/s 7 of PC Act 1988 against
accused Seema Devi, ASI, Delhi Police Cyber Crime
Police Station, Outer North, Bawana, Delhi. Trap team
under TLO Rajiv Inspector is stated to have been
constituted which constitute of CBI officials, complainant
and independent witnesses Krishna Poonia and Nisha
Kumari and brother of complainant Lakshdeep @Sonu. As
per the allegation as stated in the charge-sheet which is
supported with the documentary evidence and recorded
conversation during verification process, the trap team is
stated to have arranged bribe amount of Rs. 1 lakh.
Complainant is stated to have proceeded towards Cyber
Crime Police Station, Outer North, Bawana, Delhi. During
trap proceedings two whatsapp calls are stated to have
been received and one call is stated to have been received
from accused Seema Devi, ASI. It is further reflected from
charge sheet that complainant reached Cyber Crime Police
Station, Outer North, Bawana, Delhi while she was having
one DVR which was in On mode to record the
conversation with the accused. She is stated to have
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accompanied alongwith her brother and shadow witness
Nisha Kumari. It is further reflected that complainant and
her brother met with accused Seema Devi in her office at
Cyber Crime Police Station, Outer North, Bawana, Delhi,
where she was present alongwith HC Jasbir. Nisha Kumari
was asked to wait outside. Complainant is stated to have
delivered a sum of Rs. 1 lakh which was wrapped in a
white paper and which is stated to have been treated with
phenolphthalein powder. As per the instructions of accused
Seema Devi this amount is stated to have been put in the
upper drawer of wooden table kept in the office room of
accused. Trap team is stated to have reached at the
spot immediately which was waiting outside the police
station and waiting for the signal of the complainant and
independent witness. Accused Seema Devi is stated to
have been apprehended at the spot alongwith accused
Jasbir. Trap team recovered amount of Rs. 1 lakh lying in
on the upper drawer of wooden table which is stated to
have been wrapped in a white paper and kept in the said
drawer at the instance of accused Seema Devi. Accused
Seema Devi has been apprehended at the spot as stated
above. It is further reflected during investigation when the
recorded conversations were being examined, it was
revealed that one Dilip was also pursuing the complaint
along with accused Seema Devi to pay the bribe amount.
Wash of the white paper and currency notes have been
taken. Transcription of the recorded conversation
alongwith opinion of CFSL for matching the voices of
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complainant and accused persons has already been
obtained which is stated to be positive.
4. Arguments on behalf of accused persons are two folds.
On technical aspect, it is stated that sanction for
prosecution sought against the accused persons is not from
the competent authority, therefore, due to this technical
and legal reason, as the sanction order for prosecution
under Section 19 is under the signature of concerned DCP
whereas the appointment of all the accused persons in their
current posting is under the signature of Commissioner of
police, therefore, it is argued that DCP is much below the
appointing authority i.e., Commissioner of Police, hence,
sanction sought under Section 19 of the P.C.Act is bad in
eyes of law, therefore, accused persons should be
discharged on this ground itself.
5. With regard to merits, A-1 has stated that evidence against
accused Seema Devi is not appropriate. She has been
falsely implicated in the present case. She was IO in
another matter for which allegations have been imputed
upon her that she has been demanding bribe from the
complainant as alleged. It is stated that accused Seema
Devi was investigating criminal matters, and complainant
out of ill will has falsely lodged a complaint against her as
well as other accused persons, therefore, they have been
falsely implicated in this case.
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6. A-2 Jasbir Singh has stated that there is no sufficient
material available on record with regard to Section 120-B
IPC (Old). He has never conspired with any of the
accused persons as alleged. A-2 Jasbir Singh was on
leave that day and he merely happened to be in office for
some special duty and had not demanded any money from
any person. Demand, if any, was from the side of A-1
Seema Devi. A-2 Jasbir Singh had not persuaded the
complainant to pay bribe amount. A-2 has not been name
in the FIR. He was merely present when the bribe was
being given. A-2 Jasbir Singh was also not present during
pre-trap investigation in the present case. A-2 has also
drawn attention towards transcript of recorded
conversation i.e. D-23 and has stated that after reading the
entire transcript and hearing the recorded audio
conversation, nowhere A-2 Jasbir Singh has demanded any
money from complainant. Transcript of recorded
conversation, which is D-23, has not been disputed by A-2.
It is stated that there is no recovery from A-2 and
prosecution has failed to impute any motive on his part.
There is no recovery, no demand, no acceptance, no
conspiracy on his part and he has no knowledge and no
mens rea.
7. A-3 Dilip Singh has argued on similar lines like A-2,
alleging that, in the entire transcript, his name is reflected
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at only one place. He has not been named by the
complainant in the entire complaint. A-3 was also on leave
on the day of trap. Recorded conversation do not reflect
any demand of illegal gratification from him. It is,
therefore, prayed by all the accused persons that they
should be discharged.
8. Accused persons have relied upon a number of judgment
in support of their contention which are as under : -
1.
Nanjappa vs. State of Karnataka, Crl. Appeal No 1867
of 2012 on 24.07.2015.
2.
Davinder Singh Vs. State, Crl. Appeal No. 165/71,
171/71, 48/72 decided on 11.02.1974.
3.
Gopalbhai Mohanbhai Nagoda Vs. State of Gujarat, IV
(1993) CCR 3288 (DB)
4.
State of Visakhapatnam Vs. Surya Sankaram, Cr.
Appeal 1335 of 2004 D/d 24.08.2006.
5.
Ashok Rangshahi Vs. State of Madhya Pradesh, 1996
(2) Crimes 39
9. In the light of above arguments advanced by prosecution
and accused persons, role of all the accused persons
alleged in the charge-sheet supported with evidence filed
along with the charge-sheet is perused.
10.At the outset, it is mentioned that in order to frame charge
what the court has to be guided with is to see whether a
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strong
prima facie case is made out on the basis of
allegations levelled against the accused persons. Such
allegations should be supported with material piece of
evidence along with the testimonies of witnesses
documentary and oral. If it is supported with the opinion
of expert then such suspicion is strengthened. It is not
necessary that endeavour should be to see whether accused
persons would be convicted in all circumstances or not but
the evidence filed along with the charge-sheet is such and
so grave and material that it indicate towards guilt of
accused persons which, though, has to stood to the test of
trial and any concrete opinion thereupon can be given at
the appropriate stage i.e. at the time of pronouncement of
judgment.
11.At this stage, reference can be laid upon judgment passed
by Hon’ble Supreme Court of India in case titled as
“
Union of India Vs. Prafulla Kumar Samal & Anr.”, 1979
AIR 366 as under that:
“
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 A 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 his
function after the trial starts. At the stage of
section 227, the Judge has merely to sift the
evidence in order to find out whether or not
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there is sufficient ground for proceeding
against the accused. 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.”
12.From the bare perusal of the above mentioned guidelines it
is reflected that what the court has to see at the time of
framing of charge is that
prima facie material supported
with testimonies of witness with documentary evidence is
available or not. It is not required to peruse the evidence to
such an extent that accused shall be convicted in all
possible circumstances but the court has to see that the
material available has to be so grave and sufficient which
is sufficient to convict him.
13.Judgment/citations filed by the accused persons are also
perused thoroughly. It has been argued on behalf of
accused persons that there is no demand from the side of
accused of any alleged illegal gratification, therefore, no
offence as alleged is made out against them.
14.Judgment filed and relied upon by accused are perused,
however, reference can be laid upon one judgment titled as
‘
Neeraj Dutta Vs. State of NCT of Delhi’, Crl. Appeal
1669/2009 decided on 17.03.2023, in which it has been
categorically held after relying upon all the previous
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judgments passed by Hon’ble Supreme Court of India and
various High Courts that, acceptance itself is sufficient to
make out an offence under Section 7 of P.C.Act, if from
the circumstantial evidence, it is established that demand
has been made. It has been held in this case that some
times there are no direct evidence of demand being made,
as it is made in a concealed environment. If there is an
acceptance of gratification, then it implies, after
considering the circumstantial evidence, that an offence
under Section 7 of P. C. Act is made out.
15.In light of this background, the judgment relied upon as
well the facts and circumstances of the case are perused
again.
16.Now, coming to the legal objection taken by accused
persons that sanction sought under Section 19 of the
P.C.Act is not a valid sanction, therefore, accused persons
are liable to be discharged. In this regard, the sanction
order which is filed along with the charge-sheet qua all the
three accused persons is perused. Sanction order against
accused Seema Devi, ASI is dated 31.10.2023 under the
signatures of DCP, Outer North District, sanction order
against accused HC Jasbir Singh and HC Dilip Kumar are
dated 18.09.2023 under the signatures of DCP, Outer North
District.
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17. It is a matter of record that A-1 was promoted vide order
of Commissioner of Police No. 890 dated 31.03.2022 of
Coord. Br. (Desk-VII), OTP/PHQ. A-2 was promoted vide
notification No. 19039/P.Br.(AC-III), PHQ, Ad-hoc
promotion dated 24.09.2015 by the order of Commissioner
of Police and A-3 was reverted to the rank of constable
vide notification no. XIII/12 (06) 2023 (batch No. 77)
Promotion Cell (AC-III) P. Br./PHQ discontinuation of
Adhoc promotion dated 26.05.2023.
18. During arguments, however, relevant order from the office
of ACP (Recruitment), Police Headquarter was called and
concerned ACP, (Recruitment) has filed one document
along with copy of Delhi Police Act 1978 along with
Section 12 which contains appointment of subordinate
ranks along with the documents. Concerned ACP has also
filed the Delhi Police Recruitment Rules, 1980 which
have been notified on 31.12.1980. As per these rules, as
mentioned in Rule No.4 the details of class of police
officials are mentioned for which the concerned authority
to whom the power of appointment is delegated as well as
the extent of delegation in respect thereof is mentioned in
detail. It has been further mentioned in the said rules in
Rule No. 5 that punishment mentioned at Sr. No 5 and 6
that the punishment i.e. removal, dismissal with regard to
officers upto the rank of inspector and below, the
concerned authority of appointment as well as removal and
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dismissal is DCP only. These rules have not been disputed
by any of the accused persons. It is needless to say that all
the three accused persons are from Delhi Police
department itself and no document contrary to these
documents or any document stating differently has been
placed on record on their behalf.
19.Keeping in mind the fact that concerned ACP,
Headquarter has filed all the relevant information along
with rule, as per the directions of court, therefore they
cannot be disputed. Ld. counsel for accused persons had
relied upon orders of various ASJs alleging that under
similar circumstances other courts have been discharging
the accused persons. These order of coordinate benches
are perused. Ld. Sr. PP has stated that in none of the orders
this fact has been mentioned that when concerned DCP
only is the appointing and removal/dismissal authority, as
per rules, of such officials, then any other authority, if
passing any order then such order cannot be said to be
justifiable. It is argued that order of promotion or
appointment of such officials, should be passed by DCP
only, as per rules.
20.It has been further argued that even if the order of
subsequent appointment and subsequent promotion of
such officials upto the rank of Inspector is under the
signature of Commissioner, even then it does not change
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the authority of appointment and removal as well as
dismissal, vested with concerned DCP. It has been argued
that this point has not been raised before the concerned
court whose orders are placed before this court. Orders of
coordinate bench are perused, as well. All these facts
which have been alleged by Ld. Prosecutor do not find
mentioned to be dealt with in any of such orders.
21.Keeping in mind, the relevant Rules of 1980 and Delhi
Police Act, 1978 this fact cannot be ignored that in case of
official upto the rank of Inspector, the appointment as well
as removal and dismissal authority is the concerned DCP.
Moreso, it has not been the case of accused persons that
their subsequent promotion from Constable to Head
Constable or from Head Constable to ASI has been a fresh
appointment or their cadre has been changed. Therefore, in
my considered opinion, as per the rules of Delhi Police,
1980, as well as submissions made by concerned ACP
(Recruitment) Headquarter and the relevant documents
filed on their behalf, it is reflected that the removal
authority in case of officers upto the rank of Inspector is
the concerned DCP. The concerned order under Section 19
is also under the signature of concerned DCP, therefore, in
my considered opinion the submissions made on behalf of
the accused persons that the sanction order sought under
Section 19 is not valid, is not tenable in the eyes of law.
DCP, as per Rules 1980, is competent to grant sanction
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under Section 19 of the PC Act as, as per rules, he is the
appointing as well as removal and dismissal authority of
officials upto the rank of Inspector. Thus, in my
considered opinion the sanction order is not suffering from
or vitiated by any illegality.
22.Coming to the arguments on merits and various points
raised by the accused persons, it is reflected that A-1 has
been caught red handed from the spot. Recovery has also
been made from her person. There is a complaint filed on
behalf of complainant wherein complainant has made
specific allegation against A-1. The motive alleged by the
prosecution on part of A-1 is that, she has been threatening
complainant and other persons as alleged in the complaint
to gain their favour, if they pay the required bribe amount.
It has been reflected during arguments that accused
persons have not disputed the fact that whatever talk
relating to the payment of money, it was pertaining to
compromise of the other matter and accused persons have
not demanded any money for themselves.
23.With regard to A-2 and A-3, it is reflected that there is
audio recorded conversation in which voice of A-2 and A-
3 is also there and they are found assisting and aiding A-1
and persuading complainant to pay the money. The
transcript of audio recorded conversation is not disputed
though it has been interpreted by accused persons
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differently than prosecution. Presence of A-2, at the spot,
as reflected from transcript is also being reflected though it
is subject to cross examination at relevant time. All these
facts, therefore, reflects that
prima facie material is
available against all the accused persons. Whatever has
been alleged by the the accused persons that, there is no
conspiracy nor they had demanded any money or illegal
gratification from the complainant, is nothing but their
defence which can only be considered, subject to merits, at
the appropriate stage.
24.In these circumstances, therefore,
prima facie material is
available on record. The audio recorded conversation
which is D-23 is filed along with the charge-sheet, there is
report of CFSL expert in this regard which has confirmed
the matching of sample voice with questioned voice as
well as recovery has been effected from the spot and A-1,
who is alleged to be in conspiracy with A-2 and A-3, has
been caught red handed on the spot. In these
circumstances, therefore, the grounds alleged in the
application seeking discharge are not made out, hence, the
applications are dismissed.
25.Let charge for the offences punishable under Section 120-
B IPC read with Section 7 of Prevention of Corruption Act,
1988 (as amended w.e.f. 26.07.2018) be framed against all
the accused persons and separate charges for the offence
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punishable under Section 7 of Prevention of Corruption
Act, 1988 (as amended w.e.f. 26.07.2018) is framed
against accused Seema Devi and accused Jasbir Singh.
Pronounced in the open court
on 22.08.2024
(PRASHANT KUMAR)
SPECIAL JUDGE (PC ACT) (CBI)-07
ROUSE AVENUE COURTS
NEW DELHI
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