New Delhi: A Delhi court has held that a 2018 bribery complaint against then CBI special director Rakesh Asthana is not an “unsoiled and untarnished version of the case” and the investigation carried out on the basis of it is “tainted”.
CBI special judge Vinay Kumar Gupta, in a 13 March order that was made public earlier this month, also termed the complaint “unsafe” to rely upon.
On 15 October 2018, the CBI had registered an FIR against Asthana, deputy superintendent of police-rank CBI officer Devender Kumar, and three alleged middlemen — Manoj Prasad, Somesh Prasad and Sunil Mittal — on the basis of a complaint by a Hyderabad-based businessman Sana Satish Babu.
In his complaint, Babu had alleged that he had paid a bribe to Asthana through the ‘middlemen’ to receive protection in a case filed against Moin Qureshi, a meat exporter.
The CBI, though, didn’t find a connection between the CBI officials named in the FIR and the three middlemen and no charges were filed against the two. However, the agency filed charges against the middlemen for allegedly seeking bribes in the name of a public servant.
However, they, too, have now been discharged by the court and will not face trial.
In the court order, Justice Gupta said the agency took its first complaint in the matter from Babu on 4 October 2018, but no FIR was registered for the next 11 days. The CBI then took another complaint from him on 15 October and registered an FIR on the same day naming Asthana, Kumar and the middlemen as accused.
“No reason has been given by the complainant as to the necessity of giving another complaint dated 15 October 2018, when the information constituting a cognisable offences was already disclosed in the complaint dated 4 October 2018, nor has the CBI been able to explain as to why the FIR was not registered on 4 October itself, or any time thereafter on the same complaint,” said Justice Gupta in his discharge order.
He added that there was also no explanation offered for why “it needed another complaint dated 15 October which, as observed above, is a result of deliberation, consultations and discussions, for registration of the case, and as such the complaint dated 15.10.2018 cannot be said to be unsoiled and untarnished version of the case and the investigation is tainted, unsafe to rely upon and this non explanation is fatal to the prosecution case…”
The ‘gap’
According to the court order, the CBI contended that Babu didn’t lodge a complaint on 4 October and that it was just a brief written in the office of A.K. Sharma, then CBI joint director (policy).
The CBI claimed that whatever Babu submitted on 15 October was his first complaint and an FIR was registered on the same day without delay.
The CBI claimed that Babu had written the sequence of events in the case relating to Moin Akhtar Qureshi in Sharma’s office on 4 October in a brief, narrating how he had met Manoj and Somesh Prasad in Dubai and paid them the bribe demanded by them in Asthana’s name and received their assurance that they would arrange relief for him.
Babu’s brief was then handed over to another CBI officer, A.K. Bassi, who was appointed additional investigation officer in the case by CBI director Alok Verma on the same day.
Earlier, the Moin Qureshi case had only one investigation officer, Devender Singh.
“It is clear that the facts constituting the offences which are the subject matter of present FIR registered on 15 October 2018, had come to the knowledge of Shri A.K. Sharma and also Shri A.K. Bassi on 4 October 2018 itself. Further, the record shows that these facts had come to the knowledge of director CBI Shri Alok Kumar Verma on that very day itself as he has issued order… appointing Shri A.K. Bassi as additional investigating officer in Moin Akhtar Qureshi case…,” said Justice Gupta.
After this, a statement by Babu was recorded before a magistrate on 4 October itself, noted Gupta, under Section 164 of the Criminal Procedure Code (CrPC) to give it legal sanctity, since a statement before a police officer is not admissible as evidence in court. But the CBI took another complaint on 15 October and got a statement from Babu recorded before a magistrate on 20 October.
This gap between 4 and 15 October, said Gupta, remains unexplained and is “fatal to the prosecution case” in view of the deliberations and embellishments made in the second complaint of 15 October.
Justice Gupta said that Babu alleged he made part payment of the bribe in December 2017 but the complaint was lodged almost a year later in October 2018, and that he failed to approach any police agency during this period if he was unwilling to pay the bribe.
He added that under the Prevention of Corruption (PC) Act (applicable in 2017) he would have got protection from prosecution under its section 24 — which was omitted in July 2018 when the PC Act was amended — as it comes to the rescue of such persons/bribe givers who make a statement in any “proceeding” against a public servant for an offence such as offering or agreeing to offer a bribe to a public servant.
But since there was no complaint from Babu, said Gupta, he would have been charged for abetment to bribe given to a public servant.
Two further payments of bribe were allegedly made on 10 and 15 October and then another complaint was filed on 15 October. Under the PC Act, if a bribe giver makes a complaint within seven days of the payment, he or she can’t be prosecuted. Thus, Babu was saved from prosecution due to the second complaint lodged on 15 October.
“The complaint being made by a complainant who himself is an accomplice and would have been a co-accused in the case cannot be proceeded with,” said Judge Gupta in his order.
(Edited by Zinnia Ray Chaudhuri)
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