Asi Pale Ram and Others Vs. the Commissioner of Police, Phq, I.P. Estate, New Delhi and Others - Court Judgment

Mrs. Manjulika Gautam, Member (A)

We are dealing with all these OAs by a common order as these are based on identical facts and a common CD. The facts are extracted from OA No. 4097/2011, Pale Ram and others Vs. The Commissioner of Police, Delhi and others. But in the case of OAs No. 62/2012, 940/2012, 941/2012, 1204/2012, 3879/2012, 3937/2012, 3939/2012, 3940/2012, 3941/2012 and 3938/2012, the CD, though also made by Chetan Prakash, is a different one.

2. The applicants in this OA were appointed as Constable in Delhi Police. Departmental inquiry was initiated against them vide order dated 20.03.2009 (Annexure A-1) on the allegation that they indulged in corrupt activities by receiving money from bus operators. Summary of allegations along with list of witnesses and documents was served upon them. The applicants submitted a detailed statement of defence raising the issue of the FSL report and the fact that the CD was tailored one, that the complainant and PW-4 to PW-7 did not appear in the inquiry proceedings and, therefore, could not be examined by the applicants. A copy of the preliminary inquiry report which was the basis of holding the DE was not provided to the applicants and even the inquiry officer who conducted the PE was never produced during the proceedings. Without considering the issues raised by the applicants, the inquiry officer proved the allegations against them and submitted a copy of inquiry report. The applicants submitted a detailed reply to the same but vide impugned orders dated 12.02.2011 (Annexure A-2), the disciplinary authority imposed the punishment of forfeiture of four years of approved service permanently entailing proportionate reduction in their pay. The applicants submitted detailed appeal on 14.03.2011 raising various contentions but the appellate authority, ignoring the above mentioned contentions, disposed of the appeal vide impugned orders dated 14.09.2011 (Annexure A-3) by which punishment awarded by the disciplinary authority is reduced to that of forfeiture of two years approved service permanently entailing proportionate reduction in their pay and the period of suspension is treated as period not spent on duty. Aggrieved by this, the present OA has been filed.

3. Para 5 of the OA contains the various grounds on which the impugned orders have been assailed:

(i) Reliance has been placed on the CD by the disciplinary authority although in the body of the order, it has been clearly recorded that the question regarding the non-production of original video camera/tape/CD for examination of FSL expert and a part of chance of manipulation which exists in the report of FSL experts, is there.

(ii) Since the genuineness and authenticity of the CD could not be ascertained either by the inquiry officer or by the disciplinary authority, there is no case or evidence against the applicants;

the disciplinary authority in his order has clearly recoded that the inquiry officer has not given proper weightage to the defence witnesses produced by the delinquent officials and this is sufficient ground to vitiate the disciplinary proceedings as the inquiry officer is duty bound to consider the evidence given by both the prosecution and defence witnesses. In this matter, in particular, the role of the defence witnesses is extremely important as their evidence clearly establishes that the fabricated CD made by the complainant Shri Chetan Prakash cannot be relied upon as Shri Chetan Prakash is a known bad character registered in the Police Station. He is known for his nefarious activities and also has animosity towards the police since his father had been dismissed from the police force;

The disciplinary authority in his order has clearly recorded that ‘as far as the issue of sting is concerned, this episode is indeed an illegitimate trap. Thus, it is the contention of the applicants that since the entire CD is an illegitimate trap, it cannot be used as evidence against them;

The charge leveled against the applicants was that they were engaged in corrupt activities in organized manner but the order of the disciplinary authority puts them liable ‘for the misconduct and act of indiscipline they were seen indulging in and as established by the E.O. in his findings;

There is no evidence in the departmental inquiry of the applicants being involved in any corrupt practices in an organized manner and, therefore, there is no basis for proving of the charge against them;

PW-4 to PW-7 did not appear in the departmental inquiry and, therefore, could not be cross-examined. They are all residents of Delhi and it was incumbent to ensure their presence in the departmental inquiry. Rule 16 (3) of Delhi Police (Punishment and Appeal) Rules clearly states that if the witness is no longer available only then the earlier statement recorded can be brought on record but in the present case, the witnesses were very much available and still they avoided to join the DE;

The statements of PW-4 to PW-7 did not relate to demand and acceptance of money but only placed reliance on the CD which is the disputed piece of evidence;

It is clearly on record that the original recorder and the chip have not been made available by the complainant Shri Chetan Prakash and he himself did not appear in the DE;

In cases of demand and acceptance of illegal gratification, there is always recovery of money which is transacted but in this case there is no recovery of any amount;

The applicants have also complained that they are being subjected to hostile discrimination as similarly placed co-delinquents like HC Inder Singh and Constable Parminder have been exonerated of all the charges. The applicants have also referred to order dated 23.08.2010 in case of Constable Roop Singh which is also in relation to sting operation conducted by Shri Chetan Prakash. Constable Roop Singh was exonerated on the ground that there was lack of cogent evidence to the fact that the money delinquent was shown to be accepting was bribe money;

Applicants have also brought on record that Shri Dheeraj Kumar, Additional DCP, who was the disciplinary authority, in the case of ASI Paramjeet Singh has exonerated him on the ground that on the basis of illegitimate trap, no punishment can be imposed. The applicants have also mentioned several other matters where the same disciplinary authority has exonerated police personnel who were subjected to departmental inquiry on charges based on sting operation conducted by Shri Chetan Prakash. It has also been stated that the order of the appellate authority is non-speaking as it does not deal with the submissions and pleas raised by the applicants in their appeal. According to the applicants, the appellate authority has recorded that the applicants have pleaded forgiveness in their appeal which is wrong as the applicants have denied each and every charge leveled against them; and

It is the contention of the applicants that there are no specific facts given as to the date, time and place where the demand was made for money and it was accepted.

4. Broadly speaking, the case of the applicants is that the entire proceedings against them are based on a CD which is not original and further that the originally recorded footage is also not available. The maker of the CD is a known and established bad character registered in the police station. The FSL report in the matter reads as follows:

“1. No editing/ alteration/ interpolation / tempering or deletion have been observed in the clips recorded in the memory card M-1 to M-5 as such, however, in absence of the original recorded footage or original recording device it can not be confirmed. It has been presumed that memory card contained original recording as per the ‘brief history of the case mentioned in your forwarding letter memo No.261-R-ACT/SIT/Crime Br. Delhi/ dated 14-02-2009. Morphing has not been observed in any of the picture frame recorded in the memory card referred above.

2. Actual play time of the video clip namely V0928005 recorded in the memory card exhibit M/1 is 7 min. 16 Sec. A very small part of this clip and a 6 min 59 Sec play time portion of the same video clip is pasted in the DVD exhibit C/2 separately which indicate edition.

3. In this particular case tailoring covers deletion of some of the part of the video footage as to suit for a particular purpose.

4. The memory card have also been searched for the deleted items. The video clips marks as C/2/4, C/3/10 and C/6/4 are not available in the memory card even as deleted items.

5. No opinion could be offered regarding the ruling out the possibility of the deletion of the video clips namely V0101001, V0101007, V0101014, V0314001, V0314002, V0314003 and V1126001 from the video cassettes for want of facilities.

6. In this particular case the word Tailoring means deletion of some frames from the video footage as to suit for a particular purpose.”

5. Applicants have placed reliance on judgment of the Principal Bench of the Tribunal in Jagdish Kumar Vs. GNCT of Delhi and ors., OA No.2353/2006 decided on 5.10.2007 according to which ‘Raw footage of a video film seen by someone who is to appreciate the evidence may have some evidentiary value, but, the edited version of the video film cannot be made the sole basis for returning a finding. Unless, therefore, corroborated, it would have no evidentiary value.

6. Applicants have also placed reliance on M.S. Mohiddin, AIR 1952 Madras 561 which talks of legitimate and illegitimate traps. The same issue is discussed in detail in a judgment of the Honble High Court in WP (Crl) No.796/2007 in the case of R.K. Anand. Applicants are also relying on Raja Ram Vs. Speaker of Lok Sabha, 2007 (3) SCC 184, according to which edited footage cannot be relied upon. It has also been stated by the applicants that in the CD itself, there is no date-wise sequence, for example, opening scene no.1 is dated 13.09.2007 whereas scene no.23 is dated 12.09.2007. There are also no independent witnesses produced by the prosecution to testify any giving and taking of illegal gratification.

7. In the counter affidavit filed by the respondents, brief facts of the case have been stated. Thereafter, all the grounds taken by the applicants have been replied to. It is stated by the respondents that during DE proceedings, PWs 2, 3, 4, 5, 6, 7 and 8 have deposed that the entry money was distributed/ offered by the representatives of the commercial vehicle operators to the traffic staff, supporting what is shown in the CD. In the CD, many of the applicants are clearly visible accepting the money. It has been stated by the respondents that even if the proposition of the applicants is agreed that the CD is not genuine or it is tailored, the applicants are clearly visible accepting the bribe money. It has also been stated in the counter affidavit that the disciplinary authority has expressed his considered view that the trap was an illegitimate one but he has categorically stated that this would affect the criminal aspect of the issue wherein the prosecution will have a very weak case at hand. However, the act of indiscipline showing the policemen accepting money in public, established through the video footage, would have an adverse impact on the image of police in the eyes of public. Therefore, to discourage the applicants, they have been awarded punishment ‘for the misconduct and act of indiscipline they were seen indulging in and as established by the E.O. in his findings. It has been conceded that PWs Chetan Prakash, Subhash Chand, Sanjay Kumar and Paramjeet Singh did not come forward in the DE proceedings despite being given many opportunities and, therefore, to avoid delay, their statements recorded by the Vigilance Branch in PE was brought on record as per rule 16 (3) of Delhi Police (Punishment and Appeal) Rules, 1980. They have testified that Shri Chetan Prakash produced the CD in Vigilance Branch on 11.01.2008 and his statement was recorded on 5.02.2008. Although the names of traffic policemen have not been disclosed in the PE, they are traffic police staff named in the inquiry and are clearly visible in the CD. The respondents have also referred to the FSL report dated 5.05.2010 which has been testified by Court Witness - 1, Dr. Shailendra Jha, Assistant Director, FSL. It is conceded that some frames at the starting of video clip and at end of video clips of DVC were omitted from the corresponding video clips of memory card but it is the contention of the Court Witness that the remaining portion was intact which proved that the recording showing the money transaction was genuine and there was no ambiguity. Therefore, the respondents have taken the stand that relevant clippings are intact and can be depended upon. Regarding the exoneration of Constable Roop Singh in another DE where the CD prepared by Chetan Prakash was also the basis of proceedings, it has been stated by the respondents, that the charge was not proved by the inquiry officer in the case of Roop Singh and that the circumstances were different as the giver of the money remained unidentified and it was not clear whether money was collected for and on behalf of authorized officer on account of challan or for compoundable offence. It is stated by the respondents that on account of non-production of original video camera and tapes which provided for a part chance of manipulation as well as non-appearance of main prosecution witnesses, the disciplinary authority did not inflict the severest of punishment but imposed a lighter punishment. It is also stated by the respondents that the applicants were heard in person by the appellate authority and they said nothing new but to forgive them.

8. We have heard Shri M.K. Bhardwaj, Shri Sachin Chauhan and Shri Saurabh Ahuja on behalf of applicants and Mrs. Renu George, Shri Amit Anand, Shri B.N.P. Pathak, Shri Vijay Pandita, Ms. Rashmi Chopra, Mrs. Harvinder Oberoi, Ms. Alka Sharma, Mrs. P.K. Gupta and Shri N.K. Singh for Mrs.Avnish Ahlawat, on behalf of respondents.

9. We have also perused the record on file and also viewed the CD submitted to the Delhi High Court by Shri Chetan Prakash. While deciding this OA, we would like to take up the issue of the CD first and then go to other aspects of the departmental proceedings.

10. The entire case is built upon the CD which has been filmed by Shri Chetan Prakash and which was submitted by him in the Honble High Court during the course of hearing in W.P. No.29/2008, Chetan Prakash Vs. State. The entire case of the respondents rests upon this CD and comes within the definition of sting operation or a trap. It is admitted fact that the original recorder and the original chip of the CD are not available and that the CD being relied upon is duplicate. The FSL report regarding the CD has already been quoted earlier according to which there are some inconsistencies between the video and the memory card and the official court witness has stated that in the absence of original recorded footage or original recording device, it cannot be confirmed that no editing/ alteration/ interpolation/ tampering or deletion has been done. The report also mentions tailoring which means deletion of some frames from the video footage as to suit for a particular purpose. We have also had occasion to view the CD and found it to be poor in quality and sound and vision not clear but blurred. The question arises as to whether the CD which is a duplicate CD can be relied upon as evidence. A catena of judgments have been quoted by the applicants and to us it is clear that the CD as it exists is not sufficient to be totally relied upon. Much has also been mentioned regarding legitimate and illegitimate traps and there is much case law on entrapment. As stated in M.S. Mohiddin (supra), there are two kinds of traps, ‘a legitimate trap, where the offence has already been born and is in its course, and `an illegitimate trap, where the offence has not yet been born and a temptation is offered to see whether an offence would be committed, succumbing to it, or not. Going by the above yardstick, it is very clear that the present matter is of illegitimate trap. Not only that, when the trap is being laid by a private person who has no authority to do so, who is a known bad character registered in a police station and against whom several defence witnesses have testified that he bears animosity towards police and is hostile to them, we are satisfied that the CD alone cannot be the basis for taking action against the applicant.

11. Coming to other procedural aspects of the departmental proceedings, we start with the statement of the disciplinary authority that this is indeed a case of illegitimate trap. But in spite of that, he proceeds to uphold the findings of the inquiry officer and imposes punishment ‘for the misconduct and act of indiscipline they were seen indulging in. Respondents were aware of the weaknesses of the prosecution case and, therefore, more efforts should have been made by them to collect the evidence independent of the CD to corroborate what was shown in the CD. Instead of doing that, we find that extremely mechanical approach has been followed by them. The charge alleged against the applicants reads as follows:

“It is alleged that while posted in Traffic Circle Delhi Cantt. during the year 2007 they were found to have indulged in corrupt practices in an organized manner. In pursuance to Honble High Court of Delhis order in connection with writ petition No. 29/2008, Chetan Prakash Vs. State, a vigilance enquiry was conducted in Vigilance Branch, Delhi Police. The Vigilance enquiry revealed that above police personnel who were deployed in Traffic Circle Delhi Cantt. were found to have indulged in corrupt practices. Their indulgence in corrupt practices is clearly visible in CDs submitted by the complainant, Sh. Chetan Prakash before the Honble High Court of Delhi in above mentioned Writ Petition. ASI Pale Ram No. 2613/T, Ct. Rakesh, 3791/T and Ct. Parminder, 1941/T were found indulged in corrupt practices twice.”

12. It is clearly seen that total reliance is placed on what is visible in the CD and the language of the charge is extremely general as it states that police personnel were found to have indulged in corrupt practices. A chage is supposed to be precise containing date, time and full facts of the act of commission or omission that the charged officer is being accused of. In this particular case, no dates, no times and no places are mentioned and there is a general mention of corrupt activities. There is no specific reference to giving or taking of illegal gratification. Subsequently, a departmental inquiry is conducted by the inquiry officer. In the inquiry, the complainant Shri Chetan Prakash and some main PWs do not turn up and under the provisions of Rule 16 (3) of Delhi Police (Punishment and Appeal) Rules, 1980, the inquiry officer takes into consideration their statements made in a preliminary inquiry conducted by the Vigilance Branch. We have also observed that the report of the preliminary inquiry is neither included in the list of relied upon documents nor is a copy thereof supplied to the charged officers. We are not satisfied with the explanation that the Delhi Police could not get the complainant and other PWs all of whom were residents of Delhi and private persons to come and participate in the inquiry and thus the provisions of Rules 16 (3) and 15 (3) of the aforesaid Rules have been wrongly invoked. Due to this, important prosecution witnesses could not be cross examined by the applicants. There is also the fact that as mentioned by the disciplinary authority, the inquiry officer has totally ignored the evidence given by the defence witnesses. Three defence witnesses have been produced and they have testified that the complainant Shri Chetan Prakash was arrested, he was engaged in smuggling of liquor and further that he indulged in black mailing the police and traffic staff. No independent witnesses have been produced by the respondents to prove the malpractices being indulged in by the applicants.

13. Thus, we are of the opinion that on account of the charge of allegation being vague and not specific, total reliance being placed on CD which was not original, opportunity not being given to cross examine important prosecution witnesses because they were not produced and that no independent witnesses were produced, we find the proceedings conducted against the applicants are not in accordance with the rules and the principles of natural justice. In our view, the respondents have totally relied upon an illegal trap, a CD which has no evidentiary value and proceedings which are not in accordance with the rules and the principles of natural justice. Therefore, the impugned orders Annexure A-1 to A-3 cannot be sustained and are hereby quashed and set aside. The applicants shall be given all consequential benefits from the date when the punishment was imposed, within a period of two months from the date of receipt of a copy of this order. OA is accordingly allowed. No costs.

A copy of this order be placed in each of the case files.