Crl.App.461/2007 Page 1 of 36 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.APP. 461/2007 % Date of reserve: 08.04.2009 Date of decision: 04.05.2009 RAM CHANDER … APPELLANT Through: Mr. Sunil Kumar, Sr. Adv. with Mr.Atul Kumar, Adv. Versus STATE (GOVT. OF NCT OF DELHI) ...RESPONDENT Through: Mr. Navin Sharma, APP for state CORAM: HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to Yes see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes : MOOL CHAND GARG, J. 1. This order shall dispose of the aforesaid criminal appeal preferred by the appellant who was sent for trial in case FIR No. 20/1999 registered at P.S. Anti Corruption Branch Delhi, under Sections 7/13 of the Prevention of Corruption Act, 1988 (hereinafter referred to as „the Act‟) on the complaint of Sh. Balwinder Singh. In the complaint Ex. PW5/A it was alleged, that the appellant while being posted as Resident Medical Officer in the Jail Hospital of Jail No.3 of the Central Jail, Tihar, later posted as Resident Medical Crl.App. 461/2007 Page 2 of 36 Officer w.e.f. 21.06.1999, demanded bribe from the complainant who was in judicial custody and was undergoing treatment in the Jail Hospital as an Indoor patient, on the threats of discharging him from jail hospital, unless and until the said complainant paid a sum of Rs.10,000/- to the appellant and Rs.5,000/- to one Dr. Krishan Kumar. Consequently, on 25.06.1999, the complainant met the Jail Superintendent Sh. Yashpal Garg PW-5, to whom he is stated to have given the aforesaid complaint. 2. On receipt of the complaint, Sh. Yashpal Garg, (PW5) discussed the matter with Addl. Director General (Prison) (hereinafter referred to as „ADG(P)‟) Sh. Ajay Aggarwal, who then discussed the matter with Additional Commissioner of Police (Anti Corruption) who deputed Inspector Niranjan Singh (PW10) of Anti Corruption Branch, to get in touch with ADG (P). At that stage, the complaint was also handed over by the Jail Superintendent to Inspector Niranjan Singh beside informing him that, Balwinder Singh will go to Tis Hazari Courts on 29.06.1999, which was the next date in his case. 3. On 29.6.1999 Balwinder Singh came to Tis Hazari Courts Lock Up, where Inspector Niranjan Singh met him and made enquiries about his complaint. Mrs. Pramjeet Kaur, (PW8) the wife of the complainant also met Balwinder Singh in Tis Hazari Courts Lock UP on the same day when she was asked by the complainant to arrange Rs.15,000/- for handing over the said amount to Jail Superintendent. The Complainant is stated to have given another communication to the Jail Superintendent on 30.6.99 informing Crl.App.461/2007 Page 3 of 36 him, that his wife would be bringing the money at the gate of Central Jail No.3 on 01.07.1999. This fact was also informed by PW- 5 to PW10. Paramjit Kaur after arranging the money handed over the same to PW-5 on 1.7.1999 through a messenger sent by PW5. 4. Inspector Niranjan Singh then organized a raiding party consisting of Panch Witness P. Sudhir Babu (PW7), Inspector Y.S. Negi (PW11), SI S.N. Pandey, Ct. Ram Chander, SI Dal Chand under the supervision of ACP Satyender Nath (PW12). The raiding party reached the office of Sh.Yashpal Garg Superitendent Tihar Jail No.3 where complainant Balwinder (Ex. PW10/A) was also called. The statement of the complainant Balwinder Singh Ex.PW10/A was then recorded in presence of Panch Witness who attested the same. The complainant, at that time also produced 30 GC notes each of Rs.500/- denomination before the raid officer given to him by Jail Superintendent after receiving it from PW8, who recorded number of these 30 GC notes in the pre-raid report and applied phenolphthalein powder on those notes. He also asked the panch witness to touch these notes and to dip his fingers in a colourless solution due to which the colourless solution turned pink. By giving this demonstration, he told the complainant to hand over the GC notes when demanded by Dr. Ram Chander. The complainant was instructed to remain close with the panch witness and to have conversation in such a manner that the panch witness could hear the same. Panch Witness and Balwinder were directed to give a signal after the transaction was over by rubbing head with hand. All these proceedings were recorded in the post-raid report which is Crl.App. 461/2007 Page 4 of 36 Ex. PW10/B. 5. It is also the case of the prosecution that PW-7, Sh. Sudhir Babu the Panch witness then went to the hospital alongwith the complainant and positioned himself in the corridor of the hospital outside the office of the appellant while complainant went to meet Dr. Ram Chander. After 2/3 minutes, he came out and gave signal indicating the completion of the transaction and then panch witness gave the predetermined signal to the raid officer. It is then the raid officer along with other members entered the room of the accused and were informed by the complainant that Dr. Ram Chander had accepted Rs.10,000/- from him as the bribe money. The accused was seen by the raid officer having the GC notes in his right hand who tried to keep the bribe amount in the drawer of his table and at that moment the appellant was apprehended and 20 GC notes each of Rs.500/- recovered from the right hand of the accused. The panch witness tallied the numbers of the recovered GC notes with the numbers recorded in the pre-raid report and the numbers of these recovered GC notes were found to be the same. He prepared Post Raid report Ex.PW10/B. Those notes were then taken into possession vide memo Ex.PW7/A. The raid officer took the wash of right hand of the accused in colorless sodium carbonate solution due to which the solution turned pink which was transferred into two clean bottles and the said bottles were sealed and labeled as RHW-I and RHW-II and seized vide seizure memo Ex.PW-7/B and PW-7/C a rukka was prepared vide exhibit PW10/B and on that basis FIR Ex.PW10/E was registered. Since, the raid Crl.App.461/2007 Page 5 of 36 qua Dr. Krishan Kumar failed and the said amount of Rs.5,000/- vide EX.PW7/C was then deposited by the complainant in the Jail. Thereafter, Inspector Y.S. Negi, the Investigating Officer was called at the spot and he was handed over one carbon copy of the raid report, sealed exhibits, seizure memos etc. The I.O. also prepared the site plan, collected the photocopy of the treatment record of the complainant and the bio-data of the accused along with his posting order. I.O. also took in possession the complaint EX.PW 5/A dated 25.6.99 as well as the intimation dated 30.6.1999. The exhibits were given to ACP Satender Nath for safe custody. The sealed bottles and the recovered money etc. were deposited in Malkhana. 6. After completing investigation Challan was filed after obtaining sanction from the competent authority for prosecuting the appellant under Section 7 and 13 of the Prevention of Corruption Act of which cognizance was taken by the Special Judge. After the charges were framed against the appellant under Section 7 and 13(2) read with Section 13(1)(d) of the P.C. Act. The prosecution led evidence and examined 12 witnesses to prove their case. 7. PW1 Sh. R. Mohan Kumar who accorded sanction for prosecuting the appellant on the basis of a report received from Anti Corruption Branch has proved Sanction order EX.PW1/A. He has deposed that he granted the sanction after perusing the documents of this case received from Anti Corruption Branch and after satisfying himself and applying his mind to these documents. Crl.App. 461/2007 Page 6 of 36 PW2 Ct. Mahender Singh proved the deposit of 20 GC notes each of Rs.500/- denomination and two sealed bottles Mark RHW-II and LHW-II vide EX.PW4/A in the malkhana. He also appeared as PW-4. PW3 is Sh. Brijesh Tiwari, Male Nurse, Central Jail Tihar who handed over the treatment file of Balwinder Singh to the Investigating Officer vide memo Ex.PW-3/A. PW5, Sh. Yashpal Garg, Superintendent Tihar Jail No.3 has proved the complaint given to him by Balwinder Singh and the subsequent communication as Ex.PW5/A and Ex.PW5/B as well as the other circumstances leading to the laying down of the trap recovery of money and arrest of the appellant in this case. PW6 HC Surender Singh proved the deposit of the sealed bottles, containing remnants of the washes received from FSL after chemical analysis, in the malkhana P.S. Civil Lines. PW7 Sh. P. Sudhir Babu the panch witness deposed about the recording of the report Ex.PW10/A. He also witnessed the pre-raid, raid and post-raid proceedings. PW8 Paramjit Kaur the wife of the complainant deposed about her conversation with her husband on 29.6.99 and about the arranging of money and handing it over to PW-5. PW9 Sh. M.S. Meena, Superintendetn Jail No.3 proved that he took charge on 2.7.1999 from Sh. Yashpal Garg. PW10 is the raid officer Inspector Niranjan Singh and has deposed the entire story of the prosecution. PW11 Inspector Y.S. Negi is the investigating officer of the case and PW12 is ACP Satender Nath. 8. The incriminating evidence was put to the accused for his explanation u/s 313 Cr.P.C. Accused admitted that in June/July 1999 he was posted as RMO in hospital of Jail No.3 while Sh. Crl.App.461/2007 Page 7 of 36 Yashpal Garg was the Superintendent of Jail No.3. He also admitted that the complainant Balwinder Singh was admitted in the Jail Hospital and used to be taken to RML and Pant Hospital as he was a heart patient and Sr. Resident Doctors Dr. Bir Singh and Dr. Krishan Kumar in the jail Hospital of Jail No.3 were attending him. 9. According to the appellant, he was implicated falsely due to a conspiracy between Yashpal Garg, complainant and Addl. Director General (Prison) Sh. Ajay Aggarwal but has not been able to substantiate his defence. He denied the prosecution case and stated that he never accepted any money from the complainant. He also stated that nothing was recovered from his hand and that the money was lifted from the floor of the room and his table. He also stated that wash of his hands was not taken at the spot but all the proceedings were conducted in the AC Branch. He stated that sanction for his prosecution was granted without application of mind. He also stated that a board consisting of four members admitted Balwinder in the jail, and only the board was competent to discharge him from the hospital. He also stated that Balwinder remained admitted in the Jail hospital throughout his detention period. He stated that earlier he was SMO and as a part of conspiracy he was promoted to the post of RMO though he was not willing. He also stated that complainant was a man of bad character and after his release from the jail he was murdered in Gurgaon. He stated that he neither admitted the complainant in jail hospital nor ever examined him and so there was no occasion for him to demand the bribe as alleged. Crl.App. 461/2007 Page 8 of 36 10. In defence, appellant also examined two witnesses, namely, DW1 Dr. Amitabh Bhasin, RMO, Central Jail Tihar who proved the order No.F-5/RMO/CJH/99/2445-55 dated 14.06.1999 issued by Dr. S.P. Barua, the then RMO Central Jail Hospital, Tihar, as Ex. DW-1/A and DW2 Dr. S.P. Barua Dy. Medical Superintendent, DDU Hospital who proved that earlier he was posted as RMO in the hospital of Tihar Jail No.3. He also deposed that the post of RMO is the administrative post and RMO does not attend patients. He deposed that Sr. Medical Officer, Sr. Resident Doctor and Jr. Resident Doctors are competent to admit or discharge the patients and RMO is not to admit or discharge any patient. He proved the order Ex.DW-1/A was issued by him. 11. The learned Special Judge, however, convicted the appellant under Section 7, 13(2) read with Section 13(1)(d) of the P.C. Act and sentenced him to undergo RI for 4 years and to pay a fine of Rs.20,000/- in default to undergo RI for 1 years u/s 7 of the P.C. Act and to RI for 5 years and to pay fine of Rs.30,000/- in default to undergo RI for 1 ½ years u/s 13(2) PC Act read with Section 13(1)(d) of the P.C. Act. Both the sentences of imprisonment had to run concurrently. 12. According to the appellant, the judgment of the Special Judge is un-sustainable in law as the essential ingredients of the offence under Section 7 and 13 were not made out. It is submitted that; (i) There is no evidence of any previous demand or any demand at the time when complainant visited the appellant. And as such circumstances alone cannot be relied upon to bring home the charge of accepting the Crl.App.461/2007 Page 9 of 36 bribe also for the following reasons:- a) The complainant is dead. b) PW5 says that the complaint was neither written nor signed in his presence. The letter dated 30.6.09 was also not written in his presence. No one has proved the contents of complaint, Ex. PW5/A. c) The complaint was never put to the wife Paramjit Kaur PW-8 to prove the veracity of the complaint or to prove the handwriting of the Complainant. d) PW10 says that the complaint was given to him on the same day, i.e., 25.6.99 whereas PW5 says that he only spoke to him on phone. e) That there are; i) No DD entry of complaint; ii) No handing over memo of complaint; iii) NO entry in the Register of Tihar Jail about the visit of PW10; and iv) ADG(P) in whose presence complaint was allegedly handed over has not been examined. f) The complaint dated 25.6.1999 is totally vague and does not say how/when demand was made. g) Letter dated 30.06.09 does not talk of any demand. It talks about the visit of the complainant‟s wife to Tis Hazari,but his wife PW8 says she went to Tihar Jail on 29.6.1999 and contradicts herself. h) PW10 Niranjan Singh who is alleged to have talked/discussed the matter with complainant on 29.6.1999 did not make any record of the same. i) There is material contradiction about the handing over of the case property. PW8 says that on 1.7.99 she informed PW5 to send someone, and she handed over Rs.15,000/- to the said person outside the jail. She could not tell the details of the persons, her sister who had accompanied her was not examined. The tenants from whom she had collected money were also not examined. She did not make any entry in the Mulakat Register. PW5 says Rs.15,000/- handed over by the lady at the direction of the complainant to us. ii) There is also no evidence of acceptance of bribe money inasmuch as: a) Insp. Y.S. Negi who was a member of the raiding party and was made the I.O. has stated that complainant was instructed to remain close to Panch witness and have conversation in such a manner that Panch Witness could hear. But the complainant told panch witness to stay outside near window. Complainant stays in the Crl.App. 461/2007 Page 10 of 36 accused‟s chamber for only 2/3 minutes then on coming out gave signal to Panch witness. Panch witness says he neither heard nor saw anything. The evidence of Raid Officer about acceptance of bribe is only hearsay. b) PW10, the Raid officer says that he recovered money from the right hand of accused. The Panch Witness says that currency was on the table and the floor and categorically contradicts the evidence of the Raid Officer. c) Inspector Y.S. Negi was a member of the raiding party who was also made the I.O. This is against the principles of justice and he falls in the category of interested witness who could not be relied upon. Thus, when demand and acceptance is not proved no presumption can arise. One cannot raise a presumption to prove acceptance. (iii) Regarding statement under Section 313 Cr.P.C. the observation of the Court that it provides a missing link in the chain of circumstances on the basis of the alleged false denial by the accused in his statement under Section 313 Cr.P.C. is illegal. (iv) It is submitted that falsity of defence cannot take the place of proof of fact, which the prosecution has to establish in order to convict the accused. A false plea may be considered as an additional circumstance, if the other circumstances proved and establishes the guilt of the accused. In this regard reliance has been placed upon a judgment delivered in the case of (1997) 7 SCC 156. It is stated that there is no question of any false denial. It is only when there is a proved fact that false denial may provide an additional circumstance. Here the fact regarding acceptance/recovery is not a proved fact. The accused has never proved/shown having a Crl.App.461/2007 Page 11 of 36 “consenting mind” for the alleged bribe. (v) It is also stated that the question/circumstances put forward to the accused were not proper. The questions have been so formulated/made complex as if to supplement the prosecution. The circumstance put forward to the accused omits, what panch witness said,” that the currency notes were recovered from the table and the floor”. He was not afforded any opportunity to explain the same. The petitioner has referred to Q.No.13 and Q. No.15/16 in this regard and submits that these questions are so mixed up that the accused is perplexed. Reliance has been made on Hari Ram Vs. State, 1972 Crl.L.J. 961. (vi) It is further submitted that the accused had put forward a case of conspiracy involving the ADG(P) [ref. Q.Nos.3, 8, 31]. It is submitted that the defence was proabable because; (a) there are contradictions regarding handing over complaint on 25.6.1999, (b) there are also the contradictions regarding who was handed over money; And also because the ADG Prisons has not been examined as a witness besides that there is Categorical statement of the appellant that cash was not recovered from his right-hand which is corroborated by the statement of the Panch Witness. Two DWs examined in rebuttal says that accused was not attending on the complaint and that he had no authority Crl.App. 461/2007 Page 12 of 36 to admit or discharge patients. Thus it is submitted that the trial Judge has failed to consider that the explanation offered by the accused was probable. He has relied upon judgment delivered in 1979 SC 1455, as well as the following judgments i.e. (A) Statement under Section 313 Cr.P.C. falsely recorded. i) Tanvi Ben Pankaj Kumar Divetia Vs. State of Gujarat (1997) 7 SCC 156 (paras 44, 45) (B) Material contradictions in statements i) Suraj Mal Vs. The State (Delhi Administration) AIR 1979 SC 1408 (C) The trial Court failed to consider the explanation offered by the accused. i) Man Singh Vs. Delhi Administration 1979 SC 1455 (para 2) ii) Hari Ram Vs. State 1972 Crl.L.J. 961 (78) 240 (para-6) (D) Prior demand to be proved by evidence i) Trayambak Lilaji Binnar Vs. State of Maharashtra 2002 Crl.L.J. 3059 (Para 10,11,16) (E) Demand to be proved by person from whom it is made i) Ram Swaroop Rathore Vs. State of M.P. (paras 12-16) 13. The learned APP besides the written synopsis filed by him has also relied upon the following judgments in support of his submissions opposing the stand of appellant : i) Kishan Chand Mangal Vs. State of Rajasthan AIR 1992 SC 1511 (paras 11, 20) 14. I have given my thoughtful consideration to the submissions made by the parties including their written submissions and have Crl.App.461/2007 Page 13 of 36 also gone through the LCR and the judgments cited by both the sides. 15. At the outset, I may observe that insofar as the plea taken by the appellant that the sanction order has not been proved in accordance with law, I find that the sanction order has been roved by the sanctioning authority himself by appearing as PW-1, who has categorically deposed that he granted the sanction after going through the papers produced before him. Once the sanctioning authority has been produced in the Court unless there is anything brought on record which may vitiate the sanction order, the sanction order has to be taken as proved. In this regard reference can also be made to a judgment delivered by the Hon‟ble Supreme Court in the case of R. Sundrajan Vs. State [2006 (12) SCC 749], wherein it was held: 12. There is no dispute that the sanction order was passed by the competent authority. 13. Dr. A. Chelliah, learned Counsel for the appellant, however, submitted that the sanction order was vitiated as there was no material on which it could have been passed. We do not agree. 14. In this connection, it may be mentioned that we cannot look into the adequacy or inadequacy of the material before the sanctioning authority and we cannot sit as a Court of appeal over the sanction order. The order granting sanction shows that all the available materials were placed before the sanctioning authority who considered the same at great details. Only because some of the said materials could not be proved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this case there was abundant material before the sanctioning authority, and hence we do not agree that the sanction order was in any way vitiated. There is no merit in this appeal. Hence it is dismissed. Crl.App. 461/2007 Page 14 of 36 16. Now coming to the other issues, at the outset, I may refer to a judgment of the Madhya Pradesh High Court also relied upon by the appellant, delivered in Ram Swaroop Rathore Vs. State of Madhya Pradesh, 2000 Crl. L. J. 1882, where it has been held:- 12. For the purposes of proving a case under Sections 7 and 13 of the Prevention of Corruption Act the prosecution is obliged to prove that there was demand of money which was not legal or in other words that the public servant was demanding illegal gratification in respect of an official act and he in fact received or obtained the money as an illegal gratification, by corrupt or illegal means or by abusing his position as a public servant, or while holding office as a public servant only then a person can be convicted. The recovery de hors the demand would not be sufficient to convict the accused. 17. In the aforesaid case reliance was also made on a judgment of the Apex court delivered in Suraj Mal Vs. State (Delhi Admn.), AIR 1979 SC 1408. In the said case while appreciating the provisions of Section 5(1)(d) of the Prevention of Corruption Act, 1947, the Apex Court observed, that in a case of bribery mere recovery of money de hors from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence regarding demand is not reliable. In the light of the aforesaid, the observation made by the Madhya Pradesh High Court in Ram Swaroop Rathore (Supra) in paragraphs 14 to 16 becomes relevant, which is reproduced hereunder:- 14. Undisputedly the complaint Ex. P.14 was made by C. Bhhatacharya. The said C. Bhhatacharya has not been examined by the prosecution. The learned trial Court has observed that number of the summons were issued for C. Bhhatacharya to secure his attendance but every time the Court was informed that his whereabouts were not known. Similarly reports about Som Shekhar were received that he had gone to Dubai. Similarly for witness Ramesh Dhage, the Court was informed that the witness Ramesh Dhage was not traceable. The learned trial Court without appreciating the provisions of law that in absence of the examination of the original