Crl. Rev. P. Nos.472 of 2007; 506 of 2007; 546 of 2007 & 584 of 2007 Page No. 1 of 38 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 04-04-2008 % Date of decision : 30-05-2008 + CRL. REVISION PETITION NO.584/2007 BHUPINDER SINGH PATEL ... PETITIONER Through: Mr. Rahul Tyagi & Mr. Pawan Rai, Advs. - V E R S U S - CBI ... RESPONDENT Through: Mr. R.M. Tiwari & Mr. Ashiesh Kumar, Advs. CRL. REVISION PETITION NO.506/2007 ARVIND VIJAY MOHAN ... PETITIONER Through: Mr. Rohit Rao, Adv. - V E R S U S - CBI ... RESPONDENT Through: Mr. R.M. Tiwari & Mr. Ashiesh Kumar, Advs. CRL. REVISION PETITION NO.546/2007 AMIT JOGI ... PETITIONER Through: Mr. Sandeep Sethi, Sr. Adv. with Mr. Rahul Sharma, Adv. - V E R S U S - CBI ... RESPONDENT Through: Mr. R.M. Tiwari & Mr. Ashiesh Kumar, Advs. Crl. Rev. P. Nos.472 of 2007; 506 of 2007; 546 of 2007 & 584 of 2007 Page No. 2 of 38 CRL. REVISION PETITION NO.472/2007 RAJAT PRASAD ... PETITIONER Through: Mr. Arvind Nigam, Adv. - V E R S U S - CBI ... RESPONDENT Through: Mr. R.M. Tiwari & Mr. Ashiesh Kumar, Advs. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? SANJAY KISHAN KAUL, J. 1. The common thread that weaves through the present petitions is the aspect of criminal culpability of persons undertaking “sting” operations under the Indian Penal Code (‘IPC’ for short) and the Prevention of Corruption Act (hereinafter referred to as the said Act). The said revision petitions are filed against the order on framing charges. 2. On 05-11-2003, M/s. Dilip Singh Judeo (accused No. 1), the then Union Minister of State for Environment & Forests allegedly received illegal gratification in the sum of Rs. Nine lacs in the presence of his Additional Private Secretary (APS), Shri Natwar Rateria (accused no. 2) from one Shri Bhupinder Singh Patel @ Rahul (accused no. 3) as consideration for Crl. Rev. P. Nos.472 of 2007; 506 of 2007; 546 of 2007 & 584 of 2007 Page No. 3 of 38 future ‘favours’ with regard to certain mining projects in the states of Chattisgarh, Jharkhand and Orissa. The said incident had been secretly video recorded by accused no. 3 and one Shri Arvind Vijaymohan (accused no. 4) acquainted with accused no. 3 who arranged for the video recording equipment. This incident came to be widely reported and publicized in print and visual media. 3. After conducting a preliminary enquiry, the respondent registered a case against the said accused no. 1, accused no. 2, accused no. 3 and accused no. 4 on 19-12-2003. Further investigations conducted and statements of various witnesses recorded revealed that Shri Amit Jogi (accused no. 5) s/o Shri Ajit Jogi the then Chief Minister of Chattisgarh had allegedly hatched a plan with the said accused no. 3, accused no. 4 and one Shri Rajat Prasad (accused no. 6) to video record accused no. 1 in the act of receiving bribe with an intention to disgrace accused no. 1 and tarnish his image and derive political mileage just before the assembly polls of Chattisgarh which were scheduled to be held in the end of November, 2003. The respondent thereafter filed the charge sheet where the names of accused no. 5 and accused no. 6 were added. 4. In the meantime, accused no 3, along with one Shri Praveen Jain filed a petition u/s 482 of the Code of Criminal Procedure (the said Code for short) in this court for quashing of the FIR against them which was dismissed vide order dated 10-11- 2004. In December 2004, a Special Leave Petition was filed Crl. Rev. P. Nos.472 of 2007; 506 of 2007; 546 of 2007 & 584 of 2007 Page No. 4 of 38 assailing the aforesaid order which met the same fate and the Apex Court while disposing of the said SLP vide order dated 23-11-2007 observed that the petitions had become infructuous in view of the charges being already framed against the petitioners in the trial proceedings. 5. In the charge sheet, the respondent named two sets of accused. One comprising of accused no. 1 and accused no. 2 who were booked under section 7 of the said Act r/w section 120B of IPC for receiving the bribe amount from accused no. 3 which was secretly video recorded and the other set comprising of accused no. 3-6 charge sheeted under section 12 of the said Act r/w section 120B of IPC for having conspired with one another with the motive to humiliate accused no. 1 and taint his image. 6. During the trial before the Ld. Special Judge, accused no. 1 and 2 conceded to the framing of charges and did not advance any defense on their behalf. In so far as accused nos. 3-6 are concerned, after the hearing of the arguments of the parties on charge, the court found against the said accused and framed charges against them u/s 12 of the said Act r/w section 120B of IPC vide orders dated 24-04-2007 and 25-04-2007. The present revision petitions are directed against the aforesaid orders passed by the Ld. Special judge, CBI on framing of charges against the petitioners/accused nos. 3-6. 7. The plea raised by the learned counsel for accused no. 3 is that accused no. 3 being employed as a journalist in Akash Crl. Rev. P. Nos.472 of 2007; 506 of 2007; 546 of 2007 & 584 of 2007 Page No. 5 of 38 Channel had access to the Chief Minister and thought of exposing corruption at highest level in order to make a name for himself in the field of investigation. Accused no. 3 was justified to use subterfuge, to obtain material, which could not have been possible by other means and that the petitioner could not even report the matter to the police or any investigating agency like the CBI for the reason that such agencies also work under the State/Central Government and there was a chance of the entire effort being rendered futile. It was thus submitted that the real motive of giving bribe to accused no. 1 was to expose the corruptness of accused no. 1 and instead of honouring such an act of accused no. 1, the respondent CBI registered a case of abetment against him. 8. It was argued that where section 12 of the said Act provides for the punishment for abetment of offences defined in section 7 or 11 of the said Act, it becomes important that the ingredients of the said section be met which it is pleaded was not so in the present case. The allegations made in the FIR and the charge sheet do not disclose commission of any of these offences referred to and thus there can be no abetment u/s 12 of the said Act. It was submitted that there can be no mens rea attributed to accused no. 3. In this respect, the learned counsel for the accused no. 3 pointed out the decision of the Apex Court in Shri Ram v. The State of U.P. AIR 1975 SC 175 where it was held that an offence of abetment cannot be made out against an accused unless it is shown that the Crl. Rev. P. Nos.472 of 2007; 506 of 2007; 546 of 2007 & 584 of 2007 Page No. 6 of 38 abettor had “intentionally” aided the commission of the crime. The judgment of Mahadeo Daunappa Gunaki & Anr. v. State AIR 1952 Bom 435 dealt with the aspect of the mens rea of the bribe giver where it was observed as under: “…In the case of a person, who offers a bribe, the mens rea consists in his intention to give a bribe in order that it may induce the public servant to do or not to do something which he would otherwise not do or do. This state of mind of the person, who offers a gratification, has obviously nothing to do with the question whether the public servant, to whom the gratification is offered, is or is not in a position to do or not to do the act, for doing or for not doing which the amount is offered to him. If, therefore, the intention or object with which money is offered to a public servant is to induce him to perform an official act or show favour in the exercise of his official functions or render any service with any public servant, the offence punishable under section 161 read with section 116 IPC would be complete, and it is immaterial whether the public servant is or is not actually in a position to do the act or show favour or render service, for doing, showing or rendering which the bribe is offered to him.” 9. The learned counsel for accused no. 3 further submitted that the prosecution failed to show any material to establish the involvement of accused no. 3 in the alleged conspiracy and in this regard referred to the judgment of the Apex Court in R. Balakrishna Pillai v. State of Kerela (2003) 9 SCC 700 to point out the general principle of criminal jurisprudence that the element of mens rea and intention must accompany the culpable act or conduct of the accused. The accused must have the mental state or degree of fault at the relevant time. Crl. Rev. P. Nos.472 of 2007; 506 of 2007; 546 of 2007 & 584 of 2007 Page No. 7 of 38 It may differ from crime to crime according to the definition thereof. The matter of degrees may also differ. In other words, the mental state and the criminal act must coincide. Mere intention is not punishable except when it is accompanied by an act or conduct of commission or omission on the part of the accused. 10. It was averred that a tape recorded conversation could be used as a piece of evidence only by way of corroborating the statement of a person who deposes that the other speaker and he carried on the conversation or even of the statement of a person who deposes that he overheard the conversation between the two persons and what they actually stated had been tape recorded. Thus, the tape recorded conversation can be used as a corroborative evidence of such conversation deposed to by any of the parties to the conversation which law has been well enunciated in the case of The State v. Ravi alias Munna 2000 Cri.L.J. 1125. 11. On the other hand, the case of the prosecution in respect of accused no. 3 is that accused no. 3 assuming a fictitious name of Rahul Saroagi and representing a fictitious and unknown Australian mining company, paid the aforesaid amount to accused no. 1 & 2 for the purposes of rendering illegal assistance which was secretly video recorded by him and later released to media with a motive to aid and abet accused no. 5 and derive political mileage for the father of accused no. 5. Apart from the testimony of Shri Praveen Jain (PW32), the Crl. Rev. P. Nos.472 of 2007; 506 of 2007; 546 of 2007 & 584 of 2007 Page No. 8 of 38 documentary evidence produced in support of the aforesaid allegation is the APFSL, Hyderabad report which proves the genuineness of the recordings of the incident of 05-11-2003 wherein accused no. 1 and 2 were seen to be receiving the alleged bribe from accused no. 3. In the affidavit filed by accused no. 3, he has admitted to have paid the said bribe. The CFSL report has also proved the presence of accused no. 3 in the video recording of the alleged incident. The transcription/content of the recording of the incident proves that the bribe was given with regard to future favours to be extended by accused no. 1 and 2 with regard to the mining projects. 12. It was alleged that accused no. 3 had been introduced to accused no. 1 as “Rahul” by one Shri Shekhar Singh (PW22) of Bhopal in connection with certain purported work relating to an Australian Mining Company which is evident from the testimony of Shri Shekhar Singh (PW22) and affidavit of accused no. 3 where after accused no. 3 established friendly relationship with accused no. 1 and 2. 13. The learned counsel for the respondent further argued that the claim of accused no. 3 that the act of payment of illegal gratification to accused no. 1 and the secret video recording of this act was prompted by a journalistic desire to expose corruption in public life is wrong and that his actual motive was to derive political mileage in favour of the father of accused no. 5. The aforesaid allegation is evident from the Crl. Rev. P. Nos.472 of 2007; 506 of 2007; 546 of 2007 & 584 of 2007 Page No. 9 of 38 fact that after recording of the incident, accused no. 3 took time for masking/hiding his identity and then released the video recording to media. Even while releasing the tape to the media he had not disclosed his identity to the media persons and in fact had disappeared without informing the incident to any lawful agency. It was pleaded that accused no. 3 did not come forward even after the case was registered by the respondent and did not co-operate with the investigating agency until a specific direction was passed by this court in this behalf. 14. It was averred that the testimony of Shri Manish Rachhoya (PW 23) itself brings to light the fact that accused no. 5 and other co-conspirators had originally roped him in who happens to be a close friend of accused no. 5 and accused no. 3 took charge only after he (PW 23) decided to back out from the plan hatched by accused no. 5. 15. It was pleaded that if a non-public servant is also a member of the criminal conspiracy for a public servant to commit any offence under the said Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the Court of a Special Judge having jurisdiction in the matter and to support the said proposition reliance was placed on the decision of P. Nallammal & Anr. v. State 1999 SCC (Cri.) 1133. Crl. Rev. P. Nos.472 of 2007; 506 of 2007; 546 of 2007 & 584 of 2007 Page No. 10 of 38 16. The submission made on behalf of accused no. 4 is that the respondent made no specific allegations in the charge sheet against accused no. 4 in so far as the alleged abetment and conspiracy is concerned as also that the prosecution placed no material on record to prove accused no. 4’s connection in the act of giving bribe to accused no. 1 by accused no. 3. It was pointed out that even if there is evidence collected against him, the only role that can be assigned to him in the said conspiracy is that of procuring the camera equipment and installing the same therefore the charge which could at best be framed against him is of defamation at the behest of accused no. 1 who has chosen not to do the same. 17. Learned counsel submitted that section 24 of the said Act provides for protection from prosecution under section 12 to the bribe giver who makes a statement in any “proceedings” against the public servant for an offence under section 7 to 11 or section 13 or section 15 that he offered or agreed to offer any illegal gratification to the public servant. It is stated that accused no. 4 is entitled to seek such protection and for the said purpose it was not necessary to approach the police as projected by the learned counsel for the respondent. 18. It is the case of the prosecution that accused no. 4 was also deeply involved in hatching of the alleged conspiracy and to prove the same have placed on record various documentary evidence in the form of recoveries being made which include recovery of the key of room where the incident was video Crl. Rev. P. Nos.472 of 2007; 506 of 2007; 546 of 2007 & 584 of 2007 Page No. 11 of 38 recorded; air tickets (PD 28) of accused no. 3, 5, one Shri Praveen Jain from his residence; receipt no. 6622 dated 25-08- 2002 (PD-27) of the said room issued in the name of “Rahul Saraogi”. The call records of the petitioners, Shri Manish Rachoya (PW 23) and Manoj Hora (PW 40) also goes to show the same apart from the statement of PW 23. 19. To further substantiate his plea, the learned counsel for the respondent contended that accused no. 4 being a college mate of accused no. 5, is a close friend of accused no. 5 and both of them were staying/meeting at A-4, 6, Aurengzeb Road, New Delhi around the time when this conspiracy was hatched. It is stated that accused no. 4 was in-charge of election campaigning for Congress Party in Chattisgarh. In this respect reliance was placed on both oral and documentary evidence. The call analysis shows that accused no. 4 was also in close contact with accused no. 3, 6 and PW 23 for the purposes of execution of the plan. 20. Apart from the above, it is pleaded that it is an admitted fact that accused no. 4 was the one who arranged the person and the equipment to record the alleged incident. 21. In so far as accused no. 5 is concerned, the learned counsel contended that the allegation of the respondent that the mastermind behind the alleged conspiracy was accused no. 5 is wholly baseless. Accused no. 5 has not been charged of the substantive offence under section 7 of the said Act but only for abetment of the same r/w section 120B IPC. A reading of the Crl. Rev. P. Nos.472 of 2007; 506 of 2007; 546 of 2007 & 584 of 2007 Page No. 12 of 38 aforesaid provisions would show that an accused person must have an agreement with the person charged of conspiracy to do an illegal act or an act which is not illegal by illegal means. It is thus pleaded that accused no. 5 had no agreement with accused no. 1 and hence no case can be made out against him. 22. The learned counsel relied upon the decision of Saju v. State of Kerela 2000 VII AD (SC) 437 to elucidate further on the aspect of conspiracy where it was observed as under: “9. In Suresh Chandra Bahri v. State of Bihar AIR 1994 SC 2420 this Court reiterated that the essential ingredient of criminal conspiracy is the agreement to commit an offence. After referring to the judgments in NMMY Momin v. State of Maharashtra AIR 1971 SC 885 and State (Delhi Admn) v. V.C. Shukla AIR 1980 SC1382 it was held in S.C. Bahri's case (Supra) as under: A cursory look to the provisions contained in Section 120-A reveal that a criminal conspiracy envisages an agreement between two or more persons to commit an illegal act or an act which by itself may not be illegal but the same is done or executed by illegal means. Thus the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a fact situation criminal conspiracy is established by proving such an agreement. In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120B read with the proviso to Sub-section (2) of Section 120- A of the IPC, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section Crl. Rev. P. Nos.472 of 2007; 506 of 2007; 546 of 2007 & 584 of 2007 Page No. 13 of 38 120B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions in such a situation do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established the act would fall within the trapping of the provisions contained in Section 120B since from its very nature a conspiracy must be conceived and hatched in complete secrecy, because otherwise the whole purpose may frustrate and it is common experience and goes without saying that only in very rare cases one may come across direct evidence of a criminal conspiracy to commit any crime and in most of the cases it is only the circumstantial evidence which is available from which an inference giving rise to the conclusion of an agreement between two or more persons to commit an offence may be legitimately drawn. 10. It has thus to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a crime by one or more persons to the agreement, of that offence. Besides the fact of agreement the necessary mens rea of the crime is also required to be established.” (Emphasis Supplied) 23. In Sharad Yadav and Ors. v. Union of India (UOI) and Anr 82(1999) DLT 13, the broad principles governing the law of conspiracy were discussed which are as under: “20. Section 120-A, IPC defines conspiracy as an agreement to do an unlawful act or a lawful act by unlawful means. An agreement will amount to a statutory conspiracy only if carrying it out will necessarily amount to or involve the commission of an offence by one or more of the parties to the conspiracy. For Crl. Rev. P. Nos.472 of 2007; 506 of 2007; 546 of 2007 & 584 of 2007 Page No. 14 of 38 purpose of analysis it is perhaps convenient to isolate the three clauses each of which must be taken as indicating an essential ingredient of the offence as follows : (i) If a person agrees with any other person or persons that a course of conduct shall be pursued, (ii) which will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, (iii) if the agreement is carried out in accordance with their intentions. 21. Thus, the essential ingredient in the crime of conspiring to commit a specific offence or offences is that the accused should agree that a course of conduct be pursued which he knows must involve the commission by one or more of the parties to the agreement of that offence or offences. But, beyond the mere fact of agreement, the necessary mens rea of the crime is established if it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. (See R. v. Anderson, (1985) 2 All. E.R. 961). 22. In State through S.P. (CBI/STT v. Nalini and Ors.) JT1999 (4) SC 106, some of the broad principles governing the law of