Full Text
HIGH COURT OF DELHI
PRITAM SINGH .....Appellant
Through: Mr. Manu Sharma, Sr. Advocate
Through: Mr. Yudhvir Singh Chauhan, APP for State
JUDGMENT
1. This application has been filed seeking suspension of sentence imposed upon the appellant during pendency of the appeal. The appeal was admitted by order dated 8th October 2024 and notice has been issued in the application.
2. The appeal was filed assailing the impugned judgment of conviction dated 26th September 2024 and impugned order on sentence dated 1st October 2024, passed by the Special Judge (PC Act) (ACB-01) CBI, Rouse Avenue District Courts. The appellant was convicted for offences under Section 7 and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (“PC Act”) and sentenced to 3 years and 4 years respectively, for each of these offences. Both sentences were to run concurrently. Appellant has been incarcerated for about four months, as per the Nominal Roll. Factual Background
3. The case of the prosecution is that on 8th July 2014, complainant/Vinay Tyagi of Kingsway Complex, Nirankari Colony, Delhi- 110009, filed a complaint at the Office of the Anti-Corruption Bureau (“ACB”), alleging that he had applied at the Office of SDM Civil Lines, for permission to repair four rooms of a school situated at the village of Jharoda, Majra Burari, Delhi. The Block Development Officer (“BDO”) of the area, Shri Madan Lal, had instructed him to contact the Panchayat Secretary (the appellant), who demanded Rs.10 lakhs for granting permission for repair. The complainant alleged, he showed his inability to fulfil the demand and was threatened by both, the BDO and the appellant. In order to prevent the demolition, he filed an application before the court for stay, but demolition of the under-repair rooms of his school started. He alleged, that appellant stated that, if complainant could not fulfil the demand of illegal gratification, the appellant would demolish the school completely. As per the complaint, he agreed for taking Rs.[3] lakhs and demanded that Rs.1.[5] lakhs be paid on 8th July 2014; on this basis, the complaint was lodged.
4. On receipt of the complaint, a raiding team was constituted, a trap was laid in the parking area of Tis Hazari. As per the prosecution, the appellant was caught red-handed while demanding and accepting Rs.1.[5] lakhs cash, from Rajat Tyagi, son of the complainant, in presence of witnesses; FIR No. 54/2014 was registered. During investigation, righthand wash of the appellant was taken and the same was sent to FSL for expert opinion. The FSL report confirmed the presence of phenolphthalein and sodium carbonate. After completion of the investigation, the sanction under Section 19 of the PC Act was obtained from the competent authority; charge sheet was submitted. Trial ensued and the impugned orders were passed. Submissions on behalf of Appellant
5. Senior Counsel for appellant, essentially argued on these aspects; firstly, that the demand and acceptance was not proven; secondly, there was non-identification of the appellant by the complainants; thirdly, there was no occasion to demand or give any bribe; and fourthly, the best evidence was not procured by the prosecution.
6. A sequence of dates was presented. On 24th June 2014, there was demolition at the school of the complainant, post-receiving complaints from villagers of village Jharoda, that the school was built on a Gram Sabha land and the complainant was conducting construction activities in the garb of repair. Demolition was accordingly, carried out under orders of ADM (Central) dated 13th June 2014. On 21st June 2014, a civil suit had already been filed by the complainant before ADJ, Tis Hazari Courts. After the said demolition on 24th June 2014, the complainant obtained a stay order of any further demolition on 27th June 2014. It was submitted that post the passing of the stay order, there was no occasion for the BDO to have demanded any bribe or for the complainant to have agreed to give any bribe amount. Despite that, the complainant filed a police complaint against the BDO on 8th July 2014, about 15 days after the demolition and obtaining the order of stay.
7. As per the case of the prosecution, when complainants first met the BDO on 8th July 2014, he refused any help, saying that he had been transferred. The BDO not being in a position to give any assistance, the occasion to give a bribe to the appellant, would not arise.
8. Senior Counsel for the appellant stated that it was a sine qua non for establishing guilt under the PC Act provisions, to prove beyond reasonable doubt, the demand and acceptance of illegal gratification, however, which had not been proven and the appellant is liable to be acquitted.
9. PW-6, Vinay Tyagi, the complainant, and PW-10, Rajat Tyagi, son of the complainant, who allegedly formed part of the raiding team, did not identify the appellant as the person who was demanding the bribe at the instance of BDO Madan Lal. PW-6 deposed before the trial court, that the person who made the demand, was not the appellant and in fact some other Pritam @ Pappu, allegedly a ‘tout’ of BDO Madan Lal.
10. PW-10, Rajat Tyagi, deposed that the person who demanded the bribe from his father, and the one who met him at Burari Pusta, was some other person. Accordingly, the role of the appellant was limited to the person who was sent to the parking to collect the bribe amount. There being no connect between the demand and the collection, offences under this action could not survive.
11. PW-10, in his deposition, stated that when the appellant came to the parking, he “thought” that the appellant was there for the bribe amount but in fact, did not explicitly make any demand.
12. Senior Counsel for the appellant further stated that there are serious contradictions in the testimonies of PW-7 (alleged independent witness), and PW-11 (the raiding officer). Further, PW-4 (member of the raiding party), ASI Mohanan, stated that the bribe amount was recovered from the appellant at the second floor of the SDM office, from the room of the appellant, whereas, the case of the prosecution was that it was recovered at the parking itself.
13. Senior Counsel for the appellant also submitted relating to the conduct of the complainant. The permission to repair had been moved by the complainant on 24th May 2014 and was not granted. The question hangs as to why he started repairing, irrespective.
14. It was also submitted that there was neither any recording device, nor CDR records, nor cell tower locations, to corroborate any of the allegations. No CCTV footage was obtained considering the alleged recovery took place at the SDM office at Tis Hazari. No independent witness was examined for the crowd. All these aspects had been admitted by the IO in the deposition before the trial. This evidence, which could have been easily procured, has not been procured in order to falsely implicate the appellant. Submissions on behalf of State
15. Additional Public Prosecutor (“APP”) appearing on behalf of State countered the aforesaid submissions and opposed grant of bail in the present matter, as the offence committed by the appellant and co-accused persons is serious in nature. The APP for the state submitted that the sentence was for 4 years plus fine and only 4 months of custody have been undergone. The appellant had been caught red-handed and the solution, as per the FSL, had turned pink. PW-6, PW-10 and PW-7 corroborated the entire story. Argument of the appellant was dealt with in the impugned judgment, in particular at para 15 onwards, which connected the aspect of demand, acceptance and recovery. There was a presumption under Section 20 of PC Act, which is extracted as under: Analysis
16. A perusal of the statement of PW-6, the de facto complaint, Vinay Tyagi, recorded on 10th June 2022, has been perused by this Court. He clearly states that BDO Madan Lal, had asked him to contact his ‘tout’ Pritam Singh, which ‘tout’ demanded Rs.10 lakhs, to allow the construction and repairs. After the demolition, he again talked to the ‘tout’ Pritam who said that the entire building would be demolished if he will not give the gratification. PW-6 further stated, that he then gave Rs.[2] lakhs to the ‘tout’ Pritam Singh in presence of BDO Madan Lal. Thereafter, he filed a civil suit and the demolition was stayed by the court. After the stay order, he again visited the office of the BDO Madan Lal, who again told him to talk to his ‘tout’ Pritam. The demand was then made by Pritam, asking for Rs.[5] lakhs, which was made in presence of BDO Madan Lal.
17. The agreement was made to pay Rs.1.[5] lakhs and BDO Madanlal had asked the ‘tout’ to talk to him and fix the date and payment of the bribe money. PW-6 insisted that he would pay the bribe amount only to BDO Madan Lal, at which stage the ‘tout’ said that somebody else can be sent to pay the bribe amount. PW-6 then sent his son with the bribe amount. The information was given by the complainant to the ACB.
18. It is noted that PW-6 testifies in court that, “The tout Pritam Singh is not present in the court”, however, the person who was apprehended by the ACB is present in Court, as his son told him that “Madan Lal ne paise nahi pakde aur kaha isi ko de do”.
19. Testimony of PW-10, son of PW-6 and who had been sent to give the money during the trap, testified that the appellant, who was present in court, had come to him in the parking to whom he handed the bribe amount of Rs.1.[5] lakhs. However, he did state that, “The person with whom talks regarding bribe took place was some other person and not the accused.” Thereafter, he stated that when they went to Tis Hazari and met BDO Madan Lal, he stated that he was transferred from there and cannot do anything. The ‘tout’ Pritam then told him that “saab apse baat nhi karenge” and asked him to wait in the parking. After some time, the appellant came in the parking and told him that he was sent by BDO Madan Lal and asked to hand over the money to him upon which he was apprehended.
20. Senior counsel for the appellant is not wrong, in submitting that as per the testimony of PW-6 and PW-10, the appellant present in court, was identified as the person who had received the money in Tis Hazari parking on behalf of the BDO. The demand, though was made by the BDO through a ‘tout’ Pritam. There seems to be an issue of identification here, which may be critical to the assessment of the matter.
21. As per what is noted above, both PW-6 and PW-10 state categorically, that the person who had made demands on behalf of the BDO, i.e. ‘tout’ Pritam Singh, was not present in court. Prima facie this could lead to a possibility that the ‘tout’ Pritam Singh, through whom the demand was made, was different from the appellant who physically received the money. The submission, therefore, by senior counsel for the appellant that the appellant was not involved in the demand of illegal gratification on behalf of the BDO, but was at best only sent there to receive the money, potentially may have merit.
22. It does appeal to the Court that there was no reason to pursue the issue of illegal gratification, pursuant to getting a stay order from the court. However, there could be many circumstances which might have triggered the continued demand, and it is not for the Court to assess it, at this stage. The fact that complaint was potentially involved in illegal activity of construction / repair on Gram Sabha land, over which complaints had been lodged by the villagers, is also a factor to consider. It is argued that the allegation against the BDO was possibly made, since they had implemented the ADM’s order regarding the demolition. Also, various aspects relating to the lack of CCTV footage, CDRs, location records or lack of any recording devices and lack of independent witnesses, is also to be considered at the stage of the final assessment during the adjudication of the appeal.
23. It is surprising that the BDO is not an accused in the matter, since, even as for the testimonies of PW-6 and PW-10, the illegal gratification demand was made by the BDO and the money was accepted on behalf of the BDO.
24. It is also noted by the Court that the appellant was on bail all through 2014-2022, while trial was going on; has no previous involvements, and his jail conduct, even during incarceration, has been satisfactory.
25. In these facts and circumstances, the Court is of the opinion that the unexpired portion of sentence being only three and a half years and there being no possibility of the appeal being heard in the near future, the appellant is granted suspension of sentence.
26. It is therefore, directed that the sentence of the appellant be suspended pending the hearing of the appeal, on furnishing a personal bond in the sum of ₹25,000/- with one surety bond of the like amount, subject to the satisfaction of the Trial Court/ CMM/ Duty Magistrate, further subject to the following conditions: i. Appellant will not leave the country without prior permission of the Court. ii. Appellant shall provide permanent address to the Trial Court. The appellant shall intimate the Court by way of an affidavit and to the IO regarding any change in residential address. iii. Appellant shall appear before the Court as and when the matter is taken up for hearing. iv. Appellant shall provide all mobile numbers to the IO concerned which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the IO concerned. v. Appellant shall not indulge in any criminal activity and shall not communicate with or come in contact with the complainant/victim or any member of the complainant/victim’s family or tamper with the evidence of the case.
27. Needless to state, but any observation touching the merits of the case is purely for the purposes of deciding the question of suspension of sentence and shall not be construed as an expression on merits of the matter.
28. Accordingly, the application is disposed of.
29. Copy of the order be sent to the Jail Superintendent for information and necessary compliance.
30. Judgment be uploaded on the website of this Court.
JUDGE DECEMBER 23, 2024/SM/na