IN THE COURT OF JAGDEEP JAIN, SPECIAL JUDGE, CBI COURT, CHANDIGARH. COMPUTER I.D. NO: 36014R0122422005.

DATE OF INSTITUTION: 08.08.2003. CORRUPTION CASE NO.30/8.8.2003/6.12.2005. DATE OF DECISION:15.05.2009.

Central Bureau of Investigation Versus

1. R.M. Gupta son of Shri Mohan Lal Gupta, aged about 62 years, resident of House No.1254, Sector 8-C, Chandigarh. 2. S.S.Bhardwaj son of Shri Gurdev Singh, aged about 42 years, resident of House No.221, Sector 22-A, Chandigarh. ......Accused F.I.R NO.RCCHG2003A0014 dated 09.05.2003, U/Ss 120-B of Indian Penal Code and under Section 7 & 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act,1988. P.S. CBI, ACB, Chandigarh.

Present:Shri R.L. Negi, Senior Public Prosecutor for C.B.I. Accused R.M. Gupta on bail being assisted by Shri A.S. Sukhija, Advocate Accused S.S. Bhardwaj on bail being assisted by Shri Deepak Sibal and Rabindra Pandit, Advocates

JUDGMENT

On 09.05.2003, Gurvinder Singh lodged complaint with CBI. Following is the version, as translated in English:

It is submitted that I, Gurvinder Singh son of Shri Gurdeep Singh, am resident of Shree Guru Teg Bahadur Hospital, G.T. Road, Kartarpur, District Jalandhar where I am residing with my family. For the last 8-10 years, I am running private hospital under the name Shree Guru Teg Bahadur Hospital. Since February 2003, I am running a hotel under the name Las Vegas at G.T. Road. Till 1998, there was no complaint or criminal case against me. For the past 4-5 years, Kartarpur and

Jalandhar police have joined hands with some corrupt officers and in order to extract money from me they have started lodging false cases because they could not tolerate my progress. They have also turned senior police officers against me. In two of those false cases, I secured regular bail on 15.4.2003. But on 16.4.2003 itself, police registered two fresh cases against me and then on

20.04.2003 another case of similar type was lodged. I know Shri S.S. Bhardwaj, Magistrate, U.T. Chandigarh since 1998 when he was posted at Jalandhar, being Illaqa Magistrate, Kartarpur. I was on visiting terms with him. When I spoke to him about the cases, he asked me to come to

Chandigarh, rest he will take care. I went to his House No.221, Sector 22 where we had meeting which lasted about an hour. He talked to Shri R.M. Gupta, District & Sessions Judge, Jalandhar and senior police officers telephonically in my presence and also made me talk to them. As told by R.M. Gupta and S.S. Bhardwaj, I filed applications for anticipatory bail in three cases. As promised by him, R.M. Gupta issued notice for three days and granted me interim bail. On 26th April, I received telephone call from S.S. Bhardwaj that Rs. 11 lacs had to be paid to R.M. Gupta, Sessions Judge, Jalandhar and senior police officers by 29.04.2003, therefore, I should come. I came to his official residence. He told me that only if I pay Rs.11 lacs by 29th, my

applications would be allowed and no further case would be registered. As I did not pay money by 29th, my bail applications were rejected by R.M. Gupta, Sessions Judge on the same day. On 30th police registered fresh case FIR No.42, Police Station Kartarpur against me. In the

aforementioned cases, I have got bail from the High Court but, in FIR No.42 I am yet to get bail. Bhardwaj again contacted me and told that even now if I pay, my job would be done, otherwise harassment will continue. In this

context, Bhardwaj made me speak to R.M. Gupta telephonically and told me that he would himself give money to Session Judge and senior police officers. R.M. Gupta told me on phone to do whatever Bhardwaj says and my job will be done. In this context, I remained in constant touch with them and had meetings and there were constant talks on mobile. They pressed with demand of Rs.11 lacs and it was settled that money will be paid on 10.05.2003. In this context, I had a meeting with on Bhardwaj in Hotel evening Sunbeam, and, on

Chandigarh

08.05.2003

09.05.2003 I discussed the matter with Shri R.M.

Gupta telephonically. Session Judge said will keep the application with him

that he and on

10.05.2003 he will stay arrest and, after issuing notice to police he will confirm the anticipatory bail after 5-6 days and that I should deliver money by Saturday evening. He said that if I was not in a position to arrange the entire money I should pay Rs.7 lacs by 10.05.2003 should evening reach and the the

remaining

amount

before

confirmation of bail. Bhardwaj told that you will be informed telephonically as to where money was to be delivered. As told I filed application for

anticipatory bail in FIR No.42 on 9.5.2003. I do not want to pay bribe neither my conscious allows. It is requested that legal

proceedings be taken against them. 2. On the basis of the complaint, the case was

registered. Investigation was entrusted to R. Upasak, the then D.S.P., CBI. He decided to lay trap for which written

authorization was obtained from the Hon'ble the Chief Justice, Punjab & Haryana High Court. Thereafter, a trap party was constituted and presence of Dev Raj, Deputy Manager

(Vigilance) and Madan Lal, Deputy Manger (Movement) both of FCI, Regional Office (Punjab) was arranged. All of them

assembled

in the CBI Office at 3.00 p.m. The independent

witnesses were introduced to the team members. The purpose of assembly was explained to them. The complaint of Gurvinder Singh (Hereinafter referred to as the Complainant) was read over and explained to all. Demonstration about the use of phenolphthalein power was given. The complainant produced Rs.7 lacs. The denomination and distinctive numbers of the currency notes, so produced by him, were recorded in the pre-trap memo, being prepared simultaneously. The currency notes were then treated with phenolphthalein power and were returned to the complainant with instructions to carry the same in an empty card board box. He was directed to hand over the same to R.M. Gupta (Hereinafter referred to as A-1) or S.S. Bhardwaj (Hereinafter referred to as A-2) on their specific demand. It was decided that Dev Raj would accompany the complainant to the house of R.M. Gupta or that of S.S. Bhardwaj as per the situation. Dev Raj was asked to watch and observe the transaction and the complainant was instructed to give signal to the trap party by giving a call from his mobile phone to mobile number 9417151049. That number was fed in the mobile of the complainant. 3. Pre-trap proceedings were concluded at 5:30 p.m.

Pre-trap memo was prepared. The contents of the same were read over to all who signed the same.

4.

At about 5:55 p.m., the complainant informed that

A-2 had contacted him over his mobile and instructed him to reach his official residence in Sector 22-A with bribe amount immediately. 5. The trap party along with complainant and

independent witnesses immediately started for sector 22. They reached near the house of A-2 at about 06:05 p.m. The complainant and Dev Raj entered the house while members of the party and Madan Lal took positions outside in a scattered manner. 6. Complainant and Dev Raj were taken to the

drawing room where A-2 offered them tea and snacks. complainant told A-2 that it had taken a lot of time in arranging Rs.7 lacs to be given to him and A-1. Then, the complainant and A-2 started discussing about the cases of the complainant pending in the Court of A-1. During the course of discussion, complainant requested A-2 to arrange his meeting with A-1. At that juncture, A-2 demanded bribe money saying that he would himself pass over the share of A-1 to him. The complainant handed over the box containing Rs.7 lacs to A-2 who opened it; counted the packets of currency notes and kept them back in the box. After closing the box, he kept the box on the floor behind the sofa on which he and Dev Raj were

sitting. This was at about 6:30 p.m. The complainant gave signal by pressing call button of his mobile. 7. Receiving the signal, the trap party along with

Madan Lal entered the house. The Trap Officer disclosed his identity. A-2 was caught from his wrists. He denied having

ever known the complainant or having accepted bribe from him. He even tried to rub his fingers on his trousers. Meanwhile, Dev Raj pointed out the place behind the sofa where the box containing bribe money had been kept by A-2. 8. A team headed by Additional SP, CBI left for House

No.1254, Sector 8, Chandigarh, the private house owned by A-1. 9. A solution of sodium carbonate was prepared in a

glass tumbler and A-2 was asked to dip his right hand fingers in that solution. On his doing so, the colour of the solution turned pink. It was transferred to a phial and was sealed.

Fresh solution of sodium carbonate was prepared in another glass tumbler. A-2 was asked to dip his left hand fingers in the solution. When he did so, the colour of solution turned pink. The solution was transferred to another phial and was sealed. 10. In the meantime at about 7:20 p.m., Shri L.R.

Roojam, District & Sessions Judge (Vigilance), Punjab, who

had been deputed by the Hon'ble Chief Justice Punjab & Haryana High Court reached the spot. He was introduced to A-2 and the others. Subsequent proceedings were conducted in his presence. 11. On the directions of the Trap Officer, Madan Lal

took out the bribe money from the box and put it on the centre table. The money was counted and the denomination and distinctive numbers of the currency notes were compared and were found matching with those mentioned in the pre-

trap memo. The currency notes were kept back in the box and the box was sealed. Personal search of A-2 was conducted but nothing was found on his person. Similarly, personal search of complainant did not reveal anything objectionable. The posttrap proceedings were completed at about 10:00 p.m. Memo incorporating all the relevant details was prepared. It was signed by the complainant, both the independent witnesses and the members of party. 12. Immediately after the signing of post-trap memo,

search of the house was started. However, when the team was busy in search operation, A-2 went upstairs on the plea of consoling his wife and persuading her to take food. From there, he managed to escape at 12:20 a.m. 13. The team, which had left for the private house of

A-1 in Sector 8-B, Chandigarh, conducted search there in the

presence of independent witnesses and Shri M.S. Sullar, District & Sessions Judge (Vigilance), Haryana, who had been deputed by the Hon'ble Chief Justice, Punjab & Haryana High Court. On conclusion of search, A-1 was brought for

interrogation and he was arrested. Search of his official residence at Jalandhar was also conducted. 14. The sealed phials containing solution were sent to

CFSL, New Delhi. Vide report dated 03.06.2003, the CFSL confirmed the presence of phenolphthalein and sodium

carbonate in that solution. 15. During investigation, it transpired that A-1 had

assumed the charge as District & Sessions Judge, Jalandhar on 20.07.2002. He had earlier worked as Presiding Officer, Industrial Tribunal-cum-Labour Court, UT Chandigarh from 16.08.1991 to 04.02.1995. Paramjit Singh, Superintendent, Labour court, Chandigarh and Satinderjit Singh @ Babbu, Clerk in the same Court had worked under A-1 during his tenure at Chandigarh. In fact, Satinderjit Singh @ Babbu was appointed as such by A-1. Investigation also revealed that A-2 had joined as Civil Judge (Junior Division)-cum-JMIC at Jalandhar on 02.06.1998. Vide order dated 26.10.1998 issued by the Chief Judicial Magistrate, Jalandhar, he was given the charge of Illaqa Magistrate of Police Station Kartarpur. From

10

Jalandhar, he was transferred as Civil Judge-cum-Judicial Magistrate Ist Class, UT Chandigarh in December 2000. 16. Investigation revealed that following cases were

registered against the complainant at Police Station Kartarpur within a short span of about one month during April-May 2003: Sr. Case Reference No. 1. Brief Allegations Status of investigation and remarks

FIR No.31 dated Defrauding 03.04.2003 under the name Section 406, 420 of treatment Indian Penal Code and Section 15 of the Medical Council Act, 1956, PS Kartarpur, Jalandhar FIR No.32 dated 07.04.2003 under Section 384, 411, 420 of Indian Penal Code PS Kartarpur, Jalandhar

patients in Case under investigation. of medical Accused arrested on 03.04.2003 and released on bail on 15.04.2003 by Magistrate

2.

On the basis of secret information to the police that the complainant had extorted a motor cycle

Case under investigation. Accused arrested and subsequently released on bail on 15.04.2003 by Magistrate

3.

FIR No.35 dated Defrauding 16.04.2003 under the name Section 406, 420 of treatment Indian Penal Code PS Kartarpur, Jalandhar FIR No.36 dated Defrauding 16.04.2003 under the name Section 304, 406, treatment 420 of Indian Penal Code PS Kartarpur, Jalandhar

patients in Case under investigation. of medical

4.

patients in Case under investigation. of medical

11

5.

FIR No.40 dated Defrauding patients Case under investigation. 18.04.2003 under in the name of Section 406, 420 of medical treatment Indian Penal Code PS Kartarpur, Jalandhar FIR No.42 dated Cheating etc. in the 30.04.2003 under name of medical Section 406, 420 of treatment Indian Penal Code PS Kartarpur, Jalandhar Case under investigation. Anticipatory bail application filed on 09.05.2003. Interim bail granted by A-1 on 10.05.2003 till 15.05.2003.

6.

7.

FIR No.46 dated Cheating etc. in the Case under investigation. 08.05.2003 under name of medical Section 406, 420 of treatment Indian Penal Code PS Kartarpur, Jalandhar

17.

Investigation revealed further that as soon as the

complainant was released on bail in FIR Nos.31 and No.32 of 2003, Kartarpur Police Station registered three more cases i.e. FIR Nos.35, 36 and 40 against him on 16.04.2003, 16.04.2003 and 18.04.2003 respectively. In those three cases, the complainant filed applications for anticipatory bail on

23.04.2003. These were marked by A-1 to himself. Notice of the applications was issued for 25.04.2003. However, due to non-receipt of record, the matters were adjourned to

29.04.2003 and meanwhile the arrest of the complainant was stayed.

12

18.

In

the

meantime,

A-2

had

contacted

the

complainant on 26.04.2003 to inform that Rs.11 lacs were to be paid to A-1 and senior police officers by 29.04.2003 and; that he should reach Chandigarh at once. When the

complainant met A-2 at his official residence at Chandigarh, A-2 reiterated that only if Rs.11 lacs are paid by 29.04.2003, his bail applications would be allowed and further cases will not be registered. However, the complainant could not

arrange money. Resultantly, A-1 dismissed all the applications for anticipatory bail, vide common order dated 29.04.2003. 19. It transpired that FIR No.42, under Sections 406 &

420 of Indian Penal Code was registered on 30.04.2003 in which application for bail in anticipation of arrest was filed by the complainant on 09.05.2003. As settled, this application was kept by A-1 with him. Notice to State was issued for 15.05.2003 with the direction that in the event of his arrest, the complainant should be released. 20. During investigation itself, the complainant

produced two micro cassettes purported to be containing his conversations with A-1 and A-2. The transcripts of the micro cassettes were got prepared. While the complainant gave his voice sample for spectrography test, A-1 and A-2 refused in the presence of Shri M.S. Sullar, District & Sessions Judge

13

(Vigilance), Haryana. Consequently, the cassette containing the interview given by A-2 to 'Aaj Tak Channel' was sent to CFSL along with voice sample of the complainant and the micro cassette. The CFSL confirmed the voice of complainant in both the cassettes and that of A-2 in one of the cassettes. 21. It was found that mobile number 9417019739

which had been seized from A-1 immediately after trap was in the name of his wife but he was using the same to be in touch with Paramjit Singh. It was also established that A-2 had been using mobile numbers 9814789008 (From 15.04.2003 to 29.04.2003) and number 9814173569 (From 28.04.2003 to 10.05.2003) though, both the phones were not registered in his name. 22. A-2, After obtaining sanction for prosecution of A-1 and chargesheet was filed with the observation that

investigation in respect of Paramjit Singh and Satinderjit Singh @ Babbu and the role played by senior police officers of Jalandhar was in progress and report would be submitted in due course. 23. Final report in respect of the role played by

Paramjit and Satinderjit police officers was filed on 24.12.2004 intimating that nothing incriminating could be found against them.

14

24.

Copies of charge sheet and documents

were

supplied to both the accused named above free of costs in compliance of the provisions contained in Section 207 of the Code of Criminal Procedure. 25. Finding prima facie case, charges under Section

120-B of the Indian Penal Code, read with Section 7, Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 against A-1 and A-2 and also under Section 13 (2) read with Section 13 (1) (d) against A-2 Sections 120-B read with Section 7 & 13 (2) of the Prevention of Corruption Act, 1988 were framed against accused. The

accused pleaded not guilty and claimed trial. 26. To prove its case, the prosecution examined following

witnesses: PW-1 Gurvinder Singh SamraHe is the

complainant. PW-2 Dev Raj- He was joined by the trap party as an independent witness and was entrusted with

the task of shadowing the complainant. PW-3 Madan Lal- He joined the trap party as an independent witness along with Dev Raj.

15

PW-4

L.R. Roojam, the then District & Sessions

Judge (Vigilance), Punjab- He acted as an observer having been so authorized by the Hon'ble Chief Justice, Punjab & Haryana High Court. PW-5 Amar Singh, Superintendent in the Office of District & Sessions Judge, Chandigarh- He handed over personal file and service book of A-2 to CBI. PW-6 S.K. Sinha, the then Principal Secretary to the Government of Punjab, Department of Home Affairs and JusticeHe proved sanction for

prosecution of the accused vide Ex.PW-6/1. PW-7 Sunil Sharma, Press Photographer- He clicked the photograph of A-2 at the time of raid which was published in the newspaper Ex.PW-7/3. PW-8 Subhash Chander Sharma, the then

Superintendent in the Office of District & Sessions Judge, Jalandhar- He handed over the charge assuming report, casual leave applications and salary slips of A-1 to CBI. He also narrated the

procedure for marking of bail applications. The certified copies of the bail applications moved by the complainant and the orders passed by A-1 on those applications were placed on record as

16

Ex.PW-8/6 to Ex.PW-8/13. Similarly, the certified copy of the application in FIR No.42 and the order passed thereon were placed on record as

Ex.PW-8/14 and Ex.PW-8/15 respectively. PW-9 Som Nath Bajaj, the then Translator in the Court of District & Sessions Judge, Jalandhar- He proved the application Ex.PW-9/1 filed by V.K. Sareen, Advocate on 09.08.2001 for cancellation of bail of the complainant and Ex.PW-9/2 to Ex.PW-9/10 which are the certified copies of the order sheets passed in the file on different dates. The copies of the bail application register were also placed on record by him as Ex.PW-9/11 to Ex.PW-9/23. PW-10 Kanwal Madan- She stated that she used to be in touch with A-2 and his wife over telephone during the period April-May 2003 as she was interested in purchasing first floor of House

No.1018, Sector 36, Chandigarh, the ground floor of which had been purchased by Tej Pal Bhardwaj, brother of A-2. PW-11 Ashok Kumar Grover, resident of

Jalandhar- He stated that he used to consult A-2

17

regarding career of his daughter Ankita Grover and; that the mobile numbers given by A-2 to him were noted down in diary. He stated that his own mobile number was 9814061812. When he stated that he had never contacted those mobile

numbers, he was allowed to be cross-examined by learned Public Prosecutor. He admitted that on his request, A-2 had given him mobile numbers 9814397018 and 9814323363 which he had noted down in his diary Ex.PW-11/1. He denied having contacted A-2 on mobile number 9814173569 on 09.05.2003 at about 11.49 a.m. He explained that he might have got missed call and then contacted that number. When confronted with the statement Mark M, he denied having stated that the wife of A-2 had given him the mobile number of A-1. PW-12 Ranjan Bhandari, who worked in Hotel

Eshant, Ambala Cantt from 2002-2006- He proved the bill Ex.PW-12/1 issued by Vicky Sharma, Manager of the Hotel in April 2003. He further stated that there was a PCO installed in the hotel the number of which was 2600952. He also proved the print outs of PCO Ex.PW-12/2 to Ex.PW-12/5 and stated that figure 254 written thereon was in

18

the hand of Vicky Sharma which represents the room number from which the calls were made. PW-13 Rajinder Kumar, Sub-Inspector, the

then SHO, Police Station Kartarpur- He proved the attested copies of FIR Nos.31, 32, 35, 36, 40, 42 and 46 registered against the complainant as Ex.PW-13/1 to Ex.PW-13/7. PW-14 Venu Gopal Madhvo Rao, the then P.S.

Grade II in the Office of G.M., SIDBI, ChandigarhAccording to him, Pardeep Chauhan of Aaj Tak TV had produced two video cassettes purportedly containing the interview given by A-2 and; that one of those cassettes were sealed in his presence by DSP, CBI. PW-15 Santokh Singh, the then Manager, FCI,

Regional Office, Punjab- According to him, the voice of the complainant was recorded in his presence as well as in the presence of Chander Bhan from General Hospital by putting the hand set of mobile phone Ex.P-163 before the mouth of the complainant. The micro cassette containing the recording was proved by him as Ex.P-163.

19

PW-16 Jaspal Singh, the then Junior Engineer, Public Health, UT Chandigarh- In his presence, transcripts Ex.PW-1/5 to Ex.PW-1/47 of the

conversations recorded prepared. PW-17 (Physics),

in the cassettes were

Dr. C.P. Singh, Junior Scientific Officer CFSLHe submitted his report

Ex.PW-17/1 as to the identification of the voices in the cassettes. PW-18 Hari Bhagwan Sharma, resident of

Yamuna Nagar- The prosecution had summoned him to prove that being related to A-2, he had stayed with him while doing Crash Course from Chhitkara Institute, Chandigarh and that at the instance of A-2, he had obtained mobile number 9814789008 which was actually used by A-2. However, he denied this and stated that he had no other mobile number except 9814342330. PW-19 Pardeep Chauhan, Correspondent of

Aaj Tak- He stated that he had interviewed A-2 and had recorded the conversation on video cassette, two copies of which were subsequently handed over by him to CBI. When the cassette Ex.P-166

20

was played in the Court, he identified that to be the same on which he had recorded the interview. PW-20 Arun Oswal, Building Contractor from

Panchkula- He stated that he used to meet A-2 of and on as his brother-in-law Ashwani Kumar was A-2's friend. He further stated that at times he used to contact A-2 telephonically from his mobile number 9815061841. PW-21 Sanjay Garg, Executive Director of

Steel Strips Limited- He stated that he had gone to get a bond attested and at that time, after knowing his profile, A-2 had taken his mobile number 9814101276, on which he had

subsequently contacted in connection with job for his recommendee. PW-22 Kuldeep Ram, Senior Accounts Officer,

BSNL, Chandigarh- He proved the call details record Ex.PW-22/3 to Ex.PW-22/11. PW-23 Parkash Chand, the then Deputy

Director, ESI Hospital, Chandigarh- He stated that in May 2003 in his presence two audio cassettes produced by Gurvinder Singh Samra were played and on being asked by R. Upasak, he had prepared

21

transcripts transcripts Ex.PW-1/47. PW-24

of

both

the proved

audio as

cassettes. Ex.PW-1/5

The to

were

Ms. Renu, J.T.O., BSNL, Manimajra,

Chandigarh- She proved the call details record Ex.PW-24/2 to Ex.PW-24/10. PW-25 Amit Chadha, Auto Dealer from Delhi-

He stated that he had purchased Mercedes car from the complainant for Rs.7.5 lacs for which the complainant had issued the receipt Ex.PW-1/2. PW-26 M.S. Sullar, the then District & Sessions

Judge (Vigilance) Haryana- According to him, house search of A-1 was conducted in his

presence.

He further stated that on 16.05.2003,

17.05.2003 and 14.06.2003, he had visited CBI office on being directed by the Hon'ble Chief Justice; that on 16.05.2003 DSP Sandhu took out the print out of the statement of A-1 from the computer, A-1 went through the statement and admitted its contents to be correct; that on 17.05.2003 A-2 refused to give his voice samples in his presence and; that on 14.06.2003 A-2 had refused to make a statement to CBI.

22

PW-27

Sub Inspector Dinesh Kumar- He was

member of trap party. PW-28 Sauravdeep Singh, Executive, Spice

Communications Pvt. Ltd.- He proved the call details record Ex.PW-28/1 to Ex.PW-28/14. He also proved the original application submitted by Hari Bhagwan of Yamuna Nagar as Ex.PW-18/1 on which he was allotted the number 9814789008 and the copy of the application submitted by Rupinder Singh on the basis of which he was allotted mobile number 9814173569. PW-29 Jai SinghHe stated that on

10.05.2003, he had conducted search of House No.1254, Sector 8, Chandigarh in the presence of independent witnesses as well as Shri M.S. Sullar and search list Ex.PW-26/1 was prepared. He

further stated that during investigation he had gone to take the voice samples of Smt. Suman Bhardwaj, wife of A-2 but she had refused. PW-30 R.K. GautamHis statement was

recorded without oath but inadvertently number was assigned to him.

23

PW-31

A.D.

Chopra,

retired

employee

of

BSNL, Jalandhartelephone

He proved the history sheet of 2459739 and 2458384

numbers

Ex.PW-31/2 and Ex.PW-32/3 (There appears to be clerical error as otherwise it should have been Ex.PW-31/3). PW-32 R. Upasak, the Additional SP- He is the Investigating Officer. 27. In order to have clarifications on the call details records,

Ashok Sharma, Manager Regulatory, Spice Communication, Mohali; Navneet Aggarwal, JTO, BSNL, Chandigarh and C.B. Bansal, SDE (Systems), BSNL, Chandigarh were examined as court witnesses. 28. During trial, the prosecution moved an application for

directing the accused to lend their voice samples. The application was allowed in terms of the order dated

31.01.2008. However on 06.02.2008, A-1 made the following statement: After hearing the cassette produced on record alleging to be a conversation

between the accused and the complainant, I recollect that someone claiming to be a

24

school time friend of mine, wanted to talk to invite me to some function and the receiver picked up at home was handed over to me. After the caller started talking, I could not recognize or have any idea of the caller

being my friend. However, the caller went on talking in general and I politely and in a simple manner tried to avoid him without giving him the impression that I have not recognized him. The said conversation

lasted for about four minutes. The present cassette, firstly is not a complete talk and further the portion IKK minute.....ulikan ge: in Ex.PW-1/45 from Mark B to B-1 now alleged to be in the voice of G.S. Samra is clearly result of tampering by insertion of the same in voice of complainant which after completely loosing the track- re-starts with a bang, shows that something has been inserted. The said inserted portion was never a talk between caller and is me. no

Throughout reference pending at

the

cassette

there

of any case, bail application Jalandhar and making or

25

acceptance of any demand. Evidently, the cassette is fabricated and created piece of evidence. Since the voice in the cassette on one side is admitted to be mine, there is no necessity to give the sample voice. 29. In view of the statement, it was found that there

was no necessity of taking his voice sample. Subsequently, on the request of CFSL, the voice sample of A-2 was obtained by the CFSL expert in the court on 18.02.2008. 30. Pursuant thereto, the expert Dr. S.K. Jain was

examined as Court Witness. 31. In his statement recorded under Section 313 of

the Code of Criminal Procedure, A-1 pleaded false implication. He came up with the following explanation: I am innocent. The CBI in this case appears to be victim of some misunderstanding about me. It appears from the conduct of

complainant Shri Gurvinder Singh Samra, a man with total involvement in number of criminal cases of various nature, having been declared as History sheeter that he was in

touch with Shri Surinder Pal Singh, Assistant

26

Superintendent of Police other CBI officials much earlier to 09.05.2003 to make a false case against me. It is well known factor that the man with such background would never tolerate the presence of such officers who is honest and not approachable and he will make all efforts to get him removed from the place of his posting. I did not know Shri S.S. Bhardwaj and we never have worked

together and we had no occasion to meet each other through the life. Likewise Shri Varinder Kumar was not known to me. I never had seen Shri Gurvinder Singh Samra in my life, what to say of any talk of any bribe with him. In routine the bail

applications as per set system, used to come to me and I disposed off the same, always, on merits. I had no talk with Shri Gurvinder Singh Samra on telephone or otherwise. Similarly, I had no talk with Shri S.S. Bhardwaj on telephone or otherwise in my life. I have not demanded any bribe money directly or through someone from Shri

Gurvinder Singh Samra or any one else in my

27

life. I may make it clear that before joining judicial services I was practising as Advocate in Punjab & Haryana High Court, Chandigarh while residing at Chandigarh and my son Shri Vikas Gupta is practising at Chandigarh and he is residing with his family in House No.1254, Sector 8-C, Chandigarh. As a result of all this I kept on visiting Chandigarh, from time to time with due intimation to my office. Further my relatives are also residing around Chandigarh and other places in Punjab. On 26.04.2003, Saturday I had come to

Chandigarh by availing a casual leave and the next date on 27.04.2003, being Sunday. I was present at Kharar to attend cremation of mother-in-law of my sister of my wife who expired on 26.04.2003 at Kharar. So there was no occasion for me to talk to anybody on phone or otherwise at Jalandhar on

27.04.2003. I had no talk on 08.05.2003 with Shri Gurvinder Singh Samra as is claimed by him with afterthought

development in his statement and I mat state that I was away to Ludhiana to meet

28

my elder son, who was then running his business at Ludhiana. As such, there was no question of my talk with any one at the relevant time at Jalandhar on phone or otherwise. I state that I did not talk to Shri Gurvinder Singh Samra or Shri S.S.

Bhardwaj or Shri Varinder Kumar nor any of them talk to me on phone or otherwise during the period from 21.04.2003 to

10.05.2003. 32. In his statement recorded under Section 313 of the Code

of Criminal Procedure, A-2, while pleading false implication, came up with the following explanation: I am innocent. I had not demanded or accepted any money from the complainant Gurvinder Singh Samra at any point of time. I never talked to Samra on telephone or direct. I never met Dr. Samra except he appeared in my Court at Jalandhar as a litigant or accused. I have never talked with RM Gupta on telephone or otherwise. I did not have any relation with Shri RM Gupta. Complainant had grudge against me on

29

account of passing of three adverse orders against him while I was posted as Judicial Magistrate Ist Class, Jalandhar. Vide order dated 07.06.2000 in case of Varinder Kumar Versus Gurdeep Singh, I had passed order restraining the father of the complainant Shri Gurdeep Singh from alienating the property in dispute and construction thereon. The disputed property was in crores and he wants to sold it by hook and crook. The said land was purchased by complainant's father on the basis of a forged power of attorney. Complainant and Tehsildar Balbir Singh were booked and convicted by Shri BK Mehta, Spl. Judge, Jalandhar vide order dated I had

27.02.2008 regarding this land.

passed another order against complainant on 04.10.2000 in a complaint case where I stayed his complaint. Even in criminal case i.e. FIR No.103 dated 05.12.1999 under Section 420, 465, 467, 468, 471 and 120-B of the Indian Penal Code which was pending before me he was granted bail by the Sessions Court and not by me. He was

30

nursing a grudge against me due to these reasons. Complainant was facing number of criminal cases which were registered against him in the year 2003. To save himself from the police action, he tried to involve the then SSP Jalandhar Varinder Kumar in one hand and the Judicial Officers on the other hand by creating a false evidence so that no action could be taken against him and in the same series this false trap was planted with the active conspiracy of Surinder Pal and other CBI officials and witnesses to divert the attention of the police pursuing cases against him. Complainant is now in jail at Gurdaspur for planting RDX and ammunition in a house of Rajinder Kaur @ Bhajan Kaur @ Bhajno at Gurdaspur. He defamed the SSP in a Press by tampering his photograph by pasting the face of a SSP on another individual. In all the above cases, an FIR had been registered against the complainant. Complainant is not a doctor as he claims rather the degrees obtained by him are false and fabricated. A case has already been

31

pending regarding this at Jalandhar. He tried to convert the accident into a bullet injury near Ropar during the course of hearing in the Hon'ble High Court and there he made a false statement to mislead the Hon'ble High Court that he was fired upon. After

investigating the incident, the CBI had no option but to disbelieve him because when his medical evidence was contrary to the ocular statement made before the Hon'ble High Court. Complainant is a history sheeter, and convict and more than 35 criminal cases are pending including cheating and forgery against him in his history sheet it is

mentioned that he can bluff anyone and commit any fraud, cheating and forgery. Dev Raj and Madan Lal are not independent witnesses. Dev Raj was called directly by Surinder Pal, ASP, CBI. Dev Raj was stock

witness of CBI. He was associated even earlier preparing a confidential list of FCI

employees with the ASP Surinder Pal and Dev Raj has also a grudge against me and he offered himself to become a witness and

32

alleged PW Madan Lal obliged Dev Raj as Dev Raj was in Vigilance Wing of the FCI while signing the fabricated documents

including memos. Since Dev Raj (PW) was known to me earlier as he was married to Veena, a class fellow of my sister at Sunam. He had matrimonial dispute with his wife Veena. My father was a colleague of Veena's real uncle who was also a patwari at Sunam. In that dispute my father and brother had sided with Veena and her parents and had reprimanded him in village panchayats and he was also known to me brother namely Shri Tara as his elder Chand was

Additional Registrar in the Hon'ble High Court in the year 2003. On 10.05.2003 at about 6:30 p.m. when I came back after a walk from the back side of my residence, my domestic servant namely Tara Singh had told me that brother of Registrar, Punjab & Haryana High Court has come and is waiting for me in my drawing room along with some other person. On this I entered drawing room and found Dev Raj and one other

33

person in the drawing. Dev Raj and the Dev

I shook hands with other Raj. person who

accompanied

Thereafter,

immediately five-six persons rushed inside the drawing room. Out of them two persons caught me by my both hands. Later on I

came to know that the persons who caught my hands were CBI officers namely Balbir Singh and Parlhad Kumar and the person accompanying Dev Raj was Gurvinder Singh Samra. On this I shouted upon the intruders. They claimed themselves to be CBI officers. In the meantime Dev Raj told that the

sweets box is lying behind the sofa. The CBI officers asked Madan Lal to pick up the sweet box which was already planted by

Dev Raj and his companions in my absence in the drawing room behind the sofa.

Accordingly, Madan Lal picked up

the said

sweet box which was found to be containing currency notes. On this, I shouted at the CBI officers and asked them to call my Sessions Judge but none paid any heed to me and then they started fabricating evidence

34

against me by projecting that

the money

was recovered from me. Thereafter, Shri LR Roojam, Vigilance Judge reached at my residence. But before his arrival the evidence was fabricated by the CBI officials in

connivance with the alleged independent witnesses. I was made a scape-goat in this false trap by fabricating the record, memos and other evidence. Since it was a false trap, therefore to take legal remedy I left the place. I have been involved by the CBI in the trap to create a jurisdiction as the CBI could not arrest or registered a case against Shri RM Gupta who is a Punjab Cadre Officer and posted at Jalandhar. Alleged trap conducted by the CBI is illegal and unconstitutional. The FIR was registered without the

permission of Chief Justice and without verifying conducted the facts and the the trap was of

without

presence

representative of the High Court

and even

without waiting Shri LR Roojam. In earlier complaint dated 28.04.2003 which is marked as Mark D-4, my name is no where figuring

35

in that complaint which is in the handwriting of complainant Gurvinder Samra which can be recognized with naked eyes which shows that I am innocent and have been falsely implicated later on. 33. In defence, the accused examined the following

witnesses: DW-1 Chander Bhushan, Cashier, Ram Bagh

Committee, Kharar- He proved receipt Ex.DW-1/1 issued in respect of cremation of Yashodha Devi, mother of Shiv Kumar on 27.04.2003. DW-2 Shiv Kumar, resident of Kharar- He

stated that his mother Yashodha Devi died on 26.04.2003 and was cremated on 27.04.2003. According to him, A-1 is his co-brother and he rang up at Jalandhar but was informed by the attendant that A-1 had gone to Chandigarh and thereafter, he rang up Chandigarh and informed A-1 about the death of his mother and in the

morning at 8:00/8:30 a.m. A-1 came to his residence at Kharar and remained there till

3:00/4:00 p.m.

36

DW-3

ASI

Paramjeet

Singh

from

Police

Station Ropar- He proved the cancellation report in FIR No.12 dated 29.01.2008 which had been lodged on the complaint of the complainant herein. DW-4 Jarnail Singh, MHC, police Station

Division No.4, Jalandhar- He proved the copies of FIR No.218 of 2004, 307 of 2003 and 29 of 1999 as Ex.DW-4/1 to Ex.DW-4/3 respectively. DW-5 HC Gopal Dass, Police Station Purana

Shala, District Gurdaspur- He proved FIR No.7 of 2008 under Explosives Act and Arms Act, Police Station Purana Shala as Ex.DW-5/1. DW-6 HC Surinder Singh, Police Station

Sultanwind- He proved copy of FIR No.44 dated 16.04.1997, Ex.DW-6/1. DW-7 Anil Sharma, Section Supervisor, BSNL, Police Station Sultanwind as

Chandigarh- He proved that telephone No.2726296 (Old No.2659415) was installed in May 2003 at House No.371, Sector 30-A, Chandigarh in the name of Deputy Legal Advisor, CBI.

37

DW-8

HC Tej Singh, Police Station Tangra,

District Jandiala- He placed on record the copies of FIR No.172 of 2000 and FIR No.73 of 2004 as Mark D-6 and Mark D-7 respectively. DW-9 HC Tarlochan Singh, Police Station

Kartarpur- He proved the copy of FIR No.6 of 1997 registered against the complainant G.S. Samra as Ex.DW-9/1. DW-10 HC Satish Kumar, Police Station

Division No.6, Jalandhar- He proved copy of FIR No.195 of 2004 as Ex.DW-10/1 and copy of FIR No.83 of 2002 as Ex.DW-10/2. DW-11 Gurmukh Singh, Ahlmad in the court of

Judicial Magistrate Ist Class, Gurdaspur- He placed on record report under Section 173 of the Code of Criminal Procedure (Ex.DW-11/1) in respect of FIR No.7 of 2008 dated 30.01.2008 under Sections 120-B of Indian Penal Code, Section 4 & 5 Explosives Act and Section 25 of Arms Act in which G.S. Samra is one of the accused. DW-12 A.K. Jaura, Manager (Marketing),

Punjab Kesari, Chandigarh- He placed on record the newspaper published on 16.08.2003 as

Ex.D-1.

38

DW-13

H.S. Bhatti, General Manager, Rozana He placed on

Spokesman Newspaper, Mohali-

record the newspaper published on 28.02.2008 as Ex.DW-13/1. DW-14 Ajay Bajaj, Executive, H.T. Media

Limited- He placed on record the newspaper published by Hindustan Times on 22.02.2008, 09.03.2008 and 05.03.2008 as Ex.DW-14/1 to Ex.DW-14/3 respectively. DW-15 Sector HC Baljinder Pal Singh, Police Station 19He placed on record the DDRs

Ex.DW-15/1 to Ex.DW-15/10 and FIR No.48 dated 30.04.2007 Ex.DW-15/11. DW-16 Sandeep Sahni from Office of District &

Sessions Judge, Jalandhar- He placed on record the application Ex.DW-16/1 filed by A-1 seeking casual leave for 26.04.2003 with permission to leave station from 25.04.2003 after court hours till 28.04.2003. DW-17 Amar Nath, resident of Sunam- He

deposed that his daughter Veena Rani was class fellow/close friend of A-2's sister; that in 1985

39

Veena Rani was married to Dev Raj son of Shri Sadhu Ram, resident of Village Berada which was attended by A-2 and his entire family as father of A-2 was his brother/s class fellow. He further stated that after about six months after marriage, Dev Raj started harassing Veena Rani, therefore, several panchayats were convened which used to be attended by A-2's family members; that even A-2 attended some of the meetings of the

panchayat; that during those meetings Dev Raj had interaction with A-2 and; that efforts for reconciliation failed and ultimately Veena Rani and Dev Raj separated in 1990. He explained that in the panchayat A-2 and his family side. DW-18 Tara Singh, Domestic Servant with Shri had taken his

Jasmeet Singh, Advocate- He stated that he was working as domestic servant at the house of A-2 on 10.05.2003; that at 6:30 p.m. he was present in the kitchen. Madam and gudia were upstairs. A-2 had left for walk at about 5:45/6:00 p.m. At about 6:30 p.m. he came out of the kitchen to answer the door bell. The visitor was Dev Raj and with him there was another stout person. Dev Raj

40

was having a sweet-meet box. He asked about A-2 and was told that he had gone for walk. Dev Raj entered the drawing room with the person

accompanying him. He allowed him because he used to visit the house before. About 5-10 minutes thereafter, when A-2 came he told him about the arrival of Dev Raj. A-2 entered the drawing room accompanied by him. A-2 shook hands with Dev

Raj and his companion who was introduced by Dev Raj as Dr. Samra. Three four persons came rushing him and caught A-2 from his wrists. DW-19 Tejinder Singh, Ahlmad in this Court- He proved the statement of Ram Kumar Singh made by him as PW-3 in the case titled CBI Versus Bhim Sain as Ex.DW-19/1. He also proved the

statement of Palvinder Singh in the case titled CBI Versus Rajiv Kundra as Ex.DW-19/2. DW-20 Dr. Inderjeet Singh, Handwriting &

Finger Expert, Patiala- He compared the writing of Mark D-4 with the writing of Ex.PW-1/1 and gave the opinion that the author is the same person. 34. I have heard learned Public Prosecutor and learned

counsel for the accused.

41

35.

Following points arise for determination: i. Whether A-1 and A-2 entered in criminal conspiracy to do an illegal act to wit demand of bribe from the complainant? ii. Whether conspiracy in so pursuance hatched, of criminal was

bribe

demanded by both the accused from the complainant as a motive for securing him anticipatory bail in FIR No.42? iii. Whether A-2 demanded and accepted bribe from the complainant for himself and for A-1? 36. The gist of offence of conspiracy lies in the

forming of agreement of conspiracy. Such an agreement need not be formal or express. It may be inherited in and inferred from the circumstances, especially declaration, act and

conduct of the conspirator. In State of Tamilnadu Versus S. Nalini and Others, 1999 Crl. Law Journal, page 3124, the Hon'ble Supreme Court has observed that Conspiracy is hatched in private or in secrecy. It is nearly impossible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the act and conduct of the accused.

42

37.

To prove conspiracy Section 10 of the Evidence Act

also comes handy. Once a prima facie evidence is found affording a reasonable ground for the Court to believe that two or more persons were members of criminal conspiracy

anything said, done or written by any one of them in reference to their common intention will be evidence not only for the purpose of proving the existence of the conspiracy but, also for the purpose of showing that the said persons were party to it. Needless to say that once a conspiracy to commit an illegal act is prima facie proved, any act done by one conspirator in pursuance of the agreement becomes the act of other. As observed in State of Tamilnadu Versus S. Nalini and others (Supra), this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to and growing out of the original purpose.

38.

Having discussed the law on the point let us

proceed further to find out whether there was criminal conspiracy between A-1 and A-2 but, before we do that it would be advantageous to have in mind the facts on which there is no dispute.

43

UNDISPUTED FACTS
(a) A-2 had remained posted as Civil Judge (Junior Division)-cum-Judicial Magistrate Ist Class,

Jalandhar from 26.10.1998 to November 2000 having jurisdiction over Police Station, Kartarpur. (b) Civil Suit No.239 of 1998 Gurdeep Singh Versus Varinder Singh was marked to the Court of A-2 in which he granted exparte ad-interim injunction on 21.11.1998 and then allowed the application under Order 39 Rules 1 & 2 of Code of Civil Procedure vide order dated 26.02.1999. (c) In the civil suit titled Varinder Singh Dhiman Versus Gurdeep Singh and others, A-2, vide order dated 07.06.2000, decided the application under Order 39 Rules 1 & 2 CPC by directing the parties to maintain status-quo with regard to alienation of the suit property. (d) The property involved in both the aforementioned suits was the same. (e) Gurdeep Singh is the father of complainant. (f) FIR No.29 of 11.03.1999 was registered against

44

complainant on the complaint of Varinder Singh Dhiman. (g) Complainant filed complaint under Sections 182, 211, 500, 501 and 120-B of Indian Penal Code against Varinder Singh Dhiman. (h) Varinder Singh Dhiman was summoned in the complaint. He filed application for dismissal of

the complaint which was allowed by A-2 in terms of order dated 14.10.2000. (i) In FIR No.29, the complainant was granted bail on 08.01.2000 by Shri M.M. Aggarwal, the then Sessions Judge, Jalandhar. (j) Applications for cancellation of bail granted to the complainant in FIR Nos.29 and 103 were filed by Varinder Singh Dhiman. (k) Vide orders dated 19.08.2002 (Ex.PW-9/10 and Ex.D-7 respectively, the applications for

cancellation of bail were allowed by A-1. After the cancellation of his bail, the complainant filed an applications declined by for A-1 anticipatory in terms bail of which order were dated

29.08.2002.

45

(l)

On 03.09.2002, the complainant again moved applications for anticipatory bail in FIR Nos.29 and 103 (Ex.D-16 and Ex.D-17 respectively). Vide orders dated 10.09.2002, the applications were dismissed.

(m) On 02.12.2002, the complainant filed applications under Section 438 of the Code of Criminal

Procedure in FIR Nos. 103 and No.29 (Ex.D-18 and Ex.D-19 respectively). (n) Vide order dated 03.12.2002, A-1 dismissed the applications directing that since applications under Section 438 of the Code of Criminal Procedure

had already been declined, the complainant should surrender before the Illaqa Magistrate. (o) The complainant surrendered before the judicial Magistrate Ist Class at Jalandhar on 03.12.2002. He was remanded to judicial custody. (p) On 03.12.2002 itself, the complainant filed

applications under Section 439 of the Code of Criminal Procedure (Ex.D-20 and Ex.D-43). (q) Vide order dated 12.12.2002, A-1 allowed the application under Section 439 of the Code of Criminal Procedure.

46

(r)

On

23.04.2003,

the

complainant

moved

four

applications under Section 438 of the Code of Criminal Procedure in FIR Nos. Nil (It should have been FIR No.32), 35, 36 and 40. (s) Vide combined order dated 29.04.2003

(Ex.PW-8/13), the applications were rejected by A-1. In all those four cases, bail was granted to the complainant by the Hon'ble High Court. (t) FIR No.42 was registered against the complainant on 30.04.2003 under Section 406 and 420 of Indian Penal Code. He moved application under Section 438 of the Code of Criminal Procedure (Ex.PW-8/14) on 09.05.2003. The application was kept by A-1 with himself and was taken up on 10.05.2003. Notice to State was issued for

15.05.2003. Meanwhile, interim bail was granted. 39. Coming back to the question as to whether there was

criminal conspiracy between A-1 and A-2, learned Public Prosecutor has, besides relying upon the statement of the complainant, pointed out following circumstances from which to draw an inference that there was meeting of minds between A-1 and A-2:

47

I.

On

23.04.2003,

total

number

of

21

bail

applications were filed in the Court of Sessions as is evident from Ex.PW-9/11 to Ex.PW-9/17. A-1 kept all the four bail applications of the

complainant and just two other bail applications with him. Other bail applications were marked to the Additional Session Judges. Similarly on

09.05.2003, a total number of 20 bail applications were filed as is evident from Ex.PW-9/18 to Ex.PW-9/23 out of which A-1 kept the application of the complainant and two other applications with him. II. A-2 knew in advance that A-1 will keep the application in FIR No.42 with him. III. On 27.04.2003, there was telephonic contact between the complainant and A-1 as is proved from Ex.PW-12/1 to Ex.PW-12/5. IV. Recorded conversation between the complainant and A-2 from 29.04.2003 to 01.05.2003. V. Recorded conversation between complainant and A-1 on 09.05.2003.

48

VI. Presence of A-1 in Chandigarh on 10.05.2003. VII. Conversation between complainant and A-2 at the time of payment. 40. Before the circumstances pointed out by learned

Public Prosecutor are discussed in detail, it would be proper to advert to the deposition of complainant himself.

DEPOSITION OF THE COMPLAINANT

41. According to the complainant, after his bail order

was cancelled by A-1, he came to Chandigarh and met A-2 in the Court Complex and informed him about the cancellation on which A-2 got annoyed with him for having not brought this fact to his notice and claimed that he was having intimate relations with A-1 from him he could arrange bail even in murder case. Before relieving him, according to the

complainant, A-2 had promised that he would come to Jalandhar to discuss the matter with A-1 and after a few days, he received call from A-2 telling him to come to Hotel President where A-2 was present in a room with A-1 and Varinder Kumar, IPS. He was introduced to them by A-2 as is close friend. The matter was discussed with A-1 who said that it was a small matter and he would take care. Then, he asked the complainant to file an application for anticipatory bail. He

49

told the complainant that he would ask his counsel as to why he was not appearing before the court pursuant to which the counsel would say that the complainant himself was prepared to appear before the Court. A-1 promised that the moment the complainant would appear he would be remanded to judicial custody and then he would be granted regular bail and, while leaving he asked the complainant to discuss the matter about the money to be paid to him with A-2 and Varinder Kumar and, after he left A-2 and Varinder Kumar suggested that he should give Rs. One lac cash or in form of gift to A-1 to which he agreed and decided to pay Rs. One lac in cash. The complainant says that two days thereafter, he received telephonic call from A-2 telling him to bring cash to Chandigarh on which he came to Chandigarh and paid Rs.50,000/- to A-2 at his residence and then A-2 advised him to file application for anticipatory bail, as discussed earlier. Accordingly, application was filed. As planned, A-1 asked his counsel as to why he was not appearing before the lower court. After lunch, he appeared before the lower court and was remanded to judicial custody and immediately removed to Civil Hospital on medical grounds and, after 3-4 days he was granted interim bail by A-1. Thereafter, he went to Chandigarh and paid remaining Rs.50,000/- to A-2 at his residence. A-2 assured that interim bail would be confirmed and, 2-3 days

50

thereafter, it was ordered accordingly. 42. The complainant claims that after the order of

interim bail was confirmed, he visited the house of A-1 and thanked him. After a few days, A-1 visited his hotel Las Vegas with A-2. They halted there for 2-3 hours. From then onwards, according to the complainant, he developed intimacy with A-1 and he started meeting him off and on. 43. After narrating as to how Varinder Kumar, IPS on

his posting as SSP at Jalandhar, started exploiting him and started registering cases against him, the complainant stated that he rang up A-2 and discussed the problem with him and A-2 asked him to come to Chandigarh. He says that on 21.04.2003 in the morning, he visited the house of A-2 and narrated the entire matter whereupon A-2 rang up Varinder Kumar as well as A-1 and after discussing the matter with them on respective occasions he handed over phone to him and consequently he also talked to them. The complainant claims that after finishing the talk A-2 asked him to move bail applications in the Court of A-1 whenever he would tell him telephonically in this behalf. Thereafter, according to him, he received successive calls from A-1 and A-2 who asked him to move applications for anticipatory bail and accordingly on 23.04.2003 he moved appreciations whereupon A-1 issued

51

notices for 25.04.2003. Then his arrest was stayed till 29.04.2003. 44. On 26.04.2003 in the morning, the complainant

claims to have received telephone call from A-2 telling him that he shall have to pay Rs.11 lacs to A-1 and Varinder Kumar for bail and to avoid harassment in future. 45. According to the complainant, he reached

Chandigarh on 26.04.2003 itself and met A-2 at his residence where A-2 reiterated what he had told him on telephone. Then, he talked to A-2 and Varinder Kumar on telephone and also made him talk to them both of whom demanded Rs.11 lacs by 29.04.2003 failing which he will not be granted bail and more cases would be registered against him. 46. The complainant claims that after promising to

arrange money he came out and proceeded for Delhi. On the way, he stopped at Ambala and stayed in Hotel Eshant from where he telephonically contacted A-1, A-2 and Varinder Kumar at their respective residences and pleaded with them to postpone payment but they remained adamant. Then, he proceeded to Delhi; stopped at PCO Booth at Karnal and again rang up A-1, A-2 and Varinder Kumar. From Delhi, he came back on 27.04.2003. At about 3:00/4:00 a.m. He halted at Ambala and stayed in a hotel and, on 28.04.2003 morning he

52

came to Chandigarh and visited the house of A-2 in the evening and told him that he had gone to Delhi but had not been able to arrange money on which A-2 retorted that he was embarrassing his position and; that if money was not paid by next morning, bail would be rejected and he would be implicated in more cases. According to the complainant, A-2 telephonically contacted A-1 and Varinder Kumar and told them about his plea and thereafter, he made him talk to

them separately but, both of them reiterated the threat on which he promised that he would try to arrange money and came back to Kartarpur. On his way back, he telephonically asked his employees at Kartarpur to arrange Nokia-9210, Recorder, digital cassette and instruments so that he could record the conversation. On 29.04.2003 morning at about 7:00 a.m. he received call from A-2. By that time, A-2 had

changed his sim card. The moment, he identified the voice of A-2, he immediately put his mobile to hand free mode and with the help of digital recorder, he recorded the conversation. A-2 asked about money. He replied that he had not been able to arrange. Till lunch, he kept on calling A-2 on his mobile number 9814173569. On each occasion, he would request A-2 to postpone the payment but A-2 insisted that payment had to be made that very day.

53

47.

According to the complainant, he could record

some of the calls while some he could not. After the bail applications were rejected, A-2 called him. Few days

thereafter, he came to Chandigarh. Meanwhile, FIR No.42 had been registered against him. After reaching Chandigarh, he rang up the residence phone of A-2 whose wife answered the call. He recorded the conversation. Thereafter, there were several calls between him and A-2. He also visited the house of A-2. Since A-2 was having many mobile phones he would get him talk to A-1 and Varinder Kumar from those. After

negotiations, it was finally decided that complainant would pay Rs.11 lacs to A-1, A-2 and Varinder Kumar failing which cases would continue to be registered against him. He somehow put off the matter on one pretext or the other. On 08.05.2003, A-2 met him in Hotel Sunbeam in the room where he was staying. In the presence of A-2, he talked to A-1 and Varinder Kumar from his mobile. Finally, it was decided that if he was not in a position to pay Rs.11 lacs in one go he should pay Rs.7 lacs upfront and the remaining payment should be made in a day or two. At that juncture, he asked A-1 that he would gain

confidence if he would be granted bail in FIR No.42. A-1 asked him to file an application for anticipatory bail and promised that he would stay his arrest. A-1, A-2 and Varinder Kumar told him that he would be informed where payment was to be

54

made.

On his directions, his advocate filed application for

anticipatory bail in FIR No.42.

CONSPIRACY THEORY: ANALYSIS

48. In the obtaining circumstances, the question of

conspiracy would arise only if it is proved that A-2 had intimate relations with A-1. Notwithstanding what A-2 told

complainant about his relations with A-1 the fact remains that there is no evidence to show that A-1 and A-2 had ever remained posted together at one place. As admitted by PW-32, the Investigating Officer, no contact between the known numbers of A-1 and A-2 could be established. It is worth mention that A-1 joined as District & Sessions Judge, Jalandhar on 20.07.2002. On 19.08.2002, he cancelled the bail orders of the complainant in FIR Nos.29 and 103. It is after the cancellation of his bail that he came to Chandigarh and met A-2 who, at that time, claimed that he was having intimate relations with A-1. The fact remains that there is no hard evidence to substantiate that the relations between A-1 and A-2 were intimate. Therefore, claim to this effect, if made by A-2, does not mean much. 49. For convenience, the prosecution story can be

divided into three stages:

55

I. II.

First Stage- Till 19.08.2002 Second Stage- From 19.08.2002 to 29.04.2003

III. Third Stage- From 30.04.2003 to 10.05.2003

FIRST STAGE
50. There is no allegation that the bail orders were

cancelled by A-1 in conspiracy with A-2. Therefore, this stage is relevant only for the purpose of introduction.

SECOND STAGE:
51. Apart from the bald statement of the complainant,

there is no evidence of any meeting between A-1, A-2 and Varinder Kumar, IPS in Hotel President, Jalandhar. The factum of any such meeting has not even been mentioned in the complaint Ex.PW-1/1. The complainant claims that in the meeting A-1 asked him to file an application for anticipatory bail and as settled, the drama of surrender before the Trial Court was enacted and ultimately the complainant was granted bail on 12.12.2002, for which Rs. One lac in two instalments were given by the complainant to A-2 for A-1. The complainant claims to have visited the house of A-2 at Chandigarh on 21.04.2003 to discuss the matter

56

regarding registration of fresh cases against him by Varinder Kumar out of vengeance. From there, he says that A-2 got him talk on telephone with Varinder Kumar and A-1. However, there is no evidence to prove this. PW-32 the Investigating Officer admitted that he could not collect the print out of call details to establish link between A-2 and A-1. Even, the claim of the complainant of having such a telephonic talk with A-1 and Varinder Kumar from the residence of A-2 on 26.04.2003 is not substantiated inasmuch as PW-32 conceded having link

failed to come across any record showing telephonic between A-1 and A-2 on that day.

The only hard evidence to prove contact between the complainant and A-1 is in form of the STD slips of Eshant Hotel, Ambala (Ex.PW-12/2 to Ex.PW-12/5). According to the complainant, he had rang up A-1 on 27.04.2003 during his stay at Hotel Eshant, Ambala. These STD calls coupled with the bill Ex.PW-12/1 issued by Hotel Eshant prove that STD calls from Hotel Eshant to the land line number 2459739 (Undisputedly, this is the telephone number installed at the Sessions House, Jalandhar) were made by the complainant. However, without anything more, these documents do not prove that actually there was talk between the complainant and A-1. It is worth mention that the calls were made on 27.04.2003 at 09:01 a.m. (Ex.PW-12/3), 09:02 a.m.

57

(Ex.PW-12/4), 09:03 a.m. (Ex.PW-12/5) and 09:09 a.m. (Ex.PW-12/2). From Ex.DW-16/1, which is the leave

application of A-1, it is proved that he was on leave from 25.04.2003 after Court hours till the morning of 28.04.2003. Therefore, in every probability, he was not in Jalandhar on the morning of 27.04.2003. This is further proved from the statement of DW-1 that from 26.04.2003 morning till

27.04.2003 evening A-1 was at Kharar in connection with the last rites of the mother of DW-1 who is A-1's co-brother. On 28.04.2003, the complainant claims to have visited the house of A-2 when the latter telephonically contacted A-1 and Varinder Kumar and also facilitated talk between complainant and A-1 and Varinder Kumar. However, there is no document on record to prove that there was any calls on that day between A-1 and A-2 or between A-2 and Varinder Kumar. It is from 29.04.2003 that the complainant started recording his conversation with A-2. It is worth mention that the order on the applications for anticipatory bail of the complainant in FIR Nos.35, 36, 40 and nil were to be pronounced on that day. Even on that day, there is no evidence to prove that there was any contact between A-1 and A-2.

58

Third Stage
52. No.42 had During this stage, the complainant learnt that FIR been registered against him. He came to

Chandigarh. According to him, A-2 was having many mobile phones from which he facilitated contact between him and A-1 and Varinder Kumar. However, there is no record to prove this. The mobile phones which were being used by a

A-2 were, according to the complainant, 9814789008 and 9814173569. The call details record of these mobile phones has been proved but, the same does not contain any entry to show contact between these numbers and the mobile

numbers/land line numbers of A-1. The only material to prove direct contact between the complainant and A-1 is the call from the mobile number 9814668542 being used by the complainant to land line number of Sessions House, Jalandhar. This conversation, according to the complainant, was recorded by him. A-1 when called upon to lend his specimen voice sample admitted his voice on one side but claimed that the recording had been doctored by insertion of portion Mark B to B-1 (as shown in the transcript Ex.PW-1/45-Ex.PW-1/46). In view of the statement of A-1, I have heard the recording of the conversation between him and the

59

complainant and I find that Ex.PW-1/45 to Ex.PW-1/47 is the correct transcript. I have played the cassette time and again and have listened carefully in order to satisfy myself that there is no tampering/editing. Before I proceed to render my observations, it would be worth pointing out that as per the call details record Ex.PW-28/3, there was a call from mobile number

9814668542 (the number being used by the complainant) to 01812459739 (the land line number of Sessions House, Jalandhar) on 09.05.2003 at 8:26 a.m. As per the record, the duration of call was 238 seconds. However, the running length of the tape is 110:70 seconds and that of actual conversation is 103 seconds. The difference of duration between call detail record and recorded conversation can be attributed to the fact that the tape does not start with ring tone of the telephone. While the complainant has not come out with any explanation in this behalf, A-1 has. He recollected that someone claiming to be a school time friend wanted to speak to him to invite him over some function and the receiver picked up by the attendant was handed over to him. Whether this explanation is convincing or not, would be seen in the later part but, it would be evident that the receiver was not picked up by A-1 himself. Somebody else might have picked up the receiver and attended the call and then handed over the receiver to A-1. In

60

all

probability,

the

complainant

started

recording

the

conversation when A-1 got the receiver and said 'Hello'. It is worth notice that in the transcript Ex.PW-1/45 to Ex.PW-1/47, the word 'Hello' has also been attributed to the complainant whereas actually it is uttered by A-1 and, thereafter the complainant asks whether it is R.M. Guptaji? The conversation follows as under: R.M. Gupta (A-1) Complainant (C) A-1 C A-1 C Hello R.M. Gupta Ji? Han Ji Namaskar Ji (Yes Namaskar) Namaskar Ji Gupta Ji ki haal ne (Namaskar Gupta Ji how are you?) A-1 C A-1 C Meharbani, Wadia (Thank you, fine) Ki Kar rahe ho (What are you doing?) Bus nashta kar rahe see (I was having breakfast) Achha Ji (Laughs) hor sunao ki haal chal ne (Well how are the things?) A-1 C A-1 Kirpa tuhadi wadia (With your blessings I am fine). Bilkul theek-thak ho? (You are all right?) First class (First Class)

61

C A-1 C

Kiven chal riha Jalandhar (How is Jalandhar?) Bus vadia first class hai (Very good, first class) Theek thak, main kal kita see kehande Ludhiane gaye ne (Ok. I had rang up yesterday and was told that you were away to Ludhiana)

A-1

Bahar gaya hoya see kal (I was out of station yesterday)

Kehende Ludhiane gaye ne (I was told you had gone to Ludhiana)

A-1

Haan late aaya thoda jiha main dus ku baje aaya see ( Yes. I came back late at about 10.oo p.m.)

C A-1 C

Achha Achha ji hor sunao (Fine. What is more?) Bas Kirpa tuhadi (Fine. Your good wishes) Ek mint kar laheye ji ki man inna dariya hoya main kiha ik vari Gupta Ji naal gal kar e diya. Bhardwaj naal rati sari gal khul ke ho gai cigi, aj pher tuhade hukam mutabik bail fayal kar deni aa te Shanivar shami janab jo bhi Gupta Ji tuhada hukam aa na o payment main pahunchdi garanaga sir kam eda thok ke karna ki pata lag je je ik bari kam kita hoya baki Saturday shami gupshup sari kathe ho ke marde aan phir Sunday da apna function hega uthe tan aapan kathe hona he hona uthe agli gupshup marange agla programme phir ulikange (I will take a minute. I had so much fear in my mind that I thought it proper to

62

talk to you that in the night the entire matter was discussed in detail with Bhardwaj. Today, as per your direction I will file bail application and on Sunday evening as per your direction the payment will be delivered. Sir please pass strong orders so that it appears that something has been done. Rest we will discuss on Saturday evening and on Sunday I have a function where we have to assemble. There we will discuss further plans). A-1 C A-1 Sunday actually na (Sunday actually) Haan Ji Haan Ji (Yes) Meri sister jedi meri Mrs. di sister hain na (My wife's sister) C A-1 Haan Ji Han Ji (Yes) Udi mother-in-law di death hoi aa ude bhog a (Her mother-in-law has died. Her bhog ceremony is to be performed) C A-1 Achha Ji (Fine) Aasi uthe dus baje uthe jana a (I have to go there at 10:00 a.m.) C Achha chalo, do mint ho jaiyo (Ok! you can drop in for two minutes) A-1 C Chalo dekhange (I will see) Age piche (While going or coming back)

63

A-1 C

Haan Haan (Yes, Yes) Main kiha convey jarur kar diya hor sunao ki haal hai (I told to myself that I must convey to you. Tell me how are the things?)

A-1 C

Kirpa tuhadi meharbani (Thanks. Your blessings) High Court da aje hoya recommend ki nahin? (whether you have been recommended for High Court?)

A-1 C

Nahin haale (Hans Kar) ( No yet (laughs) Ki gal ayega oh din (What is the matter? The day will come)

A-1 C

Hun Hun (Yes, Yes) Haan Hor sunao ki haal hai (Yes. Tell me how are you)

A-1

Kirpa tuhadi vadia Ji (Thanks for your blessings, I am fine)

Chalo Saturday milde sham nu (Ok we will meet on Saturday evening)

A-1 C A-1 C A-1 C

Haan theek hai Ji (OK) Main invitation bhejenga (I will send invitation) Theek aa ji (OK) Theek aey ji (OK) Haan Haan (Yes) Haan main aap khud avanga, bete nu bhejanga (I

64

will come myself or will send my son) A-1 C A-1 C A-1 C Haan Ji Haan Ji (Yes) Aur mere layak ji (Any service for me?) Bus meharbani Sir (No thanks) Thank you Ji ( Thank You) OK Ji OK Ji OK brother

53.

The portion B to B-1 (Ek minute----- Ulikange) is

no doubt in the voice of the complainant but the tone of this portion is not in tandem with the remaining conversation. Thee is sound of click at the beginning of this portion as well as at the end thereof. The portion B to B-1 appears to be a monologue as if the speaker was not conversing with anybody. The ambiance and the surroundings are also entirely different inasmuch as it appears that the speaker is in a closed room. For this reason, there is echoing effect in this portion. It is, thus, evident that the portion B to B-1 has been inserted at some later stage. Otherwise, the entire conversation was formal. In order to prolong the conversation, the complainant had been asking time and again 'how are the things'. It is the portion B to B-1 which conveys that there was previous

65

demand

of

money

by

A-1

in

response

to

which

the

complainant was telling him that the payment would be delivered on Saturday evening. But for this portion, there

would have been nothing worth in the conversation. It is clear that the portion B to B-1 was inserted in such a manner as to synchronize with the conversation which followed. This is why, the reference to Sunday's function in the end of portion B to B-1. Otherwise, it is quite strange that if such a talk took place, A-1 did not utter even a single word in between to approve or disapprove whatever was being said by

complainant. Normally in such like conversation there would be interjections like 'Hum' 'Hun' 'Han' by the person who is listening. 54. In order to be doubly sure and to get scientific

evidence of what I had observed I thought it proper to call for expert assistance lest my observations were incorrect.

Accordingly, Shri SK Jain, Assistant Director, Central Forensic Science Laboratory, Chandigarh was called. The original micro cassette Ex.P-161 was handed over to him for developing spectrogram of the speech sample. Accordingly, he developed spectrogram by using multi-speech software. The spectrogram would be referred to as Court Document 'X'. The spectrogram shows sudden change in volume level and context at 33:70 seconds and inappropriate start/stop activity at 65:56

66

seconds. This span exactly covers the portion B to B-1. The zoomed view shows that there is change in the

surrounding/ambiance from 33:70 seconds to 65:56 seconds. Again there is break in continuity at 79:72 seconds.

Thereafter, there is inappropriate start/stop activity at 89:50 seconds and unusual gap prior to it. Before the end also, there is inappropriate start/stop activity at 105:06 seconds. The sudden change in volume level and context of speech is perceptible in the portion B to B-1 i.e. the portion between 33:70 seconds to 65:56 seconds. All these are the signs of post production editing. Therefore, the spectrogram confirms my observations. 55. Learned Public Prosecutor would argue that if A-1

did not even know the complainant, why did he talk to him? 56. The question is pertinent. However, the manner of

conversation, at no place, indicates relations between the complainant and A-1. As observed above, the entire

conversation was formal. There appears substance in the explanation of A-1 that some attendant picked up the phone. The complainant represented to him that he was a school time friend of A-1 and wanted to speak to him. Once such an impression was given to A-1 he had two options; either to refuse to come on the line or to answer the call. If he

67

exercised the second option, there was nothing unusal. Any ordinary person would have responded in the same manner. The tone and toner of the conversation except the portion B to B-1 is such as if A-1 was trying to identify the caller. It appears that he did not want to offend the caller by telling him that he had not recognized him. This is why, he kept on answering formal questions. Moreover, the caller was showing familiarity. There was no reason to doubt that the caller was not an old school time friend or that he was some imposter. Even otherwise, it was the caller who asked A-1 whether it was R.M. Guptaji. He did not utter his own name. Even, A-1 did not ask him about his name. This would have been sounded rude. Therefore, A-1, in his own mind, was not talking to a litigant or to an unknown person. He was talking to an old school mate whom he was not being able to place. Even otherwise, the portion B to B-1 appears totally out of context. 57. It is not known as to what was the original

conversation in place of which the portion B to B-1 has been inserted. Therefore, it is difficult to find out as to in what context A-1 was pleading inability to come on Sunday. It is not known as to on what pretext the caller was inviting him or what was being represented.

68

58.

Be that as it may, the fact remains that if portion B

to B-1 of the recording Ex.P-161 is taken out of reckoning there would be left nothing to indicate that A-1 had any inkling as to what was happening. This is perhaps the reason why the recording was made and why it was edited by inserting the portion B to B-1. It is not clear as to when the recording was edited albeit, it was made at 8:26 a.m. on 09.05.2003. The cassette was finally handed over to CBI by the complainant on 16.05.2003. It is not the case of the prosecution that the factum of recording was mentioned in the complaint. At the same time, it is not the assertion that the recording was played before the CBI either before or at the time of registration of the FIR. The complainant says that on

09.05.2003 when he lodged the complaint the cassette was in his car but he wanted to play safe and to be sure about the genuineness of CBI before handing over the cassettes to them. It is quite strange that after everything was over and when the statement of the complainant was recorded under Section 161 of the Code of Criminal Procedure, even at that time he did not hand over the cassette. It is, therefore, evident that he took his own time in manipulating the recording, knowing that the original was innocuous. 59. It is not the case of the complainant that on

09.05.2003, he had contact telephonic or otherwise, with A-1

69

except at 8:26 in the morning to which the recording Ex.P-161 pertains. He says that he prepared the complaint at Barog

and then came to Chandigarh. It means that in the morning on 09.05.2003, when he called the land line number of Sessions House, he was at Barog. Therefore, there could be no question, neither there is any assertion of his having met A-1 in person on that day. Despite this, he had the guts to allege in the complaint that on 09.05.2003 he had detailed

telephonic discussion with A-1 who had promised that he will keep the application for anticipatory bail with himself and will stay his arrest on 10.05.2003 and will confirm the bail after 5-6 days of notice issued to police and; that he should deliver cash by Saturday evening and, if he was not in a position to arrange the entire money, he should pay at least Rs.7 lacs by 10.05.2003 evening and, should pay the remaining amount before the confirmation of bail. Perhaps, this manipulation was in his mind when he wrote the complaint, but while editing the recording Ex.P-161 he perhaps lost sight of this. This is why in the recording, there is no such assurance or demand. 60. That human memory is short is reflected from the

fact that in the recording Ex.P-161, there is a clear mention by the complainant that on 08.05.2003, he had called but could not speak to A-1 as the latter was out of station but, when the complainant stepped in the witness box he stated that on

70

08.05.2003 in the presence of A-2, he talked to A-1 and Varinder Kumar from his mobile from Hotel Sunbeam,

Chandigarh and then it was decided that if he was not in a position to pay Rs.11 lacs in one go he should pay Rs.7 lacs upfront and, remaining amount could be made in a day or two. It is on 08.05.2003 that, according to the complainant, he asked A-1 that he would gain confidence if he was granted bail in FIR No.42 pursuant to which A-1 asked him to file application and, promised that he would stay his arrest. Needless to say that in sworn deposition of complainant, there was no mention of telephonic conversation between him and A-1 on 09.05.2003. 61. Coming back to other circumstances highlighted by

the Public Prosecutor. To my mind, merely because A-1 kept the bail applications of the complainant with him on each occasion whereas there were applications of other accused also, it would not mean that he had dishonest intention. It is the prerogative of Session Judge to distribute the work. If there were 21 bail applications on 23.04.2003 and 20 bail applications on 09.05.2003, it does not mean that he was bound to hear all of them personally. Every Session Judge has his own method of distribution of work and no fault should be found with the method unless it becomes absurd or

unequitable. The fact remains that A-1 had already dealt with

71

the

matter

of

the

complainant.

The

applications

for

cancellation of bail granted to the complainant were pending in the Court of Sessions Judge before A-1 took over. He decided those applications. As a matter of practice and to ensure uniformity, an effort is made to ensure that matters of the same person are heard and decided by the same Court. Therefore, if the bail applications of the complainant were kept by A-1 with himself, it does not mean that he had dishonest intention or that it was in pursuance of criminal conspiracy hatched between him and A-2 (and Varinder Kumar?). Precisely, for this reason, A-2 might have guessed and, it was a reasonable guess that A-1 will application in FIR No.42 with him. 62. It would be conjectural to infer that A-1 was be keeping the bail

present at Chandigarh on 10.05.2003 just to receive the money. It is not denied that he has his own house in visit to home town on

Chandigarh. 10th May was Sunday.

week end is a normal act. Even otherwise, A-1 had applied for leave citing that he had to attend bhog ceremony at the house of his wife's sister. It has come on record that the bhog ceremony was performed at Kharar and he attended the same. If instead of going back to Jalandhar, he came to Chandigarh from Kharar, it does not mean that the purpose was to receive money.

72

63.

As to what happened and what conversation took

place between the complainant and A-2 at the time of handing over of bribe money, the statement of PW-2, the shadow witness is relevant. The same reads as under: Sh. SS Bhardwaj complained that Mr.Samra had got late. Mr .Samra replied that he was arranging cash and with difficulty he had managed Rs.7.00 lacs. Then they started discussing the cases pending in the court of Sh.R.M.Gupta. Mr. R.M. Mr. Bhardwaj told him that had given him relief.

Gupta

Perhaps it was some case decided on the same day in favour of Mr. Samra by Sh. R.M.Gupta. Then Mr .Samra asked Mr.

Bhardwaj to arrange his meeting with Mr. R.M. Gupta. Mr. Bhardwaj replied that it was not possible. He then asked Mr. Samra to

hand over the amount to him and he will pass on Mr. R.M.Gupta's share to him. Then Mr. Samra handed over sweets box

containing Rs.7.00 lacs to Mr. Bhardwaj. 64. The above narration is important in the sense that

it renders the account of an independent witness. The

73

complainant and A-2, first of all, discussed the cases pending in the Court of A-1. Then, A-2 told the complainant that A-1 had given him relief. At that point of time, the complainant with A-1 in response to

asked A-2 to arrange his meeting

which latter replied that it was not possible. This narration itself explains that A-1 was no where in picture. Had he been in picture or had he been in touch or contact with the complainant, the latter would not have requested A-2 to arrange his meeting with A-1. Therefore, the narration by PW-2 as to what transpired on the spot also belies the theory of A-1 being a member of criminal conspiracy. 65. At this stage, it would be worth notice that

according to the complainant, he visited the residence of A-1 to thank him after he was given relief initially and after few days A-1 visited his hotel in Kartarpur accompanied by A-2 and; that from then onwards he developed intimacy with A-1 and started meeting him off and on. Isn't this part of the deposition incongruous with his act and conduct proved on

record? If he had developed intimacy with A-1 and he had been meeting off and on, why the request with A-2 to arrange his meeting with A-1? 66. the It is not just the narration by PW-2 which belies theory of conspiracy between A-1 and A-2. The

74

conversation between the complainant and A-2 recorded on Ex.P-162 also proves that A-1had not even the inkling as to what had been happening around him what to talk of being part of the conspiracy. 67. The first recording is at 7:16 a.m. on 29.04.2003.

A-2 says that he has not been able to establish contact with Judge Saheb (referring to A-1). He claims that if contact is established the date of choice would be given. The complaint requests A-2 to speak to A-1 strongly and give him assurance that whatever the demand is would be met. 68. The next recording is 19:30 a.m. on 29.04.2003

itself. By this time, A-2 has changed his mobile number. He tells the complainant that Babbu has informed that he has not been able to establish contact (with A-1?). The complainant tells him Baki pher tusi sambhalana hai sara kuch jida marji karo (Sir you have to get it done. You are at liberty to take any decision). Thereafter, the complainant assures A-2 that

on his part he is prepared to perform his obligation and that whatever has been settled will be delivered on 6th by 10:00 a.m. 69. In the call at 11:20 a.m., A-2 again informs the

complainant that he has tried to get the message across to A-1 but has not been successful. He goes to the extent of

75

claiming that he has left message with Superintendent. 70. At 11:48 a.m., the complainant tells A-2, Sir

Judge Saheb ne dismiss kar diti ji (Sir Judge Saheb has dismissed (application?)) A-2 responds Dr. Saheb Ohi kam ho gaya message nahin (Dr. Saheb as I had feared, message could not reach). 71. At 5:38 p.m. on 29.04.2003, A-2 informs the

complainant that he has received call from Babbu and he has lodged his protest with Babbu. Complainant expresses his anguish by saying, Actually Sir mainu eni hope nahin sigi, mainu lagaya see ke gal hoi hai Judge Saheb nal jarur ik vari Babbu nu puchunge just main keha (Actually I had not expected this. I was hoping that the settlement had already been made with Judge Saheb (A-1?) and he will definitely ask Babbu once). A-2 replies, Bilkul theek hai tenu pata ki gal hai, main tenu savere phone is karke kita see ki ohda message aaya ki phone unha de band paya gal ho nai rahi (You are right. This is the reason I had rang you up in the morning because his (Babby?) message had come his phone (A-1?) was lying switched off and, hence, contact was not being established.) 72. At 5:58 p.m., complainant requests A-2 to talk

solid with A-1. A-2 responds. Then the complainant says that

76

it was all haphazard inasmuch as initially there was some demand which was subsequently enhanced to such an extent that he got upset. He asks A-2 to ensure that such a thing does not happen again. A-2 replies that everything will be fixed in advance and even payment would be made and then the complainant would surrender. The complainant requests A-2 to bargain in the changed circumstances but A-2 replies that they were not in a position to do that. 73. In the call on 30.04.2003 at 7:24 a.m., the

complainant expresses his doubt by reminding A-2 that as settled the application was filed and notice was given for the next day and when record was not received arrest was stayed but, by that time the demand was not that much. A-2 comes out with knee-jerk reaction saying, demand hegi see os time tenu pata ki hai. Actually main Babbu nu nahin keha see ki bande kol paise nahin hai? (What do you know? Demand was there even then. Didn't I tell Babbu that the person was not having this much of money?) Then A-2 tells, Main vi chala gaya odhar Babbu jo hai mil nai sakaya kehnde see thoda sa oh Babbu kehenda main kehende tu aa kithe firda jehra hai. Actually oh expect kar rahe seege aasan kuj payment ohna nu kar dange tahin main bar bar kehnde see ki tu saman le aa (I went somewhere. Babu could not meet Judge Saheb. Babbu told me that (Judge Saheb) asked him where he was roaming

77

about. Actually he (A-1?) was expecting that we will make some payment to him. This is why I had been telling you time and again to bring 'samaan' (money?)).Thereafter, both went on discussing the scope of second application for anticipatory bail and the eventuality of surrender. The possibility of registration of fresh case was also discussed and A-2

suggested that in these circumstances, it would be better to use the same channel. He again asked the complainant to start delivering (money) so that by chance if he is arrested, the things could be arranged. A-2 says tu saman bijva de fata fat main tenu dasan (If you listen to me you must deliver

money immediately). 74. calls A-2. On 30th April at 7:11 p.m. the complainant again The latter informs him that Babbu had received

message from Judge Saheb (A-1?); that Judge Saheb will be arriving tomorrow. Then A-2 tells the complainant that Babbu is saying that he will arrange meeting with Judge Saheb and settle the matter. Again A-2 tells the complainant to keep the money ready (tusi apni tayari rakho). 75. of A-2. On 01.05.2003, the complainant visits the house then also A-2 tells him apologetically main tuhanu nahin tusi

tade he 7:30 phone kitta message pahunchaya

delay kara lo apdi (I had called you at 7:30 a.m. just to tell

78

you to get the matter adjourned as message had not yet reached). The complainant again refers to excessive demand. Even, this time he refers to the call received from A-2 on 27th that Gupta Saheb (A-1) is demanding Rs.11 lacs. A-2 tells the complainant that Babbu was embarrassed and was telling him that he will take him to Judge Saheb (A-1?). After discussing the matter, the complainant reminds A-2 that on 28th night he had come back after spending one night and on the way from Ambala he had called him confirming that he will pay money. In continuity, he tells mainu es see Judge saheb hai v ethe aa Sunday us night ethe hone han (I was under the impression that it was Sunday and Judge Saheb (A-1?)would be here (Chandigarh). 76. between The crux of the entire recorded conversation the complainant and A-2 from 29.04.2003 to

01.05.2003 is that there was no direct contact between the complainant and A-1 and even between A-1 and A-2. It is clear that A-2 had been making efforts to get the work of the complainant through Babbu. Be that as it may the fact remains that A-2 himself was not in a position to speak to A-1 directly. Therefore, the question of A-1 conspiring with A-2

does not arise. It is, thus, crystal clear that the evidence of the complainant as to his meeting with A-1 in Hotel President, Jalandhar; regarding A-1's visit to his hotel in Kartarpur and

79

regarding his visits/calls to A-1 is concocted. In the last conversation on 01.05.2003, the complainant made clear that from Ambala he had called A-2 to confirm that he will pay money. Had he called A-1 also, he would have definitely mentioned so in his conversation. Rather, he expressed that he was under the impression that A-1 would be at Chandigarh being Sunday. There remains no doubt that the STD slips from Eshant Hotel, Ambala have been purposely collected after making sundry calls to the land line number of Sessions House, Jalandhar just with a view to create evidence against A-1 whereas, in fact no talk had taken place between him and the complainant. 77. The facts and circumstances taken together throw

a considerable light on the veracity of the prosecution case and pose grave doubt whether A-1 had anything at all to do with the demand of bribe by A-2. The evidence regarding the alleged meetings between A-1, A-2 and the complainant, as discussed above, is false. If A-2 demanded bribe from complainant on the pretence that the demand had come from A-1 and the latter did not have the ghost of an idea that A-2 was trying to extract money from the complainant in his name, it would be indeed unjust to impute to A-1 the complicity in the demand for bribe merely on the basis of what A-2 told the complainant.

80

78.

Be that as it may, there is virtually nothing on

record to prove conspiracy between A-1 and A-2. However this, by itself, would not mean that the entire prosecution case must fail. It has still to be decided whether A-1 and A-2 acted individually or in isolation so as to hold them responsible for their individual acts. 79. Having held that A-1 was not a conspirator the

very nature of the allegations warrants a finding that even individually he was not involved. 80. Let us scan evidence to find out whether demand

and acceptance both were made by A-2 on his own? 81. Learned Public Prosecutor argued at the very

outset that from the statements of the prosecution witnesses it is proved beyond doubt that the accused was found in possession of tainted money; therefore, in view of the law laid down in T. Shankar Parsad Vs. State of Andhra Pradesh, 2004 (1) RCR (Cri.), 784, presumption under Section 20 (1) of the Prevention of Corruption Act, 1988 requires to be drawn that he had accepted the same as a motive or reward for doing an official act. 82. Learned defence counsel, on the other hand,

argued that the presumption under sub-Section 1 of Section

81

20 of the Act could not be raised merely on the proof of acceptance or recovery of money but it has further to be proved that money was accepted as bribe in pursuance of demand. He argued that there can be no presumption that if a public servant has been found in possession of the treated

money, he must have demanded and accepted it as bribe. To substantiate this contention, reliance was placed upon Suresh Kumar Srivastava Versus State of Madhya Pradesh 1994 Criminal Law Journal 3738 and V Venkata Subbarao Versus State of AP 2007 (1) RCR Criminal 519. 83. There is no doubt about the legal position that certain fact drawn from a

presumption is an inference of

proved fact. In Suresh Budarmal Kalani Vs. State of Maharashtra, 1998 (7) SCC, 337, the Hon'ble Apex Court observed that a presumption can be drawn only from facts and not from other presumptions. It is well settled that the premise to be established on the facts for drawing the presumption under sub-section (1) of Section 20 of the Prevention of Corruption Act is that there was demand, payment and, acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification is accepted as motive or reward for doing an official act. Therefore, mere recovery of treated currency notes from a Government servant would not be sufficient to warrant

82

the presumption. First of all it has to be proved that there was a demand and then acceptance. 84. The fact that there was a demand need not be

proved through direct evidence. It can also be proved by circumstantial, evidence. 85. Learned counsel for A-2 would argue that the

evidence of the prosecution with regard to demand is discrepant inasmuch as in the complaint it is specifically alleged that on 09.05.2003, there was concrete demand for Rs.7 lacs by A-1 but when the complainant stepped in the witness box he stated that demand was on 08.05.2003. Learned counsel would point out that the complainant

deliberately and cleverly tried to improve upon the version set forth in the complaint because as per the allegations there was only telephonic contact between the complainant and A-1 on 09.05.2003 but in the recording of the conversion, there was no mention of demand. According to the counsel, this discrepancy goes to the root of the matter and shakes the very base and the foundation of the prosecution case. 86. Continuing his argument, learned counsel

questioned that since the allegation of demand of Rs.7 lacs by A-1 on the basis of which trap was laid is proved to be false, how can the complainant be believed as to his earlier version

83

about the demand by A-2 on 26.04.2003 and then the demand on the spot? Placing reliance upon K. Chandra Versus State through CBI 1991 (1) RCR Criminal 399, learned counsel argued that if a witness is disbelieved into one integral part of the story, the entire case fails. Reliance has also been placed on Surajmal Versus State of Delhi AIR 1979 SC 1408, wherein it has been held that if a witness makes two inconsistent statements at one or two stages, he becomes unreliable and unworthy of credence. 87. Learned counsel argued further that even the

complainant had no reason to give money because after the dismissal of his bail applications on 29.04.2003 he got bail from the Hon'ble High court on 07.05.2003. In one of those cases, the provisions invoked were Section 304 of Indian Penal Code read with Section 420 of Indian Penal Code whereas in FIR No.42 Section 304 was not involved and, hence, it was of much lesser propensity. 88. Each case presents different set of facts and No straight jacket formula has so far been

circumstances.

devised as to how the facts and circumstances are to be appreciated. So many factors come in play in the matter of

appreciation of evidence that it becomes difficult, at times, to single out one which would prove or disprove a version. Evidence Act recognizes three types of facts i.e. the facts

84

proved, the facts disproved and the facts not proved. The Courts are required to appreciate the evidence to reach a definite conclusion whether a fact is proved, disproved or, not proved. If some facts are proved and some disproved and

some not proved the Court has to weigh them properly to reach a definite conclusion. 89. Every effort has to be made to disengage the truth

from the falsehood and to sift the grain from the chaff rather than to take the easy route of rejecting the entire case merely because there are some embellishment or discrepancies. This is what was held in Molu Versus State of Haryana AIR 1976 SC 2499. While observing in K Chandra (Supra) that if the witness is disbelieved into one integral part of the story the entire case fails or in Suraj Mal Versus State of Delhi (Supra) that if a witness makes two inconsistent statements at one or two stages he becomes unreliable and unworthy of credence, the Hon'ble Supreme Court It did not mean to lay down a straight jacket formula. Those observations were made in the context of facts peculiar to those cases. 90. As to how a precedent is to be applied has been

explained at length by the Hon'ble supreme Court in PNB Versus R.L. Vaid in the following terms:

85

It would have been proper for the High Court to spell out clearly as to the

applicability of the decision to the facts of the case. There is always peril in treating the words of a judgment as though they are words in legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a difference between conclusions in two cases. Disposal of cases by merely placing reliance on a decision is not proper. Precedents should be followed only so far as they mark the path of justice, but you must cut out the dead wood and trim off the side branches else you will find yourself lost in thickets

and branches, said Lord Denning, while speaking in the matter of applying

precedents. 91. If the Hon'ble Supreme Court so observed in K

Chandra, it also noticed in Malkiat Singh Versus State of Rajasthan AIR 1981 SC 1579 that in a murder case if part of the prosecution story is found doubtful, it would not

86

necessarily falsify the whole account but, in that case the rest of the story told by the witnesses must be examined carefully before it is relied on. At the same time, in Maqsoodan Versus State of UP AIR 1983 SC 126, it was noticed that improvements made by witnesses and variations in their earlier and latter statements are not , by itself, sufficient to hold their testimony to be infirm. 92. The crux of the matter is that it is the mix of

ground realities and principles which the courts have to apply. In this country, it is rare to come across the testimony of a witness which does not have a fringe or embroidery of untruth. it is not unoften that improvements in an earlier

version are made in order to give a boost to the prosecution case, albeit foolishly but, that does not mean that falsity of testimony on one material particular would ruin it from

beginning to end. In Bhim Rao Anna Ingawale Versus State of Maharasthra AIR 1980 SC 1322, it was observed that such circumstances will be a good reason for the court be put on guard and sift the evidence with extraordinary caution and to accept those portions of it which appear fully trustworthy either intrinsically or by reason of corroboration State of UP Versus

from other trustworthy sources. In

Shekhar AIR 1981 SC 897, it was held that it is only where the testimony of a witness is tainted to the core, the falsehood

87

and the truth being inextricably inter-twined that the court should discard his evidence in toto. Needless to say that

where falsehood and truth can be separated, the court has to accept what is truth rather than rejecting the entire case. The maxim Falsus in uno falsus in omnibus has no application in criminal jurisprudence. 93. It has been held above that A-1 had no role to play

either individually or in conspiracy with A-2 except that he was dealing with the applications of the complainant. It follows that he has been roped in unnecessarily. If the entire matter is sifted, it would be clear that false evidence was created by the complainant to justify his allegation that A-1 too was involved. May be the sub-conscious mind of the complainant was so working as to believe that if he did not implicate and rope in A-1 he would not succeed against A-2. It appears that to allay this fear within himself he mixed falsehood with truth. This is why he named A-1 as an accused and then manipulated the recording purportedly containing conversation between him and A-1 94. Let us view it from another angle. After

cancellation of his bail, the complainant came to Chandigarh where A-2 claimed that he was quite thick with A-1. He told the complainant that he would get him relief from A-1 for

88

which he shall have to pay Rs. One lac to A-1. The matter was decided in favour of the complainant on merit. Complainant paid Rs. One lac to A-2 believing that this was meant for A-1. Thereafter, when the applications for anticipatory bail were filed, A-2 represented that A-1 was demanding money. The complainant did not pay. His applications were rejected. wasn't this sufficient for the complainant to believe that A-1 was involved? When A-2 pointed out that he had been telling him to deliver money in advance, the complainant believed that both A-1 and A-2 were bent upon extracting money from him. When A-2 asked for money in the name of A-1 on the pretext that still he could be helped, his belief got further confirmed. This is reflected from the following conversation between the complainant and A-1 on 01.05.2003: Actually Sir thoda main believe karoge main really upset ho gaya see Judge Saheb nal varte be hoye see. Eh hai ki first time see. Age kam karanga pata be hai payment pahundi hai koi gal nai (Actually Sir would you believe that I got really upset because this was not the first time we were dealing with Judge Saheb (A-1?). He should have

known that payment would be delivered).

89

Therefore,

when

the

complainant

wrote

the

complaint he was under the impression that A-1 was also involved but since there was no evidence against A-1 he gave a twist to the story by claiming that A-2 facilitated his talk with A-1 who asked him to do as A-2 says and; that on 09.05.2003 he had telephonic discussion with A-1 who had asked him to pay Rs.7 lacs upfront by 10.05.2003 if he was not in a position to pay the entire Rs.11 lacs in one go. To lend credence to this story, the complainant fabricated the evidence by engaging A-1 in telephonic conversion; by recording it and subsequently by editing it. The purpose was to give boost to his case against A-1 who, in his belief, was the king-pin. By introducing some false portion in the story the complainant cannot be deemed to have vitiated or adulterated the entire version particularly, the one against A-2. 95. Let us try and find out whether the version

regarding demand by A-2 can be separated from the version regarding A-1. In this context, the stand of the complainant is consistent that demand, for the first time, was made on 26.04.2003 when A-2 called the complainant telephonically and told him that Rs.11 lacs were to be paid to A-1 and senior police officers by 29.04.2003. He claims that when he came to Chandigarh A-2 talked to A-1 and Varinder Kumar and also facilitated his talk with them. Both of them demanded Rs.11

90

lacs; that he again contacted A-1, A-2 and Varinder Kumar and requested them to postpone the payment but they remained adamant and, after his applications were rejected A-2 contacted him pursuant to which he visited the house of A-2 from where A-2 facilitated his talk with A-1 and Varinder Kumar and, after negotiations it was finally decided that he would pay Rs.11 lacs. The complainant claims that on 08.05.2003 A-2 met him in hotel sunbeam and in his presence he talked to A-1 and Varinder Kumar from his mobile and finally it was decided that if he was not in a position to pay Rs.11 lacs in one go he should pay Rs.7 lacs upfront and remaining payment should be made in a day or two. 96. It is worth mention that according to the

complainant, it was on 28.04.2003 that he realized that A-2 and A-1 were harassing him and were out to extract money and, therefore, from 29.04.2003 he started recording the conversations proceeding whenever it convenient. be Therefore if before those

further,

would

advantageous

recordings are looked into. 97. The first recording is on 29.04.2003 at 7:16 a.m.

This is telephonic conversation. The mobile phones involved are 9814668542 and 9814789008. As per the record, the first number stands in the name of Balwinder Singh of District

91

Jalandhar while the second number is in the name of Hari Bhagwan, resident of Yamuna Nagar. According to the

complainant, he was using the number 9814668542. The case of the prosecution is that number 9814789008 was being used by A-2 as he is related to Hari Bhagwan. According to prosecution, Hari Bhagwan did some crash course from Chitkara Institute and in that connection he stayed with A-2 and his identity card and other notes etc. used to remain in the house of A-2, getting advantage of which, the latter got the connection. Hari Bhagwan appeared in the witness box as PW-18 but he straightaway denied having any relations with A-2 or having stayed with him. He, however, admitted that he did crash course from Chitkara Institute and; that the photo copy of the identity card issued by the Institute was lying annexed with the application on the basis of which the connection was released. He claimed that he used to commute from Yamuna Nagar to Chandigarh where he was doing the course. 98. To my mind, PW Hari Bhagwan has lied to the

extent that he used to commute from Yamuna Nagar while doing crash course or that he had no relations with A-2. Obviously, he had all the reasons to come to the support of A-2 albeit, during investigation he had admitted having stayed with A-2. The fact remains that there is evidence in the form

92

of call details pertaining 9814789008 (Mark S to Mark S-4) to prove that this number was being used by A-2. This record shows that six calls were exchanged between this number and 0172-720899 which is the land line number installed at the residence of A-2. If Hari Bhagwan had no relations with A-2; if Hari Bhagwan had not obtained this mobile number and if A-2 did not know him, why calls between his land line number and this mobile number? It will be far-fetched to believe that the complainant misused the copy of the identity card of Hari Bhagwan; got the connection and started creating evidence. The fact remains that there were calls exchanged between 9814789008 and 9814668542 and one of those calls was on 28.04.2003 on 7:16 a.m. Ex.PW-28/10). 99. numbers All the remaining and calls are between Mobile mobile number which lasted 85 seconds (Vide

9814173569

9814668542.

9814173569 stands in the name of Rupinder Singh of Nanakpur Colony, Zirakpur. The prosecution has not been able to dig into the details Singh is. However, to to find out as to who again from it the is call clear this Rupinder details that record

(Ex.PW-22/3

Ex.PW-22/6),

between

02.05.2003 and 10.05.2003 there were 30 calls from the land line installed at the residence of A-2 to this number. It is not that the calls were from mobile number to land line.

93

Therefore, it does not lie in the mouth of the defence to argue that the complainant could have manipulated by making blank calls from this mobile to the land line of his residence. A-2 has no explanation as to these calls from his land line number. In these circumstances, it can be inferred that this mobile number was being used by A-2 as secret number but unwittingly somebody from his residence who knew that he was carrying this number used to contact him on this number. 100. Once it is proved that till 7:16 a.m. on

29.04.2003, A-2 was using mobile number 9814789008 and then he started using mobile number 9814173569, the next step would be to consider the recordings. 101. In Ram Singh Versus Col. Ram Singh AIR1986

Supreme Court (3) after going through conspectus of authoritative pronouncements on the subject, the Hon'ble Supreme Court laid down the following conditions for

admissibility of a tape recorded statement: 1) The voice of the speaker must be duly identified by the maker of the record or by others who

recognize his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice

94

has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. 2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial. 3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. 4) the statement must be relevant according to the rules of Evidence Act. 5) The recorded cassette must be carefully sealed and kept in safe or official custody. 6) Thew voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.. 102. While laying down the conditions aforementioned,

the Hon'ble Supreme Court was conscious of the following observations of Marshall, J; in R Versus Maqsud Ali 1965 (2) All E.R 464 A tape recording is admissible in evidence. such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case.

95

There can be no question of laying down any exhaustive set of rules by which admissibility of such evidence should be judged.

103.

During

the

course

of

arguments

and

even

subsequently, the micro cassette Ex.P-162 purported to be containing the recording of conversation between the

complainant and A-2 was played back many times and I found that in continuity, clarity and coherence its quality is, at the least, adequate to enable the court to form a fair and reliable assessment of the conversations which were recorded.

104.

In so far as the voice purported to be that of the

complainant is concerned, there is no doubt about that because, he not only admitted but also rendered his specimen voice samples with which the recording was compared and a positive opinion was tendered by the expert (vide

Ex.PW-32/2).

However, accused S.S. Bhardwaj, when called

upon during investigation, refused to lend his specimen voice sample. It was only during trial that he agreed to give his voice sample. Resultantly, his voice sample was taken in the Court on 18.02.2008. The proceedings recorded in this context are being reproduced hereunder for facility of reference:

96

Present:Sh.R.L. Negi, PP for CBI. Accused S.S. Bhardwaj in person Sh. R. Upasak, ASP, CBI. Vide order dated 6.2.2008 accused S.S. Bhardwaj was directed to present

himself in CFSL on 18.2.2008 i.e. today for lending his voice sample. The Director, CFSL was directed to take the voice samples for the purpose of comparison. Vide letter

No.CFSL/6238 dated 15.2.2008 the Director, CFSL has desired if the that voice it would be are

appropriate

samples

recorded in the Court in the presence of the Presiding Officer. To my mind the suggestion is valid. Direction to the accused to present himself in the CFSL was given by the Court under the impression that it will not be possible for Expert to take voice samples in the Court. Since the CFSL has the facility to take the voice samples in the Court, it would be appropriate if the voice sample is

recorded in the Court itself. The accused is present. Dr. S.K.Jain, Assistant Director, CFSL is also present. He

97

has

produced

pack

of

three

Micro

Cassettes make Sony. the packet has been opened in the Court and two Micro

Cassettes have been taken out. Dr. S.K. Jain desires that the accused be identified then the accused himself gives and his

introduction. Consequently, the Investigating Officer, who is also present, has identified the accused. After identifying the accused he has left the Court Room. Everybody except the Expert Dr. S.K. Jain, his research

Associate Sh. S.K. Choudhary, the Reader of the Court and the Public Prosecutor has been asked to leave the Court Room. Dr. S.K. Jain has shown the text prepared by him from the transcription. He wants the accused to read the portions side lined. The accused confirms that there is no pressure on him and that he is voluntarily giving voice samples as per the directions of the Court. The voice samples on the basis of the text; certain questions and a provision from the Code of Criminal Procedure have been

98

taken on two Micro Cassettes. The second Micro Cassette has been used not because the first was exhausted but, as per the

convenience of the Expert. The accused has signed on 'A' side of both the cassettes containing his voice samples in blue ink. Dr. S.K. Jain has also affixed his initials on 'A' side of each cassette in blue ink. The Court has affixed its signatures on the 'B' side of both the cassettes in red ink. The cassettes have been put in an envelope. The envelope has been stappled and then put in another envelope. The outer envelope has been sealed in the Court with seven seals of the undersigned. The accused, Expert and the undersigned have signed the outer envelope which bears the seals. This sealed parcel is being handed over to Dr. S.K. Jain right now along with the copies oft he order dated 31.1.2008 and 6.2.2008. The sample voice is to be compared with the recording

contained in the cassette Ex.P-162 (Q-2) which has already been forwarded to the CFSL vide letter No.Spl.J/Ahl./08/28 dated

99

14.2.2008. The report be submitted by 26.2.2008. Sd/-Special Judge, CBI court, Chandigarh. 18.2.2008 105. After examination, Shri S.K. Jain, expert submitted

his report/opinion copy thereof was supplied to the counsel for the accused as well as the public prosecutor. Consequently, Dr. S.K. Jain was examined as court witness and an opportunity was afforded to the accused to cross-examine him. 106. micro It is worth mention that while playing back the cassette Ex.P-161 which contains the recorded

conversation between the complainant and A-1 the court was of the opinion that there was editing in the portion B to B-1 therein. To assist the Court in forming definite opinion, the help of the expert was taken. However, while playing back the micro cassette Ex.P-162 again and again, the Court is of the opinion that there is no editing or tampering. There are no doubt some inaudible portions in the tape Ex.P-162 but the fact remains that transcript of only that recording has been prepared which is clear, audible and free from disturbance. In fact, inaudible portions pertain the calls which were not connected or were aborted due to inadequate signal.

100

107.

The first recording, which is clear, relates to the

conversation purported to have taken place on 29.04.2003 on 7:16 a.m. The second was on the same day at 9:30 a.m. Thereafter, there are three calls which were connected and conversation took place but it is not clearly audible. For valid reasons, transcript of these calls has not been prepared. After these, there is another call. This time, conversation took place and transcript thereof has been prepared. This

call/conversation was followed by four inaudible unclear /aborted calls as can be easily made out from the cassette. Then, there is conversation which is clearly audible. Transcript of the same has been prepared. Again, there is some inaudible conversation on two occasions. This is followed by the conversations which are clear. Transcript of these has been prepared. 108. has It is worth mention that the Investigating Officer mentioned the date and time on each transcript.

Although, he has not made clear how did he determined this but, it appears that he perused the call details record and after matching them with the recordings he mentioned the time and the date. The fact remains that he committed The first two conversations are

mistakes here and there.

relatable to the calls on 29.04.2003 at 7:16 a.m. and 9:30 a.m. However from the recording, it appears that after the

101

call at 9:30 a.m., there were three more calls which are not clear. The third transcript is relatable to the sixth call exchanged between the complainant and A-2 at 12:24 a.m. and not at 11:20 a.m. Investigating Officer. 109. After carefully comparing the call details record as has been concluded by the

Ex.PW-28/1 and Ex.PW-28/3 and matching them with the conversations recorded in Ex.P-162 the result can be

reproduced in the form of the following table:

Sr. Date No. 1. 29.04.2003 Time 7:16 From Complainant To A-2 Duration (In Comments Seconds) 85 Clearly audible. Transcript No.I (In short T-I) Clearly audible. Transcript No.II (In short T-II) Call connected but conversation not audible. Transcript not prepared. Call connected but conversation not audible. Transcript not prepared. Call connected but conversation not audible. Transcript not prepared

2.

29.04.2003

9:30

A-2

Complainant

62

3.

29.04.2003

11:20

A-2

Complainant

35/34

4.

29.04.2003

11:48

A-2

Complainant

22/21

5.

29.04.2003

12:07

A-2

Complainant

115

102

Sr.No Date . 6. 29.04.2003

Time

From

To

Duration (In Comments Seconds) 42 Clearly audible. Transcript No.III (In short T-III) Call connected but conversation not audible. Transcript not prepared. Call connected but conversation not audible. Transcript not prepared. Call connected but conversation not audible. Transcript not prepared. Clearly audible. Transcript No.IV (In short T-IV) Call connected but conversation not audible. Transcript not prepared. Clearly Transcript short T-V) audible. No.V (In

12:24

A-2

Complainant

7.

29.04.2003

12:33

A-2

Complainant

30

8.

29.04.2003

12:42

A-2

Complainant

42

9.

29.04.2003

12:59

A-2

Complainant

42

10.

29.04.2003

13:40

A-2

Complainant

28

11.

29.04.2003

17:38

Complainant

A-2

125

12.

29.04.2003

17:58

A-2

Complainant

152

13.

29.04.2003

22:15

Complainant

A-2

233

Clearly audible. Transcript No.VI (In short T-VI) Clearly audible. Transcript No.VII (In short T-VII)

14.

30.04.2003

7:24

Complainant

A-2

355/356

15.

30.04.2003

9:10

A-2

Complainant

25

Call connected but conversation not audible. Transcript not prepared. Clearly audible. Transcript No.VIII (In short T-VIII) Clearly audible. Transcript No.IX (In short T-IX) Clearly audible. Transcript No.X (In short T-X)

16.

30.04.2003

19:11

Complainant

A-2

176/177

17.

01.05.2003

16:57

Complainant

A-2

89

18.

01.05.2003

17:26

A-2

Complainant

25

103

110.

Needless to say that Transcript No.XI is not to be

related to call details record as it was recorded otherwise when the complainant visited the residence of A-2. 111. That the recording contained in Ex.P-162 has not

been manipulated/edited or tampered would be borne out from the fact that the running length of each individual recording more or less matches the duration as depicted in the call details record. This would be evident from the following table:

Sr. Call No.

Duration as per call Duration of actual detail record (In recording (In Seconds) Seconds) 85 62 42/43 27/28 152 233 355/356 176-177 89 25 80 (T-I) 58 (T-II) 42 (T-III) 30 (T-IV) 147 (T-V) 228 (T-VI) 345 (T-VII) 172 (T-VIII) 45 (T-IX) 22 (T-X)

1. 2. 3. 4. 5. 6. 7. 8. 9.

1 2 3 4 5 6 7 8 9

10. 10

104

112.

A study of the above table would make it clear that

there are minor differences. This can be attributed to technical reasons. Even otherwise, in all the conversations i.e. T-I to TX, there are no start/stop activities at inappropriate places. In no conversation break in continuity has been observed. There is no sudden or abnormal change in volume level or in the context of the speech. There are interjections in between as would be there in every normal conversation. Therefore, Conditions No.2 & No.3 laid down in Ram Singh Versus Col. Ram Singh (Supra) stand satisfied. There is no dispute that the conversation is relevant. Insofar as Condition No.5 is concerned, there is no doubt that the cassette Ex.P-162 was not immediately sealed and kept in safe custody. The last conversation was on 01.05.2003. The FIR was registered on 09.05.2003. However, for the reasons explained above, the complainant being apprehensive did not disclose the factum He disclosed this later and produced the

of tape recording.

cassette only on 16.05.2003 when it was seized and its transcript was got prepared in the presence of the

independent witnesses. This is not in consonance with the condition but, this single flaw would not make the tape recorded conversation inadmissible particularly when there is least doubt about the accuracy and the genuineness of recording. Condition No.6 also stands satisfied in that the

105

voice of the speaker is clearly audible. There are no such other sounds or disturbances which would distort the conversation. 113. Coming to Condition No.1 apart from the

complainant there is none who has recognized the voice of A-2. The latter, on his part, has denied. It is for this reason that the voice in the tape Ex.P-162 was got compared with his voice in the video cassette (Ex.P-163) containing his interview given to the Correspondent of Aaj Tak news channel. As per the report of the expert Ex.PW-17/1, the voice of the speaker in video cassette Ex.P-164 is similar to the voice of the speaker in Ex.P-162 in respect of their acoustic cues and other linguistic and phonetic features. According to the expert, the voice is of the same person i.e. A-2 with high probability. 114. As discussed above, voice sample of A-2 was taken

in the Court by expert Shri S.K. Jain, who after comparison with the recording in Ex.P-162, came out with the report Ex.CW-3/1 that the voice in both the recordings is probable voice of the same person i.e. S.S. Bhardwaj 115. The Expert Dr. S.K. Jain was examined as Court

Witness. In order to understand the subject, he was put questions by the Court. The questions and answers are being reproduced hereunder for facility of reference:

106

Court Question:

Is the acoustic analyses a perfect science? How does the voice of one person differ from the voice of other? two different persons Can the voice of be the same in

acoustic quality and parameters? Ans: It is a perfect science. The voice of no two persons matches because every person has unique vocal tract geometry. No two

persons can control their articulators in identical fashion. Lips, tongue, hard palate, soft palate, lower jaw, upper jaw and vocal cords are the articulators which produce distinct copied. voice quality which cannot of be two

Therefore,

the

voice

individuals cannot be the same in acoustic quality and parameters. Court question: What is the difference between voice and speech? Ans: Voice is the carrier signal whereas speech is a transfer signal. The voice is generated when lungs force air stream to the wind pipe and the wind passes through the vocal cords and vibrators occur. These vibrators

107

are modulated into speech by articulators. Court question: Can a person change his voice? If he does so, can it be ascertained? How? Ans: A person can change his voice by

suppressing the flow of air and by changing the position of articulators but such changes cannot be there for longer duration. Voice of person can also change due to cold or fever, bad throat etc. In order to fix the identity we need standard voice samples. Then we segregate similar sounding words from the standard as well as disputed voice samples then those similar sounding words and are

compared

spectrographically

using

automatic software developed by our lab. In this manner, we are able to fix the identity disguise. even As if an per effort the is made to

international

Association of Voice Identification Protocol there are several possible decisions. These are such as identification, possible probable

identification,

identification,

inconclusive, possible elimination, probable

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elimination and elimination. The decisions are based on two main criteria; (i) amount of matching data available (ii) the degree of similarity of the data. The conditions for identifications are if 20 or more matching words must be with all three formants (as acoustic features), 90% of which words are very similar orally and spectrally. Similarly for possible elimination are not less than 15 words which two or more usable formants at least 80% of which words must be very dissimilar orally or spectrally. Court Question: Ans: How do you explain mimickery? When the person is mimicking he is

changing the position of the tongue with respect to the palate. However, a person cannot mimick the voice of some other person for longer duration. A mimick may deceive the audience by coying the voice. His voice may sound similar to a listener but spectrographically it would always be

different and can be compared with the voice of the original person or with the

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normal voice of the person who is trying to change his voice. Court question: Ans: What is a spectrogram? Spectrogram is 3-dimensional

representation of speech signal in which horizontal axis represents the time and vertical axis represents the frequency of the words and the darkness represents the intensity of the words spoken. Court question: What are the IAI standards for aural and spectral comparisons? Ans: I have already answered this at page 5 of my statement recorded in the Court on 15.4.2008. Court Question: What is the criteria while adopting IAI method/standards? Ans: There are two main criteria. One is amount of data available and the second is degree of similarity of data. Court Question: How do you establish objectivity during the comparison process. Can other researchers

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and examiners replicate the results? Ans: In order to establish objectivity we take similar samples sounding as well words as from from controlled questioned

samples. As already stated by me minimum requirement is 20 similar sounding words. These words on are a compared to

spectrographically

spectrogram

extract the acoustic parameters such as formant frequencies and their band width. If this test is applied by another expert or researchers replicated. Court Question: What is the potential rate of error in spectrogram recognition? What are the the same result would be

components of error due to technique and due to analyses? Ans: Potential error rate depends upon the

qualification of the expert and his skill and sufficiency of the data as well as equipment used. As per the survey of 2000 Voice comparison made by FBI

Identification

examiners in 1986 they observed false

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eliminations in only 2 cases and false identification in one case out of 2000. Court Question: What do you mean by false identification and false elimination? Ans: These terms mean that when a third person knows that the voice is of the same person or of the different person but the expert opinions otherwise. Court Question: Ans: Have you heard of system called FASR? This may be Forensic Automatic Speaker Recognition system in which no spectrogram is used but the questioned sample is

compared with the existing data base of the suspects on the basis of the pattern

recognition technique and by comparing the vocal tract parameters. We have developed the text independent speaker identification system indigenously for comparison of

different texts available in the controlled and questioned samples. This helps us in

identifying the speaker even if the text is different. By this I mean that there may be

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some words in which the sounds are similar but the words are different. For example in the words 'pat', 'tap' and 'spat' there are similar sounds like 'p'. The words are

different but from them we pick up the sound. I had applied this test also while conducting the analyses. Court Question: What is the different between aural

recognition. Spectrogram recognition and automatic speaker identification? Ans: In the aural examination we are repeatedly listening the text to find out similarities and dissimilarities in the sounds such as pitch, intensity, frequency. We also see the

speaking style of the person. All of them are involved in the analyses. No single factor is important. In spectrogram I had already told that there are three parameters

namely, time frequency and intensity. In automatic speaker recognition we are

capturing vocal tract parameters and then creating a model of the speaker which is stored in the data base of the computer for

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comparison with the model of question samples by using patter recognition

techniques. Court Question: What is the difference between pitch and intensity? Ans: Pitch is the result of vibrations in the vocal cord while intensity is the result of force exerted by the lungs. Court Question: Do you agree when a speaker tries to disguise his voice he will try to suppress the pitch and intensity or he would to increase or suppress either of them? Ans: Court Question: Yes. If this is so, how will you establish the identity? Ans: We are not only taking into consideration the pitch and intensity but are also

analyzing a formant frequencies of the spoken words. Formant frequency is the resonance occurring in the vocal cord area while producing a speech.

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Court Question:

Do you think in case there is an effort to change the pitch and intensity, the formant frequency would also change?

Ans:

Formant frequencies will change but the ratio thereof will remain the same. A person can change the pressure generated by lungs and the position of the tongue with respect to palate but the length of the vocal tract being the same, he will not be in a position to change the formant frequency ration.

Court Question:

Do you think that only the speech recorded in similar conditions to those in which the questioned speech is recorded can be the only input for correct report?

Ans:

It would be better if both the speeches are recorded in the similar condition but in forensic domain the speaker would generally be non-cooperative, therefore, similar In

conditions will not be available always.

such a scenario, we use our expertise with the help of techniques to form an opinion as already detailed by me above.

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Court Question:

Did you notice any attempt by the speaker in this case to disguise or change his voice?

Ans:

Yes, the speaker while giving control voice sample was trying to suppress the

naturalness of his voice and thereby to disguise. But we have the techniques to fix the identity even if attempt to disguise has been made. 116. Question No.18 was important because while the

voice sample of A-2 was being taken, the Court had observed that A-2 was trying to suppress the naturalness of his voice not only by lowering the pitch and intensity but by also by pronouncing the words in an abnormal manner for example he was pronouncing the word 'anticipatory as 'ontisptry'; the word 'bail' as 'boil'; the word 'parmatama' as 'permeteme'; the word 'bhardwaj' as bherdwj; the word 'judge' as 'jedge'; the word 'number' as nember; the word 'surrender' as sorandr'; the word phone' as 'fan'; the word 'gud morning' as gid marning'; the word 'samaan as seman'; the word 'message' as

'mssaage'; the word 'payment' as 'paament' and the word 'reasonable time' as rasnable tame'. In between he was also trying to change his accent by speaking the words 'mhari' and 'manu' in Haryanavi dialect. His speech was full of jerks and

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unusal stops. He was clearly trying to hoodwink the court, if not the expert. Was it guilt? Was it panic? Was it stratagem? On all the counts, adverse inference has to be drawn against him. He had been a judicial officer. He should have known that by resorting to this tactic right under the nose of the court, he will only end up making a fool of himself. The Court had been hearing him speak on many occasions during proceedings. How could he think that the trick adopted by him will go unnoticed? 117. It is worth mention that after giving A-2 a text to

speak the expert asked him to read out a provision of law. This time, A-2 tried to rush through as if he were in tearing haste. Despite that, his diction was much better. He appeared a changed person. rustic uneducated Hardly two minutes back, he was like a person who was not in position to

pronounce even one word correctly be it in Punjabi or English. All of a sudden, his pronouncement was much better. May be, by that time, he had dropped guard. The expert had also put some questions to him in response to which he replied I don't remember; number of cases; morning breakfast and lunch and dinner, and sleep and, nothing more than that. This time, he was fluent. His accent was proper. Earlier, he had

pronounced number as nember but now it was pronounced correctly. Earlier, he had pronounced morning like marning

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but now the pronunciation was correct. It is evident that he initially tried to go beyond but fell short and then he tried to go short but went beyond. Confucius rightly beyond is as wrong as to fall short. 118. I have heard the conversation in Ex.P-162. I have said, to go

also played back the video cassette Ex.P-163. There is virtually no doubt about the identity of the speaker.

Therefore, when the expert says that there is high probability of the voice being that of the same person i.e. A-2, he is not wrong. Insofar as the comparison of Ex.P-162 with the sample voice of A-2 is concerned, notwithstanding the fact that A-2 tried to disguise and distort his voice, there is reason to concur with the expert CW-3 Dr. S.K. Jain. The expert has examined the matter in computerized speech lab by using automatic software. No doubt mimickery is possible but that can deceive a layman. It cannot deceive the machine. It is not a single word or sentence which is the subject matter. It would have been easy to mimick a word or a short sentence but in this case the recorded conversation is at length, thereby, making it extremely improbable, if not impossible, to copy the voice of A-2. 119. No doubt, the science of voice identification is not

as perfect as the science of finger print examination. No

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doubt, that voice changes over time either in short term (at different times of the day), the medium term (times of the year), or in the long term (with age). No doubt, voice is also affected by the speaker's health or emotional state. There is least doubt that there is scope of error in spectrogram recognition. The Court agrees that despite the existence of technological solutions, there is no scientific process that enables one to identify with absolute certainty an individual from his or her voice. However, a probable conclusion can be drawn which, coupled with other circumstances, can lead the court to a definite conclusion. One of the major circumstances is the attempt by A-2 to disguise his voice. Second

circumstance, as already discussed above, is the matching call details record. The third circumstance is the context and the subject matter of the conversation. Viewing all these

circumstances, it is proved with reasonable degree of certainty that the conversation recorded in Ex.P-162 is between the complainant and A-2 and none else. 120. As discussed above, the crux of the entire

recorded conversation

between the complainant and A-2 is

that there was no direct contact between the complainant and A-1 and even between A-1 and A-2. In T-I, the complainant commits that the payment will definitely be delivered on 6th. A-2 acknowledges and tells him that he had spoken to him

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(referring to the conduit) and had asked 'him' to inform Judge Saheb but the conduit was telling him that he was not being able to establish contact. In the very next breath, A-2 assures the complainant that there is no reason to worry as Judge

Saheb knows. In T-II, after informing the complainant that he has changed his mobile number, A-2 tells him that Babbu has informed that he has not been able to speak, therefore, an adjournment should be taken. The complainant reiterates that he will pay on 6th. In T-III, A-2 reiterates that message has not been conveyed to A-1 but he has left the message with Superintendent. In T-IV, the complainant tells A-2 that his bail applications have been dismissed. A-2 responds Dr. Saheb Ohi kam ho gaya message nahin (Dr. Saheb this is how it happened, message could not be conveyed). 121. In the conversation contained in T-I to T-IV, a

common thread runs that A-2 is trying to get the work of the complainant done through some conduit on the pretense that money is to be paid to A-1 but, to be on safer side, lest the work is not done, he keeps the trump card that so far message has not been conveyed to A-1. This trump card is played when complainant breaks news that the bail

applications have been rejected.

120

122.

In T-V, there is direct reference to the conduit who

is being referred to as Babbu. A-2 tells the complainant that he had received call from Babbu and; that he had chastised him. However immediately thereafter, he tells the complainant that nothing more can be done because matter has to be dealt with by the same person (A-1). Then, the complainant throws an idea to arrive at some understanding with SSP. A-2 responds, tusi apna samaan kar lo taki main gal kar laan ohna de nal (You arrange money so that I may speak to them). Thereafter, A-2 tells the complainant, oh kehende see apan dekhde haan dobara anticipatory kara ke order karange surrender karan da, oh sara apan dekh lavange kive karna hai (he (Babbu) was telling that we will see whether fresh anticipatory bail has to be filed or whether you have to surrender). Thereafter again A-2 harps on the same tune that message could not be conveyed. He also throws a veiled threat that Section 304 was like murder, therefore, if the

complainant goes to High Court and the application is dismissed, getting regular bail would be difficult. A-2 further tells the complainant that he was under the impression that it will not be difficult for him to arrange money. In T-VI, the complainant suggests A-2 to talk 'solid' with A-1. A-2 replies that even earlier it was solid. The complainant complains that the demand was such that he was upset. A-2 tells him that

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this time the complainant should surrender only after making payment. In T-VII, the complainant asks A-2 whether he had spoken (to conduit) A-2 responds that he would not have woken up by now. Then, the complainant tells him that when everything was settled, the demand was not that much. A-2 is alert enough to counter by saying that even at that time demand was that much. Again A-2 tells the complainant that he had been telling him time and again to bring payment. Again they discuss the possibility of second bail application. A-2 reiterates that they have only one channel and it would be better if the same is used so that no difficulty is faced if the complainant is arrested by chance. The complainant reminds him that it was his fate otherwise everything was settled. A-2 responds. sari gal hoi hoi hai o din tu raat nu aaya na, us to baad (everything was conveyed after you came in the evening). The complainant replies that actually he was to receive payment from Delhi this is why he had said that it would be made on that day. A-2 quite cleverly says that he had conveyed this date to Babbu but the latter rang up in the morning that message was not getting through. In T-VIII, A-2 throws the card that Babbu had been called by A-1 to Jalandhar; that tomorrow A-1 will be here and that Babbu was telling that he will arrange meeting. Then A-2 says that he will speak to A-1 and settle everything. Again A-2 tells the

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complainant to keep money ready. In T-X, the complainant informs A-2 that he is in Chandigarh and; that he would be visiting him in a short while. 123. In T-XI, there is comprehensive discussion. The

complainant reminds that last time he (A-2) had frankly given the option of gift or cash of Rs.One lac and subsequently whatever was directed by Judge Saheb (A-1) was done but, picture was not clear. A-2 replies that picture was clear and this is the reason he had been telling to deliver money in advance. The complainant tells him that on previous occasion, he had given Rs. One lac but this time, Judge Saheb (A-1) had raised the demand beyond limits; that he was under the impression that it would be two lacs this time but when he (complainant) received telephonic call from him (A-2) on 27th that Gupta Saheb (A-1) was asking for Rs.11 (lacs) he was taken aback. Again A-2 comes out with the card that he had lodged protest with Babbu; that Babbu was saying that he will take him along. Complainant reminds A-2 that he had relations with him for 6-7 years and he must have known that it was his principle to give everybody his due. In response there is approval from A-2. The complainant says, jehra v kam ek da kita na de deo ji (if somebody has done one's job he should be paid). A-2 acknowledges this. The complainant repeats that he was thinking in the terms of one or two (lacs),

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tusi v mainu ohi keha (you had also told me this much). A-2 interjects, nahin main taan (No I meant). Complainant competes the sentence, Bhai ek lakh ya do (one lac or two lacs). A-2 replies it is in front of you. The complainant tells A-2 that he (A-2) had openly told 11 (lacs). The complainant says, ena nu pata channel taan apne through he hai har ek pahla karaya hoya hai kidhar jange apan ton(they know that channel is through them as they have already done something and now we cannot go beyond them). Then he says that they know that through Bhardwaj they will receive money. A-2 interjects, Hanji jana vee ene kithe (Yes where else they will go). Again, A-2 reiterates that he had been telling him time and again to arrange money. The complainant tells him to get the amount reduced but A-2 replies that they were not in a position to bargain but he will try his best to get his job done. He again says that Judge Saheb (A-1) is to come here (to Chandigarh) tomorrow and Babbu will inform today evening as to what settlement he has made. The complainant wants to confirm whether he will have to surrender now and then he will be released on bail? A-2 says 'yes'. 124. If the entire conversation is read and understood

carefully, it would be evident that it was not A-1 who demanded Rs.11 lacs from the complainant. It was A-2 who conveyed to the complainant that A-1 was demanding bribe of

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Rs.11 lacs. The complainant confirmed to A-2 that he will make payment by 6th of May. On 29th April, when the applications were to come up for hearing, there was contact between A-2 and the complainant. A-2 did not want to take a chance. Therefore, he represented that he had already spoken to the conduit and confirmed but the conduit had told him that the message to A-1 was not getting through. Still to have to handle, A-2 represented that he had left the message with the Superintendent. This was perhaps to ensure that if the orders were passed in favour of the complainant, A-2 could take credit and claim money even subsequently. He was playing the game cleverly keeping the ball in the court of others-if applications are allowed money would be taken and if the applications are dismissed there would be an excuse that message was not conveyed. The trick was quite simple but effective. A-2 had nothing to lose. Even after the plan failed, A-2 did not lose hope. He held Babbu (the conduit) responsible for the fiasco and gave assurance to the complainant that even now he would manage everything provided money was given in advance. He, however, committed a mistake in underestimating the complainant who too was master of the game in his own way. Although, the complainant was not able to see through the entire game plan of A-2 yet, he got the idea that A-2 and A-1 were hand-in-glove. Therefore, in order to be

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one up, he started creating evidence against A-1 but, in that endeavour he ended up introducing contradictions and

discrepancies.

If, however, the evidence created by the

complainant is kept aside and the natural evidence is kept in view the picture would be lucid and clear that A-2 demanded money from the complainant using the name of A-1. 125. In the circumstances peculiar to this case, the

contradiction whether the demand for the first time was made on 26.04.2003 or 27.04.2003; whether it was repeated on 08.05.2003 or 09.05.2003 does not go to the root of the matter. What is importance is the factum of payment. The

date on which the demand is raised is secondary. It assumes important only if the factum of demand itself is not proved. From the evidence, it is clearly discernible that A-2 had demanded money from the complainant not once but on numerous occasions. Therefore, to pin point one particular date and then to find flaws would be unfair. 126. As to how the trap was laid, the version of the

complainant can be summed up as under: 09.05.2003 after the complainant lodged the complaint, the SP, CBI asked him about the plan of action. He told him that the payment was to be

made on 10.05.2003.

126

On 10.05.2003, he came to CBI office with cash of Rs.7 lacs. Since the currency notes were in the of Rs.100/and Rs.50/-, DSP

denomination

CBI/Trap Officer (In short T.O) got them converted into denomination of Rs.1000/- and Rs.500/- from bank. The presence of independent witnesses namely Dev Raj and Madan Lal was arranged. The complainant informed the T.O that as per the instructions by A-1 and A-2, money was to be carried in a box so that if there was some third person around he may not get suspicious. Pre-trap proceedings were conducted. The treated currency notes were put in a sweet box and the box was handed over to the complainant. Necessary instructions were given to the members of the trap party, the complainant and the

independent witnesses. During pre-trap proceedings, the complainant had been attending to the calls from A-2. He was

asked by A-2 to bring money to his residence in Sector 22, Chandigarh.

127

At about 5:30 p.m.

the trap party started from

CBI office. On the way, the complainant received call on his mobile from A-2 at about 5:55 p.m. At about 6:00 p.m., the complainant and shadow witness Dev Raj who were travelling in land cruiser reached in front of the house of A-2, who, along with his wife and daughter, was standing outside the house near the gate. The wife was having his daughter in her lap (actually the complainant wanted to say that the daughter was in the arms of the wife of A-2). A-2 asked the complainant to come in and hand over his mobile to his wife who moved towards park carrying the daughter in walker. The complainant and shadow witness entered the house with A-2. The latter asked the complainant as to who the person accompanying him there. The complainant replied that it was the Manager of his hotel who had been called by him to make up the deficiency. They sat in the drawing room. Bahadur (Peon) served water. A-2 asked him to bring tea.

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The complainant and A-2 started discussing the cases. The complainant asked A-2 to get him talk to A-1 and Varinder Kumar. A-2 replied that there was nothing to worry about as everything was settled. He further informed that A-1 was on his way to Chandigarh.

Bahadur served tea and snacks. After about half an hour of their arrival, A-2 asked the complainant whether he had brought money. The complainant replied in affirmative confirming that he had brought Rs.7 lacs.

A-2 asked him to hand over the money to him. The complainant handed over the box containing the treated currency notes to A-2. He took the packet; opened it; took out entire amount;

checked the bundles/packets and after satisfying himself put the packets back. Then, he asked the complainant to pay the remaining amount of Rs.4 lacs within 3-4 days do that interim bail could be made final. The complainant asked him as to how the amount was to be shared. He replied that it

was their own arrangement. Then, he placed the box containing currency notes on the backside of the sofa.

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A-2 called Bahadur and instructed him to bring tea again.

The complainant gave pre-appointed signal by pressing the button of his mobile in which the mobile number being carried by T.O had already been fed.

The trap party along with Madan Lal entered the house immediately. wrists. A-2 was caught from his

Hand wash of A-2 was taken. On both occasions, the colour of solution turned pink.

When A-2 was confronted with the complaint, he started shouting call my Session Judge. He was told to relax and was asked to produce the tainted money. He started pleading ignorance.

PW Dev Raj informed that A-2 had kept the box containing money on the backside of the sofa. Then, he went towards the backside of the sofa and picked up the box. He opened the box; took out the currency notes and placed them on table.

The numbers of currency notes were tallied with those mentioned in the pre-trap memo Ex.PW-1/3 and then the same were sealed in the box.

130

At about 7:20 p.m., Shri L.R. Roojam, District & Sessions Judge (Vigilance) had arrived.

After completion of post-trap memo, house search commenced. All of them including Shri L.R.

Roojam were in the drawing room. The wife of A-2 was on the first floor. She was crying/weeping. A-2 went upstairs on the pretext of consoling her. At about 12:10 a.m. One of the CBI officers informed that A-2 had slipped away. 127. The version, as narrated by PW-2 Dev Raj, can be

summed up as under: On 10.05.2003, it was holiday being second Saturday but he had gone to the office for some work where he got telephonic message from Surinder Pal, Additional SP, CBI that two

independent witnesses were required and it was urgent. When he (the witness) replied that it was difficult being second Saturday, Surinder Pal

insisted that he be one of the witnesses and arrange the second from one of his colleagues. He (the witness) contacted his Joint Manager

(Personnel) who asked him to join the CBI along

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with Madan Lal, Deputy Manager and accordingly at about 1:00 p.m. He along with Madan Lal went to CBI office. Currency notes produced by the complainant were smeared with phenolphthalein powder. The notes were handed over to the complainant. The

complainant put them in an empty sweet box. He (the witness) was asked to act as shadow witness. Pre-trap proceedings were completed by

5:00/5:30 p.m. At about 6:00 p.m., the complainant informed that he had received message on his mobile from A-2 asking him to come to his residence in Sector 22, Chandigarh along with money. He (the witness) accompanied the complainant in his personal vehicle while remaining members of the team travelled in official vehicles. He (the witness) and the complainant reached the house of A-2 and met him at the gate. The complainant introduced him to A-2 as the Manager of his hotel.

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A-2 took them inside; offered them tea and snacks and complained that the complainant had got late.

The complainant replied that he was arranging cash and with difficulty he had managed Rs.7 lacs. Then, they started discussing the cases pending in the Court of A-1. A-2 told him that A-1 had given him relief. Then, the complainant asked A-2 to arrange his meeting with A-1. A-2 replied that it was not possible and then he asked the

complainant to hand over the amount to him and he will pass on A-1's share to him. The complainant handed over the sweets box containing Rs.7 lacs to A-2 who opened the

packet; checked all the packets of cash and put them back in the same box. Then, he placed the box behind sofa. On receiving signal given by the complainant, the trap party rushed in. CBI officers caught A-2 from his wrists. Initially, A-2 pleaded that he did not know the complainant. Then, he admitted that he knew him for some time.

133

He (the witness) informed that A-2 had accepted Rs.7 lacs and placed the box behind sofa.

Hand wash of A-2 was taken. He (the witness) pointed out the place where the box containing cash had been kept by A-2.

Madan Lal picked up the box. He put the box on the center table.

Mr. L.R. Roojam, District & Sessions Judge arrived there.

Madan Lal opened the box; counted the packets; matched the numbers of the notes with those mentioned in the pre-trap memo and found them tallying.

The notes were put in the box sealed.

and the box was

128. Lal: -

Following is the gist of deposition of PW-3 Madan

On 10.05.2003, he received message from PW Dev Raj that they had to attend CBI office as

independent witnesses. Then, he picked him from his residence and went to CBI Office.

134

The currency notes produced by the complainant, were treated with phenolphthalein powder. The notes were handed over to the complainant who put them in a sweets box.

When pre-trap memo was being prepared, the complainant informed that he had received a call on his mobile from A-2 who had asked him to come to his residence with money.

At about 6:00 p.m., the team left for Sector 22. Complainant and PW Dev Raj travelled in the vehicle of the complainant. They entered the house outside. of A-2. The remaining took positions

At about 6:30 p.m., the T.O got signal on his mobile. All of them rushed inside.

A-2 was caught from his wrists. Initially, A-2 denied having known the complainant or having accepted bribe but when pressure was mounted

he admitted having known the complainant. PW Dev Raj explained as to what had transpired. Hand wash of A-2 was taken.

135

On being directed by T.O., he picked up the box from behind the sofa and placed it on the center table. Meanwhile Mr. Roojam, District Judge came there. In his presence, he matched the numbers of the recovered currency notes with those

mentioned in the pre-trap memo. He found them tallying. The notes were put back in the box and the box was sealed. Post-trap memo was prepared on the spot. He had affixed his initials/signatures after going through the contents thereof. A copy of the post-trap memo was handed over to A-2 and then search operation begun but during that A-2 slipped away. 129. as under: On 10.05.2003 at about 7:30 p.m., on the The crux of the statement of PW-4 L.R. Roojam is

direction of the Hon'ble Chief Justice, he along with M.S. Sullar, the then District & Sessions Judge (Vigilance), Haryana accompanied S.S. Sandhu, DSP, CBI in his official car and reached the house of A-2 in Sector 22, Chandigarh.

136

At the time of departure, they were not told about the destination.

Outside the house of A-2, he alighted while S.S. Sandhu and Shri M.S. Sullar left for some other destination.

DSP R Upasak came out and escorted him inside the house of A-2 where in the drawing room A-2, certain CBI officers including Inspector Balbir Sharma, SI Parlhad Kumar, two independent

witness Dev Raj and Madan Lal and complainant G.S. Samra were present. DSP R Upasak briefed him and then he was shown one sweets box lying on the center table in which currency notes were lying. He was also shown two bottles containing hand wash. DSP R Upasak dictated some proceedings that took place in his presence to Stenographer who was operating lap top with a printer. Proceedings regarding trap were complete roughly at about 10:30 p.m. Thereafter, DSP R Upasak asked A-2 about some mobile telephone. A-2 replied that he did not have such mobile phone.

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DSP R Upasak along with the members of the party started house search.

At about 12:15/12:30 a.m., some CBI officers brought packed food. CBI officers started having meals and asked A-2 that he could go upstairs and take food with his wife and children.

A-2 went upstairs.

After about 15 minutes, DSP

went upstairs and told that A-2 had slipped away. 130. Following are the salient features of the statement of R Upasak, T.O: The copy of FIR Ex.PW-32/1 was endorsed to him for necessary action. SP, CBI told him that in compliance of the Hon'ble Supreme Court directions, he was going to see the Hon'ble Chief Justice of the High Court for

authorization to lay trap on judicial officers named in the FIR. After coming back, the SP handed over

authorization letter of the Hon'ble Chief Justice to him.

138

He (the witness) asked Additional SP Surinder Pal to arrange two independent witnesses and

accordingly Dev Raj and Madan Lal reported. Since the currency notes brought by the

complainant were in mixed denomination and the same would have been bulky; he got them exchanged into denomination of Rs.1,000/- and Rs.500/- from RBI. He constituted trap party comprising Inspector Amarjit singh, Inspector IMS Negi, Inspector Balbir Sharma, Sub Inspector Dinesh Kumar, Sub

Inspector Parlhad Kumar and other constabulary staff. Pre-trap proceedings were started at about 3:00 p.m. The notes were treated with phenolphthalein

powder and put in a cardboard box in which sweets are normally packed. The box was handed over to the complainant. Dev Raj was directed to act as shadow witness. Pre -trap proceedings were completed by 5:50 p.m. Memo Ex.PW-1/3 was prepared.

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At about 5:55 p.m., the complainant informed them that he had received a call on his mobile from A-2 who had instructed him to reach his house in Sector 22 with money.

Everybody washed his hands thoroughly. They left for Sector 22. Complainant accompanied by shadow witness travelled in his own car while the rest travelled in two official vehicles.

At about 06:05 p.m., they reached near House No.221, Sector 22, Chandigarh. The official

vehicles were parked in the back lane. The complainant parked his vehicle in front of the house. A-2 was present outside his house along with his wife. He ushered the complainant and the shadow witness in. The members of the party and Madan Lal had taken positions outside the house as well as in the back lane. At about 6:30 p.m., signal was received on mobile receiving which they rushed in where A-2, the complainant and the shadow witness were found sitting on a sofa. A-2 was caught from his wrists.

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He tried to rub his hands on his trousers but could not succeed. On being challenged, A-2 said that he had not taken any bribe from the complainant. Dev Raj informed that A-2 had accepted the box containing bribe money and after counting the packets of the notes he had put them back in the box and had kept the box behind the sofa where he was sitting. Hand wash of the accused was taken. PW Madan Lal picked up the box containing money from behind the sofa. He was asked to keep the box on the center table so that numbers of the notes could be compared with those mentioned in the pre-trap memo. When the numbers of the currency notes were being compared, Mr. L.R. Roojam came there. He was apprised of the details and further

proceedings were carried out in his presence. The notes were put back in the box and the box was sealed.

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Personal search of A-2 and that of the complainant was conducted.

Post-trap memo Ex.PW-1/4 was prepared at about 10:00 p.m. A copy of the same was given to A-2. When the house search was on, A-2 expressed desire to see his wife upstairs in order to console her.

At about 12:20 a.m., one of the officers informed that A-2 had managed to escape.

131.

Learned Public Prosecutor argues that barring

minor contradictions here and there, the evidence led by the prosecution is consistent and there is no doubt that A-2 demanded and accepted illegal gratification. 132. As against this, the defence has raised the

following arguments: 1. The so-called independent witnesses were not independent in the sense that Dev Raj was chosen by Additional SP Surinder Pal and Madan Lal was chosen by Dev Raj without taking any permission from the seniors. Learned counsel would point out that when Dev Raj stepped in the witness box he tried to justify his action by saying that he had

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taken permission from Joint Manager (Personnel). However, when confronted with his statement Mark DD, he admitted that it was not so recorded therein. This, according to the counsel, shows the guilt conscience of Dev Raj. Complainant was in constant touch with Surinder Pal, Additional SP from 04.05.2003 as is proved from the call details record. Why? Despite there being record, why the complainant denied having contacted any CBI Officer before

09.05.2003? If Surinder Pal was not the Trap Officer why did he call independent witnesses? What was his locus? Dev Raj was nursing grudge against A-2 as he was married at Sunam with class fellow of A-2's sister and, in their matrimonial dispute the family of A-2 had supported his wife as is proved from the statement of DW-17 Amar Nath. According to the defence counsel, A-2 was not aware of the fact that Dev Raj was inimically disposed against him as Dev Raj had been visiting his house off and on and as such he was known to the domestic servant and, when on the fateful day he arrived with the

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complainant, the domestic servant ushered them in, even in the absence of A-2, who had gone for walk and, when A-2 came back at about 6:30 p.m. his domestic servant DW Tara Singh told him that brother of Registrar of the High Court had come and is waiting for him in the drawing room along with some other person, pursuant to which he entered the drawing room, shook hands with Dev Raj and the person accompanying him and

immediately thereafter 5-6 persons rushed inside and caught him from his hands. Learned counsel would argue that taking advantage of the absence of A-2, Dev Raj and complainant had planted the sweets box containing money behind the sofa. 2. According to the Trap Officer, the pre-trap

proceedings were held in the room of Jai Singh but, according to the complainant, the proceedings were conducted in the room of the Trap Officer R Upasak. This shows that no pre-trap proceedings were actually held. 3. According to the Trap Officer, he had changed the currency from the RBI. Since, it was second Saturday, the RBI was closed. How could the notes

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be changed therefrom? Moreover, both the so called independent witnesses say that the notes produced by complainant were treated. They do not say that the notes were changed by the T.O. It means that the notes were provided by the CBI for the purpose of trap and now a story has been put forth that the complainant had arranged money by selling his car for Rs.7.5 lacs to PW-25 whereas from the record it is proved that TCH from whom the complainant had allegedly purchased the car in 1971 had already sold it to one Sham Mohan Sharma. 4. In the complaint, it was alleged that A-2 had told the complainant that he will be informed

telephonically as to where money was to be delivered. In other words, the venue was not fixed. Therefore, it was not clear as to whether the money was to be delivered to A-2 or A-1. It is no where mentioned in the pre-trap memo that during the proceedings, complainant received calls from A-2 as is being claimed by him now. As per the chargesheet, the complainant informed the trap team at 5:55 that A-2 had contacted him over his mobile and had instructed him to come with

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money to his residence. It means that before leaving the CBI office, the complainant had

received the call. However, the complainant says that he was in Sector 22 market when he received the call from A-2. If the call was not received in the CBI office, how did the trap party know that money was to be delivered at the residence of

A-2.? If such a call had been received in the CBI office itself albeit, after completion of pre-trap memo, why supplementary memo was not

prepared? Even, according to PW Dev Raj, it was at about 6:00 p.m. when the complainant

informed that he had received telephonic message from A-2 asking him to come to his house with money and only then they left for Sector 22. 5. According to the complainant, the treated currency notes were put in a box by the same officer who had treated the notes but the lid was placed by R. Upasak and it was he who tied the string on the box and the box was handed over to him. However, according to PW-2, it was the

complainant who put the treated currency notes in the sweets box. Precisely this is what has been The T.O. Stated that

stated by PW-3 Madan Lal.

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the notes were put in sweets box and the box was handed over to the complainant. This, according

to the defence counsel, is a glaring contradiction which has occurred because by the time trial commenced the witnesses had realized that if the treated currency notes had been put in an empty sweets box by the same person who had treated them or by the complainant, in both eventualities, the phenolphthalein powder must have been

transferred to their hands and from there to the box and when A-2 shook hands with the got

complainant,

phenolphthalein

powder

transferred to his hands also, which explains the result of hand wash. Complainant states that he was instructed not to shake hands with A-2 and to hand over the box containing the notes only on his demand. This is impossible because by that time it was not known as to where the money was to be delivered or whether it was to be delivered to A-1 or A-2. 6. The domestic servant Tara Singh who was present at the residence was not joined in investigation

but, when he stepped in the witness box as

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defence witness he testified that at about 6:30 p.m., when A-2 was out for walk as usual, Dev Raj, having a sweets box, came with another stout person and enquired about A-2 and, when he was told that he had gone for walk, he entered the drawing room with his companion. Tara Singh made clear that Dev Raj was allowed in because he used to visit the house in the past also and

that; after 5-10 minutes, when A-2 came he was informed about the arrival of Dev Raj, pursuant to which A-2, entered the drawing room followed by him; A-2 shook hands with Dev Raj and also with his companion who was introduced by Dev Raj as Dr. Samra. Learned counsel would argue that the statement of Tara Singh is that of an uninterested witness who has spoken truth and in view of his statement, it is evident that the complainant got entry in the house of A-2 because Dev Raj was known to A-2 and taking advantage of the absence of A-2, the sweets box containing treated currency notes was stealthily placed behind sofa and when A-2 came from walk he shook hands with Dev Raj and the complainant little realizing that he was going to be trapped.

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7.

The complainant and PW Dev Raj have falsely stated that A-2 met them at the gate of his residence whereas from the statement of DW Tara Singh, it is proved that when the complainant and Dev Raj came, A-2 was not there as he had gone for a walk. Learned counsel pointed out that even the prosecution witness Madan Lal, who had taken position outside the house across the road on the corner of the park, has stated that the complainant and PW Dev Raj entered the house within his view but he did not notice anybody outside gate. This aspect, according to the the main defence

counsel, goes to the root of the matter because it has been consistent stand of A-2 that he had gone for a walk and when he came back, the

complainant and PW Dev Raj were already in the drawing room. 8. If the prosecution version is believed a missed call was given by the complainant to mobile number 9417151409 which was being carried by T.O. However from the call details record Ex.PW-28/3, it appears that at 6:33 p.m. There was a call from the mobile of the complainant to that number and it was not a missed call in the sense that the

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duration was 15 seconds. Learned counsel would point out that the CBI has placed two lists containing call details record of mobile number 9814068542 which was being used by the

complainant and the lists are Ex.PW-28/3 and Ex.PW-28/7. Whereas the call at 6:33 p.m. is

reflected in Ex.PW-28/3, the same is missing in Ex.PW-28/7. This, according to the counsel,

renders the case doubtful

and shows that even

call details record has been tampered with. 9. The sweets box containing currency notes was recovered from behind the sofa and as such it could not treated to be in exclusive possession of A-2. 10. There are glaring contradictions about the sitting plan in the statements of complainant and the shadow witness inasmuch as the complainant says that A-2 had occupied three seater sofa while he and Dev Raj had occupied single-seaters of the same set and none had occupied the same sofa on which A-2 was sitting but, PW Dev Raj says that he, the complainant and A-2 sat on one sofa. Even, PW Madan Lal says that when they entered

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the

house

A-2

was

sitting

on

sofa

while

complainant and Dev Raj were sitting on different sofa on the right side. 11. According to PW L.R. Roojam part of the post trap memo i.e. the proceedings had taken place in his presence were dictated by DSP R Upasak but the memo was not signed by anyone in his presence. He further stated that the memo was not shown to him nor he was asked to sign it. He further stated that print out of the memo was not taken from the lap top in his presence. This proves that the post trap memo was not prepared at the spot but still PW Dev Raj has the guts to say that the memo

was prepared on the spot and was signed by him. 133. as under: The above arguments are being taken up seriatum

CONTENTION NO.1
134. The argument about the independence of

prosecution witnesses Dev Raj and Madan Lal can be divided into two parts:1. That Dev Raj was chosen by additional S.P Surinder Pal who had been hob-

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nobbing

with the complainant since

4.5.2003 at least, if not prior thereto; 2. That Dev Raj was inimically disposed towards A-2 and he chose his

subordinate Madan Lal.

135.

The argument of the defence presupposes that; (i)

Dev Raj was personally known to additional S.P. Surinder Pal; (ii) Surinder Pal knew that Dev Raj had a grudge against A-2 for having taken the side of the wife of the latter in matrimonial dispute. On both counts it is far-fetched. 136. PW Dev Raj was posted as Deputy Manager

Vigilance FCI Punjab Region. He has not denied acquaintance with additional S.P Surinder Pal. According to him, he had to carry out some secrete assignments being in vigilance and, in that context he may have come in contact with Surinder Pal Additional S.P. Therefore, at the most PW Dev Raj knew Surinder Pal Additional S.P. in official capacity. There is nothing to indicate that they had personal relations or that their relations had blossomed to such an extent that Dev Raj had confided in him that A-2 had taken the side of his wife when there was a matrimonial dispute. Therefore, to say that Dev Raj was hand-picked by Surinder Pal Additional S.P for this specific reason would not be fair. There is no reason to doubt

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Dev Raj when he says that on 10.5.2003 he had gone to the office for some work despite it being holiday. There is no reason to disbelieve him that he got telephonic message from Surinder Pal Additional S.P that two independent witnesses were required and it was urgent and, when he replied that it was difficult being second Saturday, Surinder Pal insisted that he be one and, second be arranged from colleagues. 137. A question may arises as to why Surinder Pal

Additional S.P contacted Dev Raj and why no other superior officer was contacted. In this context it is worth notice that

even as per defence version as suggested in the crossexamination by Shri A.S. Sukhija Advocate, in the past Dev Raj had been assigning duties to the officials of FCI to join CBI. This explains that there was no ulterior motive if Dev Raj was contacted directly by Surinder Pal Additional S.P. After all he was Deputy Manager Vigilance FCI Punjab Region and was a responsible officer. Surinder Pal asked him to be one of the witnesses not because he wanted him only but, because of the fact that it was holiday and arranging other officials to become witnesses would have been difficult. Since Dev Raj was a

responsible officer, if Surinder Pal Additional SP asked him to arrange the second witness himself, no fault can be found with that.

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138.

Be that as it may, the fact remains that neither

there is any allegation nor proof that prosecution witnesses Dev Raj and Madan Lal or either of them was known to the complainant. eyebrows Their joining the CBI team would have raised their presence been secured by the

had

complainant. 139. No doubt the complainant had been in contact with

Additional SP Surinder Pal from 4.5.2003 but, that, by itself, will not be sufficient to label him as a facilitator for wrongs committed by the complainant. Complainant has explained that he had been inquiring about the procedures and details from Surinder Pal. It was the duty of the latter to provide information and to guide a person who appeared to be reluctant and apprehensive. Therefore, not much should be read into the calls exchanged between Surinder Pal Additional S.P. and the complainant before the registration of the case. 140. The fact remains that investigation was not

entrusted to Surinder Pal Additional S.P. He had no role to play in the entrustment of investigation which was the function of the S.P. The S.P. CBI handed over investigation to PW32 R.

Upasak. It was R. Upasak who asked Surinder Pal Additional S.P to arrange independent witnesses. Therefore, to say that Surinder Pal had interest in the matter or that he had no locus

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standi to arrange independent witnesses would not be fair. He was an officer of the CBI and if another Officer requested him for a particular job, it was his duty to perform that

notwithstanding the fact that Officer requesting was junior in rank. 141. There is no doubt that Dev Raj was married to

DW17 Amar Nath's daughter who hails from Sunam, which happens to be the home town of A-2 also. Let it be assumed that house of A-2 in Sunam is at little distance from the house of the in-laws of prosecution witness Dev Raj. However, this, by itself, will not mean that Dev Raj knew A-2. He has explained that his wife had deserted him after a few months of his marriage and therefore, he had little occasion of going to Sunam. Although he admitted that panchayats were convened to resolve matrimonial dispute between him and his wife, yet he pleaded ignorance whether brother and father of A-2 were members of the panchayats that had been convened. Merely because A-2 hails from the same place where PW Dev Raj was married would not mean that they must have known each other. 142. It would be interesting to note that when PW Dev

Raj was being cross-examined a suggestion was given to him that brother and father of A-2 used to participate in the

155

panchayats. No suggestion was given to him that A-2 also participated in some of the meetings during which he has interaction with him. When, however, Amar Nath DW17 stepped in the witness box, he stated so. It is evident that he was tutored to say so. No doubt that the same importance to the statement of a defence witness has to be attached as is given to that of a prosecution witness. However, in this case no enmity between PW Dev Raj and A-2 has been proved. On the other hand, DW17 Amar Nath has all the reasons to support A-2 as Dev Raj was their common enemy. Therefore, the statement of DW Amar Nath does not inspire confidence. 143. It is reiterated here that believing the defence of a Senior

version would amount to doubting the integrity

CBI Officer who had no personal interest in the matter. It would also amount to discrediting the public servants (Dev Raj and Madan Lal) who accompanied the CBI team at the invitation of the CBI Officers as part of their civic duty, a duty to the Society, a duty to the Administration of Law and Justice. What Additional S.P Surinder Pal did was in his endeavour to secure really independent and respectable witnesses. What

prosecution witnesses Dev Raj and Madan Lal did was to respond to the call of duty. Now to attribute malafide especially to Surinder Pal and Dev Raj would be doing injustice to them. There is nothing to indicate that either of them had

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personal interest in the matter. While the former had to ensure that a citizen who was complaining of harassment by public servants making demand for illegal gratification was not disillusioned, the latter was duty bound to help the Law enforcing Agency. It would be far fetched to assume that both of them being public servants would resort to perjury and concoct evidence in order to rope in innocent government servants. 144. It is well to remember that testimony of wholly

disinterested strangers as eye-witnesses can seldom if ever be forthcoming. It is the general tendency on part of public to stray away from the courts and police. For this reason, if the CBI had already arranged the presence of two responsible officers from FCI, Punjab Circle, who had nothing to do with the affairs of CBI, now it cannot be said that the motives were oblique. There is nothing on record to indicate that Dev Raj and Madan Lal had any reason to toe the line of investigating agency. They, being responsible public servants, are presumed to be aware of the importance of trap. 145. Again the question as to what grudge did the CBI

officers including Surinder Pal, Additional SP and the members of the trap party have against the accused? The enthusiasm shown by the trap party to bring the trap to a success is, by

157

itself, no ground to think that the members thereof had any agenda against the accused. 146. Merely because Dev Raj deposed that he had

taken permission from Joint Manager (Personnel) whereas this fact was not recorded in his statement under Section 161 of the Code of Criminal Procedure, it does not mean that he was lieing. The statement was recorded by Investigating Officer. Whatever he might have asked would have been answered. If he did not ask as to whose permission the witness had taken before going to CBI office, it does not mean that the witness should have volunteered. When subsequently he appeared in the witness box he narrated the facts without going through the statement under Section 161 of the Code of Criminal Procedure. This time, his narration was detailed. He mentioned as to in what circumstances he had gone to the office on second Saturday and how he was contacted by Surinder Pal, Additional SP and how he consulted Joint Manager (Personnel). This is not an improvement intended to bolster the prosecution case. 147. Connected argument was that if demand was on

08.05.2003, why did the complainant contact Surinder Pal on 04.05.2003? This contention, to my mind, lacks merit

inasmuch as it is the case of the complainant that demand was

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made, for the first time, on 26.04.2003 and by 28.04.2003 he had realized that A-2 and A-1 were out to harass him and extract money from him. 148. Once it is proved that neither any CBI officer nor

the independent witnesses had any axe to grind against A-2, there would be no reason to believe that Dev Raj was handpicked with the sole motive of enabling the complainant to get access to the house of A-2 or that Dev Raj obliged the complainant by stealthily placing the box containing treated

currency notes behind the sofa and then claimed before the CBI officers that A-2 had accepted the same.

CONTENTION NO.2
149. Merely because, according to the complainant, pre-

trap proceedings were conducted in the room of the Trap Officer but as per the version of the Trap Officer the same were conducted in the room of Jai Singh, it cannot be said that no such proceedings were actually held. It is not the case that the complainant was well conversant with the interiors of the CBI Office so as to be sure that it was the room of R Upasak in which proceedings were conducted. Since R Upasak was the Trap Officer, the complainant might have thought that the proceedings were being conducted in his room. Otherwise the fact remains that R Upasak was posted as DSP, Shimla and he

159

was specially summoned therefrom to investigate this case. He had no room in the CBI Office at Chandigarh. Therefore, he has to be believed that the proceedings were conducted in the room of Jai Singh, Inspector.

CONTENTION NO.3
150. The Trap Officer has categorically stated that the

currency notes produced by the complainant, being in mixed denomination, were changed from RBI. Merely because, it was second Saturday, in the absence of any concrete evidence, no judicial notice can be taken that RBI must have been closed on that day. 151. When both the independent witnesses say that the

notes produced by the complainant were treated, they are not at fault. It is not the case of the prosecution that the currency notes were changed from RBI in their presence. It is clear from the evidence that after getting the notes changed from RBI, the Trap Officer had handed them over to the complainant and then the latter had produced them during pre-trap proceedings. Therefore, it cannot be said that the money was provided by the CBI for the purpose of trap. Even otherwise, it would be preposterous to believe that such a huge amount

would be available with the CBI to be used for such like purposes. Even if, for a pause, it is assumed that Surinder Pal,

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Additional SP had some kind of understanding with the complainant, it is difficult to believe that his superiors were hand-in-glove with him so as to put huge public money to stake just for the sake of the complainant. 152. According to the complainant, he had arranged

Rs.7.5 lacs by selling his car to PW-25 who has also said so. Merely because, there is some cutting in the date mentioned on the top of the receipt Ex.PW-1/2 or because the vehicle alleged to have been sold was still in the name of TCH Travels or because as per Form No.30 (Ex.DH), the car had been sold to Sham Sharma and as per Form No.29 the date of the sale was 31.07.2001, it does not mean that money was not produced by the complainant himself. There may be

discrepancies insofar as the Forms 29 & No.30 are concerned, but it cannot be said that the complainant sold somebody else's car to PW-25. Had it been so PW-25 would definitely have taken action. been result of The discrepancy in the forms could have understanding between the buyer and

purchaser. 153. Even if, for a pause, it is assumed that the

complainant did not sell the car to arrange money, the fact still remains that money was produced by him. As to where from money was arranged is not a fact in issue. Opening that

161

chapter would amount to passing a judgment without hearing the concerned parties i.e. THC Travels and Sham Mohan Sharma. The defence ought not be allowed to side track the issue or to divert the attention of the Court from the core issue.

CONTENTION NO.4
154. There appears merit in the contention of the

defence that investigation is defective in the sense that it is not clear as to when the team came to know about the venue and the person to whom money was to be paid. It is correct that in the complaint, this was not mentioned. It is further correct that in the pre trap memo, there was no mention of any call having been received by the complainant from A-2. Therefore, the defence counsel is right in questioning as to how the trap party decided that the money was to be delivered to A-2 at his residence. In this context, no doubt there are contradictions such as : (i) the complainant says that during pre-trap proceedings, he had been attending to the calls from A-2 and he was asked by A-2 to bring money to his residence. PW Madan Lal also says that when pre-trap memo was being prepared, the complainant had informed that he had received a call from A-2 who had asked him to come to his residence with money. As against this, the Trap Officer says that by the

162

closure of pre-trap proceedings, it was not known as to where and to whom money was to be paid. (ii) According to the T.O, it was at 5:55 p.m. when the complainant informed him that he had received call from A-2 whereby he had been called with money to his house. However, according to the complainant, the trap party started from CBI Office at 5:30 p.m. and it was on the way i.e. in the area of Sector 22 market that he received call on his mobile from A-2 at 5:55 p.m. 155. The Court poses a question to itself as to whether

the contradictions highlighted above are there because the case is false or otherwise. Looking at the entire gamut of facts and circumstances, the Court feels that the complainant knew right from the beginning that money was to be handed over to A-2. However, since he wanted to rope in A-1 also under the belief that A-2 and A-1 were in connivance, it appears that he kept the trap party in dark till the conclusion of pre-trap proceedings. This is why in the memo it is mentioned that the money was to be handed over to either A-1 or A-2. There is no reason to doubt the Trap Officer that after the pre-trap memo had been signed, the complainant told that he had received call on his mobile from A-2 and; that money was to be paid at the residence of A-2.

163

156.

Pre-trap

and

post-trap

memos

do

not

have

statutory flavour. They are only contemporaneous records containing the details of what transpired. Since the

complainant had not informed about the receipt of call from A-2 till the pre-trap memo was signed, there was no question of this fact being recorded therein. The Trap Officer committed an error in not recording supplementary memo. However that, by itself, will not vitiate the proceedings.

CONTENTION NO.5
157. The complainant has no doubt created confusion

by saying that he was instructed not to shake hands with A-2 and to hand over to him packets containing money only on his demand and by saying that the trap party left CBI Office at 5:30 p.m. and; that when the call was received at 5:55 p.m., they were in Sector 22 market. This appears to be an error. It is common knowledge that in regard to exact time of an incident or the time duration of an occurrence, people make their estimates by guess work or on the spur of moment. One cannot expect people to make very precise and reliable estimates in such matters. It depends on the time sense of individuals which varies from person to person. Similarly, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short

164

time span. Normally, a witness is liable to get confused or mixed up when interrogated later on. If the call details record Ex.PW-28/1 and Ex.PW-28/3 is seen, it would be evident that there were four calls exchanged between the complainant and A-2 from 4:56 p.m. to 06:09 p.m. The first call at 4:56 p.m. was made by A-2. Thereafter at 5:40 p.m., the complainant made a call to A-2. This was followed by call by A-2 to the complainant at 5:55 p.m. Thereafter at 06:09 p.m., the complainant made a call to A-2. Since there was a call at 5:55 p.m., there is no reason to disbelieve the Trap Officer when he says that the complain ant informed him at or about that time. There was no question of the trap party leaving the CBI office at 5:30 p.m. as has been claimed by the complainant. T.O has made it clear that after the pre-trap memo was signed, he

was handed over the authorization letter issued by the Hon'ble Chief Justice and; that immediately after the receipt of information about the receipt of call from A-2, the party had left for Sector 22. He appears correct. Had the party left CBI office at 5:30 p.m., it would have reached the house of A-2 in not more than 10-15 minutes whereas it is consistent version that they reached the house of A-2 at about 06:05 p.m. Even this is an estimate. Since there is a call by the complainant to A-2 at 06:09 p.m., there is every possibility that he reached in front of the house of A-2 thereafter. Needless to say that the

165

contradiction does not go to the root of the matter. The same ought not be annexed with undue importance particularly, when the all important probabilities factors echoes in favour of the version that after the pre-trap proceedings were over, the complainant informed the trap party that he had received a call and thereafter, the trap party proceeded for Sector 22. once it is so established, there remains no doubt that the complainant was careless when he remarked that he was to hand over the packets to A-2 only on his demand whereas actually the direction was to hand over the box containing money to either A-1 or A-2 on demand. Ultimately, it was A-2 who demanded money. Therefore while deposing about the during pre-trap proceedings the

instructions given to him

complainant must have mixed up the facts. 158. Notwithstanding the contradiction as to whether

the currency notes were put in the box by the complainant or by a CBI officer, the fact remains that while doing so phenolpthalein powder must have been transferred to the lid of the box as well as to the hands of the person concerned. However this, by itself, will not probalise the defence version that when A-2 shook hands with the complainant

phenolphthalein powder got transferred to his hands. The shadow witness has categorically stated that neither he nor

the complainant shook hands with A-2. Moreover, the shadow

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witness, being an independent witness, was not interested in the success of the trap. He had no reason to depose blindly in favour of the prosecution. When he says that A-2 demanded money pursuant to which the complainant handed over the box to him and he opened the box; checked the packets of currency notes and after putting them back in the box placed the same behind the sofa, he has to be believed. It is, therefore, clear that phenolphthalein powder got transferred to the hands of A-2 from currency notes and not just by shaking hands with the complainant and shadow witness. 159. It is worth notice that when PW L.R. Roojam, the

then District & Sessions Judge (Vigilance), Punjab reached the spot, he found A-2 along with certain other officials and witnesses present there. In their presence, the Trap Officer briefed him as to what had happened. He was also shown one sweet box lying on the centre table in which currency notes were lying. He remained there till A-2 went upstairs. At no stage, did A-2 protest that he had not received money as

bribe. During cross-examination, PW L.R. Roojam was given suggestion that A-2 had claimed that he had been falsely trapped. The witness denied this. A-2 was a Judicial

Magistrate. He knew that PW L.R. Roojam was District & Sessions Judge (Vigilance). If he had been falsely trapped, he would have claimed so before him. When PW L.R. Roojam was

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being briefed by the Trap Officer, even at that time A-2 could have contradicted him. Now, it cannot be claimed that he was nervous or non-pluss. The fact that he managed to give slip to the trap party would singularly prove that he was alert and; that his mind was working albeit, in the wrong direction.

CONTENTION NO.6
160. That Tara Singh was working as domestic servant

with A-2 is not disputed. If to say he should have been cited as a witness and that the failure but it so is fatal to the case of the prosecution will not be fair. It is not the rule of law that all the persons who were witnessing the occurrence should be arranged as witnesses and examined. The court's doubt the prosecution version only when really independent witnesses have been left doubt. If domestic servant of A-2, DW Tara Singh was, in no way, an independent witness. He could not have incorporated the reason of deposing against his master. This is what he proved by stepping in the witness box to depose in favour of A-2. Needless to say that in the face of overwhelming evidence that A-2 ushered the complainant and PW Dev Raj in, there is no reason to believe Tara Singh that A-2 was not present when the complainant and Dev raj entered the house.

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CONTENTION NO.7
161. No doubt, PW Madan Lal has said that the

complainant and PW Dev Raj entered the house within his view but he did not notice anybody outside the main gate. However, this, by itself, would not mean that none was actually present there. The witness has stated that he did not notice. He does not say that there was none. There has to be difference between the two. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go un-noticed on the part of another. It so happens some time that a person observes part of the transaction but fails to notice the other part of the same transaction. This is when the witness is over taken by events which he could not have anticipated. The mental faculties, therefore, cannot be expected to be attuned to absorb all the details. Since PW Madan Lal had not seen A-2 before and he was not expecting him to be present outside his house, he may not have noticed his presence at the gate of his house when the complainant and PW Dev Raj entered. Therefore, not much importance to this part of the statement of PW Madan Lal should be attached. If he did not notice a particular movement, he stated it truthful. Had he been tutored he would have said that the A-2 and his wife were present

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outside. Otherwise, the prosecution evidence is consistent that the A-2 was present at the gate of his house along with his wife who was holding her daughter in her arms.

CONTENTION NO.8
162. Coming to the mystery of missing calls, it is

evident that the outgoing calls shown at Point 'A' and 'B' in the call details record Ex.PW-28/3 are not there in the call details record Ex.PW-28/7. This fact, in fact, came to the notice when PW-28 Sauravdeep being examined. He was asked to explain. However, he could not explain that. Consequently, to reveal the true picture, Shri Ashok Sharma, Manager (Regulatory), Spice Communications, Mohali was examined as Court Witness 1. Following are the questions put to him and the answers given thereto: Q. Please see the print outs of the call details ExPW28/3 and ExPW28/7. The outgoing calls

shown in encircled portions A and B in ExPW28/3 are not reflected in ExPW28/7. explain this? How do you

Ans

All the calls are generated in our Mobile Switching Centre/Switch which are in raw form. From the

Switch these CDRs records are transferred to

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Mediation for analysis.

This system transfers the

raw C.D.Rs. (call data records) into readable form and after that these are sent to the respective servers viz. Prepaid server, post paid server, I.U.C. (Interconnect usage charge) server. Some C.D.Rs. Which mediation is not able to process are transferred to a rejection folder. The rejected calls are there because the Mediation is unable to identify those C.D.Rs. As these contain certain errors like alphabets viz. A, F etc. incomplete C.L.I. (Calling Line identification) etc. All this

process is automatic. These rejected calls are regrouped into different folders like alphabet error or trunk group, different rating folder etc. Then these are studied by our I.T. Experts for looking into the reasons thereof for analysis. These are again reprocessed processed by by the the mediation mediation and and other after rere-

processing these

CRDRs are forwarded to the

respective servers i.e. pre paid server, post paid server and I.U.C. Server. The C.D.Rs. In which a few calls are missing has been generated when certain calls were at rejection mode or at a re-processing stage. The

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above system for processing and reprocessing is done by all the telecoms net work world over.

Q.

Can you say that both the details I.e. ExPW28/3 and ExPW28/7 were generated at different times? C.D.Rs. Formats

Ans

Yes.

You were not there. ExPW28/3 and

How can you say that were generated at

ExPW28/7

different times? Ans Because these are in two different formats and could not have been done simultaneously and is a systematic process.

Can you pin point out at this stage as to which out of the two was generated first?

Ans

The outgoing CDR (ExPW28/7) must have been taken prior to the consolidated CDR which is ExPW28/3. After reprocessing of the CDRs at mediation stage these are forwarded to the

respective servers for billing purpose.

This is a

systematic process that when the calls are at reprocessing stage the CDRs generated before the

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reprocessing, will not match with the CDRs when generated after the reprocessing is complete. The mere fact that these are additional calls in

ExPW28/3 as compared to ExPW28/7 proves that ExPW28/7 was generated when the calls were at reprocessing stage and ExPW28/3 was generated when reprocessing was complete. 163. When the Court found that on some points, Ashok

Kumar was not clear, a technical expert from BSNL was called. Consequently, Shri C.B. Bansal, SDE (Systems), BSNL was

examined as Court Witness 2. Following are the court questions and the answers given by him:

Please see the call details record ExPW28/3 and ExPW28/7. The outgoing calls shown at Point A

and b in ExPW28/3 are not reflected in ExPW28/7 ( which runs into seven pages which have

inadvertently been marked as PW28/7 to ExPW 28/13 but are to be read as one document ExPW28/7). How can this happen? What are the

technical aspects?

A.

(I)

The files are received from the switches in a directory from where these are

particular

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processed in another system called mediation where there are certain types of checks/validations through which these files are passed. The CDRs which are validated are passed to the billing system for further processing whereas the CDRs which, due to any reason, could not be validated, go to a predefined directory called exceptions. These CDRs, which are in exception file, are processed afterwards. Therefore, there can be a

possibility that the call detail record which is taken while the entires in the exception file are yet to be processed, those entires will, not be reflected. However, if the call detail record is taken after the processing of the entries in the exception file is over, all the validated entries including those which could not be reflected in the previous call detailed record would be shown in the subsequent call detailed record. ii) In some cases it depends upon the skill and the knowledge of the system of the person who is retrieving the data as to what query he puts to the system for example the person retrieving the data either does not know all types of data or date format.

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iii)Difference can be there on account of different data source on which query is fired. For example during processing the query is fired on a set of data and another query is fired on another set of data.

Can the computer system be manipulated so as to fudge the entries?

A.

At the switch level no manipulation is possible however in the post processing it is possible to delete some entries or even to add certain entries. When the data is taken out from the system and is available in the soft copy it is very much possible to add, delete or modify any entry.

Do you find any change in the format of both sets of CDRs. How do you explain?

There are two additional columns i.e. Cell ID and IMEI No. in ExPW28/7. These columns are not

available in ExPW28/3. In ExPW28/3 column type is three whereas it is not available in ExPW28/7. In ExPW28/7 the data is in formated form whereas the data in ExPW28/3 seems to be unformatted.

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Besides this there appears to be a striking error in ExPW28/7 in as much as IMEI number at page No.4 & 5 in many instances is shown all threes (3) which is not possible. IMEI stands for

International Mobile Equipment Identity.

Another

striking feature is that wherever all threes (3) appear in IMEI number, the cell ID is also 404141111111111. Fromm this it appears that

this record is not reliable and is not error free. Moreover, the list ExPW28/3 has been generated from standard application and contains standard fields and it seems to be a complete record having details of all incoming, outgoing calls and SMSs. The second list (ExPW28/7) is not in standard

format. This appears to have been generated through a process of filtration. In second list, there are certain blank fields system if properly working does not generate any record which has such

blank fields. In second list errors are apparent which could be due to software error or human error. In second list there are many calls which

are missing apart from those which have been highlighted. Input in second list may not have been correct.

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164.

From the combined reading of both the court

witnesses, who are experts, it is clear that the missing details could be a result of technical error but there is no possibility of manipulation of record. Needless to say that Ex.PW-28/3 is on standard format. It is a complete record. On the other hand, Ex.PW-28/7 is not in standard format. This appears to have been generated through a process of filtration. The Court agrees with Court Witness C.B. Bansal that in Ex.PW-28/7, the input may not have been correct which resulted in the error. Therefore, the record which is in standard format and which is complete has to be taken into consideration and the

discrepancy

vis-a-viz the record which is not in standard

format has to be ignored. 165. It is a fact that duration of the call through which

signal was given is 15 seconds and this could not be a missed call. However, it does not mean that the prosecution version is false. Mandate given to the complainant was to give missed call. He pressed the call button. The person, at the other end, might have picked up. Therefore even if, there was no conversation, this resulted into matured call. Be that as it may, the fact remains that there is no evidence of tampering of the record. The Court fails to see any reason why the investigating agency would have got the changes effected. It was not going to help.

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CONTENTION NO.9
166. There is no substance in the contention that the from behind the sofa could not be

box having been found

treated in exclusive possession of A-2. It is the consistent version of the witnesses that A-2 demanded and accepted money contained in sweets box. He opened the box, checked the packets of notes, closed the box and then kept it behind sofa. This version as already discussed above is convincing as against the defence version that the complainant and PW Dev Raj entered the drawing room in the absence of A-2 and planted the box contained treated currency notes behind the sofa. In these circumstances, it cannot be said that the money was not recovered from the exclusive possession of A-2. After all, it was contained in sweets box. The quantum was such as could not have been put in pocket. There is no general rule that bribe money should have been found on the person of the public servant who has been accused of having accepted the same. Every case has its own peculiar facts.

CONTENTION NO.10
167. The contention that there are contradictions about

the sitting plan is factually correct. However, a question arises as to how much importance to this type of contradiction is to

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be given. To answer this question, the court has to pose another question as to whether this contradiction goes to the root of the matter and shakes the very basic version of the witnesses. If answer to this question is No, the first question becomes redundant. No gain said that the contradiction is cosmetic in nature; not going to the root of the matter. The very fact that there are contradictions like this, in fact, proves the truthfulness of the witnesses who were deposing after considerable time gap. They were not expected to possess photographic memory.

CONTENTION NO.11
168. It is said that a fact is sacred but interpretation is

free. This has been proved right by the defence by raising the argument that since according to PW L.R. Roojam the print

out of post trap memo was not taken from the laptop and was not signed in his presence, it was not prepared on the spot. The fact remains that PW L.R. Roojam has stated what he

saw. Since he had not seen the print out of the memo being taken out or signed he had to say so. In fact, he was not a member of the party. He was not even joined as independent witness. Therefore, the memo was not required to be shown to him. He was not even required to sign it as the mandate given to him was not to join the trap party as a witness but, to take

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part while recording of the statements etc. of the judicial officers concerned so as to ensure that the guidelines issued by the Hon'ble Supreme Court in Delhi Judicial Services Association Tees Hazari Versus State of Gujarat AIR 1991 SC 2176 (!) were followed. Therefore, when he says that the print out of the memo was not taken out in his presence, it does not mean that actually no such memo was prepared on the spot. The witnesses who have signed the memo have been categorical that it was prepared on the spot. Needless to say that PW L.R. Roojam has stated that part of the post trap memo i.e. the proceedings, which had taken place in his presence, was dictated by DSP R Upasak. If that is a fact, there should be no doubt that the memo was prepared on the spot.

REMAINING CONTENTIONS
169. During cross-examination of the complainant as

well as in the course of arguments much emphasis was laid on the fact that the complainant is a history sheeted person inasmuch as about 35 cases are pending against him and he has been convicted by Shri H.P. Singh, Additional Sessions Judge, Gurdaspur on 28.12.2008 for planting RDX in the house of another person. Attention of the Court has also been drawn to the statement Ex.D-31 which the complainant made

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in the Hon'ble High Court that he had received a bullet injury although, he had met an accident. Attention of the court has also been invited to the deposition made by him in this Court when he says that he left for UK on 31.03.2001 and came back on 11.04.2001 whereas, in Ex.D-8, he had claimed that he had not gone anywhere and, vide Ex.D-9 he had claimed that he had personally deposited amount in his account on 31.03.2001 and on 08.04.2001 he had gone to Bombay. Learned counsel pointed out that to substantiate this, the complainant even submitted a forged ticket before the Court concerned. Learned counsel drew attention of the Court to the newspaper reports that the complainant had tampered with the photograph to show that Varinder Kumar, IPS was a man of easy virtues. All these facts, according to the defence counsel, lead to only one conclusion that the complainant is a man of shady and questionable character; a man having poor moral fibre, having to his discredit a heavy load of bad

antecedents and having a motive to harm the accused. Placing reliance upon Sat Pal Versus Delhi Administration (Supra), learned counsel has argued that it would be hazardous to rely on such a person. Learned counsel would further argue that A-1 and A-2 had incurred the displeasure and wrath complainant by passing orders against him. 170. There is least doubt that the complainant, who of the

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has set the legal machinery in motion, is himself a man with bad antecedents. His past leaves no doubt that he has no scruples. He can tell lie on the drop of hat. He can tamper evidence to gain advantage. He is revengeful. However, question remains whether he has to be disbelieved in every respect? Question arises whether trap and investigation have been rendered illegitimate just because of his bad character? Does entire evidence stand washed out merely because he has tried to rope in A-1 and has tampered evidence to help him achieve that object? Such an approach has never been advocated or advised. In Sat Pal Versus Delhi Administration (Supra), it was never held, as a matter of rule, that the testimony of such a witness has to be rejected outrightly. The Hon'ble supreme Court simply sounded a word of caution that accepting the testimony of such a person without

corroboration on material facts from independent sources would be hazardous. The underlined idea is to proceed cautiously so that nobody is allowed liberty of abusing the process of law. The Court has to be on guard when faced with a witness like the complainant. But, still it remains duty bound to separate grain from the chaff and to accept what appears to be true and reject the rest. A case has to be decided on merits. History of the complainant is one of the considerations. It is not the only consideration. It has to be borne in mind

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that public servants, who have been entrusted with the duties of maintaining, enforcing and upholding the rule of law, come across bad people as well as good people. A corrupt public servant would find it difficult, if not unprofitable, to exploit a good and a law abiding citizen. However, exploiting and 'milking' a criminal element would be much easier and profitable task. If a police officer demands bribe from a dacoit to set him scot-free and is caught while accepting bribe from the dacoit, would it lie in his mouth to claim that the complainant is a dacoit? If a judicial officer demands bribe

from an accused for showing him favour, would it be right on his part to come up with the defence that the accused is a man of poor moral fibre? In both the cases, though the courts would be put on guard to ensure that the complainant was not proceeding with the sole motive of removing an upright public servant from his way. For that purpose, court shall have to scan and filter the evidence on record with utmost sincerity without being prejudiced by the past of the complainant. The effort of the Court will be to look for corroboration on material points from independent sources and not just to find an easy way out by discarding the very case. 171. A-2 has claimed that he had incurred the wrath of

the complainant as he had decided cases against him. To prove this, he has placed on record Ex.DX, the order dated

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14.10.2000 whereby in the complaint filed by Gurvinder Singh (the complainant herein) against Varinder Singh Dhiman, the latter was discharged under Sections 182 and 211 of Indian Penal Code and the proceedings under Section 500 and 501 of Indian Penal code were stayed till the decision of the civil suit. another is Ex.DY, the order dated 07.06.2000 passed in the suit titled Varinder Singh Dhiman Versus Gurdeep Singh and Others whereby the parties were directed to maintain statusquo regarding alienation of the property in dispute. 172. The complainant explains that initially A-2 had

been favouring him/his father but when Varinder Dhiman filed complaint to the Hon'ble High Court, A-2 passed orders Ex.DX and Ex.DY just to please the said Varinder Dhiman after taking him in confidence. 173. To my mind, there appears substance in what the

complainant claims. There is certified copy of order dated 26.02.1999 passed by A-2 in Civil Suit No.239 of 1998, Gurdeep Singh Versus Varinder Singh. Vide this order, the application under Order 39 Rule 1 & 2 of the Code of Civil Procedure filed by the father of the complainant was allowed and Varinder Singh was restrained from interfering in his peaceful possession. However, on 19.05.2000, Varinder Singh Dhiman filed a complaint before the then Hon'ble Chief Justice

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seeking inquiry into the conduct of A-2. A copy of the same was endorsed to the District & Sessions Judge, Jalandhar. The attested copy of the same was sent by the then District & Sessions Judge, Jalandhar to the Investigating Officer vide Ex.PW-32/5. Although, the complaint itself having not been proved formally, the contents thereof cannot be read yet, the fact that there was a complaint filed by Varinder Dhiman against S.S. Bhardwaj can be taken note of. Both the orders Ex.DX and Ex.DY are subsequent to 19.05.2000. It is interesting that the plea of forgery was taken in both the suits titled Gurdeep Singh versus Varinder Singh and Varinder Singh Versus Gurdeep Singh. The subject matter of both the suits was the same. However, in Gurdeep Singh Versus Varinder Singh, instead of directing the parties to maintain status-quo with regard to possession, temporary injunction was granted restraining Varinder Singh from interfering into the peaceful possession of Gurdeep Singh. On the other hand, in Varinder Singh Versus Gurdeep Singh, status-quo with regard to alienation of the disputed property was granted. There is a subtle but very important change inasmuch as in both, it was held that the question of forgery could be determined only after examining the witnesses but still instead of directing the parties to maintain status-quo with regard to possession. The application was allowed in favour of Gurdeep Singh and when

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Varinder Singh filed suit, status-quo regarding alienation was ordered. although, this court is not supposed to go into the

merits of the orders passed by A-2 while working as Civil Judge (Junior Division) yet, the drift is visible. There is no reason to disbelieve the complainant this drift in favour of Varinder Singh Dhiman was because the latter filed complaint. Even, the order Ex.DX would reflect this. 174. Needless to say that there is no reason to believe

A-2 when he says that the complainant was so much annoyed with him for having passed the orders Ex.DX and Ex.DY that even after his transfer from Jalandhar he made it a point that A-2 was implicated in a false case. On the other hand, there is ample evidence on record that complainant was having good relations with A-2 and the former had been visiting the latter at Chandigarh. 175. After carefully scanning the evidence, the Court

finds itself in a position to say with certainty that the version of the complainant that A-2 demanded illegal gratification

posing that it had to be paid to A-2 for getting the complainant bailed out is corroborated by the call details record and the recorded conversation between the complainant and A-2. The statement of shadow witness proves that A-2 demanded and accepted illegal gratification stating that he will pass it over to A-1. From the statements of Madan Lal and the Trap Officer, it

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is established that the treated currency notes were recovered from where the same had been kept by A-2. The report of CFSL Ex.PW-32/2 proves that A-2 had handled the treated currency notes. In view of such an overwhelming

corroborating evidence, there is no reason to throw away the prosecution case just because the complainant has been lieing in the past or has been cheating people. Similarly, no inference can be drawn merely because the complainant has made false accusation against A-1 and has even tried to create evidence to support his contention. 176. Even the conduct of A-2 in fleeing his house after the trap lends corroboration to the

immediately

prosecution version. Section 8 of the Evidence Act makes the conduct of a party relevant if (i) it has reference to any fact in issue; (ii) it influences or is influenced by any fact in issue or relevant fact. It does not matter whether the conduct is previous or subsequent to the incident. Illustrations 'h', and 'i' to this section make the point clear. Thus, read as under: (h) The question is, whether A committed a crime. The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant.

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(i)

A is a accused of a crime. The fact that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, of attempted to conceal things which were or might have been used in committing it, are relevant.

177.

It is quite lucid and clear that the act of is conduct which is relevant

absconding after the incidence

within the meaning of Section 8 of the Evidence Act That A-2 was caught red handed having accepted bribe is a fact established on record. After the post trap proceedings were over and house search commenced A-2 went upstairs to see his wife and fled therefrom is also proved beyond doubt. He

remained in hiding for quite some time and surfaced only to give interview to the news channel 'Aaj Tak' wherein he feigned ignorance about trap and claimed that he was not in Chandigarh at the time of CBI raid, therefore, there was no question of his having absconded. Thereafter, he surrendered only after his petition for bail in anticipation of arrest was rejected by the Hon'ble Supreme Court. It is another aspect that during trial A-2 changed his stance and claimed that the complainant and PW Dev Raj came to his house when he had gone for walk and planted the box before he came back. He

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claimed in his statement under Section 313 of the Code of Criminal Procedure that immediately after he shook hands with the complainant and Dev Raj, the CBI team pounced upon him and; that to avail legal remedy I left the place. In fact, he tried to make it look an innocuous act by claiming that he had 'left'. In fact, he had fled and had remained elusive for quite some time. what does this conduct show? 178. Placing reliance upon Rehman Versus State of

UP AIR 1972 SC 110 and Matru Versus State of U.P. AIR 1971 SC 1051, learned counsel for A-2 argued that even if for the sake of argument, if it is assumed that the accused had absconded, that by itself will not be conclusive either of his guilt or guilty conscious. 179. As against this, learned Public Prosecutor has Ramanathan Versus State of Tamil

placed reliance on

Nadu 1978 SC 1204, wherein the accused, who had absconded after the incident i.e. murder of his wife, was held guilty. 180. The law on the point has been aptly summed up in

Matru Versus State of U.P (Supra) in the following words: The appellant's conduct in absconding was also relied upon. Now mere absconding by itself does

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not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime: such is the instinct of sell-reservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other

evidence but its value would always depend on the circumstances of each case. Normally the courts

are disinclined to attach munch importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in

completing the chain of circumstantial evidence which must admit of no other reasonable

hypothesis than that of he guilt of the accused. 181. The Hon'ble Supreme Court has drawn distinction

between relevance and probative value of the conduct of an accused in absconding. While saying that this is a relevant fact it made clear that probative value would depend on the circumstances of each case. By way of illustration, it cited the example of an innocent person getting panicky when wrongly suspected of a grave crime and held that mere act of absconding, without anything more, would be of little

consequence in the final analysis.

In the instant case, there

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was no question of A-2 getting panicky particularly, when the District & Sessions Judge (Vigilance) had arrived there during the post trap proceedings. A-2 claims that immediately after he was caught he shouted call my Session Judge. It means that he had confidence in his Sessions Judge. If another Judicial Officer of the same rank came there, it does not mean that now A-2 was definitely going to be falsely implicated. Rather, he had an anchor to rely on. He had an opportunity of explaining his position immediately after the incident. None was getting tough or rude with him. The proceedings, as it appears from the statement of PW L.R. Roojam, were being conducted in friendly manner. There should have been no occasion for A-2 to have harboured the belief that he will not get justice. Instead of cooperating he managed to give slip to the raiding party right under the nose of PW L.R. Roojam! 182. If the statement of PW L.R. Roojam is read

carefully, it would become clear that after completing post trap proceedings, the T.O asked A-2 about some mobile phone which he wanted to recover but A-2 told that he does not have any such mobile phone. At that juncture, house search commenced. After some time when the CBI officers started having meals they permitted A-2 to go upstairs where his wife and children were. Taking advantage of this, he fled. It is evident that this was not a panic reaction. A-2 was a Judicial

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Officer. When T.O asked him about mobile phone, he must have realized the importance of keeping secret the mobile phone which he had been using to get in touch with the

complainant. He must have thought that since the connection was not in his name, if the mobile phone itself was not found, it would be difficult for CBI to prove its case. From the statement of the complainant it is proved that when he and PW Dev Raj met A-2 at the gate of his residence, his wife holding their daughter in arms was also there. He handed over mobile to her. She left for walk carrying the daughter in a walker. A-2 entered the house with the complainant and Dev Raj. It is not known when his wife came back; whether it was before he was caught or thereafter. Needless to say that

personal search of his wife was not taken. Therefore, the mobile would have been with her when he went upstairs. A-2 could not have afforded the risk of mobile phone falling in the hands of CBI. This would have been catastrophic. Guilty conscious prevailed over better sense and he fled, in all probabilities, taking the mobile phone along. Therefore, it is clear that A-2 fled not because he was fearing persecution but because he wanted to avoid prosecution. In the light of the attending circumstances, his conduct indicates a consciousness of impending danger and guilt. 183. Section 8 of the Evidence Act does not say that

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subsequent conduct to be relevant must be proximate to the occurrence. Therefore, when an accused escapes from the clutches of police after having been caught and remains elusive for quite some time and then tries to create a false alibi that he was out of station, his entire conduct becomes is created much later. This is what

relevant even if the alibi

A-2 did by giving interview to the news channel. 184. The defence has laid much emphasis on Mark D-4

which is photo copy of the complaint purported to be in the hand of the complainant wherein he is supposed to have alleged that Varinder Kumar, IPS had been demanding bribe of Rs.11 lacs for himself and for A-1. Learned counsel for A-2 would argue that in Mark D-4 there is not even a whisper of allegation against A-2 but, in Ex.PW-1/1, the facts have been twisted so as to implicate A-2 also and to leave Varinder Kumar out. According to learned counsel, this was purposely done as otherwise the CBI would not have got jurisdiction to investigate because both A-2 and A-1 were posted in Punjab. Learned counsel averred that this fact singularly proves false implication of A-2 in connivance with CBI. 185. not It has already been noticed above that Mark D-4 is original. It appears to have been transmitted to

Chandigarh from Jalandhar through fax. It is not known as to

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where the original is. The defence has not explained as to where from, how and, from whom, it came in possession of this copy. It is not clear as to whether the original of this document ever saw light of the day. Moreover, it has not been addressed to anybody nor it bears the signatures of the author. Therefore, merely on the basis of the opinion of DW-20, it cannot be said with certainty that it was authored by none else but the complainant. Even if, for a pause, it is assumed that original of Mark D-4 was written by the complainant, there is no evidence on record to prove that it was ever filed. Consequently, there remains no sting in the contention that the complainant had no grievance against A-2 but his name was got incorporated in the complaint Ex.PW-1/1 just to vest CBI with jurisdiction. 186. To add another arrow to its string, the defence has

argued that there is strong possibility of the recording of the FIR after the trap. Following circumstances have been

pointed out to lend support to this contention: I. Ex.DB, the search list mentions the date of FIR as 10.05.2003 at 2300 hours whereas the case of the prosecution 09.05.2003. is that FIR was registered on

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II.

The copy of the FIR reached the Special Judge on 12.05.2003 despite there being a distance of just three kilometers.

III. The search and seizure list prepared after the house search of A-1 does not mention the date of the FIR although it is claimed to have been registered about 24 hours prior to the making of search. Inspector Jai Singh, who had conducted search, had been associated with the investigation of the case from the very beginning, therefore, the prosecution cannot claim that he may not have known the date of FIR. 187. Placing reliance upon State of Rajasthan Versus

Teja Singh 2001 Criminal Law Journal 1176, learned defence counsel argued that delay of two days in sending the FIR to the Magistrate is not condonable. 188. Continuing in the same vein, learned defence

counsel argued that the FIR having been registered without permission of the Hon'ble Chief Justice bad in view of the law laid down in of the High Court is UP judicial Officers

Association Versus Union of India 1997 (4) SCC 687.

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189.

The above contentions look attractive but lack

substance. It is a matter of fact that the trap was laid only after the authorization was given by the then Hon'ble Chief Justice. It is just impossible that such an authorization would have been given without going through the FIR. Therefore, the averment that the FIR was ante-dated after the trap is not tenable. When the Hon'ble High Court was seized of the matter before the trap was laid the mere fact that the copy of FIR

reached the Special Judge on 12.05.2003 would not be fatal to the prosecution. For the same reason merely because the date of FIR is not mentioned in the search and seizure list pertaining A-1 and merely because in the search list pertaining A-2 the date of FIR has been wrongly mentioned as

10.05.2003, it does not mean that FIR had not been registered or that it was ante-dated. Clerical errors ought not be given much weightage. 190. In UP Judicial Officers Association case (Supra),

the Hon'ble supreme Court issued interim directions that no crime or criminal case should be registered against a Judicial Officer in respect of anything allegedly done or purported to be done in discharge of his duty or in his capacity as holder of such Judicial Office without permission of the Chief Justice of the High Court concerned. These interim directions were subsequently confirmed when the matter was finally disposed

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off as reported in JT 2002 (8) SC 133. 191. It is evident that the directions issued by the

Hon'ble Supreme Court were in operation when the instant case was registered. However, the mere fact that no prior permission of the Hon'ble Chief Justice was taken, would not, by itself, warrant acquittal of the accused. It is pertinent to mention that after registration of the case, the CBI moved the Hon'ble Chief Justice for authorization to lay trap. The Hon'ble Chief Justice took no objection that FIR had been registered in violation of the directions issued in UP Judicial Officers Association case (Supra). Rather his Lordship deputed two senior officers of the rank of District & Session Judges to ensure that there was no violation of the directives issued in Delhi Judicial Service Association Versus State of

Gujarat 1991 (4) SCC 406. It implies that the act of demanding bribe was not considered to be in discharge or purported exercise or discharge of duties. Therefore, the accused can claim no prejudice. 192. As a last resort, learned counsel for the accused

contended that before according sanction, no consultation what to speak of effective consultation, had been conducted by the sanctioning authority with the Hon'ble High Court whereas in view of the law laid down in Bhupinder Singh Lieutenant Governor Delhi 1994 (2) RCR 679, it was mandatory. On

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this short ground, learned counsel seeks acquittal of the accused. 193. As a corollary to the above contention, learned

counsel argued that the report of the expert as to the voice identification had not been received by the tine sanction was granted. Moreover, the cassettes purportedly containing the recorded conversation were not forwarded to the sanctioning authority but still in the sanction order reference was made to the conversations which would imply that the sanctioning authority did not apply his independent mind. 194. Learned Public Prosecutor has, on the other hand, validity of the sanction will not be affected

argued that the

unless the Court records the finding that error or irregularity has resulted in failure of justice. It was further argued that the requirement of sub-Section iv of Section 19 of the Prevention of corruption Act, 1988 about raising the issue at the earliest stage has to be considered while recording such a finding in view of the law laid down in State Versus Venkateshmurthy 2004 (7) SCC 763. 195. The contention advanced by the Public Prosecutor

appears logical. The Court took cognizance on 10.05.2003 when charges were framed. At that stage, no objection against the sanction order was raised. It was never pointed out that

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the Hon'ble High Court had not been consulted by the competent authority before according sanction. Now, the defence, without showing any cause why the objection could not be raised at an early instance and whether, in fact, any failure of justice is to occasion thereby, has straightaway raised the plea at the fag end of the trial. In almost similar circumstances, the Hon'ble High Court in State of Punjab Versus Bhim Sain 1985 Criminal Law Journal 1602 held that the late raising of the question of sanction without pointing out any failure of justice was fatal to the defence plea. 196. Needless to say that had the objection been taken

at the earliest, the prosecution could have pleaded with the sanctioning authority to take suitable action but now it is too late. The entire evidence has been discussed threadbare and it has been found that A-2 had demanded bribe from the complainant in the name of A-1. Now, it would be too late to say that the accused should be acquitted just because the sanctioning authority was not aware of the law laid down in Bhupinder Singh Lieutenant Governor Delhi (Supra). 197. Merely because, the report of the expert as to

voice identification had not been received and cassettes containing the recorded conversation were not forwarded it

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does not mean that

the sanctioning authority did not apply

mind or that the investigating agency had not forwarded the evidence collected. There was, in fact, no requirement of the cassettes being forwarded as the transcripts had already been prepared and the same were enclosed. The report of the expert could not have been forwarded as it had not yet been received. Therefore, this is not the case where the material collected by the investigating agency was not forwarded or where sanctioning authority was kept in dark. In other words, it cannot be said that the sanction was accorded without application of mind. 198. As an upshot of the discussion foregoing, the

prosecution has failed to prove that there was a criminal conspiracy between A-1 and A-2. The prosecution has also failed to prove that A-1 had any role to play or that he even had the knowledge of what A-2 was up to. There is ample material on record to prove that A-1has been falsely

implicated. However, it has been proved beyond doubt that A-2 demanded and accepted illegal gratification from the

complainant as a motive for getting the complainant bailed out from the Court of A-1.

199. Section 7 of the Prevention of Corruption Act reads as under:-

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Whoever, being or expecting to be a public servant accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause of Section 2, or with any public servant, whether named or

otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.

Explanations___ (a)Excepting to be a public servant. If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he

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will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b)Gratification. restricted to

The word 'gratification is not gratifications or to

pecuniary

gratifications estimated in money. (c ) Legal remuneration. The words legal

remuneration are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organization which he serves, to accept. (d)A motive or reward for doing. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within his expression. (e) Where a public servant induces a person

erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant has committed an offence under this section.

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200.

It is evident that a public servant will be guilty

under Section 7 of the Act even independently of the exercise of his official functions in case he obtains/accepts illegal gratification for rendering any service to a person with

another public servant. For this reason, there is no substance in the contention that to convict a public servant under Section 7 of the Act, it must be shown that he took bribe as a motive for doing an official act. Accepting such a contention would amount to failure to give effect to the last part of the Section. 201. The position would be even more clear if Section 7

is read with Section 8 of the Act. Whereas Section 7 limits itself to only public servant, Section 8 extends to all persons whether or not they are public servants. Where a person accepting bribe as a motive for rendering service to another person with any public servant happens to the public servant himself, the offence would be covered by Section 7 of the Act. Even when a public servant induces a person erroneously to believe that his influence with another public servant would secure him some benefit and thus, induces that person to give him illegal gratification, the public servant would commit an offence under Section 7 as has been elucidated in Explanation (e) (Supra).

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202.

It is proved that A-2 being public servant falsely

represented to the complainant that A-1 was demanding Rs.11 lacs for giving him relief and that if the complainant was not in a position to pay Rs.11 lacs he should pay Rs.7 lacs upfront failing which his application would be dismissed. He also represented to the complainant that he had already spoken to A-1. Therefore, he was successful in inducing the complainant erroneously to believe that he will get him favour from A-1. It is evident that A-2 merely made a pretence whereas he did not have any discussion with A-1. The latter was, in fact, not aware as to what was happening or that A-2 was trying to extract money from the complainant in his name. It has been proved beyond doubt that A-2 ultimately succeeded and accepted and obtained Rs.7 lacs as illegal gratification. 203. As a consequence of the above resume' the

prosecution having failed to prove its case against accused R.M. Gupta, he is hereby acquitted of the charges framed against him. However, there being cogent evidence against accused S.S. Bhardwaj that he obtained bribe and thereby committed misconduct, he is hereby convicted under Section 7 and 13 (2) read with Section 13 (I) (d) of the Prevention of Corruption Act. 204. Before parting, the Court deems duty bound to

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observe that the complainant Gurvinder Singh Samra has fabricated false evidence viz tape recorded conversation Ex.P-161 intending that this may appear in evidence in legal/judicial proceedings and; that this may cause the Court to entertain an erroneous opinion regarding the involvement of accused RM Gupta. Therefore, the Court is of the opinion that further action against him is necessary and expedient in the interest of justice. For this purpose, a complaint is being filed separately in the Court of learned Chief Judicial

Magistrate, Chandigarh. 205. The Court would also like to express its deep sense

of anguish over the manner in which Judicial Officer of the rank of District & Sessions Judge was arrested without proper verification of the facts. It is not that Judicial Officers are entitled to special treatment but the very nature of the duties they perform renders do them not going susceptible what and vulnerable. and

Generally,

they

know on

maneuvers the

manipulations

are

outside

courtrooms.

Sometimes, they become target of warring and cantakerous parties. Then, there are unscrupulous elements within and outside who are always waiting for an opportunity to exploit. Beside, there are meddlesome and nosy people who keep smelling something into everything. Every order passed by a Judicial Officer has ramifications depending upon the stakes

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involved. Each case has to be decided one way or the other as per merit. There are no chance of a tie. In most of the cases, there is element of certainty. Any person with canny eye can predict the result. This leads to a systematic exploitation. A common litigant falls pray and impression is given to him that the matter would be decided favourably only if he buys the Judge. He obliges. The case which would have otherwise been decided in his favour on merits ends up being decided for 'consideration'. The Judge does not even know that his name has been used. The litigant who has paid thinks that it is the judge who has pocketed money. This being the state of affairs, a very cautious approach has to be adopted while registering case of bribery against a Judicial Officer.

Announced: 15.05.2009

Special Judge, Chandigarh.

This judgment contains 206 pages and each page has been signed by me. Special Judge, Chandigarh.

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Question of Sentence Present:Shri R.L. Negi, Senior Public Prosecutor C.B.I. Convict S.S. Bhardwaj with Shri for

Rabindra Pandit, Advocate

We weave a tangled web when we first practice to deceive. Ultimately, we find ourselves caught in the same web. this is what appears to have happened to the convict. He came in contact with a Con man and tried to trick him. The result is before everyone to see. Being a Judicial Officer, he was to do justice to the others but he ended up doing injustice to his own institution and family. He undermined the majesty of law and now he is a man left prostrate. He has become prisoner of his own device. The Institution of Judiciary had given him a chance to serve the society but he squandered it by allowing himself to be swayed by greed. If protector become

perpetrator who will save the system? Et Tu Brute? Then, fall ceasar. 2. I have heard the convict on question of sentence.

Pleading that he is the only bread winner of his family consisting old parents, wife and two children, he has prayed for a lenient view.

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3.

Proportion between crime and punishment is the

essence of justicing system. The facts and given circumstances of each case, the nature of the crime, the manner in which it was committed, the motive the conduct of the convict and all other attending circumstances are relevant factors which would enter into the area of consideration for deciding just an appropriate sentence to be awarded. All the aggravating and mitigating factors have to be delicately balanced in a

dispassionate manner. 4. While imposing sentence its effect on society has

to be considered otherwise the contagion of criminal proclivity would lay the social order in ruins. 5. The Court will be failing in its duty if appropriate

punishment is not awarded for a crime which has been committed not only against an individual but also against the institution and the society to which the convict belongs. 6. Here, this Court is dealing with an unscrupulous

Judicial Officer who has not only debased and defiled the very system he was expected to protect and uphold but has also put a senior colleague of his in trouble. The kind of crime committed by him amounts to moral delinquency which shakes the very conscience of the society.

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7.

In Sevaka Perumal Versus State of Tamil

Nadu 1991 (2) RCR Criminal, the Hon'ble Supreme Court has observed that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. 8. The plea that the convict is the only bread winner

of his family evokes sympathy for his family but not for the crime committed by the convict. 9. After giving thoughtful consideration to the facts,

circumstances, the nature of the crime; the manner in which it was committed and the motive and conduct of the convict, the Court sentences him as under: (i) Section 7 of Prevention of Corruption Act.

To undergo rigorous imprisonment for 3 (three) years and to pay fine of Rs.25,000/-. In default of payment of fine, to undergo further rigorous imprisonment for 3 (three) months. (ii) Section 13(1)(d) read with Section 13 (2) of

Prevention of Corruption Act.

To undergo rigorous imprisonment for 3 (three) years and to pay fine of Rs.25,000/-. In default of

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payment of fine, to undergo further rigorous imprisonment for 3 (three) months. 10. Both the sentences shall run concurrently. The

period already undergone by the convicts in custody shall be set-off against the term awarded. Fine paid. All the unexhibited documents be returned to the concerned quarters against proper receipt. File be consigned to the record room.

Announced: 16.05.2009

Special Judge, Chandigarh.

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