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

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J U D G M E N T

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

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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

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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 Bhardwaj in Hotel Sunbeam,

Chandigarh on 08.05.2003 evening and, on

09.05.2003 I discussed the matter with Shri R.M.

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Gupta telephonically. Session Judge said that he

will keep the application with him 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 evening and the

remaining amount should reach before the

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

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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.

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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

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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

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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 post-

trap 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

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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

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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.No.

Case Reference Brief Allegations Status of investigation and remarks

1. FIR No.31 dated 03.04.2003 under Section 406, 420 of Indian Penal Code and Section 15 of the Medical Council Act, 1956, PS Kartarpur, Jalandhar

Defrauding patients in the name of medical treatment

Case under investigation. Accused arrested on 03.04.2003 and released on bail on 15.04.2003 by Magistrate

2. FIR No.32 dated 07.04.2003 under Section 384, 411, 420 of Indian Penal Code PS Kartarpur, Jalandhar

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 16.04.2003 under Section 406, 420 of Indian Penal Code PS Kartarpur, Jalandhar

Defrauding patients in the name of medical treatment

Case under investigation.

4. FIR No.36 dated 16.04.2003 under Section 304, 406, 420 of Indian Penal Code PS Kartarpur, Jalandhar

Defrauding patients in the name of medical treatment

Case under investigation.

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5. FIR No.40 dated 18.04.2003 under Section 406, 420 of Indian Penal Code PS Kartarpur, Jalandhar

Defrauding patients in the name of medical treatment

Case under investigation.

6. FIR No.42 dated 30.04.2003 under Section 406, 420 of Indian Penal Code PS Kartarpur, Jalandhar

Cheating etc. in the name of medical treatment

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.

7. FIR No.46 dated 08.05.2003 under Section 406, 420 of Indian Penal Code PS Kartarpur, Jalandhar

Cheating etc. in the name of medical treatment

Case under investigation.

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.

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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

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(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. After obtaining sanction for prosecution of A-1 and

A-2, 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.

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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 Samra- He 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.

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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 Justice- He 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

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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

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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

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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, Chandigarh-

According 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.

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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 in the cassettes were

prepared.

PW-17 Dr. C.P. Singh, Junior Scientific Officer

(Physics), CFSL- He 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

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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

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transcripts of both the audio cassettes. The

transcripts were proved as Ex.PW-1/5 to

Ex.PW-1/47.

PW-24 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.

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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 Singh- He 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. Gautam- His statement was

recorded without oath but inadvertently number

was assigned to him.

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PW-31 A.D. Chopra, retired employee of

BSNL, Jalandhar- He proved the history sheet of

telephone numbers 2459739 and 2458384

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

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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 me.

Throughout the cassette there is no

reference of any case, bail application

pending at 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

27.02.2008 regarding this land. I had

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 as his elder

brother namely Shri Tara 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. I shook hands with

Dev Raj and the other person who

accompanied Dev Raj. 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 the facts and the trap was

conducted without the presence of

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, Police Station Sultanwind as

Ex.DW-6/1.

DW-7 Anil Sharma, Section Supervisor, BSNL,

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

Spokesman Newspaper, Mohali- He placed on

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 HC Baljinder Pal Singh, Police Station

Sector 19- He 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 had taken his

side.

DW-18 Tara Singh, Domestic Servant with Shri

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 in pursuance of criminal

conspiracy so hatched, bribe was

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 for anticipatory bail which were

declined by A-1 in terms of order 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, a 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. First Stage- Till 19.08.2002

II. 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

failed to come across any record showing telephonic link

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. During this stage, the complainant learnt that FIR

No.42 had 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 Hello

C R.M. Gupta Ji?

A-1 Han Ji Namaskar Ji (Yes Namaskar)

C Namaskar Ji Gupta Ji ki haal ne (Namaskar Gupta Ji

how are you?)

A-1 Meharbani, Wadia (Thank you, fine)

C Ki Kar rahe ho (What are you doing?)

A-1 Bus nashta kar rahe see (I was having breakfast)

C Achha Ji (Laughs) hor sunao ki haal chal ne (Well

how are the things?)

A-1 Kirpa tuhadi wadia (With your blessings I am fine).

C Bilkul theek-thak ho? (You are all right?)

A-1 First class (First Class)

61

C Kiven chal riha Jalandhar (How is Jalandhar?)

A-1 Bus vadia first class hai (Very good, first class)

C 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)

C 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 Achha Achha ji hor sunao (Fine. What is more?)

A-1 Bas Kirpa tuhadi (Fine. Your good wishes)

C 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 Sunday actually na (Sunday actually)

C Haan Ji Haan Ji (Yes)

A-1 Meri sister jedi meri Mrs. di sister hain na (My wife's

sister)

C Haan Ji Han Ji (Yes)

A-1 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 Achha Ji (Fine)

A-1 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 Chalo dekhange (I will see)

C Age piche (While going or coming back)

63

A-1 Haan Haan (Yes, Yes)

C 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 Kirpa tuhadi meharbani (Thanks. Your blessings)

C High Court da aje hoya recommend ki nahin?

(whether you have been recommended for High

Court?)

A-1 Nahin haale (Hans Kar) ( No yet (laughs)

C Ki gal ayega oh din (What is the matter? The day will

come)

A-1 Hun Hun (Yes, Yes)

C 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)

C Chalo Saturday milde sham nu (Ok we will meet on

Saturday evening)

A-1 Haan theek hai Ji (OK)

C Main invitation bhejenga (I will send invitation)

A-1 Theek aa ji (OK)

C Theek aey ji (OK)

A-1 Haan Haan (Yes)

C Haan main aap khud avanga, bete nu bhejanga (I

64

will come myself or will send my son)

A-1 Haan Ji Haan Ji (Yes)

C Aur mere layak ji (Any service for me?)

A-1 Bus meharbani Sir (No thanks)

C Thank you Ji ( Thank You)

A-1 OK Ji OK Ji

C 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 be keeping the bail

application in FIR No.42 with him.

62. It would be conjectural to infer that A-1 was

present at Chandigarh on 10.05.2003 just to receive the

money. It is not denied that he has his own house in

Chandigarh. 10th May was Sunday. visit to home town on

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. Bhardwaj told him that

Mr. R.M. Gupta had given him relief.

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

asked A-2 to arrange his meeting with A-1 in response to

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. It is not just the narration by PW-2 which belies

the theory of conspiracy between A-1 and A-2. The

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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

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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

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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

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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. On 30th April at 7:11 p.m. the complainant again

calls A-2. 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. On 01.05.2003, the complainant visits the house

of A-2. then also A-2 tells him apologetically “main tuhanu

tade he 7:30 phone kitta message pahunchaya nahin tusi

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

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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. The crux of the entire recorded conversation

between 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

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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.

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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

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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

presumption is an inference of certain fact drawn from a

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

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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

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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

circumstances. No straight jacket formula has so far been

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

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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:

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“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

from other trustworthy sources. In State of UP Versus

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

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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

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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 whenever convenient. Therefore before

proceeding further, it would be advantageous if those

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

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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. which lasted 85 seconds (Vide

Ex.PW-28/10).

99. All the remaining calls are between mobile

numbers 9814173569 and 9814668542. Mobile number

9814173569 stands in the name of Rupinder Singh of

Nanakpur Colony, Zirakpur. The prosecution has not been able

to dig into the details to find out as to who this Rupinder

Singh is. However, again from the call details record

(Ex.PW-22/3 to Ex.PW-22/6), it is clear that 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:

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“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 that it would be

appropriate if the voice samples are

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

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has produced a 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 and

then the accused himself gives 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

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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

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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. It is worth mention that while playing back the

micro 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.

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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. It is worth mention that the Investigating Officer

has 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

mistakes here and there. The first two conversations are

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

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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. as has been concluded by the

Investigating Officer.

109. After carefully comparing the call details record

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.No.

Date Time From To Duration (In Seconds)

Comments

1. 29.04.2003 7:16 Complainant A-2 85 Clearly audible. Transcript No.I (In short T-I)

2. 29.04.2003 9:30 A-2 Complainant 62 Clearly audible. Transcript No.II (In short T-II)

3. 29.04.2003 11:20 A-2 Complainant 35/34 Call connected but conversation not audible. Transcript not prepared.

4. 29.04.2003 11:48 A-2 Complainant 22/21 Call connected but conversation not audible. Transcript not prepared.

5. 29.04.2003 12:07 A-2 Complainant 115 Call connected but conversation not audible. Transcript not prepared

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Sr.No.

Date Time From To Duration (In Seconds)

Comments

6. 29.04.2003 12:24 A-2 Complainant 42 Clearly audible. Transcript No.III (In short T-III)

7. 29.04.2003 12:33 A-2 Complainant 30 Call connected but conversation not audible. Transcript not prepared.

8. 29.04.2003 12:42 A-2 Complainant 42 Call connected but conversation not audible. Transcript not prepared.

9. 29.04.2003 12:59 A-2 Complainant 42 Call connected but conversation not audible. Transcript not prepared.

10. 29.04.2003 13:40 A-2 Complainant 28 Clearly audible. Transcript No.IV (In short T-IV)

11. 29.04.2003 17:38 Complainant A-2 125 Call connected but conversation not audible. Transcript not prepared.

12. 29.04.2003 17:58 A-2 Complainant 152 Clearly audible. Transcript No.V (In short T-V)

13. 29.04.2003 22:15 Complainant A-2 233 Clearly audible. Transcript No.VI (In short T-VI)

14. 30.04.2003 7:24 Complainant A-2 355/356 Clearly audible. Transcript No.VII (In short T-VII)

15. 30.04.2003 9:10 A-2 Complainant 25 Call connected but conversation not audible. Transcript not prepared.

16. 30.04.2003 19:11 Complainant A-2 176/177 Clearly audible. Transcript No.VIII (In short T-VIII)

17. 01.05.2003 16:57 Complainant A-2 89 Clearly audible. Transcript No.IX (In short T-IX)

18. 01.05.2003 17:26 A-2 Complainant 25 Clearly audible. Transcript No.X (In short T-X)

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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.No.

Call Duration as per call detail record (In Seconds)

Duration of actual recording (In Seconds)

1. 1 85 80 (T-I)

2. 2 62 58 (T-II)

3. 3 42/43 42 (T-III)

4. 4 27/28 30 (T-IV)

5. 5 152 147 (T-V)

6. 6 233 228 (T-VI)

7. 7 355/356 345 (T-VII)

8. 8 176-177 172 (T-VIII)

9. 9 89 45 (T-IX)

10. 10 25 22 (T-X)

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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 T-

X, 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

of tape recording. He disclosed this later and produced the

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

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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:

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Court Question: Is the acoustic analyses a perfect science?

How does the voice of one person differ

from the voice of other? Can the voice of

two different persons 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 voice quality which cannot be

copied. Therefore, the voice of two

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

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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 are

compared spectrographically and using

automatic software developed by our lab.

In this manner, we are able to fix the

identity even if an effort is made to

disguise. As per the international

Association of Voice Identification Protocol

there are several possible decisions. These

are such as identification, probable

identification, possible 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: How do you explain mimickery?

Ans: 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: What is a spectrogram?

Ans: 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 sounding words from controlled

samples as well as from questioned

samples. As already stated by me minimum

requirement is 20 similar sounding words.

These words are compared

spectrographically on a spectrogram to

extract the acoustic parameters such as

formant frequencies and their band width.

If this test is applied by another expert or

researchers the same result would be

replicated.

Court Question: What is the potential rate of error in

spectrogram recognition? What are the

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

Identification comparison made by FBI

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: Have you heard of system called FASR?

Ans: 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: Yes.

Court Question: 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

conditions will not be available always. In

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. Hardly two minutes back, he was like a

rustic uneducated 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 said, “to go

beyond is as wrong as to fall short”.

118. I have heard the conversation in Ex.P-162. I have

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.

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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 under-

estimating 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

denomination of Rs.100/- and Rs.50/-, DSP

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.

128

- 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.

129

- 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. A-2 was caught from his

wrists.

- 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.

132

- 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 and the box was

sealed.

128. Following is the gist of deposition of PW-3 Madan

Lal:

- 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 of A-2. The remaining took positions

outside.

- 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. The crux of the statement of PW-4 L.R. Roojam is

as under:

- On 10.05.2003 at about 7:30 p.m., on the

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.

137

- 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.

139

- 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.

140

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.

141

- 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

142

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

143

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

144

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

145

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

stated by PW-3 Madan Lal. The T.O. Stated that

146

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

complainant, phenolphthalein powder got

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

147

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.

148

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 the main

gate. This aspect, according to the 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

149

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

150

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. The above arguments are being taken up seriatum

as under:

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 cross-

examination 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. Their joining the CBI team would have raised

eyebrows had their presence been secured by the

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

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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

version would amount to doubting the integrity of a Senior

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

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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 hand-

picked 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. The discrepancy in the forms could have

been result of 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

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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

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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.

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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

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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

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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

instructions given to him during pre-trap proceedings the

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

167

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. How do you

explain this?

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 re-

grouped 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 re-

processed by the mediation and other re-

processed by the mediation and after re-

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.

Q You were not there. How can you say that

ExPW28/3 and ExPW28/7 were generated at

different times?

Ans Because these are in two different formats and

could not have been done simultaneously and is a

systematic process.

Q 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:

Q 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

particular directory from where these are

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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.

Q 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.

Q Do you find any change in the format of both sets

of CDRs. How do you explain?

A 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.

175

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.

176

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

box having been found from behind the sofa could not be

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

178

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

179

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

180

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 of the

complainant by passing orders against him.

170. There is least doubt that the complainant, who

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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

182

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 status-

quo 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

184

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

186

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

immediately after the trap lends corroboration to the

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.

187

(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

absconding after the incidence is conduct which is relevant

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

placed reliance on Ramanathan Versus State of Tamil

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

189

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

190

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

191

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

192

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

relevant even if the alibi is created much later. This is what

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. It has already been noticed above that Mark D-4 is

not original. It appears to have been transmitted to

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

193

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 is that FIR was registered on

09.05.2003.

194

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 of the High Court is

bad in view of the law laid down in UP judicial Officers

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

195

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

196

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

197

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,

argued that the validity of the sanction will not be affected

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

198

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

199

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”. The word 'gratification is not

restricted to pecuniary gratifications or to

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 them susceptible and vulnerable.

Generally, they do not know what maneuvers and

manipulations are going on outside the 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: Special Judge,15.05.2009 Chandigarh.

This judgment contains 206 pages and each page has been signed by me.

Special Judge,Chandigarh.

206

Question of Sentence

Present:Shri R.L. Negi, Senior Public Prosecutor for

C.B.I.

Convict S.S. Bhardwaj with Shri

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 un-

exhibited documents be returned to the concerned quarters

against proper receipt. File be consigned to the record room.

Announced: Special Judge,16.05.2009 Chandigarh.

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