“Delhi Judge ALLEGED Bribery” case should become a “Test Case”

“Delhi Judge ALLEGED Bribery” case should become a “Test Case” in the matters of seeking the police custody /remand of the accused by the CBI, Police etc and grant of bail by the judiciary in vindication of oft-repeated Constitutional, statutory and judicial dicta viz. ‘paramount sanctity of life & personal liberty’, ‘presumption of innocence’, ‘bail is rule-jail is exception’. Hopefully, CBI (and other law enforcement agencies) and judiciary would make it a rule in all cases and strongly guard against it being reduced a single, solitary and stray incident. It would be in the fitness of the things for the Hon’ble Supreme Court to take a suo moto cognizance of the case and record a formal order encapsulating the exuberant spirit and underlying rationale of the case and said order be sent to all authorities concerned for strict compliance. BCI should also prescribe it as compulsory legal case study as part of course content of LL.B. Students. Needful may also be done by judicial training academies.

FACTS OF THE CASE:

A case was registered at CBI/ACB/Delhi on 28.09.2016 on the basis of a written complaint dated 27.09.2016 lodged by complainant Sh.…..wherein it was alleged that Sh……(Advocate) (hereinafter A1), Local Commissioner, Court  no…., in the court of Mrs……(hereinafter A2),……Tis Hazari Courts, Delhi, was demanding bribe of Rs.10 Lakhs on behalf of above ….Judge for disposing off an Execution Petition bearing No…..in favour of the complainant, which was pending disposal before the said Court of Ld Judge. It was also alleged that A1 had also demanded a bribe of Rs.1 Lakh for submitting favourable report in the said Execution Petition. The complainant has also paid an amount of Rs.15,000/ to A1 as Local Commissioners fee on 26.09.2016, as directed by the above Court. The said complaint was verified by Dy.SP, CBI/ACB/Delhi on 27.09.2016 in the presence of independent witness including one witness from BSNL. The verification duly corroborated the facts mentioned in the complaint and the verification also revealed that A1 Local Commissioner has demanded a fresh bribe of Rs.20 Lakhs on behalf of A2…Judge for disposing off the above Execution Petition in favour of the complainant and Rs.2 Lakhs for himself. Subsequent to this, A1 agreed to accept the bribe of Rs. 5 Lakhs as part payment of total bribe of Rs.20 lakhs from the complainant on behalf of A2 on 28.09.2016. On the basis of said complaint and verification conducted by Dy.SP, an FIR bearing RC No…..was registered in this case. Thereafter, a trap was laid on 28.09.2016 and A1 was caught red handed while accepting bribe amount of Rs.5 Lakhs from the complainant as first installment in the presence of independent witnesses on behalf of (A2) and the said bribe amount was recovered from his possession on 28.09.2016 itself. It is further alleged that on being asked, A1 stated that he had demanded and accepted the bribe on behalf of A2 and he was about to call Sh…..(hereinafter A3), husband of A2. He voluntarily offered that he will pass on the bribe amount of Rs.5 Lakhs to A3 or A2 on 28.09.2016 itself. He further sent a whatsap message to A2 mentioning that he had received the said amount of Rs.5 Lakhs and he wanted to meet her on that day only. A2 had seen the said message. Thereafter, A1 made a call to A3, but his mobile was switched off. Thereafter, on the mobile phone of A1, a call was received from the mobile phone of A3, which was being simultaneously recorded through a DVR. In the said call, A3 asked A1 to meet him either at Daryaganj or at his residence.Thereafter, A1 made a subsequent call on the mobile phone of accused A3 at around 9.05 P.M and reconfirmed about the place of meeting. This time A3 asked A1 to come to his residence. This call was also recorded through DVR in the presence of independent witnesses. Thereafter, A1 voluntarily offered to hand over the bribe amount of Rs.5 Lakhs to A3 or A2, as he had collected the same from the complainant for A2. Accordingly, it was decided to proceed to the residence of A3 and A2 alongwith the said accused and independent witnesses. Thereafter, the CBI team alongwith independent witnesses, complainant and his partner and A1 reached at the residence of A2 and A3 at about 10.15 P.M. At around 10.21 P.M, A1 went inside the house of above mentioned persons and kept the DVR in switched on mode, which was given to him. After 10 minutes, he came out from the house of above persons and informed that he had handed over the bribe amount of Rs.5 Lakhs, received from the complainant to A3 in the presence of A2. He also stated that after receiving the said bribe amount of Rs. 5 Lakhs, A3 returned Rs.1 Lakh to him and kept the remaining Rs.4 Lakhs with him in a orange coloured plastic bag. The said Rs.1 Lakh was recovered from A1 in the presence of both the independent witnesses. Thereafter, all the members of the CBI team rushed to the residence i.e. flat of A2 and rang the door bell, after some time, the door was opened and both A3 and A2 were found inside the house and they were asked to hand over the bribe amount, but they did not cooperate. Thereafter, following the searches in the backyard of the house, one orange coloured plastic bag containing Rs. 4 Lakhs was recovered in the presence of independent witnesses. Thereafter, hand washes of both the accused persons were obtained in a colourless solution of Sodium Carbonate which turned into pink colour. Thereafter, further searches were made in the premises of the above accused persons and huge amount of cash of Rs.94 Lakhs was recovered. It was also alleged that the message box of mobile of A3 revealed that he was working as a tout for collecting huge amount of money from various persons in lieu of delivering favourable judgments from his wife i.e. A2.

JUDICIAL ORDERS:

ROUND 1:

The CBI didn’t seek Police custody/remand of the Judge (A2) but sought for 3 days Police custody/remand of the A1 and A3. The primary ground for which the PC remand was being sought by the CBI for the accused persons A1 and A3 was that the investigation was at a very crucial stage and ramification of conspiracy between the Judge Mrs....(A2) and A3 (husband of A2 and also a practicing lawyer) and A1 (practicing lawyer and also a local commissioner in the concerned case in the concerned court) was yet to be established. The concerned Special Judge, CBI, Delhi vide order dated 29.09.2016 sent the Judge (A2) in judicial custody and granted 2 days PC of the A1 and A3. The Special judge allowed 2 advocates as named by the A1 and A3 to be present between 10.00 AM to 11.00 AM on each day during interrogation of the A1 and A3 in the police custody purportedly under Section 41D of the CrPC (I think said Section not yet notified and enforced. Nevertheless, the Supreme Court in the case of DK Basu, Ashok K Johri vs State of WB, State of UP, 1996 had held that the arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation).

ROUND 2:

The Judge (A2) applied for bail in the concerned Court of Special Judge, CBI, Delhi. It was argued by Ld. Senior Counsel for A2, that there was no initial demand nor there was any demand at the time of actual trap flowing from A2 nor there is any acceptance on behalf of A2. He has also argued that A2, as per the case of prosecution, had neither contacted the complainant nor A1. Therefore, he has argued that Section 7 and 13(2) r/w Sec.13(1)(d) of PC Act, 1988 are not made out in the present case. He has also argued that in the present case benefit of proviso to Section 437 Cr.P.C be extended to A2, as A2 is a female having two minor children, aged 9 years and 7 years respectively, one of them is studying in 3rd class and other child is studying in first class and there is no one to look after them, as her husband i.e. A3 is also under incarceration. He has also argued that the mother of A2 is seriously sick, having to undergo dialysis on regular basis. He has also argued that entire court record of A2 has been sealed, therefore there are no chances of tampering with evidence, nor there are chances of A2 fleeing from justice. Therefore, he has argued that it is a fit case where bail should be extended to A2. In support of his contention(s) he  relied upon following judgments:(I) 2003(70) DRJ 327 titled as Shameet Mukherjee Vs. CBI  (ii) 1986(23) ACC 10 titled as Smt. Shakuntala Devi Vs. State of Uttar Pradesh. (iii) 2016 SCC Online Del. 4533 titled as Nisha Arya Vs. The State(NCT of Delhi)

Per contra, Ld. Public Prosecutor for CBI strongly opposed the bail application of A2 on the ground that, though there may be no direct demand on behalf of A2, but the entire facts presented before the Court clearly demonstrates demand flowing from A2, A1 was only acting on behalf of A2 as a conduit or agent to extract money. In any case, A1 was not in a

position to give any favour to the complainant, it was only A2 who was in a position to give favour to the complainant by passing a favourable judgment with regard to the case of the complainant, which was pending before A2. He has also argued that it is not necessary that to make out Section 7 of PC Act, 1988 a public servant should directly accept the bribe money. Said bribe money can be accepted either by himself or through any other person on his behalf and Section 7 of PC Act is even otherwise attracted where a public servant agrees to accept the said bribe money. He has also argued that investigations are at a very initial stage and

considering the fact that the entire judicial institution has been defamed, it is a fit case where bail should not be granted to A2 nor proviso to Section 437 Cr.P.C is applicable to the facts of the present case considering the gravity of the offence(s) for which she has been booked. He has also argued that huge amount of 94 lakhs was recovered from the house search of A2.

After going through the rival contentions of the both sides the court noted that there is no initial demand made by A2 during the verification proceeding(s) nor there was any demand

flowing from A2 during the actual trap nor there is any recorded conversation of A2 in this regard. The acceptance of bribe money was made by the husband of A2 i.e. A3. Regarding recovery of Rs.94 Lakhs from the house in possession of A2, admittedly the said house was in joint possession of A2 and her husband A3, as A3 is a practicing Advocate, the source to whom the said money belongs, is a matter of investigation and trial. This amount of Rs.94 Lakhs in any case, does not pertain to the present trap case. The Court further noted that ratio of the judgment by the Supreme Court in the case of Nisha Arya Vs. The State (supra) is squarely applicable to the facts of the present case as A2 is a female having two minor children, aged 7 and 9 years respectively, her husband A3 is also under incarceration, there is

nobody to look after them, as admittedly the Investigating Agency had not sought any police custody remand of A2, therefore investigation qua A2 is complete and she is no more required for further investigation. There is no apprehension of absconding of A2, as she belongs to respectable strata of society nor there are any chance of tampering of evidence by her, as the entire records pertaining to her Court have already been sealed.

 The Hon’ble Supreme Court in said case had held that “be that as it may, the fact of the matter is that both the applicants are female being married women having minor children to support and to be looked after by them. They are undisputedly no more required for their custodial interrogation and appropriate conditions can always be imposed upon them in order to allay the apprehension raised on behalf of complainant. Out of the offences charged in this case, all offences except offences under Section 308/452 IPC are bailable in nature. So far as, offence under Section 308 IPC is concerned, it is informed to the Court that complainant was discharged from the hospital on the same day. Trial may take considerable time and thus, no useful purpose would be served by keeping the applicants behind the bars”.

Eventually, vide order dated 3.10.2016, the Hon’ble Special Judge, CBI, Delhi held that it was a fit case where accused should be on bail. Accordingly, the Judge (A2) Mrs…..was admitted to bail on execution of personal bond in the sum of Rs.50,000/with one surety in the like amount.