Full Text
SHIV DUTT BAKSHI ..... Petitioner
Through: Ms.Geeta Luthra, Senior Advocate with Mr.Nitin Saluja, Ms.Shivani
Luthra Lohia, Ms.Kamakshi Gupta, Mr.Ankur Sinha, Mr.Manas Aggarwal, Ms.Poonam
Dangi, Mr.Saahil Mongia, Advocates.
Through: Mr.Nikhil Goel, SPP and Mr.Kartik Kaushal, Advocate.
JUDGMENT
1. The present petition for quashing under Section 482 Cr.P.C. is preferred against an Order dated 02.03.2020, passed by the learned Spl. Judge (PC) Act, CBI-12,RADCC, New Delhi arising out of RC No.11(A)/2017/SCUV/SC-II/CBI/New Delhi, whereby the Ld. Special Judge rejected the closure report No.11/2019 in present case, wherein admittedly, the original device through which the alleged sting operation was conducted was destroyed and could not be procured during the investigation. It is alleged the Hard disk containing the video footage, allegedly transferred from the original device, was also opined to be a Signing Date:03.03.2023 17:17 'bad media' and thus not admissible as evidence in terms of law laid down in Anvar P.V vs P. K Basheer and Others (2014) 10 SCC 473 and Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and Other (2015) 3 SCC 123. It is argued the summoning order is liable to be quashed.
2. The facts are as under: a. on 17th and 18th July 2016, a private news Channel called Samachar Plus aired on national broadcast an alleged sting operation. The operation was allegedly carried out and recorded by a journalist Pt.Auysh Gaur (Deputy Director, Samachar Plus) allegedly through a customized i-phone spy camera between March 2016 to May 2016 allegedly exposing the manner in which rules were being flouted in Dr.Karni Singh Shooting Range("KSSR"), in return of cash and gifts, to facilitate shooting practice by potential shooters. One such recording dated 15.05.2016 allegedly contain footage of the Petitioner accepting an alleged amount of Rs.1.00 Lakh in cash and a bottle of liquor from the reporter who posed as a young shooter wanting to utilize the shooting range facilities. It is apposite to mention it is an admitted case of the prosecution that Pt.Ayush Gaur in his statement under Section 161 Cr.P.C. has admitted the petitioner had never demanded any amount for any purpose either before 15.05.2016 or at any point in time. It is further the case of prosecution itself the recording was edited by the producer for the purposes of the telecast. On the basis of the aforesaid telecast, an internal inquiry was conducted by the Sports Authority of India (hereinafter as 'SAI') and the SAI sought video footage from the news channel on 18.07.2016. The news channel allegedly loaded the video footage from the hard-disk in two CD's containing, one raw audio visual footage and second server copy of the telecast footage of the programme "Operation Arjun" and handed over the CD's through a token on 11.08.2016. Thereafter, SAI forwarded the two CDs to CFSL, Chandigarh on 20.07.2016. Without waiting for the CFSL result and after the delay of approximately seven months from the date of the telecast of the so called sting, on 02.03.2017, a complaint was filed by the Chief Vigilance Officer, SAI to the Central Bureau of Investigation against the Petitioner, alleging a Hindi news channel called "Samachar Plus" conducted a sting operation titled "Operation Arjun", wherein it was shown the petitioner was accepting a cash bribe of an alleged sum of Rs.1,00,000/- from the media reporter of the news channel, who posed as an individual interested in using the training facility to become a renowned shooter. Accordingly, on 09.08.2017, an FIR bearing No.RC/11(A)/2017/SCUV/SCII/CBI/New Delhi was lodged against the petitioner under Sections 7,13 (2) r/w S.13(1)(d) of the Prevention of Corruption Act; b. consequently, on 05.09.2016, CFSL Chandigarh submitted its report in which it was admitted the parcels containing two DVD received by them in an unsealed condition making them open to tampering and inadmissible. The CFSL Chandigarh further opined video recording of one video (C- l) is in continuity. Further, they opined the video recording of the video file "1707 Stingserver.Mpg" present in Ex.C[2] is not original recording and it is an edited version. Thus allegedly these CDs, which contain the audio/video of the alleged sting are not the primary evidence. Furthermore, the CDs were prepared and supplied by the News Channel to Sports Authority of India in an unsealed condition. It is pertinent to mention CFSL report dated 05.09.2016 refers to 21 video clips, however, there are only 13 clips, out of which 3 does not pertain to KSSR. The video clip IMG No. 2752 does not concern the Petitioner in any way. The Clip No.005I/MG_2757 pertain to NRAI. Furthermore there are various duplications in the CD'S. Therefore, keeping in view of the infirmities in CD/DVD it is alleged the same cannot be admissible in evidence in terms of the law laid down in Ram Singh and Others vs. Col Ram Singh 1985 (Supp) SC 611; c. during the investigation the Respondent on 22.12.2017 sealed one Hard disk, which was initially sent on 13.04.2018 to CFSL, New Delhi and to CFSL Chandigarh, but they refused to take the hard disk and intimated they require the original device through which the sting operation was conducted. Thereafter, Ex.C[1] hard disk was forwarded to CFSL, Hyderabad on 17.04.2018 for an opinion and after examining the hard disk it gave an opinion "the above hard disc appears to be a bad media and could not be identified/accessed.As such the physical backup or preview (if the data available in the media could not be performed for carrying out analysis); d. after conducting its investigation and examining the tainted material i.e. the alleged video footage and recording available, the Investigating Officer filed a Closure Report dated 30.09.2019 before the learned Special Judge on following grounds:
(i) There is no independent evidence except the video clipping in question, which can substantiate the demand acceptance of bribe and the liquor Bottle by Shiv Dutt Bakshi.
(ii) There is contradiction in the amount paid as bride money.
Initially, it was stated to be Rs. 1,00,0001- (Rupees One Lakh Only) however letter on the said about was told to be Rs. 60,000/- (Rupees Sixty Thousand Only).
(iii) The alleged bribe money and the bottle of liquor could not be recovered during the course of Investigation searches were also conducted at the initial stage but to no avail.
(iv) The original device through which the sting operation was conducted could not be prepared during the course of Investigation. The editor of the News Channel Sh. Umesh Kumar has taken the plea that the said device iPhone has been physically destroyed and disposed of in a routine exercise (v) 02 CD's with respect to sting operation were collected by the Sports Authority of India (SAI) and were also sent to CFSL Chandigarh for examination CFSL could not provide definite opinion on the CD's as the recording were not original however there was no sign offering audio/video contents. Voice sample of accused Shiv Dutt Bakshi was collected by CBT during the course of Investigation but the same was of no use due to the above.
(vi) The motive behind the Crime could not be established beyond reasonable doubt during the course of Investigation. There is no enough evidence which could establish the reporter PT. Ayush Gaur was to be provided facilities by the accused at Dr Kami Singh shooting Range, Delhi.
(vii) The accused has taken defence that he had offered to sell a rifle to Pt. Ayush Gaur which was to be imported in the name of the son of the accused namely Sh. Yajat Dutt Bakshi. S. Yajat Dutt Bakshi is an established shooter. However, Pt. Ayush Gaur, claimed that the rifle was offered for practice only in return of Rs.[3] Lakhs, till the time he does not get weapon license from the government and Pt. Ayush Gaur had agreed for the deal.
(viii) However, the investigation revealed that the conduct of accused of Shiv Dutt Bakshi was unbecoming of a Govt. Servant in as much as he had agreed to accept cash from the Reporter or a bottle of liquor as seen in the sting video recording for which the accused Shiv Dutt Bakshi has already been punished by SAI by compulsory retiring him from the service on 19.07.2018.”
3. Despite the closure report the petitioner was summoned per reasoning as below in the impugned order: “13. In regard to the contradiction of handing over of cash of Rs. 1 lac to Ayush Gaur which was to be further handed over to the Mr. Bakshi, the Court is unable to understand as to what is the contradiction in the statements of Ayush Gaur and Honey Jain. Ayush Gaur claims to have received cash from Honey Jain which fact Honey Jain does not expressly deny. Even if Honey Jain did not admit to handing over cash to Ayush Gaur, he admits that he handed over to Ayush Gaur an envelope which seemed to contain cash. There is no denial from Umesh Kumar that he gave cash to Honey Jain to be handed over to Ayush Gaur for the purpose of sting operation. In any case, accused has not even denied accepting money from Ayush Gaur but has only justified the same in his statement stating that amount of Rs.[1] lac was taken by him for sale of rifle however the same was later on shown by Ayush Gaur in the channel as corruption.
14. In regard to the absence of primary evidence of audio-video recordings, there is no dispute that the CD's were handed over by the news channel to the SAT. The Investigating Officer has not doubted that SAI has done any manipulation of the CD's before handing them over to the CBI. The FSL Chandigarh report regarding the raw audio-video footage i.e. recordings of the meetings between Ayush Gaur and Mr.Bakshi confirms that there is no editing in the audio-video footage. Thus even if the primary evidence is not available i.e. the source from which original recordings were made. Indian Evidence Act permits leading secondary evidence. In so far as report of FSL Hyderabad is concerned to which the hard disc seized by CBI from Samchar Plus was sent but which could not be played due to the same being "bad media", the report of FSL Chandigarh is still sufficient to prove the authenticity of the raw audio-video footage which is the most relevant evidence to prove that Mr. Bakshi accepted cash and liquor and thus abused his position by committing misconduct as the Administrator of the shooting range. The observation of IO that there is no independent witness to the acceptance of cash and liquor by Mr.Bakshi is baseless since Pt. Ayush Gaur himself will be the most competent witness for the prosecution since he expressly stated in his statement that he handed over cash and liquor to Mr. Bakshi which assertion will be corroborated by the video footage.
15. Further, in regard to the non-availability of the original recording device i.e. the spy i-phone used by Ayush Gaur for recordings, it needs a highlight that IO seems to be giving undue weightage to the letter dt. 3.10.2017 written by Praveen Kumar, Executive Editor of Samachar Plus. The letter furnished gives no proof at all that the recording device used for the sting operation of the present investigation was the one which was handed over by Ayush Gaur to CBI on 9.5.2016 in connection with PE.01(A)/2016/AC-I. There are no details of the IMEI number of the mobile phone which was handed over to the CBI on 9.5.2017 nor are there any details to match the same with the recording device used for the present sting operation. Ayush Gaur in his statement had clarified that he and other reporters used to use the spy i-phones in rotation for various operations/recordings. Strangely enough, on one hand the IO is relying on the letter sent by Praveen Kumar with regard to deposit of spy i-phone on 9.5.2017 and then also accepting the (contradictory) statements of Umesh Kumar to the effect that he has lost/destroyed the recording device. There is no investigation with regard to recording statement of the 10 of PE.01(A)/2016/AC- I. CBI.
16. The most significant part of the investigation is that the audiovideo footage confirms the presence of Mr. Bakshi. His voice and presence has been recognised by Shri Rajiv Sareen, an official who has worked with Mr. Bakshi. However, IO seems to be relying more on the fact that FSL could not identify his voice. Once there is a reliable witness who can identify the voice of the accused as also confirm his physical presence from the footage, there is no need to give weightage to inability of FSL to identify the voice of accused.”
4. The learned senior counsel for the petitioner argued the cognizance taken by the learned Trial Court is bad since a) there was no sanction accorded by the competent authority to proceed against the petitioner herein; b) there was absolutely no evidence against him; as the primary and secondary evidence is distorted since the iphone used for recording was run over by other recordings and at best is a tainted evidence; c) there is no case of demand as admittedly the payment was made to the petitioner for obtaining a gun; and d) the petitioner having been exonerated in departmental enquiry.
5. Qua a) above the learned senior counsel for the petitioner argued: the closure report was filed on 30.09.2019; the petitioner retired on 19.07.2018; the Prevention of Corruption Act (amendment) came into force w.e.f. 26.07.2018 and the cognizance was taken on 02.03.2020, thus, since cognizance was taken after amendment without sanction, the cognizance is bad.
6. Reference was made to Dr.Anil Kumar Shukla vs. Central Bureau of Investigation, through SP, ACB Lucknow Case No.3076/2019 and in S.V.Kalesan vs. The State of Kerala and Ors. in CRL.M.C.5365/2013 MANU/KE/1470/2021 to say the date relevant for considering the necessity of sanction is the date on which cognizance is taken and thus in its absence the FIR need to be quashed. However, in Vinod Kumar Asthana vs. Central Bureau of Investigation in W.P.(CRL.)643/2019 decided on 11.10.2022, it was held:
Thus, contention a) cannot be accepted.
7. Qua b) above it is argued there is no voice identification; no original or secondary evidence on record; all iphones have since been destroyed; the CD is bad media, hence not readable. Further, the CD was not sent in a sealed condition to the CFSL as admitted in the report of Chandigarh CFSL and rather the report clarifies the video recordings of all the video files (21 files) present in Ex. C[1] are in continuity and the video recording of all the video files "1707 Stingserver. Mpg" present in Ex.C[2] are not original recording and are an edited version.
8. The statement of Mr.Umesh Kumar recorded on 02.05.2019 is also relevant:- Q- Why you did not supply the original I-phone to CBI in the instant case? Ans- As stated earlier, we used to delete the data from the I-phones after transferring it to official hard disc. Further, the sting operation pertained to the year 2016 and CBI sought the data in year 2018 so as such it was not practically possible that the said data could have been present in the phones. Apart from this, it is our routine to dispose of our phones after one year.
9. In Ram Singh and Others vs. Col Ram Singh 1985 (Supp) SC 611, it was held:-
28. This Court had the occasion to go into this question in a few cases and it will be useful to cite some of the decisions. In Yusufalli Esmail Nagree v. State of Maharashtra [1967] 3 S.C.R. 720, this Court, speaking through Bachawat, J. Observed thus: "If a statement 'is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with. The tape was not sealed and was kept in the custody of Mahajan The absence of sealing naturally gives rise to the argument that the recording medium might have been tempered with before it was replayed."
32. Thus, so far as this Court is concerned the conditions for admissibility of a tape recorded statement may be stated as follows: (1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise 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 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 con text 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) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
10. In Regina vs. Stevenson 1971 (1) WLR 1 it was held once the original is not available, the Judge is left with no alternative but to reject the evidence. In Sanjaysinh Ramrao Chavan (supra) the Hon'ble Supreme Court held when the voice recorder is itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no authenticity for the translation. Source and authenticity are the two key factors for an electronic evidence. In Srichand P. Hinduja & Ors State through C.B.I 2005 SCC OnLine Del 676 this Court held in absence of original documents, neither forgery can be proved nor order of framing of charge can be sustained. In State V. Mukesh Kumar Singh (2018) 248 DLT 564, it was observed destruction of the equipment implies a conscious decision to render the equipment unavailable. Further an adverse inference is bound to be raised if such equipment were to be brought before the forensic experts or the investigating agency or the court, its testing would not have affirmed its use for the purposes claimed. This would have a direct bearing on the authenticity or credibility of the material which is shown to be the product of the concerned device.
11. Admittedly, the DVDs were supplied in an unsealed condition by News Agency to SAI and then in similar condition to CBI. CDs were received by Mr. B.K. Vaid (office Supdt.) and he stated he forgot to take envelope to seal with him.
12. Another issue is of voice identification. No opinion could be given by the CFSL on the voice specimen of Shiv Dutt Bakshi due to unavailability of the original hard disk. The voice and presence of Shiv Dutt Bakshi was only recognized by Shri. Rajiv Sareen. In Jatinder Pal Singh vs. Central Bureau of Investigation 2022 SCC OnLine Del 135, this Court held in the absence of a forensic analysis and report or for that matter, any other certifying instrument pertaining to the authenticity of the voice recording in question, it is not unreasonable to conclude the prosecution's case at trial would be materially impacted.
13. The original source of the CD is also not known and the CBI in Chapter 18 of the CBI manual prescribe the procedure for the protection of the original record. It was never followed in the present case. The CFSL report dated 05.09.2016, allegedly contain 21 video files, however, on simply counting it, it is evident there were only 13 video files, out of which 3 does not pertain to KSSR and there is tampering / editing / duplication of the audio-video.
14. Furthermore, no certificate under Section 65B of the Indian Evidence Act was produced by any witness to certify the authenticity and reliability of the CDs.
15. The said CDs were allegedly received by BK Vaid, Office Supt. (Retd) on 28.07.2016 by hand from the New Channel, while the token of receipt of the CD was supplied by the News Channel to SAI on 11.08.2016.
16. Hence, the fact the CD could not provide a definite opinion as originals were destroyed and were unsealed, hence tampering could not be ruled out and thus the prosecution based on such a lukewarm evidence would be nothing but an abuse of process. Contention b) thus has force.
17. Lastly qua c) and d) above, I may here refer to the statement of Pt.Ayush Garg, recorded by the CBI, who stated he was asked by the Editor–in – Chief to offer some gifts in kind or cash during the discussion with the petitioner and he gave a bottle of liquor to the petitioner on his own and there was no demand. Pt. Ayush Garg, the person who allegedly gave cash bribe to the petitioner himself admitted in his statement under Section 161 Cr.P.C. the petitioner had never demanded any amount from him nor there was any acceptance or recovery of any bribe amount from the Petitioner. Following answers given by him to queries raised by the CBI are relevant:- Q,8. Did Sh. S.D. Bakshi demand any amount from you? If yes, when did he demand the money and what was the purpose for which he demanded the money from you? Ans. When I handed over Rs.1lakh to Sh. S.D, Bakshi on 15.05.2015 before that he never demanded any amount for any purpose but after handing over the money Sh.S.D. Bakshi quoted the amount of Rs. 3 Lakh as cost of the riffle which was to be settled between us for obtaining the imported gun. However, no payment was made by me to him against this settlement as I did not continue the operation as per direction of Editor-in-Chief.
18. Further para 1 of letter dated 02.03.2017 received by the Secretary of Sports Authority of India itself show contradiction qua accepting of bribe. “(vi) The transcription of the audio was also prepared and the same reveals that the whole recording has taken place in the Shooting Range including office of Shri Bakshi. the then Administrator. By background environment and the outfits worn by Shri Bakshi. it is observed that the recording was carried out on different dates which were conducted over a three month period. In one of the clipping it is observed that the said reporter Shri Ayush Pandit had offered him illegal gratification in the form of currency notes for selling the gun to the reporter. Shri Bakshi, the then Administrator. accepted the currency notes and kept the same in his table drawer. The transcript of the audio clearly shows the conversation of Shri Bakshi and reporter accepting the payment in lieu of selling the gun to the reporter which actually belongs to Shri Shiv Dutt Bakshi's son, Shri Yajat Dut Bakshi. The Import Permit signed by Shri O.V. Seetharama Ran. Secretary General, National Rifle Association of India dated 21' March 2016 establishes the same. The total CIF value of 22LR Rifle Walther. KK550-M Expert REM along with 22LR Eley Tenex Ammunition (5000 Nos.) and 22 LR Eley Sports Ammunition (1000 Nos. total 3 items) total CIF value was EI RO 6026.62. While promising to sell the aforesaid gun. Shri Bakshi has taken illegal currency notes from the reporter.”
19. Article-I of the chargesheet served upon petitioner also did not support the version of bribe to extend facilities at the centre: “ARTICLE-I That Shri Shiv Dutt Bakshi, Dy. Director while performing his official duties as its Administrator, Dr. Kami Singh Shooting Ranges, placed himself under financial obligations by accepting illegal gratification, from a media reporter, in the form of currency notes in lieu of promising to sell him an imported gun. His act recorded in a sting operation which was telecast on 17 and 18th July, 2016 by the Hindi News Channel "Samachar Plus" which has brought bad name to the Organisation. Thus by accepting illegal gratification in the form of currency notes, by Ski. Bakshi, in the capacity of Administrator, Dr. KSSR, failed to maintain absolute integrity: devotion to duty and, thus, acted in a manner unbecoming of an officer of Sports Authority of India, thereby contravening Rule 3 (I)(i)(ii), (iii) & (xiv) of CCS (Conduct) Rules 1964 read with Rule 39 of SAI Service Bye Laws and Conditions of Service Regulations 1992.” and the finding of Enquiry Officer on Article-I are also to the same extent:
20. Admittedly, the SAI in its internal inquiry against the Petitioner under CCS Rules on 19.07.2018 held that the currency received by the Petitioner cannot be termed as illegal gratification. Admittedly, the case registered against the petitioner was of demand of bribe but then it came out to be of selling of gun of his son per Enquiry Proceedings.
21. In Radheshyam Kejriwal vs. State of West Bengal (2011) 03 SCC 581 [Para 38 (vii) and 39] the Court held as under:
(vii) In case of exoneration, however, on merit where the allegations is found to be not sustainable at all and the persons held innocent in criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases.
39. In our opinion, therefore the yardstick would be to be judge as to whether the allegation in the adjudication proceeding as well as the proceeding for prosecution is identical and exoneration of the person concerned in the adjudication proceeding is on merits. In case it found on merits that there is no contravention of the provisions of the Act in the adjudicating proceeding, the /rail of the person shall be an abuse of the process of the Court. "
22. Thus, in view of the gamut of facts and law discussed above, where the DVDs were sent in an unsealed condition; the video recordings were in continuity; hard disk being declared to be a bad media; domestic enquiry too revealed it was not a case of bribe but of sale of his son’s private gun which could not be termed as illegal gratification; thus the grounds mentioned in the closure report were all cogent and there was no reason to reject it, hence, the impugned order dated 02.03.2020 is set aside and closure report filed by the CBI stands accepted.
23. The petition is thus allowed. Pending application(s), if any, also stand disposed of.
YOGESH KHANNA, J. MARCH 02, 2023