IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07 (CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI C.C. NO. : 57/11 Unique Case ID : 02401R0377302007 STATE VS. JAI BHAGWAN VASHIST S/o Late Sh. Raja Ram, R/o B49, Delhi Administration Flats, Timar Pur, Delhi FIR NO. : 47/2005 U/S : 7/13 of [ACT] P.S. : Anti Corruption Branch, Delhi Date of Institution 02.05.2006 Judgment reserved on 16.08.2012 Judgment delivered on 18.08.2012 JUDGMENT
1. The precise case of the prosecution is that on dated 24.10.2005 complainant [ENTITY] S/o Late [ENTITY] went to Anti Corruption Branch, Delhi and got lodged his complaint Ex.PW5/A regarding demand of bribe of Rs.200/ by the accused [ENTITY] who was working as UDC in the Office of SDM, Distt North, I Kripanarayan Marg, Delhi for issuance of Date of Birth Certificate of the son of the complainant.
2. The gist of the said complaint is that the complainant had submitted application on dated 28.09.2005 for obtaining the Date of Birth Certificate of his son in the Office of SDM, (D.C. Office), Distt. North, I Kripanarayan Marg, Delhi for which the accused [ENTITY] posted as UDC had called the complainant on 19.10.2005 for taking the said Birth Certificate but despite several visits by the complainant after 19.10.2005 the accused had not issued the required Certificate and ultimately in the morning of 24.10.2005 when the complainant met accused for said purpose, accused demanded Rs.200/ towards bribe. Since the complainant was not having said amount by that time, he requested time for 02:30 p.m. Since the complainant was against giving of bribe, he went to Anti Corruption Branch and got his complaint lodged before the Inspector [ENTITY], Raid Officer PW9 in presence of Panch witness [ENTITY], PW8.
3. The further case of the prosecution is that the complainant has produced 2 GC notes of Rs. 100/ each before the Raid Officer PW9 who noted down the serial number of said GC notes in the Pre raid Proceedings Ex.PW5/B and treated the said GC Notes with phenolphthalein powder. Thereafter, Raid Officer PW9 gave demonstration to the Panch witness, complainant by getting touched the right hand of the Panch witness with that treated GC Notes and wash of the right hand of the Panch witness in the colourless solution of sodium carbonate which turned into pink. Thereafter, said GC Notes were handed over to the complainant and Panch witness was instructed to remain close with the complainant and to overhear the conversation between the complainant and the person demanding the bribe amount and to give signal by moving his right hand over his head twice after being satisfied that the bribe has actually been given.
4. That at about 01:55 p.m., PW9 Raid Officer along with complainant, Panch witness, Inspector [ENTITY] and other members of the raiding party left Anti Corruption Branch in a government vehicle and reached near the DC Office, North District. Government vehicle was parked at some distance and Inspector [ENTITY] alongwith the Driver remained in the vehicle. Complainant and Panch witness went inside the DC Office and the members of the Raiding team took suitable position.
5. The further case of the prosecution is that at about 02:45 p.m. on receiving the predetermined signal from Panch witness, Raid Officer alongwith the raiding team reached the spot where Panch witness informed that the accused had demanded and accepted bribe of Rs.200/ from the complainant in his right hand and kept the same in upper pocket of his shirt. Thereafter, Raid Officer after disclosing his identity challenged the accused that he had demanded and accepted the bribe of Rs.200/ from the complainant and offered his search but accused declined. On his directions, Panch witness recovered bribe amount of Rs.200/ from the shirt pocket of the accused and compared the serial numbers of that GC Notes with serial number mentioned in Preraid Proceedings Ex.PW5/B and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW5/C. The wash of right hand of the accused was taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of HCS and were marked as RHWI & RHWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Thereafter, wash of left pocket of shirt of the accused was also taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of HCS and were marked as LSPWI & LSPWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Those bottles, pullanda of shirt of accused and sample seal were taken into possession vide Seizure Memo Ex.PW5/D. The Raid Officer also drawn up the Post Raid Proceedings which is Ex.PW5/F and prepared Rukka Ex.PW9/A and sent the same through Ct. [ENTITY] to PS Anti Corruption Branch for registration of the case.
6. The further case of the prosecution is that the Raid Officer called Inspector [ENTITY] PW6, IO at the spot and handed over him the custody of the accused, case property and relevant documents etc. for purpose of Investigation. IO took up the Investigation, prepared the Site Plan Ex.PW6/A. IO recorded the statement of complainant and Panch witness, interrogated the accused and arrested the accused and conducted his Personal Search vide Memo Ex.PW5/E. IO seized Documents Ex.PW6/B from the SDM Sadar Bazar vide Seizure Memo Ex.PW3/A. IO got the accused medically examined and thereafter put him in the lock up and deposited the case property in the Malkhana. During the course of Investigation, IO also seized Bio data of the accused, Posting Order of the accused, Copy of the Attendance Register dated 24.10.2005. IO also sent the relevant exhibits to FSL Rohini and subsequently also obtained Sanction Order Ex.PW7/A for launching prosecution as against this accused and after completion of the Investigation, IO prepared the Chargesheet and filed in the court.
7. After compliance with the provision U/[SECTION] of [ACT] and after hearing both sides on the point of charge, charge for offence punishable U/[SECTION] and [SECTION]/[SECTION] of the [ACT] was framed against accused on 27.02.2007 to which accused pleaded not guilty and claimed trial.
8. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 12 prosecution witnesses namely Ct. [ENTITY], a formal witness as PW1, [ENTITY], the then MHC(M) PS Civil Lines, a formal witness as PW2, Sh. [ENTITY], the then SDM Sadar Bazar, North District, a formal witness as PW3, Sh. [ENTITY], the then OSD, District North, a formal witness as PW4, Sh. [ENTITY], complainant as PW5, Inspector [ENTITY], IO as PW6, Ms. [ENTITY], the then Deputy Commissioner, North District as PW7, Sh. [ENTITY], Panch witness as as PW8, Inspector [ENTITY], Raid Officer as PW9, Sh. [ENTITY], the then ADM North District, a formal witness as PW10, [ENTITY]/UDC in Directorate of Education as PW11 and [ENTITY]/UDC, Services II Department, Secretariat, Delhi as PW12.
9. After closure of the PE, statement of accused under [SECTION] [ACT] was recorded in which the accused denied about any demand and acceptance of the bribe from the complainant. Accused claimed to be falsely implicated in this case having no concern with the alleged offence. Accused in support of his defence got examined Sh. [ENTITY] as DW1 and Sh. [ENTITY] as DW2.
10. I have heard Final Arguments as addressed by [ENTITY], Adv. Ld. Counsel for the accused [ENTITY] and Sh. [ENTITY], Ld. Addl. PP for the [ENTITY] and perused the relevant record.
11. It is submitted by Ld. Counsel for the accused that the Sanction Order Ex.PW7/A suffers from legal infirmities and is legally invalid and therefore, this accused deserves to be acquitted on this ground itself. It is further added by Ld. Counsel for the accused that PW7 Ms.[ENTITY] who was working as Deputy Commissioner was not competent to accord Sanction as against the accused who was posted as UDC in the Office of SDM, North District in view of the fact that as per Biodata of the accused Ex.PW4/DA, Appointment Authority was Chief Secretary and Disciplinary Authority was Divisional Commissioner. It is further added by him that even as per PW10 [ENTITY], the Divisional Commissioner is Head of Revenue Department and he was also designated as Secretary (Revenue) and Deputy Commissioner was subordinate to him and therefore, PW7 who was posted as Deputy Commissioner was not competent to accord Sanction for prosecution as against the accused and hence, the Sanction Order is legally invalid and the accused deserves to be acquitted on this ground itself. It is further added by him that this accused has neither demanded nor accepted any bribe from the complainant [ENTITY] nor the prosecution could establish the said aspects and therefore, this accused deserves to be acquitted. It is further added by him that this accused had no concern in the issuance of Date of Birth Certificate of the son of the complainant as corroborated from the deposition of PW3 and therefore, the accused had no occasion or reason to demand any bribe from the complainant for issuance of Date of Birth Certificate. Innocence of the accused is also corroborated from the fact that no incriminating material/document was recovered from the accused nor there is anything on record to establish that the accused was assigned any duty in processing the application for issuance of Birth Certificate or preparation of the Birth Certificate. It is further added by him that the complainant [ENTITY] who was working as Cook with Joint Commissioner of Police was having a grudge against the accused as accused had warned him not to disturb and harass him when he came before noon on 24.10.2005 in his Office and accused had threatened to see him and therefore, in connivance with the police had got him falsely implicated in this case. It is further added by him that at about 2:30 p.m.on that day when the accused was working in his Office by having his back towards the entrance while sitting in the chair, his colleague [ENTITY] and [ENTITY] were also working in the Office, the accused felt that somebody has stealthily putting something in his shirt pocket from back side and when he put his hand in his pocket to throw it out, the police officials immediately pounced upon him and took out said notes with his right hand from his pocket and thereafter, he was taken to Anti Corruption Branch and falsely implicated in his case and all the documents were fabricated there. It is further added by him that said facts also found corroborated from the deposition of DW1 [ENTITY] and DW2 [ENTITY] which are further found corroborated from the statement of the accused U/[SECTION] [ACT] It is further added by him that the demand, acceptance and recovery of the bribe could not be established by the prosecution being found contradicted from the deposition concerned PWs in this respect. It is further added by him that there are several contradictions in the deposition of various PWs on various aspects which falsify the case of the prosecution and therefore, the accused deserves to be acquitted. Ld. Counsel thus urged for acquittal of this accused and referred and relied upon following judgments: [PRECEDENT] [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT].
12. To the contrary, it is submitted by Ld. Addl. PP for the [ENTITY] that the prosecution by examining 12 PWs have clearly established its case as against this accused and therefore, the accused deserves to be convicted for the charged offence. It is further added by Ld. Addl. PP for the [ENTITY] that the prosecution has clearly established its case regarding demand and acceptance of the bribe as against this accused from the complainant through the deposition of PW5/[ENTITY], complainant, PW8/[ENTITY], Panch witness, PW9/ Inspector [ENTITY], Raid Officer and PW6 Inspector [ENTITY]/IO and there is no reason to disbelieve them. It is further added by Ld. Addl. PP that the Sanctioning Authority, PW7 has passed the valid Sanction as against this accused after due appreciation of the relevant materials and therefore, there is no infirmity in the said Sanction Order Ex.PW7/A. It is further added by Ld. Addl. PP that mere discrepancy in the deposition of certain PWs as pointed out by Ld. Counsel for the accused are merely formal in nature and is because of the time gap between the period of incident and deposition of PWs in the court and the case of the prosecution cannot be thrown out merely on the said ground. Ld. Addl. PP for the [ENTITY] has added that the prosecution has been successful in establishing its case as against the accused for the charged offence and hence, he deserves to be convicted.
13. The first and foremost question having significant bearing on the fate of this case is whether prosecution has proved that valid Sanction has been accorded by the Competent Authority as per [SECTION] of [ACT] as against the accused. In order to prove the Sanction as against the accused [ENTITY], the prosecution has examined PW7 Ms.[ENTITY], the then Deputy Commissioner, North District, Delhi who has categorically deposed that on 7.4.2006 she was posted as Deputy Commissioner, North District, Delhi and an application for according Sanction U/[SECTION] of [ACT] for prosecution of accused [ENTITY]/UDC alongwith material collected during Investigation was placed before her. She further deposed that she was competent to remove the accused from service and after going through the material as she was satisfied that accused has prima facie committed an offence U/[SECTION] of [ACT], she accorded Sanction for prosecution against accused U/[SECTION] of [ACT] which is Ex.PW7/A and bears her signature at point A. In the cross examination by Ld. Defence Counsel, she denied the suggestion that she was not authority to remove the accused or to grant Sanction U/[SECTION] of [ACT] or that only Chief Secretary was Appointing/Promoting Authority of the accused. She also added that she do not know as to when promotion of the accused took place and who ordered his promotion.
14. From the perusal of the Biodata of the accused which is Ex.PW4/DA it is clearly reflected that the Appointing Authority is the Chief Secretary and the Disciplinary Authority is the Divisional Commissioner. Therefore, as per the Biodata Ex.PW4/DA it is the Chief Secretary who is the competent authority to remove the accused from service and therefore, competent to accord Sanction for prosecution of this accused who was posted as UDC but there is nothing on record to establish that said Chief Secretary had examined the relevant material and came to the conclusion regarding prosecution of this accused and have accorded the Sanction for launching prosecution as against this accused nor said Chief Secretary has delegated the power to any one for according Sanction for launching prosecution as against this accused. Besides that from the perusal of the deposition of PW11 [ENTITY] coupled with Regular Appointment Order dated 30.03.1998 Ex.PW11/A as per serial no.50, the date of Regular Appointment in GradeIII of the accused is w.e.f. 31.12.1991. Said PW11 has also deposed that the post of UDC falls within the ambit of DASS (Delhi Administration Subordinate Services). Furthermore, from the deposition of PW12 [ENTITY] coupled with Letter dated 16.08.2011 as issued by [ENTITY], Joint Secretary (Services) which is Ex.PW12/C, it is reflected that "as per [ACT] post of Grade III (DASS)/UDC is a Group C post and the Head of Department concerned is appointing authority in respect of UDC."
From the deposition of PW10 [ENTITY], the then ADM, North, Delhi, it is clearly reflected that Divisional Commissioner is the Head of Revenue Department and the Deputy Commissioner is Subordinate to him. However, in the present case, from the perusal of deposition of PW7/Ms. [ENTITY] coupled with Sanction Order Ex.PW7/A, it is clearly reflected that said Sanction Order has been passed not by the Divisional Commissioner but by PW7/Ms.[ENTITY] who was posted as Deputy Commissioner, North District, Delhi and she was subordinate to the Divisional Commissioner. Furthermore, there is nothing on record to establish that the then Divisional Commissioner has delegated the power to PW7/Ms.[ENTITY] for according Sanction for launching prosecution as against this accused who was posted as UDC in the Office of SDM, Sadar Bazar, North District on 24.10.2005. Hence, I have no hesitation to safely conclude that said Sanction Order Ex.PW7/A suffer from legal infirmities, the same being without jurisdiction and is a nullity and my said view is found nourished from the judgment as rendered by Hon'ble Supreme Court of India in the case reported as under: [PRECEDENT] Ram Krishan Prajapati vs. [ENTITY] of U.P. wherein it was observed in Para 8, 9 and 10 as under:
8. The position is now clear that even though the District Magistrate was also an appointing authority, as the appellant was in fact appointed by the Commissioner, who is admittedly a higher authority than the District Magistrate, the Commissioner is the appointing authority so far as the appellant is concerned.
9. If that be so, the appellant is entitled to contend that the sanction to prosecute him in this case should have been passed by the Commissioner and not by the District Magistrate. The sanction issued by the District Magistrate is not a sanction in the eye of the law as the said authority was incompetent to accord sanction for prosecution under the Act concerning the appellant.
10. It is unnecessary to go into the other merits of the case as we hold that want of sanction would totally exclude the jurisdiction of the Special Judge under the [ACT] from taking cognizance of the offence. In the result we allow this appeal and set aside the impugned judgment and also the conviction and sentence passed on him.
15. In another case reported as Mohd. Iqbal Ahmed Vs. [ENTITY] of Andhra Pradesh 1979 Chandigarh Criminal Cases 113 (SC) in which Hon'ble Supreme Court, while considering grant of sanction, held: "It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence alinude to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficulty in the prosecution, the entire proceedings are rendered void ab initio "
16. The law relating to the Sanction is strict in its requirements that is to say there has to be a valid Sanction for commencement of the trial where the Sanction has been accorded by a person who was not competent to accord the said Sanction, the same has been held not to be valid Sanction or further it matter that a Sanction has been accorded without application of mind, the same has also been held not to be a valid Sanction. Criteria laid down for grant of Sanction has to fall within the four corners of the Sanction and any deviation in this regard would result in initiating the trial without a valid Sanction has been held to be a trial without jurisdiction by the court and it was so held by Hon'ble Supreme Court of India in the case reported as S.N.Bose Vs. [ENTITY] of Bihar AIR 1968 SC 1292.
17. The requirement of the existence of Sanction cannot be given by mere interpretation to the effect that once cognizance is taken the absence of Sanction become irrelevant. "If cognizance itself cannot be taken in the absence of sanction and taking cognizance of an offence by whatever means cannot justify the existence or absence of Sanction. Infact as strictly speaking if there does not exist any valid Sanction, it cannot be said that the cognizance of offence, was taken by itself, cannot cure the defect in this regard, hence the prosecution of the appellant was vitiated". It was so held by Hon'ble Supreme Court of India in the case reported as K.Narsimhachari Vs. [ENTITY] Inspector of Police ACB Cuddapha District 2003 Crl.L.J. 3315.
18. By taking cue from the aforesaid judgments and keeping in mind the legal requirement relating to the grant of Sanction and applying the same to the present Sanction Order Ex.PW7/A which has not been granted by the competent authority, I have no hesitation to safely conclude that said Sanction Order Ex.PW7/A suffer from serious legal infirmities and is legally invalid.
19. During the course of argument, it is submitted by Ld. Counsel for the accused that this accused has neither demanded nor accepted any bribe from the complainant [ENTITY] nor the prosecution could establish the said aspects and therefore, this accused deserves to be acquitted. It is further added by him that this accused had no concern in the issuance of Date of Birth Certificate of the son of the complainant as corroborated from the deposition of PW3 and therefore, the accused had no occasion or reason to demand any bribe from the complainant for issuance of Date of Birth Certificate. Innocence of the accused is also corroborated from the fact that no incriminating material/document was recovered from the accused nor there is anything on record to establish that the accused was assigned any duty in processing the application for issuance of Birth Certificate or preparation of the Birth Certificate.
20. From the perusal of the record, it is clearly reflected that the accused was posted as UDC in the Office of SDM, Sadar Bazar, North District, Delhi during relevant period i.e. 28.09.2005 to 24.10.2005 but there is nothing on record to establish that this accused was assigned any duty in processing the application for issuance of Birth Certificate. Furthermore, PW3/[ENTITY], the then SDM, Sadar Bazar, North District, Delhi has clearly deposed that the application from the public or other miscellaneous Dak used to be received by the Computer Clerk at the Receipt Counter. He has also deposed that there is no signature of the accused [ENTITY] on the Certificate of Date of Birth of child of the complainant and all the formalities were completed at the Receipt Counter. It is also revealed from the record that no incriminating material/document concerning the issuance of Birth Certificate of the son of the complainant has been recovered from the accused. Thus, I found force in the submission of Ld. Counsel for the accused to the effect that there is no evidence that the accused has any nexus in dealing of the application of the complainant for obtaining Birth Certificate for his child. Ld. Counsel for the accused has relied upon judgment reported as [PRECEDENT] wherein it was observed "no one accept illegal gratification as a motive or reward without there being a nexus between the acceptance and purpose".
21. Furthermore, from the perusal of the record, it is also reflected that the prosecution has failed to conclusively establish about "demand of bribe" by the accused from the complainant due to following reasons: (A) Prosecution could not establish the very basis of demand of bribe by the accused from the complainant as there is nothing on record to establish that accused was assigned any duty in processing the application of the complainant for issuance of the Birth Certificate. (B) There appears discrepancy in the deposition of PW5/complainant and in his police statement on the point of demand of bribe as in his deposition, said PW5 stated that the accused asked him if he has brought the money and when he replied in affirmative the accused demanded money but in his police statement Ex.PW5/DA, it is found recorded that accused asked from the complainant whether he had brought whatever he had asked him to bring in the morning. (C) The demand aspect of bribe by the accused from the complainant could not be corroborated from the deposition of PW8/[ENTITY], Panch witness as he has clearly deposed that he could not hear the conversation between the complainant and the accused. Furthermore, said PW8 in the cross examination by Ld. Chief Prosecutor has denied the suggestion that the accused had asked the complainant as to whether he had brought as to what he was told to him in the morning.
(D) PW5/complainant as well as PW8/Panch witness have stated that besides the accused 34 persons were also present in the Room and were doing work in the Office. Therefore, the demand of bribe on the part of the accused from the complainant in the presence of his other colleagues does not appear palatable.
(E) The deposition of DW1/[ENTITY] and DW2/[ENTITY] who are stated to be present and working in the same Room with the accused, also support the stand of the accused thereby raising question mark on the issue relating demand of bribe by the accused from the complainant at the spot.
22. In view of the aforesaid material as available on record, it is clearly reflected that the aspect of demand of bribe by the accused from the complainant could not be conclusively established by the prosecution. Since the prosecution has failed to establish regarding the factum of the demand of bribe by the accused from the complainant, the presumption as contemplated U/[SECTION] of [ACT] cannot be attracted in this case and my said view is found supported from the judgment as rendered by Hon'ble Supreme Court of India in the case reported as [PRECEDENT] "V.Venkata Subbarao vs. [ENTITY] represented by Inspector of Police, A.P." In Para 24 of the said judgment, it was observed by Hon'ble Supreme Court of India as under: "Submission of the learned counsel for the [ENTITY] that presumption has rightly been raised against the appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. [SECTION] of the [ACT] provides for raising of a presumption only if a demand is proved".
23. Since the demand aspect of bribe could not be conclusively established as against the accused by the prosecution, I am of the considered view that the accused cannot be held liable for penal provisions U/[SECTION] and [SECTION]/[SECTION] of [ACT] for which he has been charged with and my said view is found supported from the following judgments: ([PRECEDENT] "T.Subramanian Vs. [ENTITY] of Tamil Nadu"
(2) 2005 Crl.L.J. 1136 "[ENTITY] of H.P. Vs. Sukhdev Singh Rana"
(3) 2007 Crl.L.J. 2919 "[ENTITY] of M.P.vs. Anil Kumar Verma"
(4) 2006 (3) RCR (Crl.) 796 "Amrit Lal vs. [ENTITY] of Punjab"
(5) 2000 Crl,.L.J. 4591 "[ENTITY] of M.P. Vs. J.B.Singh"
(6) 2006 (1) RCR (Crl.) 314 "L.K.Jain vs. The [ENTITY]"
(7) 2005 (4) RCR (Crl) 716 "R.V.Subba Rao Vs. [ENTITY]"
(8) [PRECEDENT] "Suraj Mal Vs. [ENTITY]"
(9) 1992 (3) RCR (Crl.) 139 "Pritam Singh vs. [ENTITY] of Haryana"
(10) 2009 (4) LRC 275 (SC) "[ENTITY] of Maharastra Vs. Dnyaneshwar Laxman Rao Wankhede"
24. In view of the aforesaid discussion, I have no hesitation to safely conclude that since the case of the prosecution is found to suffer from legal infirmities whereby striking at the root of the prosecution case thereby resulting in acquittal of this accused and therefore, the accused [ENTITY] is ordered to be acquitted of the charged offence. Resultantly, his bail bond stands cancelled and his surety stands discharged.
Announced in the open court on this 18th day of August, 2012 ([ENTITY]) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi