I.S. Mehta JUDGMENT
I.S. Mehta, J.
1. Instant is a petition invoking Section 482 of the Code of Criminal Procedure for quashing of entire proceeding pending in case FIR/RC No. RC. AC 3/2003/A/0002/CBI/ACU-III/New Delhi under Sections 7, 8, and Section 13(1)(d) Read With Section 13(2) of Prevention of Corruption Act, 1988 and Section 120-B of Indian Penal Code on the ground of lack of evidence.
2. Brief facts stated are that on the basis of source information the FIR/RC No. RC. AC 3/2003/A0002 was registered on 26.03.2003 with CBI/ACU-III, New Delhi wherein it was alleged that Subhash Sharma, Vice Chairman DDA, Anand Mohan Saran, Commissioner (Land Disposal) DDA, Vijay Risbud, Commissioner (Planning) DDA and Jagdish Chander, Director (Lands) DDA while functioning in official capacity entered into a criminal conspiracy with Dharambir Khattar, Ajay Khanna and Ravinder Taneja to show undue favor to M/s. DLF Universal Ltd. in the matter of allowing Floor Area Ratio (FAR) of 300 in place of 139 in one of DLF's project on plot No. 1-E, Jhandewalan by charging rates much below the prevailing market rates and obtained or agreed to obtain illegal gratification from M/s. DLF Universal Ltd., as quid pro quo. The bribe amount agreed to accept was Rs. 1.10 crores, out of which Sh. Subhash Sharma was to receive Rs. 50 lacs. Dharam Bir Khattar on the initiation of Subhash Sharma negotiated with Ajay Khanna who agreed to pay an illegal gratification of Rs. 1.10 Crore to Dharam Bir Khattar which was to be shared by him and the above named officers of DDA. Subhash Sharma was to receive Rs. 50 Lakhs out of the said amount and the remaining amount was to be shared among Anand Mohan Saran, Jagdish Chander and Dharam Bir Khattar for getting this proposal cleared from the planning Department of DDA, Vijay Risbud was to be separately gratified. To facilitate the said deal Sh. Subhash Sharma was to hold a meeting in his office on 4th March 2003 which was postponed by him on the suggestion of Anand Mohan Saran and Dharam Bir Khattar, since a part of illegal gratification which was agreed to be paid by DLF in advance had not been delivered by them. The meeting was again fixed for the morning of 10th March 2003 which subsequently got postponed for same reason, after several attempts the meeting was finally held on 17th March 2003 only after half of the bribe amount had been delivered by Ajay Khanna of DLF at 9 Kasturba Gandhi Marg. Since there was a feeling of mutual distrust between Dharam Bir Khattar and Ajay Khanna, two more person namely G.R. Gogia and Ravinder Taneja were involved and played a crucial role in keeping safe and to deliver the balance amount and ensured that both parties stick to their commitments.
3. On basis of the source information, the Special Unit CBI had mounted electronic surveillance after obtaining authorization from competent authorities in regard of phone numbers 9810258734, 20050871, 24311053, 56008085, 56000067, 55655561, 56028644 of Dharambir Khattar and his family members and 8 other phone numbers, on information that Dharambir Khattar was maintaining close relations with senior government officials and was acting as a conduit between them and private parties for getting their work done and jeopardizing national security and public interest.
4. In pursuance to the authorization, the concerned telephone companies provided parallel connectivity or leased lines to the CBI. These leased lines did not have any numbers, but were identified by pairs and color of the wires. These leased lines were connected directly with the identified hard drive of a computer through a voice logger. Every incoming and outgoing call of the monitored telephone numbers were automatically recorded on. WAV (sound format) file in the hard drive of the computers giving complete details viz., call time, call duration, calling party's telephone number through windows operating system, voice logger drivers and voice executable. WAV files. The conversation recorded in these computer files were heard and two Call Information Reports containing 49 and 13 identified calls of conversations between accused persons relevant to this case were prepared and transferred into three Compact Discs and the same have been taken on record for investigation in this case. The CD so prepared are true replicas of the recording done in the hard drive of the computer system through electromagnetic media. The purity of the process of recording has been certified by the Andhra Pradesh Forensic Science Laboratory (APFSL), Hyderabad after examining the hard drive and compact discs vide their Expert Opinion No. COM/12/2003 dated 22.07.2003. Shri Navdeep Singh Virk, Superintendent of Police, Special Unit, CBI, New Delhi has given a Certificate as required under Section 65-B of the Indian Evidence Act, 1872 for use of electronically generated information as admissible evidence.
5. The investigating agency further discovered that Ravinder Taneja was well known to Dharambir Khattar and Ajay Khanna. Investigation on the basis of these electronically recorded tele-conversations revealed that at the instance of A-1 Subhash Sharma, A-4 Dharambir Khattar was vigorously following and pursuing the matter with A-5 Ajay Khanna for the purpose of extracting bribe for getting the matter decided in their favor; in this process the DLF officials had also directly approached A-3 Vijay Risbud and A-4 Dharambir Khattar who were in touch with A-1 and A-2. A-2 and A-4 were in constant touch with A-5 to extract bribe before deciding the matter in favor of M/s. DLF Universal Ltd. Also, Mukesh Saini who is tout of Anand Mohan Saran was instrumental in the meeting of DLF representative. Anand Mohan Saran on one hand and Dharam Bir Khattar on the other hand facilitated the said deal.
6. In the meeting which was held on 17.03.03 at the chamber of VC and it was discussed that since sufficient FAR balance was available in the Jhandewalan area, M/s. DLF Universal Ltd. could be given FAR of 300 at 50% of the present rate. This was to be ensured by properly publishing the matter openly through advertisement and calling for applications from interested parties for grant of FAR and after the applications were to be received DLF would have been one of the parties to be granted the same.
7. Investigation had further disclosed that TATA Tele Service CDMA mobile phone No. 56000067 was actually being used by A-1 although this telephone number was registered in the name of Mrs. Nirmal Rani Khattar wife of A-4; during the office search of A-1 a personal appointment diary of the year 2003 was recorded in which "Self 56000067" had been noted and reference of Mrs. Nirmal Rani Khattar had also been mentioned; the specimen handwriting of A-1 was collected and the GEQD Report had given positive opinion on the same.
8. Investigation had further disclosed that Tata Tele Service CDMA mobile phone No. 56028644 was being used by A-2 and as per the records this telephone number was registered in the name of Sh. Kamal Khattar S/o A-4 and this phone was recovered during the house search of A-2.
9. It is alleged that the aforesaid acts of the accused persons namely A-1 to A-6 are offences punishable under Section 120B IPC and Sections 7, 8, 15 of the Prevention of Corruption Act. A-1 and A-2 also committed substantive offence under Sections 7, 15 of the Prevention of Corruption Act. A-4 and A-6 also committed substantive offence under Section 8/12 of the PC Act.
10. After completing the investigation, CBI filed chargesheet in the Court of Learned Special Judge CBI New Delhi on 31.03.2005 under Sections 7, 8, and Section 13(1)(d) Read With Section 13(2) of Prevention of Corruption Act, 1988 and Section 120-B of Indian Penal Code against A-1 Subhash Sharma, A-2 Anand Mohan Saran, A-3 Vijay Risbud, A-4 Dharambir Khattar, A-5 Ajay Khanna and A-6 Ravinder Taneja. After completing the formalities, argument on the charge was heard, and charge under Sections 7, 8, and Section 13(1)(d) Read With Section 13(2) of Prevention of Corruption Act, 1988 and Section 120-B of Indian Penal Code were framed on 30.04.2008 against all the accused persons. Substantive charges were also framed, against A-1 and A-2 under Sections 7 and 15 of PC Act, Against A-3 under Section 15 of PC Act, Against A-4 and A-6 under Sections 8 and 12 of PC Act, against A-5 under Section 12 of PC Act. All accused pleaded not guilty and claimed trial.
11. Aggrieved from the order on charge dated 30.04.2008 by the learned Special Judge, CBI, Delhi, Accused Dharambir Khattar, Vijay Risbud and Subhash Sharma preferred Review petition under Section 397 read with 401 and read with 482 Cr.P.C. in High Court of Delhi for setting aside/quashing of Order on Charge which was subsequently dismissed. Now, another accused Anand Mohan Saran in the instant petition has invoked Section 482 for quashing of entire trial proceedings pending in the trial court.
12. The prosecution relied upon 98 witnesses. Till now prosecution has examined 27 witnesses which were duly cross examined by all the accused persons. Prosecution lastly examined PW27-Sh. Ashwani Kumar on 19.03.2018 which was deferred. Meanwhile, the petitioner has preferred present petition under Section 482 Cr.P.C.
13. The Learned Senior Counsel for the petitioner has submitted that the case of the prosecution is based on Electronic Evidence (D-10, D-14, D-18, D-21 to 25, D-36, D-37, D-42 to D-44, D81 to D-87) which allegedly contain evidence and 62 tele-conversations and none of them have certificate as mandatory under Section 65-B of Indian Evidence Act. Therefore the CDR and the audio conversation and alleged transcript cannot legitimately be an admissible evidence as per evidence act. The sequences of audio data is prepared manually without authorization to M.C. Kashyap which ceases its originality and therefore inadmissible in law as per the Indian Evidence Act.
14. The 98 cited witnesses are not pertaining to conspiracy, recovery of any alleged transacted money or any conversation heard by any of 98 witnesses, suggesting existence of such conversation and cited 128 documents relied by prosecution sustaining any allegation except FSL report and the petitioner in support of his argument on electronic evidence has relied on the judgments Anwar P.V. & Anr. Vs. P.K. Basheer & Ors., MANU/SC/0834/2014 : 2014 (10) AD (SC) 305; Ankur Chawla Vs. CBI, MANU/DE/2923/2014 : 2014 (10) LRC 96(Delhi); Anil Kumar Titu @ Anil Kumar Sharma Vs. State, Crl.A. No. 66/2013
15. The learned senior counsel for the petitioner has further submitted that the DLF in year 1998 preferred a Writ Petition (WP (Civil) No. 173/1998) seeking enhancement of the FAR at the rates of 1988, and same was allowed by Division Bench of this Court, on 14.05.2009 and accorded the relief to the effect that the DLF be granted FAR of 250 on payment of conversion charges with the land rates as on 10.04.1983. Therefore, there exists no criminal act or intention or conspiracy and the said judgment is on the basis of the FAR too, the proceedings become abuse of the process of law.
16. The learned senior counsel for the petitioner has further submitted that the under Prevention of corruption Act Special Judge has no power to review its order and has only two powers in criminal proceedings, one is to discharge or charge and second is to acquit or convict the accused. Therefore, continuance of the present proceedings before the Trial Court is nothing but abuse of the process of law and that entire proceedings be quashed and the petitioner be discharged and relied on the judgments P. Sirajuddin etc. Vs. State of Madras, MANU/SC/0158/1970 : AIR 1971 SC 520; Ripun Bora Vs. State, W.P.(Crl.)882/2009, D.O.D. 07.12.2011; Vineet Narain Vs. UOI, D.O.D. 18.12.1997; Ashok Tshering Bhutia Vs. State of Sikkim, Crl.A. No. 995/2003 dt. 25.02.2011; R.P. Kapoor Vs. State of Punjab, MANU/SC/0086/1960 : AIR 1960 SC 866; Superintendent & Remembrancer of Legal Affairs West Bengal Vs. Mohan Singh, MANU/SC/0223/1974 : AIR 1975 SC 1002; State of Karnataka Vs. L. Muniswamy, MANU/SC/0143/1977 : 1977 SCC (Cri.) 404; Madhavrao Jiwjirao Scindia Vs. Sambhajirao Chadrojirao Angre, MANU/SC/0261/1988 : (1988) 1 SCC 692; State of Haryana Vs. Bhajan Lal, MANU/SC/0115/1992 : 1992 (Suppl) (1) SCC 335; Janta Dal Vs. H.S. Chowdhary, MANU/SC/0532/1992 : (1992) 4 SCC 305; Padal Venkata Rama Reddy@ Ramu Vs. Kovvuri Satnarayana Reddy & Ors., MANU/SC/0884/2011 : (2011)12 SCC 437; Satish Mehra Vs. State, GNCT of Delhi, MANU/SC/0993/2012 : AIR 2013 SC 506.
17. Per contra, Sanjeev Bhandari, SPP for the CBI outrightly rejected the contention raised by the petitioner and pointed out that case of the prosecution is supported with ocular evidence as well as documentary evidences. He further pointed out that on the basis of the prima facie evidence available on record the charges were framed on 30.04.2008 qua the accused persons and the prosecution has examined 27 witnesses. He further pointed out that the petitioner want to run away from the trial proceedings and linger on the proceedings by filling different kind of petitions and trying to get benefit by delaying the trial proceedings. Prosecution to prove its claim has relied upon following judgments: State of Orissa V. Saroj Kumar Sahoo, MANU/SC/2264/2005 : (2005) 13 SCC 540; Sanghi Brothers (Indore) Private Limited V. Sanjay Choudhary & others, MANU/SC/8097/2008 : (2008) 10 SCC 681; Sajjan Kumar V. Central Bureau of Investigation, MANU/SC/0741/2010 : (2010) 9 SCC 368; Sandeep Sunil Kumar Loharia V. Sumeet Ganpatrao Bachewar & Anr., Crl.A. No. 1051/2018; Amit Kapoor V. Ramesh Chander & Anr., MANU/SC/0746/2012 : (2012) 9 SCC 460.
18. In the instant case the petitioner alongwith Subhash Sharma, Vijay Risbud, Dharambir Khattar, Ajay Khanna and Ravinder Taneja were chargesheeted under Sections 7, 8, and Section 13(1)(d) Read With Section 13(2) of Prevention of Corruption Act, 1988 and Section 120-B of Indian Penal Code. On finding prima facie evidence charges were framed on 30.04.2008. Thereafter, present petitioner alongwith co-accused persons participated in further proceedings. The prosecution has examined 22 witnesses PW1-B. Bandyopadhyay, PW2-D.P. Khatri, PW5-Deepak Gupta, PW6-Rajesh Kumar Singh, PW7-A.K. Jain, PW8-Raghbir Singh, PW9-S.S. Chauhan, PW10-Kundan Singh, PW11-Daljeet Singh, PW12-Atanu Kishore, PW13-B.N. Srivastava, PW14-B.B. Kundal, PW15-Ajay Chaudhary, PW16-G.S. Takhi, PW17-Vinod Kumar, PW18-Babulal, PW19-Mukesh Saini, PW20-Rajesh Khattar, PW22-Jagdish Kumar Dewani, PW24-A.C. Arya, PW25-Sarabjit Singh and PW26-Anil Kumar.
The examination in chief of PW3-Sourav Seal, PW4-Navneet Sharma, PW21-S.R. Singh, PW23-Ashok Kumar Verma and PW27-Ashwani Kumar was recorded and are left to be cross examined on the part of the accused persons.
19. Admittedly the inherent power under Section 482 is wider than Section 397 Cr.P.C. however, the inherent power under Section 482 is to be invoked in extraordinary situations to prevent abuse of the process of the law.
20. The contention of Learned Senior Counsel that there is no certificate filed by the prosecution under Section 65-B of Indian Evidence Act, consequently, CDR and recorded audio conversations are of no consequences is factually incorrect.
The prosecution has filed certificate dated 07.06.2003 issued by Navdeep Singh Virk alongwith the chargesheet, the said certificate is disputed by the petitioner on the ground that it does not fulfils the requirement of Section 65-B Indian Evidence Act.
Whether the said certificate was executed in compliance of the certificate under Section 65-B is the test which would be seen in the light of facts and circumstances under which the said certificate was executed. Therefore, at this stage no such opinion could be found as the same is premature. The Certificate is reproduced hereunder:
Certificate
I, Navdeep Singh Virk, Superintendent of Police, am the supervisory officer posted in the Special Unit of Central Bureau of Investigation, New Delhi, and am responsible for the operation, supervision and management of the four computer systems of the Conference Room, which are marked A, B, D and E for identification by this Unit.
The description of the said four computer systems are as follows:
1 That the information contained in the hard disks of the above mentioned 4 computer systems was regularly recorded into them in the ordinary course of the activities of my unit.
2. That during the period in question the above mentioned computer systems were operating properly and there have been no such operational problems so as to affect the accuracy of the electronic record.
3. That the computer hardware and software used in the above said computer systems have built in security mechanisms.
4. The call content and call related information of the various telephone numbers monitored by this unit was recorded on the hard disks of the four systems. Contents of the recorded telephone calls, which were given to the Investigating Officers from time to time, in the form of audio compact discs, are an output of the said computer systems.
5. That these above said computer systems are in working condition, till today, i.e. 7th June, 2003 when they are taken over by Sh. M K Bhatt, Additional SP ACU (IX), investigating Officer of RC 3A 2003-ACU X, AC-III, CBI Delhi for the purpose of investigation.
6. That the matter stated above is to the best of my knowledge and belief.
Navdeep Singh Virk,
Superintendent of Police, Special Unit,
Central Bureau of Investigation, New Delhi
Dated: 7th June, 2003
21. The statement on PW-19 Mukesh Saini relates to the facts as to how PW-19 was personally connected with the petitioner as well as with co-accused Dharambir Khattar and helped in facilitating the deal. Therefore, PW-19 is a material witness which leads to the substantive evidence, however the appreciation of the evidence of PW-19 or any other witness at this stage is not proper which could affect the trial.
22. So far the plea of the delay before the trial court is concerned, the same does not stand the test of doctrine of clean hands in the plea of the petitioner. It is the petitioner and other co-accused persons who have preferred to file miscellaneous petitions before this court as well as before Supreme Court resulting in the slow progress, the slow progress does not ipso facto forms a ground to reject the case of the prosecution.
23. The plea that the petitioner did not had a criminal intent or did not hatched criminal conspiracy as the FAR was already increased upto 250 vide judgment WP(C) 173 of 1988 are concerned the same ipso facto cannot be a ground to absolve the offender from the crime which has been committed. Moreover, the prosecution case is that they hatched criminal conspiracy to increase FAR upto 250-300. Here, Paragraph 26 of the Supreme Court Judgment in Amit Kapoor V. Ramesh Chander, MANU/SC/0746/2012 : (2012) 9 SCC 469 is relevant.
"26. This further raises a question as to the wrongs which become actionable in accordance with law. It may be purely a civil wrong or purely a criminal offence or civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction. In Indian Oil Corpn. V. NEPC India Ltd. this Court took the similar view and upheld the order of the High Court declining to quash the criminal proceedings because a civil contract between the parties was pending."
24. The plea of the petitioner that the prosecution in the present case is having insufficient evidence to bring home the conviction, therefore, to meet the ends of justice the impugned proceedings are required to be quashed is not convincing. The court below, on finding the prima facie evidence against the petitioner and co-accused persons framed the charges on 30.04.2008. It is not proper for this court to bring out the conclusion or guilt or conviction at this stage on the basis of the statement under Section 161, Cr.P.C. and other material documents placed on the record without cross examination having been done by the trial court as the same is subject of trial. The basis of the innocence or the guilt of the offender would depend on the evidence lead by either side with reference to the facts of the case.
25. In the present case, FIR/RC No. RC. AC 3/2003/A/0002/CBI/ACU-III was registered on the date 26.03.2003, and the prosecution in pursuance to the said FIR, collected the material evidence, the court below found a prima facie evidence against petitioner alongwith co-accused persons.
Once there is a prima facie case in the existence against petitioner, his allegation of malafide are of no consequence. The Paragraph 11 of Supreme Court Judgment in State of Orissa Vs. Saroj Kumar Sahoo, MANU/SC/2264/2005 : (2005) 13 SCC 540 is relevant:
"... It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings."
26. The admissibility of sequence of audio data would be determined on the basis of facts leading to its recording and preserving its originality as per the Indian Evidence Act before the trial Court subject to cross examination and there is no other method to adopt which could facilitate its evidentiary value otherwise.
Conclusion
27. As discussed above the plea of the petitioner that there is no certificate under Section 65-B of Indian Evidence Act cannot be accepted in presence of the certificate of Navdeep Singh Virk dated 07.06.2003 unless determined by the trial court. Therefore, in considerate view of this Court, reliance placed by appellant in judgments Anwar P.V. & Anr. Vs. P.K. Basheer & Ors., MANU/SC/0834/2014 : 2014 (10) AD (SC) 305; Ankur Chawla Vs. CBI, MANU/DE/2923/2014 : 2014 (10) LRC 96(Delhi); Anil Kumar Titu @ Anil Kumar Sharma Vs. State, Crl.A. No. 66/2013 is misplaced.
28. Judgments P. Sirajuddin etc. Vs. State of Madras, MANU/SC/0158/1970 : AIR 1971 SC 520; Ripun Bora Vs. State, W.P.(Crl.)882/2009, D.O.D. 07.12.2011; Vineet Narain Vs. UOI, D.O.D. 18.12.1997 fact in issue of these cases are different from the instant case, therefore such are of no help to the appellant.
29. Further, the plea of the petitioner that there is no substantial evidence on the record is concerned, same is not correct as the prosecution has already examined PW19-Mukesh Saini and is on the record. The plea of petitioner that sequence of audio data has lost its originality is concerned, the same is in the process of recording the evidence where the witness has to undergo the test of cross examination to establish its true position. Merely forming the opinion on the basis of the documents placed on record will not bring out the truth of the case. Therefore, reliance placed by appellant on the decision in judgments of Ashok Tshering Bhutia Vs. State of Sikkim, Crl.A. No. 995/2003 dt. 25.02.2011; R.P. Kapoor Vs. State of Punjab, MANU/SC/0086/1960 : AIR 1960 SC 866; Superintendent & Remembrancer of Legal Affairs West Bengal Vs. Mohan Singh, MANU/SC/0223/1974 : AIR 1975 SC 1002; State of Karnataka Vs. L. Muniswamy, MANU/SC/0143/1977 : 1977 SCC (Cri.) 404; Madhavrao Jiwjirao Scindia Vs. Sambhajirao Chadrojirao Angre, MANU/SC/0261/1988 : (1988) 1 SCC 692; State of Haryana Vs. Bhajan Lal, MANU/SC/0115/1992 : 1992 (Suppl) (1) SCC 335; Janta Dal Vs. H.S. Chowdhary, MANU/SC/0532/1992 : (1992) 4 SCC 305; Padal Venkata Rama Reddy@ Ramu Vs. Kovvuri Satnarayana Reddy & Ors., MANU/SC/0884/2011 : (2011)12 SCC 437; Satish Mehra Vs. State, GNCT of Delhi, MANU/SC/0993/2012 : AIR 2013 SC 506 is of no avail to him as prima facie evidence against the appellant and other co-accused is already on record which will be evaluated by the trial court in its proceedings. Moreover, the delay caused in trial is due to accused persons filing several cases in this court as well as in Supreme Court. Reliance is placed on Sandeep Sunil Kumar Loharia v. Sumeet Ganpatrao Bachewar & Anr., Crl.A. 1051/2018.
30. Nothing significant comes out from the plea of delay in trial by the petitioner to meet the ends of justice. Therefore, this court finds no ground to invoke Section 482 Cr.P.C. in present facts and circumstances of the case, the present petition is accordingly rejected.
31. However, anything stated in this petition would not affect the merit of the case in trial.
32. One copy of the judgment be sent to the trial court. LCR be sent back.
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