Full Text
HIGH COURT OF DELHI
20354/2024, CRL.M.A. 20355/2024, CRL.M.A. 26051/2024, CRL.M.A. 26052/2024
ANIL DUTT SHARMA
S/o Late Mr. B.D. Sharma R/o B-14(G-1) Dilshad Garden
Delhi-110053. ..... Petitioner
Through: Mr. Manoj Kumar Dwiwedi and Ms. Shabana Chaudhary, Advocates
Through: Mr. Rahul Tyagi, APP for the State
Corruption Branch.
JUDGMENT
1. A Criminal Writ Petition under Article 226 of Constitution of India read with Section 482 Code of Criminal Procedure, 1973 (“Cr.P.C., 1973” hereinafter) has been filed to set aside Order dated 06.03.2023 of learned Special Judge in case FIR No. 51/14 PS Anti-Corruption Bureau.
2. It is submitted that the petitioner/accused had moved an Application before learned Special Judge to summon 11 witnesses in his defence, but only 3 witnesses at Sr. No.7, 8 and 11 namely Jitender, Neeraj Goel and Rajinder Sharma have been allowed to be summoned.
3. The petitioner states that he was arrested at 2:35 PM in Seelampur on 26.06.2014 without due process of law and his mobile phone was snatched by the Police Officials from which the phone calls were made to the MCD officers. It is submitted that after impersonating the petitioner, the said Police Officials trespassed into his house, from there entire articles and material were taken away by the police officials and subsequently, the petitioner was taken to ACB Police Station, where FIR was registered against him at 07:00 P.M. It is further alleged that the calls made by the Police Officers to MCD officials were attributed to the petitioner. The Chargesheet was filed on 20.08.2014 based on the allegations that petitioner had obtained a bribe for the property pertaining to File No.385/B/SH-N/11 dated 29.12.2012. However, in the Supplementary Chargesheet dated 27.05.2015 the said property was withdrawn and it was stated that the property belonged to File No.74/B/SH-N/11 dated 13.02.2014 for which the petitioner had obtained the bribe.
4. The witness Vinod Kumar Agarwal sent a reply dated 21.04.2014 to Anti Corruption Branch in reference to Notice under Section 160 Cr.P.C. vide reference No.3868/FIR-60/14/Rs/ACB dated 15.04.2014.
5. Two members of PCA vide Order dated 21.04.2017 had directed the Police to register separate FIRs against the Police Officers of ACB and directed further investigations.
6. The petitioner made a request for the audio recording on which the police had not relied, but the same was denied by the learned Special Judge vide Order dated 26.04.2017. However, the petitioner obtained a Reply in RTI which reflects that these documents and audio recordings are relevant for present trial.
7. The Application under Section 91 Cr.P.C. filed by the petitioner was disposed by the Special Judge by Order dated 27.05.2022 with the directions that DD Register dated 24.06.2014 of P.S. ACB and the log book dated 24.06.2014 in regard to vehicle No. DL1YC0853 be summoned from P.S. ACB.
8. Thereafter, the petitioner filed the Application dated 03.03.2023 before the Special Judge and sought summoning of eleven witnesses in his defence, but vide the impugned Order dated 06.03.2023 only three witnesses have been allowed to be summoned. The petitioner has claimed that the other witnesses who have been declined are equally important for him to establish his defence.
9. The petitioner has challenged the impugned Order on the ground that while the Court is the Master of the proceedings and must determine as to whether the Application filed by the accused for brining relevant material is required but ordinarily an accused should be allowed for obtaining the assistance of the Court in regard to the summoning of witnesses etc. as has been observed by the Apex Court while discussing the scope of Section 243 (2) Cr.P.C. in T.Nagappa vs. Y.R. Murlidhar (2008) 5 SCC 633. Further, reliance is placed on Ashutosh Verma vs. CBI 2014 SCC OnLine Del 6931 that the accused can ask for the document that have been withheld in his defence or else he would not be able to defend himself properly.
10. The petitioner has contended that all the witnesses who have been declined to be examined are significant for him to prove his defence. Hence, the prayer is made that the impugned Order be set aside and he be allowed to examine all the eight remaining witnesses in his defence.
11. The respondent in its Status Report explained that on 24.06.2014 Complainant Joginder Singh approached AC Branch/GNCTD along with his written Complaint, wherein it was alleged that one Anil Dutt Sharma posing himself as JE/MCD/Shahdara has made a demand of bribe of Rs.1,00,000/from him for providing protection with regard to construction activity being carried out by him at 1/6801, East Rohtash Nagar, New Delhi. A trap was laid and raid was conducted by the team of AC Branch officials led by Insp. Pankaj Sharma. The accused was caught red handed on the spot demanding and accepting bribe of Rs.[1] lakh and consequently FIR No.51/2014 dated 24.06.2014 under Section 8 POC read with Section 419/120B IPC P.S. Anti Corruption Branch was registered.
12. During the investigations it was found that the petitioner was not a Government Servant but was impersonating himself as JE/MCD. After completion of investigation, Sanction under Section 19 of POC Act was obtained from the Competent Authority and the Chargesheet was filed in the Court on 21.08.2014. Charges were framed on 10.07.2017 and the evidence of the prosecution was concluded on 28.09.2022. The Statement of the accused was recorded on 28.09.2022. At this stage the petitioner filed an Application for summoning of eleven defence witnesses, out of which 3 defence witnesses have been allowed. The respondent submits that they would abide by the Orders as made by the Court.
13. Submissions heard.
14. The first witness to be summoned by the petitioner is the Duty Officer ACB Vikas Bhawan-II. The petitioner has explained that he intends to confront the Duty Officer with: (i)RTI I.D. No.6033/ID no.75/2022/RTI/ACB dated 15.07.2022and CD referred therein;
(ii) In RTI reply No.10715 dated 06.12.2022 it has been disclosed that there is no Circular/Standing Order issued to the ACB regarding taking currency notes from the complainant without making D.D. entry and no such occasion was informed when raiding officer had taken currency notes without making D.D. entry in the month of June 2014.
(iii) That all the duties regarding arrival and departure of police officers are recorded in Roznamacha as per duty roaster as informed in RTI reply dated 17.08.2022; and
(iv) That on 24.06.2014 no complaint was received in the Complaint Section from PW[1] as disclosed vide ID No. 345/ID-159/2021 dated 18.01.2022.
15. The learned Special Judge has rightly observed that the replies received in the RTI, could very well be proved by the petitioner in his testimony. It has further been rightly observed that the Duty Officer has been summoned by the Court vide Order dated 27.05.2022 and the DD entry sought to be produced are already exhibited in the examination/crossexamination of PW54. The witness had copy of DD No.29 in his possession, with which he could have confronted PW54 as he had done in respect of all other DD entries and there was no ground for permitting the examination of DW[1], the Duty Officer. He was rightly disallowed to be summoned as DW[1].
16. The second witness is I.O of FIR No.60/2014 ACB along with the statements made by the complainant Vinod Kumar Agarwal in response to the Notices under Section 160 Cr.P.C. The learned Special Judge has rightly observed that this witness Vinod Kumar Agarwal has already been examined as PW[1] and has rightly declined his examination.
17. The third witness is the Record Keeper, Police Complaint Authority to produce the directions passed in the Meeting dated 21.04.2017 and 22.11.2017.
18. The learned Special Judge has observed that the documents sought to be produced by this witness were merely meeting Notices issued by Dy. Secretary of PCA and certain directions were passed for enquiry into the allegations made by petitioner against the IO and others. As rightly observed, these Notices were not relevant for the purpose of the adjudication of the culpability of the petitioner which is the subject matter of the trial.
19. The fourth witness was the Inquiry Officer of Complaints made by the petitioner to ACB, which has also been rightly declined by observing that aside from seeking the Enquiry Report, the purpose for which the Enquiry Officer was sought to be summoned was not even disclosed to determine the relevance of the said witness.
20. The fifth witness was Shalini Nayar, Reporter of Indian Express along with the photographs of petitioner taken by the Cameraman on 24.06.2014 and published in Newspaper between 24.06.2014 to 30.06.2014. Again, these photographs were published in the newspaper. The learned Special Judge has rightly observed that this witness is absolutely unnecessary as the petitioner has admitted in his examination-in-chief as DW[1] that he went to the spot when called by the Complainant and from there he was apprehended. The petitioner has no basis to claim that the Reporter was physically present at P.S. Seelampur on the date of trap or any other place. He has already cross-examined the prosecution witnesses who were the members of Raiding Team at length and whatever were the contradictions would enure to his benefit.
21. The sixth witness JE Shri Vinod Kumar Sharma, Shahdara North was sought to be examined to prove that prior to approval of Site Plan, inspection was conducted. It was well within the knowledge of PW[1] that petitioner is not the JE. As rightly observed, the PW[1] in his crossexamination by the accused has admitted that he knew him for more than one year prior to the raid and consequently, his summoning was not relevant.
22. The seventh, eighth and eleventh witnesses have already been allowed to be summoned by the petitioner.
23. The ninth witness was Inspector Jai Bhagwan claiming that in the year 2011 a rape case was registered against him. This Inspector was posted in P.S. Seelampur and was a friend of the complainant of the present case. It has been rightly observed the learned Special Judge that there was no cogent reason given for summoning this witness.
24. Likewise, the tenth witness Shri Ajay Jain sought to be summoned to prove some video recordings pertaining to some incident of 2020 at Chauhan Banger Pulia, which again was not explained to be relevant for the trial.
25. As observed, the learned Special Judge in detail had considered the relevancy of each witness that was sought to be summoned and has given detailed reasons declined to summon the witnesses except those mentioned at Sr. No.7, 8 and 11.
26. There is no infirmity or illegality in the impugned Order dated 06.03.2023 of the learned Special Judge. Therefore, the present petition, along with the pending Applications, is hereby dismissed.
JUDGE SEPTEMBER 30, 2024