CBI Court acquits Assistant Commissioner of corruption charges, says prosecution sanction was 'defective'

By Dhiraj Beniwal
New Delhi [India], January 31 : A CBI Court at Rouse Avenue Delhi has recently acquitted an Assistant Commissioner of Food and Civil Supplies Department (Ration Department) and one other accused of corruption charges.
The court said that the sanction to Prosecute Assistant Commissioner was granted without application of mind and thus was defective.
The court noted that the prosecution sanction against the public servant was granted by the competent authority (then Chief Secretary Vijay Kumar Dev) without application of mind as the copies of recordings of conversations were not provided to him. The transcription of conversation were sent to him as the said recordings were lying in the Central Forensic Science Laboratory (CFSL).
"For said flaw on the part of the Investigation Officer (IO) in not sending the copies of the recorded conversation to the sanctioning authority, the sanction accorded becomes defective as there can be no application of mind in absence of such material evidence, which left to be placed before the sanctioning authority," the special judge held.
It was alleged thag the bribe of Rs 50000 was accepted from the complainant to save him from the prosecution and cancellation of license of their Fair Price Shop over irregularities.
Special CBI Judge Sunena Sharma Acquitted Mukesh Kumar (Assistant Commissioner) and Shyam Sunder from the charges of corruption after considering the submissions and evidence brought by the CBI.
The court gave the accused benefit of doubts and said Prosecution has failed to prove its case beyond reasonable doubt.
Special Judge Sunena Sharma said, "I am of the considered view that prosecution case is shrouded with serious infirmities, discrepancies and contradictions. CBI has miserably failed to bring any cogent and clinching evidence so as to record the finding of guilt against any of the
accused persons for any of the alleged offences.
"The essential ingredients of 'demand', 'acceptance' and 'motive or reward' for the purpose of Section 7 & 7A PC Act have remained unproved and as a consequence, prosecution miserably failed to prove its case beyond reasonable doubt against both the accused," the court said in the judgement passed on January 30.
Advocate Sanjay Gupta alongwith Raj Kamal Arya appeared for accused Mukesh Kumar had raised a strong objection on the admissibility of the CFSL report. First objection was for lack of notification of CFSL under IT Act and second was regarding competency of the expert witness to give any opinion on the voice identification.
It was also argued on behalf of accused Mukesh Kumar (public servant) that no valid sanction was obtained by CBI for prosecution of accused.
It was further argued that the sanction order is apparently defective as the same was accorded by the competent authority without application of mind and same is also evident from the fact that a draft sanction was sent to Vijay Kumar Dev (then Chief Secretary) who was competent authority alongwith the request letter of CBI.
The Counsel for accused Mukesh Kumar submitted that at the time of examination of Vijay Kumar Dev, the official noting file of the sanction accorded in this case for the prosecution of accused Mukesh Kumar was summoned by the court and Dev was shown the said letter and the accompanying draft sanction order and he admitted that said draft sanction order was received by him alongwith the said letter.
Special judge observed, "I have carefully perused the testimony of Prosecution Witness (Vijay Kumar Dev) and also given thoughtful consideration to the rival contentions on the point of sanction."
The Court noted that during his cross- examination, Prosecution witness admitted that at the time when the sanction was granted for prosecution of accused Mukesh Kumar, the copy of questioned recordings (conversation) were not received nor there is any mention of said copies even in the sanction order.
He admitted that as per document mentioned in the sanction order, only transcripts of the questioned telephonic conversations were received, the court noted.
"It is trite law that grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned, " the court held.
The court said that admittedly, by the time, the sanction was accorded for the prosecution of the accused Mukesh Kumar, the CFSL report regarding voice identification was yet not ready and the original recordings were still lying in the CFSL.
" After analyzing aforementioned facts in the light of the judgment in Joginder Singh Malik
(supra), I am of the considered view that the sanction under Section 19 of PC Act accorded for prosecution of accused Mukesh Kumar was defective as the competent authority was provided with only the transcript of the recorded conversation and the recordings were never made available to the sanctioning authority for verifying the content of transcript qua the demand of bribe allegedly raised by said public servant Mukesh Kumar. This clearly shows lack of application of mind on the part of sanctioning authority while according sanction against said
accused. In view thereof, accused Mukesh Kumar deserves to be acquitted also for lack of valid sanction under section 19 PC Act," Special Judge Sunena Sharma said.
An FIR was registered on the basis of a joint complaint of September 24, 2018 filed by two
brothers namely Ramesh Kumar and Naresh Kumar.
As per the complaint, it was alleged that accused Mukesh Kumar, Assistant Commissioner, Food & Supply Department (South), Delhi and accused Shyam Sunder (Private Person), in furtherance of their common intention had a raid carried out on September 14, 2018 in the Fair Price Shop belonging to family of complainants and seized sale and stock register from the shop without issuing any receipt thereof.
The license of said Fair Price Shop was in the name of Nirmala Devi, the wife of complainant.
It was also alleged that on September 17, 2018, the accused Shyam Sunder, who often used to meet the complainants in the office of accused Mukesh Kumar, gave a call to the complainant Naresh Kumar and demanded a bribe of Rs 1.5 lakh in connection with the raid conducted in their ration shop.
It was also alleged on September 21, 2018, accused Mukesh Kumar met the complainant Naresh Kumar in his office and demanded Rs 50,000 in order to save him from the prosecution and cancellation of license of their Fair Price Shop. The complainants lodged a joint complaint with CBI on September 24, 2018.
It was alleged that accused Shyam Sunder was caught red-handed by the trap team while demanding and accepting the tainted amount of Rs 50,000.
Accused Shyam Sunder disclosed that the bribe amount was accepted by him on the instruction of accused Mukesh Kumar.
A call was made to accused Mukesh Kumar and during said call, accused Shyam Sunder informed him about having received Rs 50,000, to which accused Mukesh Kumar replied "theek hai".
Thereafter, the accused Mukesh Kumar was apprehended from his ITO office, where a search was also conducted and a File alongwith other documents were seized from his office.