Crl.A.286/2002 Page 1 of 29 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.A.No. 286/2002 % Date of reserve: 19.12.2008 Date of decision: 07.01.2009 Vinod Kumar Garg …APPELLANT Through: Mr.Anil Kumar Gupta with Mr.Arun Birbal, Mr.Rajpal Singh and Mr.Piyush Gupta, Advocates Versus State ...RESPONDENT Through: Mr.Pawan Sharma, Advocate CORAM: HON’BLE MR. JUSTICE MOOL CHAND GARG 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? MOOL CHAND GARG, J. 1. Appellant has filed this appeal under Section 374 of the Code of Criminal Procedure read with section 27 of the Prevention of Corruption Act 1988 (hereinafter referred to as the Act) thereby impugning the judgment dated 27.03.2002 passed by the learned Special Judge, Delhi convicting him under Section 7 & 13 of the Act. He has also assailed the consequent order of sentence dated 28.03.2002 sentencing him to undergo rigorous imprisonment for a period of one and a half year along with payment of fine of Rs. 1000/- and in default to further undergo simple imprisonment for 3 months on both the counts separately. However both the sentences have been ordered to run concurrently. The appellant has deposited the fine and the sentence of Crl.A.286/2002 Page 2 of 29 imprisonment has been suspended during the pendency of this appeal. He is on bail throughout. 2. The genesis of the prosecution case lies in the complaint dated 02.08.1994 (Ex.PW2/A), lodged by PW2 Shri Nand Lal with the Anti- corruption Branch of Delhi Police which reads as under: - “I took on rent a shed at Welcome Colony from Sh. Anil Ahuja at the rate of Rs. 200/- (Rupees Two Hundred) per month about three months back. At that time, there was a light in all the sheds which was later on disconnected and now a days DESU Office Seelampur is energizing new meters. So I met about 15 days back, Inspector DESU, Seelampur, in whose area my shed is situated for electricity connection, who told that meter would be installed but Rs. 2000/- (Rupees Two Thousand) bribe has to be paid. He informed that this bribe he alone is not to receive, he has to pay the said money to the high-ups also. So I told him that I do not have Rs. 2000/- to pay in lump sum and I told him that I can pay the same amount in instalments of Rs. 500/- (Rupees Five hundred only) in every 15 (fifteen) days. I paid him Rs. 500/- on that day and today I have brought Rs. 500/- to pay to Inspector Garg at 9.30. So I am opposed to give and take bribe but under compulsion had said yes. I have come with Rs. 500/-. So appropriate action be taken.” 3. On this information the Anti-Corruption Branch constituted a raiding party comprising of Inspector Rohtash Singh the investigating officer, Shri Hemant Kumar, the punch witness, the complainant and other staff of Anti-corruption Branch. Inspector Rohtash Singh briefed the raiding party as to how the trap was to be laid. A sum of Rs.500/- paid by the complainant was taken into possession for which a memo Ex.PW2/C was prepared. The same G.C.Notes were then handed over to the complainant for giving to the appellant as bribe money after some treatment. The trap could not be laid on 02.08.1994 but on account of non availability of the appellant on that day, but was laid on 03.08.1994, when it is the case of the prosecution that the appellant met the complainant at the decided place and took him along on a scooter which was stopped after about 50 yards. The bribe money was put in a pink color polythene bag at the asking of the appellant in the Crl.A.286/2002 Page 3 of 29 pocket of his pant. At the signal of the complainant, the raiding party reached near the appellant where the complainant identified him. On this the appellant was apprehended and his search was taken. The bribe money kept in a polythene pack was recovered from the right hand pocket of the appellant, which turned pink when dipped in the phenolphthalein powder. After completing the investigation a police report u/s 173 of the code of criminal procedure was filed before a special Judge Delhi, who took cognizance of the case against the appellant and held the trial. The prosecution in support of its case has examined 10 witnesses before the trial Court, namely, Shri Naveen Chawla PW1 the sanctioning Authority who proved the sanction order as Ex.PW1/B, Shri Nand Lal the complainant who appeared as PW-2 and proved the complaint EX.PW2/A, PW3 Shri Hemant Kumar a Panch Witness, PW4 Shri N.K.Prasad an Official from CFSL, ACP Rohtash Singh (than inspector) who is the raiding Officer and appeared as PW5, PW6 Sh. Anil Ahuja, the Owner of the Shed, PW7 Inspector Shobhan Singh who conducted part investigation, PW8 Sh. K.C.Verma, who kept the Exhibits in his Malkhana ,PW9 Shri Rama Kant Head Constable who proved Ex.PW9/A and Ex.PW9/B the copies of the relevant entry in the Register; and PW10 Shri S.K.Banta who completed the investigation and submitted the charge sheet. No witness has been examined by the appellant in his defence. Thereafter, statement of the appellant under section 313 Cr.PC was recorded. On that basis vide Impugned Judgment, the Special Judge held that the case of the prosecution with regard to demand and acceptance of bribe money by the appellant with a view to help the complainant in getting the electricity meter by misusing his official position was proved. Thus the special Judge Crl.A.286/2002 Page 4 of 29 convicted the appellant u/s 7 and 13 of the Act and sentenced him as aforesaid. The appellant has deposited the fine and was also released by this Court on bail during the pendency of this appeal. 4. The appellant has assailed the judgment of conviction and order sentence inter-alia on the following and other grounds: i) That no bribe was ever demanded by the appellant from the complainant and, therefore the question of payment or acceptance thereof by the appellant does not arise. Even otherwise the prosecution has also failed to prove any motive or the reason for such demand as they have not led any evidence to prove that either the complainant applied for installation of a meter or that he was a tenant in a DSIDC Shed as alleged. ii) The testimony of the complainant who is in the nature of accomplice and the members of raiding party who were interested witnesses has not been corroborated by any independent witness. Thus their un corroborated depositions ought not to have been accepted in evidence for the prosecution. iii) The Inspectors of Delhi Police who investigated the case were not competent to do so in view of Section 17 of the Act which reads as under: 17. Persons authorised to investigate. — Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank, — (a) in the case of the Delhi Special Police Establishment, of an Inspector of Crl.A.286/2002 Page 5 of 29 Police; (b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of Section 8 of the Code of Criminal Procedure, 1973, of an Assistant Commissioner of Police; (c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the the case may be, or make any arrest therefor without a warrant; Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be or make arrest therefor without a warrant: Provided further that an offence referred to in Clause (e) of sub-section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. iv) Admittedly no authorization in favor of the inspectors if any to carry out the investigation from any superior authority has been brought on record. Hence the investigation conducted by them which has caused serious prejudice and injustice to the appellant could not have been the basis of his conviction. v) The Sanction Order was bad as the sanctioning authority had not applied its independent mind as the statements of the witnesses recorded under Section 161 Cr.P.C as well as the seizure memos were never placed before him as admitted by PW1 in his cross-examination. Crl.A.286/2002 Page 6 of 29 vi) There were material contradiction in the testimony of PW 2, 3 & 5. Despite noticing the same in his order the Special Judge has still drawn a presumption against the appellant under Section 20 of the Prevention of Corruption Act which should not have been done in the facts of this case. vii) Because contradictions were also there in the statement of complainant as he has denied having paid any installment about 15 days prior to the incident though so mentioned in his complaint Ex.PW2/A. viii) There was no role of the appellant in getting a meter installed at the suit premises. ix) The crystals of phenolphthalein powder were not found either on the hands of the appellant or his pant pocket, which causes serious doubt in the story of the prosecution regarding acceptance of bribe by him from the complainant but has been completely ignored by the trial Judge. 5. The appellant in support of the aforesaid contentions has relied upon various Judgments besides filling written submissions. The Judgments relied upon are as under: - Sanction Not valid 1.Mohd. Iqbal Ahmad v. State of A.P, AIR 1979 SC 677 2.Bihari Lal Gupta v. State of H.P, Criminal Appeal no. 22 of 1981 decided in 1984 Crl.A.286/2002 Page 7 of 29 3. Priyasamy v. Inspector finance and Anti-corruption deptt., 1994 CRL.L.J. 753 para 14 4. State of T.N. vs. M.M. Rajendran, 1998 (9) SCC 268 5. Yashwant Nanubhai Pingle Vs. State of Maharashtra, 1999 CRL.L.J. 1270 6. State through Inspector of Police A.P. Vs. K.Narasimhachary 2005 (3) JCC 1840 7. State of Karnataka vs. Ameer Jan 2007 SCALE11 (207) Section 17 of the Act 1. Pushpal Chand Bhaskar Vs. State 99(2002) DLT 620 2. State of Haryana Vs. Bhajan Lal AIR 1992 Supp (1) SCC 335 3. State, Inspector of Police Vs. Surya Sankaram Karri (2006) 3 SCC (Cri) 225 Material Contradictions in the testimony of witnesses 1. Suraj Mal Vs. The State AIR 1979 SC 1408 2. Subhash Chand Chauhan Vs. CBI 2005 (1) CC, (HC) 292 3 In Niranjan Khatua Vs. State of Orissa, 1990 CRL.L.J. 2790 (Place where bribe amount was demanded and accepted, prosecution version contradictory) Mere recovery of money is not sufficient 1. Charan Dass, Vs. State & Ors. 2003 CRL.L.J. 4701, J&K(HC) Crl.A.286/2002 Page 8 of 29 2. Anand Sarup Vs. The State 1988 CRL.L.J. 756, DHC 3. Mohinder Singh Vs. The State of Punjab RCR 1990 (3) P&H HC 44. 4. Vinod Kulkarni Vs. State of MP 1988 (2) Crimes 887, MPHC 5. Sunil Kumar Sharma Vs. State (CBI), 2007 (2) JCC 1315 6. Manohar Dhondu Sawant Vs. State of Maharashtra & Anr. 2006 CRL.L.J. (NOC) 144 BOM. 7. State of Himachal Pradesh Vs. Tej Ram, 1990 CRL.L.J. 995 (HPHC) 8. Panalal Damador Rathi Vs. State of Maharashtra, AIR 1979 SC 1191 9. Ganga Kumar Srivastava Vs. State of Bihar 2005 SCC (cri) 1424 (officers must endeavour to secure independent & respectable witnesses in a trap of public servant) No Presumption under Section 20 could been invoked 1. V.Venkata Subbarao Vs. State (2007) 3 SCC (cri) 175 2. Subash Prabat Sonvane Vs. State of Gujarat 2002 (5) SCC 86 Demand not proved i) V.Subramaniam Vs. State 2006 CRL.L.J. (NOC) 556 (Madras) (First and foremost ingredient to be proved by prosecution is Crl.A.286/2002 Page 9 of 29 demand of bribe by accused) ii).Union of India Vs. Purnandu Biswas 2005 (3) JCC 1832 (held demand of illegal gratification by the accused/respondent has not been proved) Complainant & raiding party are interested witnesses like an accomplice Sat Paul Vs. Delhi Administration, AIR 1976 SC 294 6. On the other hand the Additional Public Prosecutor has justified the judgment of the special Judge. It has been submitted (i) that the demand of bribe, its acceptance as well as the recovery of the tainted money was proved by the witnesses. (ii) There is also no merit in the submissions that merely because the investigation has not done by an ACP, because in this case Police Report was filed after completing investigation and on that basis cognizance was also taken by the competent Court in accordance with the provisions of CR.P.C and there being nothing to pointed out that any prejudice has been caused to the appellant, the argument advanced by the defense was not sustainable. (iii) That in a trap case the deposition of the Complainant cannot be brushed aside and needs no independent corroboration yet the other witnesses have corroborated his testimony. It is also submitted that even though there are some contradictions in the deposition of the witnesses, but they are not material contradiction but are only minor deviation which is normal.(iv) The motive to ask for the bribe stands proved by the complaint exhibit PW2/A. The very fact that the tainted money was passed on to the appellant and recovered from his Crl.A.286/2002 Page 10 of 29 possession raises a very strong presumption under Section 20 of the Act about the demand and acceptance of bribe money which is corroborated by the fact that the same money which was given to the accused was recovered from him. It is further submitted that PW-1 who was the sanctioning Authority in his testimony categorically stated that he had gone through the material placed before him and was satisfied that it was a fit case for grant of sanction. (v) That in a trap case the complainant is not an accomplice because it is at his instance that the case starts. If there is no complaint, no trap can be laid down. In any case the statement of PW2 was fully corroborated by the other members of the raiding party and, thus, the arguments that it requires independent corroboration has no legs to stand. 7. It has been submitted that merely because Shri Anil Ahuja turned hostile would not help the appellant because nothing has been pointed out as to why the complainant will like to involve the appellant in this case. It is not disputed that the appellant is an officer working with DESU and was competent to have helped the appellant in obtaining an electricity connection which is the reason for demanding the bribe money. No other evidence has been led by the defence to show that at the site referred to by the complainant either somebody else was working or that the complainant was never a tenant in the said premises except the hostile testimony of PW-6 who obviously deposed at the asking of the appellant, which usually happens in such cases. The complainant has proved the complaint in his own testimony which narrates the entire story and the money which has been recovered from the appellant is the same money which was handed over by the complainant to the police for which a trap was laid down and a memo Crl.A.286/2002 Page 11 of 29 was prepared before conducting the raid and the money has been recovered from the pocket of the appellant which goes to show that the trap was successful. Thus, the motive, the demand and acceptance of money all stands proved. It is thus submitted that there is no infirmity in the case of the prosecution and there is no reason as to why this Court should interfere in the judgment rendered by the Special Judge convicting the appellant and sentence awarded to him as stated above which is not a harsh sentence taking into consideration the present day increase of corruption in the public life. The ld. APP has relied upon the following judgments in support of his submissions; Sanction is valid 1.Ram Sagar Pandit Vs. State of Bihar 1964 (2) CRL.L.J,. 65 (Vol 69) 2.C.S.Krishnamurthyy Vs. State of Karnataka AIR 2005 SC 2790 3.Prakash Singh Badal Vs. State of Punjab AIR 2007 SC 1274 Authorization under Section 17 ( not relevant when cognizance taken on a police report after completion of investigation) 1.State by CBI V. Shri Bangarappa 2001 (1) CC Cases, (SC) 1 2.Rajender Dass Gupta Vs. CBI 2001 (2) CC Cases, (SC) 131 3.State of Rajasthan Vs. Shambhoogiri, AIR 2005 SC 1643 Material Contradictions no ground for acquittal 1.State of A.P.Vs. S.Janardhana Rao, AIR 2005 SC 1200 Crl.A.286/2002 Page 12 of 29 2.M.W.Mohiuddin Vs. State of Maharashtra, 1995 (3) SCC 567 (it was held that once the accused comes into possession of the tainted money the only inference is that he accepted the same & thus „obtained‟ the pecuniary advantage) 3. In State of MP Vs. Shambhu Dayal Nagar, AIR 2007 SC 163 (where it was held that recovery of bribe amount from upper pocket of shirt of accused was fully corroborated by the complainant & also by the two independent witnesses) 8. I have given my thoughtful consideration to the submissions made by learned counsel appearing for the appellant and that of the learned public prosecutor including the written submissions of the appellant. I have also gone through the lower Court record and the Judgments cited by the parties. 9. In this case the sanction order EX.PW1/A has been proved by PW1 by appearing in the witness box. He himself was the sanctioning authority. The only point raised by learned counsel for the appellant to discredit his testimony is that in his cross-examination he has admitted that the statement recorded under Section 161 Cr.PC and the seizure memo were not produced before him. However, I do not find that in his cross-examination any suggestion has been put which might go to show that if such material would have been before him, he would have taken a different view. Even otherwise, it is well settled that adequacy or inadequacy of the material before the sanctioning authority cannot be gone into by us by sitting as a Court of Appeal over the sanction order. Once the order granting sanction shows that all the available material were placed before the sanctioning authority, the sanction Crl.A.286/2002 Page 13 of 29 order stands 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. 10. In this case PW-1 has deposed that:- “on 16.4.97, I was working as Chairman, Delhi Vidyut Board. Vinod Kumar Garg had been working as Inspector, DESU, Now Delhi Vidyut Board at Seelampur office. I was competent to remove him from service. After fully and carefully examining the allegation contained in the material placed before me and the circumstances of the case I granted sanction for prosecution of Vinod Kumar Gard vide my order Ex.PW1/A. This order bears my signatures at point ‘A’. 11. The sanction order Ex.PW1/A, which reads as under:- SANCTION ORDER Whereas it is alleged that Sh. Vinod Kumar Garg while functioning as Inspector, DESU (now DVB) office Seelampur, Delhi, a public servant in the discharge of his official duty demanded Rs. 2000/- as illegal gratification from Sh. Nand Lal S/o Shri Megh Raj r/o H.No.341/20, Mangal Sain Building, Bagh Kare Khan, Delhi-110007 in consideration for installing an electric meter at shop No. A-2, DSIDC Welcome Colony, Seelampur, Crl.A.286/2002 Page 14 of 29 Delhi, without proper formalities. Sh. Vinod Kumar Gard, Inspector, DESU (now DVB) office Seelampur, delhi, demanded, accepted and obtained Rs. 500/- (second instalment) as illegal gratification from the complainant. Whereas the said act of Inspector, Shr. Vinod Kumar Gard DESU (now DVB), Seelampur Office, Delhi constitute an offence punishable u/s 7/13 POC Act No. 49 of 1988. Whereas I, Navin Chawla, Chairman, DVB, New Delhi being the authority competent to remove Sh. Vinod Kumar Garg DVB office Seelampur, Delhi from office/services after fully and carefully examining the material before me in regard to the said allegation and circumstances of the case consider the said Inspector, Vinod Kumar Garg, DVB Office Seelampur, Delhi be prosecuted in the Court of Law for the said offence/offences. Now, therefore, I, (Navin Chawla, Chairman DVB, Delhi do hereby accord sanction under Section 19(1)(C ) OF THE Prevention of Corruption Act, 19 for prosecution of said Inspector, Vinod Kumar Garg, DVB office Seelampur, delhi for the said offence/offences any other offences punishable under provisions of law in respect of the acts aforesaid and for taking cognizance of said offence y a Court of competent jurisdiction (NAVIN CHAWLA) Chairman Delhi Vidyut Board Shakti Bhawan, Nehru Place New Delhi 12. PW1 in his testimony has deposed that the sanction order was passed by him after fully and carefully examining the allegations contained in the material placed before him and in the circumstances of the case which persuaded him to grant prosecution of Vinod Kumar Garg the appellant herein. Thus, there is no infirmity in the order granting sanction and there is also no need to refer to the other Judgments cited by the parties on this point. 13. Regarding Motive, demand and acceptance of bribe money PW2 Shri Nand Lal the complainant has stated that in the year 1994 he hired an industrial shed in DSIDC Welcome Colony Seelampur, Delhi from Anil Ahuja. On this point there is no cross-examination of this witness. Except giving a suggestion that he has not taken any rent receipt which has been denied by the witness. He also deposed about the demand made by one Inspector Yadav earlier to whom he also Crl.A.286/2002 Page 15 of 29 made an application for the electricity meter and who was transferred and replaced by the appellant. On this point also there is no cross examination. He also deposed that the appellant (accused) present in Court told him to move an application for providing meter of electricity and also asked him to use the electricity without meter for which he demanded bribe of Rs.2000/-. This addition of permitting him to use the electricity without meter does not take away his complaint nor can it be termed as material contradiction. He also categorically stated “I showed my inability to give Rs. 2000/- in lump sum but I agreed and showed my willingness to give the said amount in installment of Rs.