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Corruption Case Against High Court Judge To Favor A Party Against Rule Of Law

Delhi High Court

Shameet Mukherjee vs C.B.I. on 5 September, 2003

Equivalent citations: 2003(70)DRJ327


S.K. Agarwal, J. 

1. By this petition under Sections 439 read with Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'), petitioner, who was a former judge of this Court, is seeking bail in the case R.C No. 3(A)/2003/ACU-X/CBI/AC-III, New Delhi under Sections 120-B, IPC, read with Sections 7811 and 12 read with Sections 13(2) & 13(1) of Prevention of Corruption Act, 1988 (hereinafter 'POC Act').

2. CBI has filed reply opposing the petition and also praying for cancellation of interim bail granted to the petitioner vide order dated 5.5.2003 passed in Crl. M. (M) No. 1817/2003. On 4.6.2003 Hon'ble Mr. Justice B.A. Khan, while issuing notice, extended the interim bail till further orders, observing:

"Meanwhile, he is asking for extension of interim bail granted to him by order dated 5.5.2003 on medical grounds of his wife and on other attendant circumstances which is to expire on 12.6.2003. The basis of his application remains the same though he asserts that condition of his wife suffering from advance stage of Amyotrophic Lateral Sclerosis disease was deteriorating and that she had became totally paralysed by now. It is also submitted that due to advanced stage of the progression disease, her lung function had also dropped requiring outside machine assisted respiratory support which could be operated by petitioner or his son who had left for Kolkata on 27.5.2003. It is also averred that petitioner's problems had multiplied due to his mother's illness, shifting of his house and refusal of specialist doctors of Mata Chanan Devi Hospital to attend to his wife. Considering all this and also that petitioner had remained in police custody for 12 days and had co-operated with the investigation, interim bail granted to him shall stand extended after 12.06.2003 till further orders from the court on his furnishing personal bond of Rs. 50,000/-with one surety in the like amount to the satisfaction of trial court/duty Magistrate. List on 15.7.2003."

3. The case of the prosecution, in brief, is as follows: One Dharamvir Khattar (for short 'DVK'), a businessman, was having close relationship with petitioner and Subhash Sharma, IAS, vice-chairman, Delhi Development Authority (for short 'VC-DDA'); petitioner used to enjoy his hospitality in terms of wine and women and DVK used to act as a conduit for the parties, who wanted their cases pending in petitioner's court to be settled favorably. Official record of petitioner's court used to be taken to the offices of DVK at Mathura Road and Khel Gaon. On 26.3.2003 CBI caught Ashok Kapur, P.S. to former VC-DDA (under suspension) when he was taking out files from the office of DVK at Mathura Road, including the files of the cases in petitioner's court and six page unsigned corrected draft of the order dated 20.02.2003, passed by the petitioner in the suit Azad Singh v. DDA and Ors., (No. 1493/2000) (hereinafter 'the order in question'). Facts leading to the filing of this suit are : that in 1993 DDA decided to widen Aruna Asaf Ali Road, connecting outer ring road and the Mehrauli-Mahilpur Road, to 30 meters; in 1995, it was decided to increase its width to 45 meters. The work was entrusted to Public Works Department (PWD). A strip of land passing through village Kishangarh, could not be handed over to PWD as there were several encroachments. The demolition of unauthorised structures could not be carried because of injunction orders passed by different courts in favor of the affected parties. Two such suits were pending in the Delhi High Court (i) Suit No. 236/2000 titled Bimla Choudhury v. DDA and Ors., wherein Hon'ble Mr. Justice J.D. Kapoor vide order dated 1.2.2003 had restrained the defendant DDA from dispossessing the plaintiff without due process of law and (ii) Suit No. 1493/2000 titled Azad Singh v. DDA and Ors., wherein vide order dated 30.9.2002, passed by the petitioner, parties were directed to maintain status quo, as regards possession and construction in relation to the suit property. Vinod Khatri was interested in both these suits. He approached DVK through Mr. Jagdish Chandra, then Director (Lands), DDA for help.) DVK, in turn, approached the petitioner and Vice-Chairman, DDA and they agreed to help by directing the SDM of area for demarcation showing actual possession of the land in village Kishangarh, adjacent to Aruna Asaf Ali Road and by changing the lawyer who was representing these cases on behalf of DDA. It is alleged that as per plan, petitioner passed the order dated 20.2.2003, but did not sign the order immediately. The draft order was recovered on 26.3.2003 by the CBI from Ashok Kapur, as noted above. Prosecution in support of its case has placed reliance on the tape recorded conversation amongst the accused persons; draft copy of the unsigned order dated 20.2.2003; and the statements of the witnesses, recorded during the investigation.

4. Learned counsel for the parties were heard at length. Shri A.K. Dutt, learned counsel for the CBI, opposed the bail and referred to the various statements. "Synopsis of Evidence" collected was also filed. Learned counsel for the petitioner, refusing the allegations, argued to the contrary, inter alia, submitting that order dated 20.2.2003, passed in Suit No. 1493/2000 did not confer any right, title or interest on the plaintiff therein and, therefore, it could not be termed as a fruit of conspiracy, as claimed by CBI. After hearing the arguments, on 3.9.2003 the order was reserved. On 5.9.2003, learned standing counsel for CBI mentioned the matter and also filed supplementary affidavit of the Investigating Officer, seeking to withdraw the "Synopsis of Evidence" filed by them, stating, "subsequently, in the course of hearing the respondent filed Synopsis of Evidence, which is not pressed at this stage". It was also submitted that medical condition of petitioner's wife continued to be the same, therefore, CBI does not oppose the bail. In view of this statement, it is not necessary to deal with other submissions made by learned counsel for the parties and the bail is to be confirmed.

5. Even on merits, as per the settled law, tape recorded conversation, if proved to be genuine and not tampered with, at best constitutes a corroborative piece of evidence, as held by Supreme Court in Mahabir Prasad v. Surender Kumar, 1982 SC 1043. There is no charge that petitioner had assets disproportionate to the known source of his income. Nothing incriminating was found from his possession or at his instance, during the 12 days police remand, to support the charge. The case was registered on 29.4.2003 and investigation is still in progress; other accused persons, namely, Subhash Shar-ma, Vinod Khatri and Ashok Kapur, are already on regular bail. The material collected by CBI during investigation would constitute what offence can be considered only after investigation is complete and challan filed. Needless to say that conduct involving moral violations by itself cannot constitute a proof for an offence. For any moral deviation, a person may suffer social condemnation. Even a grossly vicious conduct, when alleged to be an offence, has to be established in accordance with the procedure established by law.

6. For the foregoing reasons, order dated 4.6.2003, granting, interim bail to the petitioner, is confirmed. Petitioner shall remain on bail pending final disposal of the case, on his furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the trial court. Bail bond be executed within two weeks.

7. Any observation made in this order would not affect the merits of the case during trial. Petition stands disposed of. Order dusty. 


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