Ajay Gupta vs State of M.P.

By this Criminal Revision under Section 397 and 401 of the Cr.P.C., petitioner Advocate Ajay Gupta is aggrieved by the order dated 8/7/2009 passed by the Special Judge (Prevention of Corruption Act) Ujjain in M.J.C. No. 1/2009 as well as the order dated 15/6/2010 passed by the District and Sessions Judge, Ujjain in M.J.C. No. 100/2010 and the order dated 27/7/2010 passed in M.J.C. No. 11/2010 by the Special Judge (Prevention of Corruption Act) Ujjain refusing to hear the matter.

Briefly stated the facts of the case are the accused persons were being proceeded under the Prevention of Corruption Act. It was alleged that they were caught red handed and prior to the raid a demand of bribe was discussed by the complainant (petitioner) and the accused persons and recorded on the cassettes and the same had been produced as article K, article U and article N and the transcript of the conversation was also produced in the lower Court concerned. However, when the cassettes were produced in the Court, article K and article U did not emit any sound and the sounds emitted on the article N were compared with the transcript and recorded for evidence. Public Prosecutor Jahir Khan has filed an application under Section 91 of the Cr.P.C. stating that three copies of the cassettes articles K, U and N were prepared on 30/8/2006. One of its copies was given to the accused persons, one copy was given to the Investigating Officer and the copy of the cassettes were submitted in the Court. Articles K and U did not emit any sound. There was conversation in the transcript and hence the copy of the cassette article N, which contains the conversation, should be considered as secondary evidence. The same was objected by the Counsel for the accused and he submitted that the cassettes were placed before the Court below and if there was tampering they should be proved in accordance with the law. Moreover, it is contended that when the original was lost then only the secondary evidence should be considered in accordance with the Evidence Act. Whereas it was contended by the complainant that all the three cassettes were kept in original according to the proceedings and the same have to be placed in muddemaal treasury however, the same were not placed in the muddemaal treasury because it was late in the evening and the three articles were given to the clerk to be kept in his custody and only on the next day they have been deposited and thus there was tampering and proper enquiry should have been conducted.

By the impugned order dated 27/7/2010 Counsel submitted that the Special Judge (Prevention of Corruption Act) Ujjain has held that the cassettes would be a secondary piece of evidence and proper application be filed. And hence the present petitioner has filed the application for accepting the copies of the secondary evidence. The application was resisted by the respondents. Thereupon the petitioner has moved an application that an enquiry be conducted, as to how the cassettes have been tampered with and the trial Court vide order dated 8/7/2009 in M.J.C. No. 1/09 closed the enquiry. Petitioner urged that the enquiry was incomplete and on extraneous consideration. Therefore, further enquiry is necessary. Even the then District and Sessions Judge, Ujjain in M.J.C. No. 100/2010 by the impugned order dated 15/6/2010 and the Special Judge (Prevention of Corruption) in M.J.C. No. 11/2010 by the order dated 27/7/2010 refused to conduct the enquiry. And hence the present petition.

The petitioner has urged that a proper enquiry be directed to be conducted in the matter and any other direction be issued to see that the compliance of the order and the petitioner be permitted to give statement in the enquiry.

Counsel for the respondents have vehemently opposed the contention put forth by the petitioner and submitted that the petition is not maintainable. Besides Counsel submitted that the Naib Naazir O.P. Baindwal has in his reply categorically stated that he was on leave from 28/8/2006 to 2/9/2006 and Prakash Maru was also not the current clerk. Another person Mangilal Bairagi has stated that sealed packet was deposited on the prescribed form on 31/8/2006 in the muddemaal treasury and there was no tampering with, as alleged. The proceedings also indicated that the articles were deposited on 31/8/2006 and the packet was sealed on 30/8/2006 in front of the Presiding Officer and there was no allegation regarding tampering of the sealed packet since it was found to be intact on the date it was opened in the Court. However, it cannot be said that there was no sound recorded in the audio cassette and the cassettes were blank since the cassette was interspersed sounds which could not be properly deciphered. The packet was also observed by the Presiding Officer to be intact and under these circumstances Counsel submitted that the allegations of the petitioner were without substance and the trial Court had properly refused to proceed against the Court employees by the impugned order dated 8/7/2009.

Similarly, Counsel urged that the impugned order dated 15/6/2010 the learned Sessions Judge, Ujjain has observed that in the application it was not mentioned under which provisions of law the application was made. Moreover, the Sessions Judge has refused to enquire into the matter as he is not competent to hear the appeal or revision against the order of Special Judge. Similarly, Counsel also supported the order dated 27/7/2010 passed by the learned Special Judge (Prevention of Corruption Act), Ujjain whereby the Court had also held that the order as being sought to be reviewed, that is the order dated 8/7/2009 passed by the Presiding Officer to the Court of Special Judge (Prevention of Corruption Act) Ujjain could not be reviewed. It was an application for simplicitor pointing out irregularities in the enquiry conducted. Counsel also submitted that this revision has also been filed after a delay of 398 days. Besides there is no actionable wrong and if the concerned employees are to be proceeded against then this could not be a proper forum to direct such an enquiry. The learned Special Judge Prevention of Corruption Act Ujjain has properly considered the matter and arrived at the conclusion that there was no tampering with as being alleged and the petitioner is habitual to make such a complaint. Counsel prayed that the present revision petition be dismissed.

On considering the above, we find that by the impugned order dated 8/7/2009 the learned Judge has come to a categoric finding. On perusal of the record it was found that on 30/8/2006 the cassettes have been sealed, but it could not be kept in the muddemaal treasury and was put in the muddemaal treasury only on 31/8/2006 and thus there was some substance in the objection raised by the petitioner. The petitioner submitted that since the transcript contents of the recorded conversation is available then how it is possible that the cassettes sealed in the Court were found to be blank. And on this ground alone, we find that a proper enquiry should be conducted.

In view of the above, the present petition is allowed and it is directed as follows:-

(a) The learned District and Sessions Judge shall conduct a proper enquiry into the entire episode and as to find who was responsible for not placing the cassettes in the muddemaal treasury on the same day and take proper action against the erring officials.

(b) Needless to say that the enquiry shall be conducted after giving proper notices and sufficient opportunity of hearing to the persons concerned.

(c) The entire exercise be completed within a period of six months from the date of receipt of this order and a written report be filed before this Court thereafter.

C.c. as per rules.