IN THE COURT OF SH.

NAROTTAM KAUSHAL, SPECIAL JUDGE (PC Act)-05, (ACB), (CENTRAL), TIS HAZARI COURTS, DELHI
FIR No.- 14/2009 PS-Crime Branch U/sec.- 7, 8, 12, 13 (i) (d) POC ACT & 120-B IPC State Versus 1) 2) 3) 4) 5) 6) 7) Sanjeev Saxena Sohail Hindustani Sudheendra Kulkarni Amar Singh Faggan Singh Kulaste Mahabir Singh Bhagora Ashok Argal

Arguments addressed by:-Sh.Mohan Prasaran, ld. Solicitor General with Sh.D.L.Chidananda, Adv. on behalf of State Sh.Mahipal Singh Ahluwalia, Adv. for Sudheendra Kulkarni Sh.Anil soni, Adv. for Faggan Singh Kulaste, Ashok Argal & Mahabir Singh Bhagora Sh.Anurag Dubey, Adv. for Sohail Hindustani Sh.N.Hariharan, Sr. Adv. with Sh.S.P.M. Tripathi, Adv. for Amar Singh Sh.Ajay Burman, Adv. for Sanjeev Saxena ORDER ON CHARGE 1.1 July 22, 2008 was a black letter day in the history of Indian

Parliament. Three members of Parliament namely Ashok Argal, Faggan Singh Kulaste and Mahabir Singh Bhagora placed on the table of

Parliament currency notes for the amount of Rs.One Crore, when the

House was

debating on Motion of Confidence. It was claimed that the

money had been offered to them in connection with the voting. Speaker of the House after discussions with senior Parliamentarian asked the aforesaid three MPs to put-in a written complaint. Before a formal complaint could be submitted by the aforesaid three MPs, a

communication dated 23.07.2008 was received by the Speaker, from Rajdeep Sardesai, Editor in Chief of CNN-IBN Network. He enclosed five video tapes along with his communication. Formal complaint dated

25.07.2008 addressed to Hon'ble Speaker, Lok Sabha was submitted by the three MPs, alleging that they were sought to be bribed by the leaders of Congress and Samajvadi Party to help the Government, by refraining from voting against confidence motion.

1.2

On receiving the aforesaid complaint a Joint Parliamentary

Committee (hereinafter called as 'J.P.C.') was constituted by the Hon'ble Speaker of Lok Sabha which conducted detailed inquiry and tabled its report before Parliament. In the concluding para 141 (XIV to XVII), it recommended further probe by investigating agency relating to roles of Sanjeev Saxena, Suhail Hindustani and Sudheendra Kulkarni. Accordingly investigation was conducted by Crime Branch of Delhi police and charge sheet was filed against six accused persons namely Sanjeev Saxena, Sohail Hindustani, Sudheendra Kulkarni, Amar Singh (MP, Samajwadi Party) Faggan Singh Kulaste (MP , BJP) and Mahabir Singh Bhagora (MP, BJP).

Another MP namely Ashok Argal was not charge sheeted as sanction for his prosecution had not been received. BJP MPs are charge sheeted for offences u/s 7 & 13 (i) (d) of Prevention of Corruption Act, 1988 (hereinafter called as 'POC Act') & 120-B IPC. Accused Sanjeev Saxena, Sudheendra Kulkarni and Amar Singh have been charge sheeted for offences punishable u/s 12 of POC Act & Sec.-120-B IPC and accused Suhail Hidustani has been charge sheeted for offences punishable u/s 8 & 12 of POC Act and Section 120-B IPC.

1.3

First supplementary charge sheet dated 29.09.2011 was filed

detailing the efforts to trace the money trail to find the source of bribe. It was also reported that accused Sanjeev Saxena had been employed with Himachal Futuristic Communication Ltd. (HFCL ) and later on with Vincom Money Mudra Pvt. Ltd. Second supplementary charge sheet dated 30.10.2011 was filed with respect to grant of sanction for

prosecuting accused Ashok Argal, who was sitting MP of Lok Sabha. The third supplementary charge sheet dated 24.11.2012 was filed on interrogating reporters/correspondents of CNN-IBN team. It was

concluded that interview of BJP MPs was not part of the sting operation done by the channel and the same was recorded after the sting operation was over. It was concluded that the same was not relevant to the investigation. Fourth Supplementary Chargesheet was filed with respect to seizing the videotapes of aforesaid interviews.

2.1

The facts that have emerged from the police investigation

can be briefly described as under:On 21.07.2008 on the asking of Sh. Arun Jaitely, MP, Rajdeep Sardesai, Editor in chief of CNN-IBN agreed to record evidence of 'horse trading' of MPs. Rajdeep Sardesai instructed his correspondent Sidharth Gautam to get in touch with concerned MPs and film the monetary transaction that may take place. Sidharth Gautam was instructed to contact Sudheendra Kulkarni. accused Sudheendra Kulkarni and both met in the night of 21.07.2008 at the residence of Sudheendra Kulkarni introduced the CNN-IBN team to three accused BJP MPs namely Ashok Argal, Faggan Singh Kulaste and Mahabir Singh Bhagora and also accused Suhail Hindustani. Sohail Hindustani told CNN-IBN team that a meeting had been fixed at Hotel Le Meridien with a senior Congress leader. Two of the aforesaid BJP MPs were fitted with hidden cameras and they went to the Hotel. After sometime they returned and told that the meeting did not materialise as the Congress leader did not turn up. In the mid night of 21/22-7-2008, the CNN-IBN team reached at 4, Ferozshah Road, New Delhi i.e. the residence of MP Ashok Argal, where the three BJP MPs told that Samajwadi party leader Rewti Raman Singh would arrive. Cameras were installed in a room of said house. At about 12.30 AM, Shri Rewti Raman Singh came and the conversation between three accused BJP MPs and Shri Rewti Raman Singh were recorded. CNN-IBN team was told by the three BJP MPs to return next morning at 7.00 AM. On arrival in the morning CNN-IBN team was told by Ashok Argal that a meeting had been fixed with accused Amar Singh at his residence 27, Lodhi Estate. CNN-IBN team reached 27, Lodhi Estate, where a Zen car No.

DL-5C- C-7218 arrived which had tinted glasses.

Suhail

Hindustani was in the car, driven by witness Hasmat Ali. 30 minutes later car came out of 27, Lodhi Estate and reached 4, Ferozshah Road. Accused BJP MPs told the CNN-IBN team that Amar Singh had promised to send money through his secretary. Around 11.00 AM, accused Sanjeev Saxena came along with one person wearing yellow colour shirt in a white Gypsy and delivered a bag containing Rs. One Crore to the BJP MPs got three accused BJP MPs. After the departure of Sanjeev Saxena and the person wearing yellow shirt, three recorded their interview. The audio visual of money being placed on the table before three accused BJP MPs was recorded in the camera and the microphone.

2.2

In support of the prosecution story as noticed above, IO

recorded the statements of Rajdeep Sardesai (Editor in Chief), Saif Kidwai (Producer), Sidharth Gautam (Correspondent), Sudesh Bhatt & Karamvir (camera persons) from the team of CNN-IBN. IO also recorded the

statement of Hasmat Ali who had driven the Zen car from 4, Ferozshah Road, New Delhi to 27, Lodhi Estate. He stated that he had taken two BJP MPs namely Faggan Singh Kulaste and Ashok Argal to the house of Amar Singh on 22.07.2008 at 09:30 AM. Suhail Hindustani was also with them. He has also stated that some time later Sanjeev Saxena and a person in yellow shirt came to 4, Firozshah Road, in a white Gypsy. Remaining part of his evidence is hearsay evidence and the same is inadmissible.

2.3

IO also recorded the statements of Aman Arora, S.P.Gupta

and Arvinder Singh @ Lovely. They have deposed that Suhail Hindustani met them on or around 20/21-07-2008. He was making frantic attempts to strike a deal for his monetary gain and also for the three BJP MPs, to influence their voting on motion of confidence.

2.4

During investigation statements of Deepak Malhotra

(Principal), Dayal Singh College (Evening) and Dr. I.S. Bakshi (Principal), Dayal Singh College have also been recorded. They have stated that Amar Singh (MP) sent a recommendation letter on his letter head for admission of Samarth Saxena (son of Sanjeev Saxena). Further said Samarth Saxena in his application form had mentioned office address of his father as 27, Lodhi Estate. IO has also recorded the statement of Ashwani Ahuja and Bhupesh Malik who worked as telephone operator /secretary at the residential office of Amar Singh. They have both stated that on

22.07.2008 between 9.30 AM to 11.00 AM Sanjeev Saxena made calls to them on their mobile phone and expressed his desire to speak to Amar Singh.

2.5

In the first supplementary challan, IO seized & placed on

record the statement of bank accounts of Amar Singh but could not make any connection between money recovered and the accounts of Amar Singh. IO also directed the MLO, Sheikh Sarai, Transport Authority to

preserve the registration records of vehicle No.-DL-3C-S-8562. He also interrogated Mahinder Nahta, Managing Director, HFCL who stated that Sanjeev Saxena was employed with his company, during 2006, and had thereafter joined Vincom Money Mudra (P) Ltd. during 2008. In second supplementary challan, sanction for prosecution of accused Ashok Argal was placed on record. In the third supplementary challan, members of CNN-IBN team were further interrogated. They were unable to identify the camera used or the person who had handled the camera on 22.07.2008. It was also revealed briefings and rehearsals that three BJP MPs had been given

before recording their interviews. In the 4th

supplementary charge sheet, the IO recorded statement of Rohit Khanna of CNN-IBN who produced tape recording of interviews of three BJP MPs.

2.6

Other witness examined by the IO are formal in nature, who

proved links of various stages of investigation. They are all officials of police department. No other public public witness has been examined by the IO during investigation.

3.1

Ld. Solicitor General Sh. Mohan Parasaran, on behalf of the

State, made oral submissions and also filed written submissions on 23.09.2013, additional submissions on 6.11.2013 and further additional submissions on 13.11.2013. Ld. Solicitor General has relied upon the law laid down in State of MP Vs. Mohan Lal Soni reported as (2000) 6 SCC

338; State Vs S. Bangarappa reported as (2001) 1 SCC 369; Suresh Vs State of Maharashtra reported as (2001) 3 SCC 703; State of MP Vs Sheetla Sahai reported as (2009) 8 SCC 617; Sajjan Kumar Vs CBI reported as (2010) 9 SCC 368; Union of India Vs Prafulla Kumar Samal reported as AIR 1979 SC 366. He referred to the analysis and evaluation of evidence on record against each of the accused persons in the charge sheet dated 22.08.2011 and submitted that the trail of money could not be established despite best efforts, to find out the source of money. In

additional written submissions, it has been stated that no recording of conversation at the end of Amar Singh could take place and there was no identity of voices in the alleged conversation. The events that happened at the residence of Amar Singh are circumstantial. The clarification

rendered on behalf of Amar Singh be considered by the court in the light of settled law.

3.2

In response to Aide Memoire filed by counsel for accused

Amar Singh, Ld. Solicitor General filed yet more written submissions dated 13.11.2013. It has been reiterated that there was no recording of conversation which took place between two BJP MPs and Amar Singh at his residence. Further in the recorded conversation which took place at 4, Ferozshah Road, the voices have not been identified. The contention of the counsel for Amar Singh seems to be borne out from the record and can not be termed as incredulous and seem to be logical.

4.1

Sh.Mahipal Singh Ahluwalia, Ld. counsel for the accused

Sudheendra Kulkarni has referred to order dated 16.11.2011 passed by Hon'ble High Court in his bail application, wherein it has been observed that Sudheendra Kulkarni was neither giver nor taker of money. His role was of introducing MPs with CNN-IBN team and thus his role was similar to that of CNN-IBN team.

4.2

It is further submitted that investigation conducted is mis-

directed with respect to tracing the money trail. Accused Sanjeev Saxena who was carrier of the money has deliberately not been interrogated. One Rohit Khanna referred to by the CNN-IBN team has not been examined. Referring to the statement of Sidharth Gautam, it is argued that Sudheendra Kulkarni wanted to expose horse trading. He had no intention to accept bribe or abetment thereof. Referring to the conduct of three accused BJP MPs, it is argued that if their intention were to accept and retain the bribe money, they would not have carried the same to Parliament. Reliance has also been placed on the interviews of three accused BJP MPs recorded by CNN-IBN team, shortly after the amount was delivered to them. Referring to law laid down in Anirudh Behl Vs State reported as 2010 (172) DLT 268, it is argued that recourse to law enforcement agency could be counter productive when corruption at high places was being exposed.

Sh. Anil Soni Ld. counsel, on behalf of three accused BJP

MPs, has argued that they are whistle blowers and cannot be charged for offences punishable under POC Act. Sudheendra Kulkarni and Suhail Hindustani had agreed to film evidence of 'horse trading' by video recording with the help of CNN-IBN team. The role of three accused BJP MPs was that of actors in drama scripted by producer and

correspondent of CNN-IBN team. There was no intention of accepting the money as bribe. The sole purpose was of creating a film by sting operation. Ashok Argal permitted his house to be bugged knowing fully well that audio video recording was being done by CNN-IBN team, which will be put in public domain. Reliance has been placed on Anirudh Behl's case (supra).

Sh. Anurag Dubey, Ld. Counsel for accused Suhail

Hindustani, has argued that he was only a whistle blower who had no intention of accepting bribe or facilitating acceptance thereof by a public servant. He orchestrated the sting operation. There was no

agreement or meeting of mind with respect to committing any illegal act or legal act by illegal means.

Sh.Hari Haran, Ld.Senior Advocate for Amar Singh has

submitted oral arguments as well as written arguments. It is argued that there is no direct evidence against Amar Singh. He has not been covered

in any audio or video recordings. The circumstantial evidence being read against him is not borne out from the records. Statements of co-accused persons cannot be read against him, as there is no corroboration. Report by J.P .C. has given a clean chit to him. There is no direct evidence

regarding any of the three BJP MPs having met him at his residence. Videography of white Maruti Zen entering or leaving his house does not establish the charge. As regards accused Sanjeev Saxena visiting the residence of accused Ashok Argal, it is submitted that the transcript of video recording shows a glaring discrepancy in the audio recording, when compared with audio-video recording. The queries being put by the BJP MPs from Sanjeev Saxena indicate that they had no knowledge of his identity or as to who had sent him with the money. The alleged telephonic call by Sanjeev Saxena to Amar Singh is not conclusive

evidence as there is no proof that the conversation was actually with Amar Singh. As regards the recommendation letter given by Amar Singh for admission of Sanjeev Saxena's son to Dayal Singh College, it is

submitted that such letters can be procured from the politician, if one has access to their staff members. It is further argued that money trail could not be connected to Amar Singh. It is further submitted by way of written submission/additional written submission/Aide Memorie that Sanjeev Saxena was employed with HFCL and Vincom Money Mudra Pvt. Ltd. The letter dated 2/06/2008 allegedly signed by Amar Singh recommending admission of Samarth Saxena was examined by CFSL,

which submitted its report to the effect that; definite opinion regarding matching of signatures could not be tendered. No record of telephonic conversation between Amar Singh and Principal of college has been seized. Moreover the alleged conversation between three BJP MPs and Amar Singh cannot be read in evidence, as there is no voice identification with regard to voices of any of the speakers. There is no statement of any witness recorded by the IO regarding identification of Gypsy bearing registration No.-DL-3C-S-8562 allegedly used by Sanjeev Saxena for delivering the cash. It is common knowledge that the aforesaid vehicle is used by the security staff of Amar Singh. An attempt has been made to falsely connect the vehicle with Sanjeev Saxena. Sh.Hari Haran has relied upon the law laid down in CBI Vs K. Narayana Rao reported as 2012 Cri, L.J. 4610, Union of India Vs Prafulla Kumar Samal & Anr. reported as AIR 1979 SC 366 and L.K. Advani Vs CBI reported as 1997 (41) DRJ 274 .

Shri Ajay Burman Adv., Ld. counsel for accused Sanjeev

Saxena has argued that there is no evidence of conspiracy between accused Sanjeev Saxena and others. No connection of the money has been established with him and Amar Singh. The abetment to take bribe was at the end of three BJP MPs. Sanjeev Saxena can at the most be attributed the role of a courier. He was not a part of any conspiracy. For a person to be charged for abetment, it has to be shown that he

intentionally aided the doing of that illegal act. Reliance has been placed on State of MP Vs Mukesh & Ors reported as 2006 (4) Crimes 249, Devi Dass Vs Union of India & Anr. reported as 28 (1985) Delhi Law Times 197 and A.K. Jain Vs State (CBI) reported as 2006 (1) JCC 309.

I have heard the Ld. counsels and with their assistance

perused the voluminous record and the judgments relied upon. The law regarding framing of charge has been synthesised by the Hon'ble Supreme Court of India in Union of India Vs Prafulla Kumar Samal & Anr. (supra). The judgments cited by ld. Solicitor General also refer & rely upon the broad principles laid down in Union of India of Vs. Prafulla Kumar Samal & Anr.'s case (supra). It will be apposite to reproduce the principle enunciated by the Hon'ble Supreme Court;
(i) That the judge while considering the question of framing the charges under Section 227 of the code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out: (ii) Where the materials placed before the Court disclose

grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The test to determine a prima facie case would

naturally depend upon the facts of each case and it is

difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produce before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (iv) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting the trial.

10.

The evidence that has come up during investigation i.e. 'the

record of the case' shall be now discussed against the touch stone of principles enumerated above. I shall take up the case of each accused one by one.

Sudheendra Kulkarni (12 POC Act and 120-B IPC )

11.1

The

role

of accused Sudheendra Kulkarni has been

described in the statements of CNN-IBN team. Role, ascribed to him, is that he coordinated with Sidharath Gautam (correspondent of CNN-IBN team ) on the instructions of Sh. Arun Jaitely, MP. Saif Kidwai ( producer) of CNN-IBN went to the residence of Sudheendra Kulkarni on 21.07.2008 at 09.45 PM where he was introduced to three BJP MPs and Suhail Hindustani. In his presence cameras were fitted on the person of two of the BJP MPs to record a meeting with a senior Congress leader at Le Meridian Hotel. The meeting did not materialise and the team returned. No further role has been ascribed to Sudheendra Kulkarni in any further proceedings. The recordings at the residence of Ashok Argal later that night and next morning have been organised by the CNN-IBN team which was now in direct contact with the three BJP MPs.

11.2

Thus, the role of accused Sudheendra Kulkarni is only of

introducing the CNN-IBN team with the remaining four accused persons namely Suhail Hindustani and three BJP MPs; with a view to facilitate recording of evidence on 'horse trading', Confidence Motion. on the eve of voting of

There is apparently no direct or active role of

Sudheendra Kulkarni in the later part of events, when the exchange of money actually took place. Evidently there is no direct evidence against

the accused for abetting the giving or taking of the bribe, so as to attract a charge for offence punishable u/sec.-12 POC Act. He has been sought to be charged with the aid of section 120-B IPC. In my opinion charge for offence u/s 120-B IPC is also not made out as there was no meeting of minds for doing any illegal act or for doing legal act with illegal means. The meeting of minds or agreement between accused, CNN-IBN team and three BJP MPs was only regarding collection of evidence on horsetrading and exposing leaders of Congress Party and Samajvadi Party, who were indulging in corrupt activity to lure vulnerable MPs of other parties. The said act cannot be said to be illegal or a legal act with illegal means; so as to attract a charge u/s 120-B IPC. I am thus of the opinion that no charge is made out against accused Sudheendra Kulkarni. He is accordingly discharged of the offences punishable u/s 12 POC act and 120-B IPC.

Suhail Hindustani ( 8, 12 POC Act and 120B IPC )

12

The evidence against accused Suhail Hindustani collected

by the IO, is the statements of members of CNN-IBN team and the video clips. His presence with Sudheendra Kulkarni and in later events with the three BJP-MPs is mentioned by all the witnesses of CNN-IBN team. He is also reported to have gone to the residence of Amar Singh, in the car driven by Hasmat Ali. Another set of witnesses namely Aman Arora, S.P.

Gupta and Arvinder Singh @ Lovely have stated that he contacted them on or before 21.07.2008 and was making frantic efforts to strike a deal for monetary gain for self and three BJP MPs to influence their voting on Motion of Confidence. He has been charge sheeted for offence

punishable u/s 8/12 POC Act and section 120-B IPC. The first set of witnesses who have deposed against him namely Aman Arora and others only state his intention to solicit buyers to influence voting on Motion of Confidence. All the three witnesses have further deposed that they

discouraged him. Later part of his involvement in the sting operation with CNN-IBN team and orchestrating meeting with Congress and Samajvadi Party leaders indicates that he was also intending to expose 'horse trading' in tandem with BJP MPs. From the statement of Aman Arora and others it cannot be said that he was making an attempt to obtain illegal gratification for the three BJP MPs. Such an inference could be drawn if Aman Arora etc. were the prospective buyers or their agents. In my opinion, his parlays and meetings with the aforesaid witnesses at the most express his intention to indulge in such activity. For intention to graduate to the level of crime, it was necessary to prove that he had met any such Congress or Samajwadi Party leaders and demanded illegal gratification from them. Bearing an intention to commit an illegal activity or legal activities with illegal means is not punishable. Agreeing to do an illegal act can be punishable only if the agreement is proved by direct or indirect evidence. Summoning order against Sh. Rewti Raman

Singh having been quashed, there is no material on record to say that Suhail Hindustani was in agreement with any Congress or Samajvadi Party leader for exchange of bribe. His presence with accused BJP MPs during later part of the events with the knowledge that proceedings were being recorded by CNN-IBN team and his active participation therein indicates that he was one of the actors playing his role in the drama being enacted to entrap bribe giver. I am, therefore, of the considered

opinion that no charge for offence punishable u/s 8/12 POC Act and 120-B IPC can be framed against the present accused.

Faggan Singh Kulaste, Mahabir Singh Bhagora and Ashok Argal (7,13 POC Act & 120-B IPC ) 13.1 All the three accused persons are similarly placed and have

been charge sheeted for offence u/s 7, 13 (i) (d) POC act & 120-B IPC. The evidence that has come up against all the three BJP MPs is primarily the audio video recording by the CNN-IBN team wherein they are seen being handed over currency notes amounting to Rs. One Crore by

Sanjeev Saxena. IO has also during investigation recorded statements of Rajdeep Sardesai who has stated that CNN-IBN team agreed to film evidence of 'horse trading' and he had deputed his correspondent Sidharth Gautam to film the recordings. The cameras were initially fitted on the person of Faggan Singh Kulaste and Mahabir Singh Bhagora and subsequently in the residence of Ashok Argal. Mere fact that three MPs

permitted cameras to be installed on their person or in their house, pre supposes that they did not want to hide their activities. Associating a

reputed TV Channel further establishes that they wanted to bring the events in public domain. In my opinion, the first para-meter of being

honest is when one is prepared to be transparent. Publically accepting bribe by its very nature is paradoxical. Be it taking bribe or committing any other offence, the first reaction of an accused is to hide the same from public gauge. Inviting TV channel to film the acceptance of money cannot by any stretch of imagination be said to be with the intention of hiding the activity. In such circumstances the argument of Ld. defence counsel that whatever was done before the camera, was only enactment of a drama to an

expose horse trading, looks absolutely

plausible. The intention is further corroborated by the fact that the currency notes were taken to the Parliament House and tabled, to be viewed by the entire nation. To explain and justify non association of investigating agency, the Ld. counsel has rightly relied upon the law laid down in Anirudh Behl's case wherein certain parliamentarians were caught on camera in sting operation accepting cash for putting

questions in Parliament. In the said case it was held by Hon'ble High Court of Delhi that I have no doubt in my mind that if the information would have been given by the petitioners to the police or CBI, the respective MPs would have been given information by the police, before hand and would have been cautioned about the entire operation.

13.2

The practice of laying trap to catch a bribe taker is nothing

new. Only difference in this case is that trap was laid to catch the bribe giver and bribe takers were only decoys. While dealing with bail

application of all the accused persons except Amar Singh, Hon'ble Delhi High Court observed as under:None of the petitioners was beneficiary of the amount received by the three MPs from the petitioner Sanjeev Saxena. In fact, it was the prosecution's own case that the MPs did this act to entrap Congress and Samajvadi Party so as to expose them. If the intention of the petitioner MPs was to receive the bribe, they would have done so and kept the amount so received silently instead of producing the same in Parliament immediately thereafter. If, that was so, even according to the prosecution, the basic requirement of mens rea to accept and receive bribe so as to (bring it ) within the ambit of Prevention of Corruption Act was lacking on the part of all the petitioners. All the star witnesses of the prosecution in their statements under section 161 Cr. P .C. have stated this incident to be sting operation and none of the has stated acceptance of illegal gratification by the petitioner MPs.

13.3

I am, thus, of the opinion that there is no direct, indirect or

inferential evidence that any of three BJP MPs conspired to accept or obtain bribe or attempted to accept or obtain bribe. They are, thus, discharged of the offences u/sec.-7, 13 (i)(d) of the PC Act & 120 B IPC.

AMAR SINGH (12 POC Act & 120-B of IPC )

14.1

The three BJP MPs in their complaint dated 25.07.2008,

addressed to the Speaker Lok Sabha, have alleged that on 21.07.2008, Sh.Rewati Raman Singh, a senior leader of Samajwadi Party met them at the residence of Ashok Argal and promised them to take care of their interest and also advised a face to face meeting with Amar Singh. On the next morning i.e. on 22.07.2008, Ashok Argal and Faggan Singh Kulaste met Amar Singh at his residence, who promised to pay each of the three MPs Rs.Three Crores for abstaining from voting. It has next been

mentioned in the aforesaid complaint that Amar Singh promised to send the amount through his assistant Sanjeev Saxena. Evidently, this

discussion, if at all, had taken place between two of the accused BJP MPs and the third accused Amar Singh. There was no stealth recording of this meeting. Moreover, no such statement of the three BJP MPs is on record of the judicial file. Since they are also arrayed as accused persons,

contents of the complaint can not be proved. Thus, there is no admissible evidence of this discussion, on the judicial file.

14.2

As regards meeting between the two accused BJP MPs and

accused Amar Singh at his residence, the only evidence on record, is the statement of Hasmat Ali. He has stated that he drove Ashok Argal and Faggan Singh Kulaste to the residence of Amar Singh on 22.07.2008 at

09:30 AM. It is not the case of the witness or the prosecution that he was privy to any discussion among the three. It can safely be, therefore, concluded that there is no evidence on record regarding the promise, if any, made by Amar Singh to the two, for sending any bribe money

through his assistant Sanjeev Saxena.

14.3

The next set of direct evidence sought to be read against

Amar Singh is the audio-video recording at the residence of Ashok Argal, when Sanjeev Saxena brought the money. During the stay of Sanjeev Saxena at the residence of Ashok Argal, he is alleged to have facilitated telephonic talk between Amar Singh and the three BJP MPs. Admittedly, the audio-video recording of this conversation is only at one end, i.e. the place where the three BJP MPs were present. There is no recording at the other end, where allegedly Amar Singh was present and speaking. The recorded conversation of co-accused BJP MPs with one person whom they are seen & heard addressing as 'Singh Sahab', in my opinion, can not be read against Amar Singh. Moreover, as pointed out by the ld. defence counsel, the voices of three BJP MPs have not been identified by any witness or by speech spectrography test.

14.4

It is the case of the prosecution, itself that despite best

efforts, the money trail could not be established. The bank accounts of Amar Singh were examined by the IO and statement of accounts

collected, which did not show withdrawal corresponding to the amount seized. There is, thus, no evidence on record connecting Amar Singh with the amount of Rs. One Crore sent to the residence of Ashok Argal on 22.07.2008, through Sanjeev Saxena.

14.5

The other set of evidence, sought to be read against Amar

Singh with the aid of section 120-B IPC is the circumstances and inferences. It has been sought to be indicated that Sanjeev Saxena, who carried cash to the residence of Ashok Argal was an employee of Amar Singh. To establish the link, recommendation letter by Amar Singh

addressed to Principal, Dayal Singh College for admission of son of Sanjeev Saxena has been seized and placed on record. Sh.Hariharan, ld. counsel for the accused has sought to explain the recommendation letter, on the ground that such letters can be easily procured by any person, who has access to the staff of a politician. Ld. Solicitor General in response to this argument in the written submissions has conceded that the explanation seems justified. As regards the admission form of Samarth Saxena, having been seized by the IO, contents of the said document can also not be read in evidence, as the author thereof, i.e. Samarth Saxena, has not been cited as witness. Statements of Bhupesh Malik & Anshuman Ahuja, Telephone Operator/ Secretary at the residential office of Amar Singh, to the effect that on 22.07.2008 between 09:30 to 11:00 AM Sanjeev Saxena spoke to them expressing his desire to speak with Amar Singh;

does not prove that Sanjeev Saxena was employed with Amar Singh or had carried the money at the instance of Amar Singh. To the contrary, prosecution has examined one Mahender Nahta, who claims that Sanjeev Saxena was initially employed with his company HFCL and subsequently, switched to Vin Com Mudra Private Ltd. and at the time of the incident he was in the employment of Vin Com Mudra Private Limited. It is also the case of prosecution that Sanjeev Saxena was employed with HFCL upto Nov-06 & had then shifted to Vin Com Mudra Private Limited, where he worked up to 21.07.2008. His salary, from the above said employers, was credited to his bank account. Thus, there is no direct or un-impeachable circumstantial evidence to hold that Sanjeev Saxena was employed with Amar Singh.

14.6

Another circumstance sought to be read against Amar Singh

is the alleged use of Gypsy bearing registration no.-DL-3C-S-8562 by Sanjeev Saxena for visiting H.No.-4, Firoz Shah Road, Delhi. It is only Hasmat Ali & Sidharth Gautam, who have mentioned, in their statements u/sec.-161 Cr.P .C. of Sanjeev Saxena having arrived in a white Gypsy. However, they have also not stated the registration number of Gypsy. This piece of evidence is on the record of J.P.C., by way of letter written by the three accused BJP MPs, which can not be read in evidence. No admissible evidence to this effect was collected by the IO, during the investigation and placed on judicial record. The evidence on record is not capable of being converted to legal evidence.

14.7

The circumstances, as noticed above, when put together, do

raise a suspicion regarding nexus between the accused Sanjeev Saxena & accused Amar Singh. Nonetheless, the suspicion, not being supported by any admissible evidence, does not go beyond the realm of suspicion, leave alone grave suspicion. I find force in the argument of Sh. Hariharan that circumstantial evidence must complete the chain and no link of chain should be missing. Reliance upon L.K.Advani's case (supra) is

appropriately placed, wherein it was held as under :'The present case admittedly is based on circumstantial evidence. It is a well established principle of criminal law that in case of circumstantial evidence it should be of such a nature that it is incapable of explanation on any other hypothesis except the guilt of the accused. It must be a complete chain and no link of the said chain should be missing. In other words, it can be said that the facts brought in the form of circumstantial evidence must be incompatible with the innocence of the accused.'

Hon'ble High Court of Delhi in the same judgment also held that charge can be framed against a person, only if the evidence which is capable of being converted into legal evidence, has been brought on record. Relevant paragraph is reproduced herein below:-

'It is manifest from above that the charges can be framed against an accused person only in those discerning few cases, where the Court comes to the conclusion that the prosecution has shown a prima facie case against the accused and there is evidence before the Court which is

capable of being converted into legal evidence later on during the subsequent proceedings after the framing of the charges.'

14.8

Since, no apparent nexus can be established between Amar

Singh & Sanjeev Saxena, meeting of minds between the two for commission of an illegal act or a legal act by illegal means can not be established. It has alternatively been submitted by Sh. Hariharan that proximity of Sanjeev Saxena with Amar Singh could also have been misused by Sanjeev Saxena, who might have acted at the behest of some other players. It is, thus, argued that a circumstance, which is capable of another reasonable explanation can not be read to prove the charge of conspiracy. Reliance has been placed upon Central Bureau of

Investigation, Hyderabad Vs. K.Naryana Rao reported as 2012 Crl. L.J. 4610 Supreme Court, wherein it is held as under:Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons, who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy can not be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.

14.9

For the reasons noticed above, I am of the opinion that

charge for offences u/sec.-12 of POC Act and 120-B of IPC can not be framed against Amar Singh. He is accordingly discharged.

Sanjeev Saxena (12 POC Act & 120-B IPC) 15.1 The un-impeachable evidence on judicial record against

accused Sanjeev Saxena is audio-video recording, wherein he along with a person in yellow shirt delivered the bag containing Rs. One Crore at the house of Ashok Argal. He is caught on camera placing the cash on table before the three BJP MPs. It is also on camera that he introduced himself as Sanjeev Saxena to the BJP MPs. Sh. Ajay Burman faced with such evidence on record raised an argument that accused was only a courier. He has not been connected with the cash and it is nobody's case that he had brought the cash on his own behalf. However this court is not impressed with the argument raised by Shri Burman that being a

courier/carrier he can not be charged. Drawing support from the law laid down in State of Madhya Pradesh Vs. Mukesh (Supra), it is argued that offence of abetment is constituted when a person does something with the knowledge & intention to felicitate commission of crime. Relying upon Devi Dass's case (supra) it has been argued that a person can be said to do anything in order to facilitate the commission of illegal act, only if the alleged abettor does the thing knowingly and intentionally in order to facilitate the commission of that wrong act.

15.2

In my opinion the law as enunciated in the aforesaid cases

would not come to the rescue of accused Sanjeev Saxena. In case of Devi Dass (supra), the petitioner had not carried the contraband itself and, therefore, it was held that he had no knowledge or intention of abetting smuggling of Gold. Whereas, in the case of State of MP Vs. Mukesh (supra) no illegal omission on the part of booking clerk at Railway ticket counter was established. The Hon'ble Supreme Court has, thus, held that there was no proof of intentional aiding or abetting. However, in the present case, the accused had carried huge amount of cash to the residence of an MP. No explanation has come up on record as to why and for what purpose the amount had been carried by him. I am, thus, of the opinion that accused Sanjeev Saxena possessed requisite knowledge and intention. Moreover, for an offence u/s 12 POC Act to be committed, it is not necessary that the offence punishable u/s 7 & 11 of the POC Act is actually committed as a consequence of that abetment. As held in para-13 above, the intention of BJP MPs was not to commit the offence punishable u/s 7 of the POC Act. Nevertheless the act of Sanjeev Saxena would be covered in the ambit of section 12 POC Act. Reliance upon A.K. Jain's case is misplaced as there is apparently a grave suspicion against the accused, since he is caught on camera handing over the amount to three BJP MPs. However, in my opinion charge u/s 120-B IPC cannot be framed against Sanjeev Saxena as there is no evidence of meeting of minds with any other person. The effort to trace money trail having

failed, the principal offender who attempted to bribe BJP MPs could not be brought before the court. Let a charge u/s 12 POC Act be framed against accused Sanjeev Saxena.

16

That on study of 'record of the case' and the documents

submitted and after hearing the parties, this court has come to an opinion that facts that have emerged from the record do not create sufficient grounds for proceeding against Sudheendra Kulkarni, Sohail Hindustani, Faggan Singh Kulaste, Mahabir Singh Bhagora, Ashok Argal and Amar Singh. They are accordingly discharged of all the offences for the reasons recorded in paras 11 to 14. Similarly there being no sufficient ground for proceeding against accused Sanjeev Saxena for the charge u/s 120-B IPC. He is discharged of the said offence. However, 'record of the case' and documents submitted therewith indicate sufficient ground for presuming that Sanjeev Saxena has committed an offence punishable u/s 12 POC Act. He shall accordingly be tried for the aforesaid offence and charge be framed against him.

Announced in the open Court on 22.11.2013.

(NAROTTAM KAUSHAL) SPECIAL JUDGE (PC ACT)-05 (ACB), TIS HAZARI COURTS

FIR No.-34/08 State Vs.Krishan Gopal Tyagi Etc. 22.11.2013 Present :Sh.Abdul Aleem, Ld. Chief Prosecutor for the State with IO and ACP Ram Phal Yadav, Pairvi Officer. All the accused on bail with counsel Sh. Rajesh Khanna Adv. No witness is present. Request has been received on behalf of Israr Babu that he is unwell. Summons issued for PW Abhinav Krishan Aggarwal have come back with the report that he was served through his wife and who accepted the same and reported that there is function in the family and they will be out of station on the date fixed. Summons served at the changed/new address. Ahlmad is directed to incorporate the new address and summons aforesaid witnesses for the next date. The IO has submitted written explanation of his absence on the last date of hearing. The same be taken on record. IO is directed to be present on the each date of hearing to assist the Ld. Chief P.P. Adjourned to 06.01.2014 for prosecution evidence. Long date is given at the request of Sh. Khanna Adv. as he has to go to abroad to attend the marriage of his nephew. be issued for both the

(NAROTTAM KAUSHAL) SPECIAL JUDGE (PC ACT)-05 (ACB), TIS HAZARI COURTS 22.11.2013

FIR No.-14/09 State Vs.Sanjeev Saxena & Ors. 22.11.2013 Present :Sh.Rajiv Mohan, ld. Special PP for the State & Sh.D.L.Chidananda, Adv. with IO/ Retired ACP Rajender Bakshi with SI Virender, PS- Crime Branch, Delhi Accused Sanjeev Saxena on bail with Sh.Ajay Burman, Adv. Accused Sohail Hindustani on bail with Sh.Anurag Dubey, Adv. Accused Sudheendra Kulkarni on bail with Sh.Subhashish R.Soren, Adv. Accused Ashok Argal, Faggan Singh Kulaste & Mahabir Singh Bhagora on bail Sh.Anil Soni, Adv. Sh.N.Hariharan Sr. Adv. with Sh. S.P.Tripathi, Adv. for Accused Amar Singh on bail Vide separate order on charge, announced today, accused Sanjeev Saxena is charged for the offences punishable u/sec.-12 of POC Act. However, he is discharged of the offence punishable u/sec.-120-B IPC. Accused Sohail Hindustani, Sudheendra Kulkarni, Amar Singh, Faggan Singh Kulaste, Mahabir Singh Bhagora & Ashok Argal are discharged of all the offences. An application has been moved by Sh. Rajesh Bhatia surety of Sudheendra Kulkarni, seeking permission to withdraw the surety bond. Prayer is allowed. Surety is discharged. However, in terms of sec.-437 (A) Cr.P.C., accused Sohail Hindustani, Sudheendra Kulkarni, Amar Singh, Faggan Singh Kulaste, Mahabir Singh Bhagora & Ashok Argal are directed to furnish bail bonds for the amount of Rs.50,000/- with one surety, to appear before the appellate/ revisional court, as and when such notice is issued in respect of any appeal/ revision, which may be filed against this order.

Bail bonds of Amar Singh & Sudheendra Kulkarni are furnished and accepted till 22.05.2014. Previous surety Shami Tandon & Anjana Tandon for Amar Singh are discharged. Original documents, if any, be returned and endorsement, if any, be cancelled. It is also submitted that the sound sureties on behalf of accused Sohail Hindustani, Faggan Singh Kulaste, Mahabir Singh Bhagora & Ashog Argal are also not available today. Bail bonds furnished are accepted upto 07.12.2013 with directions to furnish better sureties, on the next date. cancelled. Charge framed. Accused Sanjeev Saxena pleaded not guilty and claimed trial. Now, to come up on 08.01.2014 for prosecution evidence. However, previous sureties are discharged. The original documents of previous sureties be returned and endorsement if any be

(NAROTTAM KAUSHAL) SPECIAL JUDGE (PC ACT)-05 (ACB), TIS HAZARI COURTS 22.11.2013

FIR No.-21/13 State Vs.Shyam Lal Verma 22.11.2013 Present :Sh.Abdul Aleem, Ld. Chief Prosecutor for the State with Inspector B.K. Singh. Sh. R.P . Shukla Adv. for the applicant. Shri Shukla submitted that the applicant is in custody for the last about one month. It is further submitted that complainant had joined the service on 16.07.2013. The salary drawn w.e.f. 10.07.2013 was not possible. It is, therefore, submitted that prosecution case suffers from mis-statement of facts. Ld. Chief PP has contested the bail application on the ground that treated GC notes were recovered from the possession of the applicant which were demanded and accepted by the applicant in the presence of panch witness. It is further submitted that the matter is still under investigation. I have heard the Ld. counsels. Without making any observations on the merits of the case and considering the fact that applicant is no more required for custodial interrogation and is in JC, he is admitted to bail subject to furnishing bond in the sum of Rs. 50,000/with one surety in the like amount.

(NAROTTAM KAUSHAL) SPECIAL JUDGE (PC ACT)-05 (ACB), TIS HAZARI COURTS 22.11.2013