IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MMO No. 107 of 2009 Judgment reserved on : 20.8.2010. Date of decision : 3 . 9. 2010. Virbhadra Singh and another …Petitioners. Versus State of H.P. and others. . …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Petitioners : Mr. R.S.Cheema, Senior Advocate with Mr. Shrawan Dogra, Mr. Karambir Nalwa and Ms. Tarannum Cheema, Advocates. For the respondents : Mr. Satya Pal Jain, Senior Advocate with Mr. R.K.Bawa, A.G. Mr. R.K. Sharma, Sr. Addl. A.G., Mr. A.K. Bansal, Mr. P.K.Sharma, Addl. A.Gs. and Mrs. Shubh Mahajan, DAG for respondents No.1 & 2. Mr. B.C.Negi, Advocate for respondent No.3. Mr. Sandeep Sharma, ASGI, for respondent No.4. Kuldip Singh, Judge The petitioners have made the following prayers in the petition:- (i) FIR No. 27 dated 3.8.2009 under Section 13(1) (d) (ii) read with Section 13(2) of Prevention of Corruption Act, 1988 registered at Police Station Anti-Corruption, District Shimla presently pending investigation may kindly be quashed ; (ii) It is further prayed that an interim direction be granted to stay the investigation in the said F.I.R. forthwith in the interest of justice; ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 (iii) It is also prayed that the investigation of the matter be entrusted to Central Bureau of Investigation or any other independent agency outside the State of Himachal Pradesh, in the interest of justice. 2. The case of the petitioners is that FIR No. 27 of 2009 has been registered under Section 13(1)(d) (ii) & (iii) read with Section 13(2) of the Prevention of Corruption Act, 1988 on the directions of respondent No.2 given in letter dated 1.8.2009 in response to letter dated 18.8.2008 of Superintendent of Police, SV & ACB SR, Shimla which has been extensively referred in the petition. It has been alleged that on 28.5.2007 Mr. Vijay Singh Mankotia in a press statement at Dharamshala released audio compact disc allegedly claiming voices of petitioners and Mr. Mohinder Lal, retired IAS Officer. The release was calculated as the petitioner No.1 was spearheading election campaign of a party for Hamirpur Parliamentary By-Election scheduled for 2.6.2007. The petitioner No.1 controverted the allegations leveled by Mr. Vijay Singh Mankotia on 4.8.2007. Petitioner No.1 filed criminal complaint against Mr. Vijay Singh Mankotia for defamation in the court of Chief Judicial Magistrate, Shimla for levelling false allegations through alleged audio compact disc. The case is still pending. 3. On 17.11.2007 respondent No.3 filed CWP No. 1913 of 2007 in this Court annexing a copy of compact disc distributed by Mr.Vijay Singh Mankotia. He prayed for investigation by CBI into the allegations contained in the said compact disc. Mr.Vijay Singh Mankotia and petitioners were added as respondents in that petition. 3 4. The State of Himachal Pradesh filed affidavit in CWP No. 1913 of 2007 asserting that the source, authenticity of the compact disc was not disclosed, the investigation cannot be based on such vague allegations. The petitioners had also filed the reply in CWP No. 1913 of 2007 denying the allegations made in the writ petition. The petitioners in their reply in CWP No. 1913 of 2007 took the stand that alleged audit compact disc was unauthenticated, unauthorized and fabricated. 5. On 30.12.2007, Mr.P.K.Dhumal took oath as Chief Minister. On 16.2.2008 contrary to stand taken by respondent No.1 in reply in CWP No. 1913 of 2007, the Principal Secretary (Home & Vigilance), Government of Himachal Pradesh wrote a letter to Additional Director General of Police, Himachal Pradesh pointing out therein that the Government has re-considered the matter and decided to get the matter enquired into from the State Vigilance and Anti- Corruption Bureau. The letter dated 16.2.2008 was placed on the file of CWP No. 1913 of 2007. 6. The aforesaid FIR No. 27 of 2009 reveals that statement of Mr. Mohinder Lal was allegedly recorded by the Vigilance Department on 2.5.2008. On 8.5.2008 the compact disc submitted by respondent No.3 was allegedly sent for testing to respondent No.4 Central Forensic Science Laboratory, Chandigarh alongwith a video CD and a digital video cassette allegedly containing the voice samples of the petitioners. On 21.5.2008 Mr. Vijay Singh Mankotia allegedly handed over an audio cassette to Vigilance, which as per FIR No.27 of 2009 was also sent to respondent No.4 on 23.5.2008. The purpose of 4 reference to respondent No.4 was disclosed in Cr.MP No. 5485 of 2009 filed in CWP No. 1913 of 2007 which was to the effect that whether the unknown speakers are petitioners. The petitioners in the petition have reproduced the text of opinion / result of CFSL alleging therein that probably voices were of petitioners. It has been alleged that opinion of respondent No.4 was received on 8.8.2008. The Superintendent of Police, SV &ACB on the basis of material collected during inquiry had drawn some conclusions which are recorded in the letter dated 18.8.2008 addressed to Additional Director General, SV & ACB, the direction to register the case is given by respondent No.2 vide letter dated 1.8.2009. 7. It has been alleged by the petitioners that case against the petitioners was registered on the basis of compact disc which was made as Annexure by respondent No.3 in CWP No. 1913 of 2007. The investigation on the basis of aforesaid FIR No. 27 of 2009 is not to ascertain the authenticity of the alleged compact disc or the source of its origin and legality and permissibility of the evidence collected by the Investigating Agency, but much stress is put on the alleged report of respondent No.4 which does not say anything about the genuineness of the said compact disc or audio cassette allegedly produced by persons who are in litigation with petitioners. 8. The petitioner No.1 is in active politics since 1962. He had been former Ruler of Bushahr State which after independence merged in the Union of India and is now part of State of Himachal Pradesh. The petitioner No.1 was elected member of Lok Sabha for various terms. The petitioner No.1 remained Chief Minister of 5 Himachal Pradesh for many years in different spells. The petitioner No.2 is also in active politics and remained Member Parliament. The petitioners enjoy high reputation and respect in the country. 9. It has been alleged in the FIR that alleged conversations took place towards the end of the year 1989 or in the beginning of 1990. There were no CDs at that time, so the original recording must have been done on tape cassette, using probably a tape recorder. The CD could only have been made after wards. It has been alleged that media was created on 1.1.1995 at 5.35 a.m. and was modified at the same time and the so called CD was created and modified in the year 1995, after about six years of conversations allegedly took place in the year 1989/1990. The respondent No.4 was not asked about this. In brief, the petitioners intend to plead that case against them is false and investigation is tailor made. 10. The cassette was not disclosed when Mr. Vijay Singh Mankotia allegedly released the CD. It appeared only during Vigilance inquiry. Mr. Vijay Singh Mankotia handed it over through a recovery memo but at that time case was not registered. The procedure adopted is wholly unheard. The voice samples were allegedly taken from Director, Public Relations, Himachal Pradesh and at that point of time also no case was registered. The respondent No.4 accepted the samples even without registration of the case and gave its opinion. The National TV channels broadcast portions of CD on 4.8.2008 after the registration of case on 3.8.2009. It is strange that on registration of the case on 3.8.2009 the National TV channels got hold of CD so promptly. The report of respondent No.4 was available with 6 respondent No.1 nearly one year back but the case was registered only when petitioner No.1 became Cabinet Minister in the Centre. It has been alleged that sequence demonstrates a well planned conspiracy to introduce CD of doubtful origin and authenticity for political mileage. The petitioners are victims of political rivalry. 11. It has been alleged that there are many missing links which have not been explained and despite that FIR has been registered. There is no legal evidence and prima facie involvement of the petitioners for registration of case against the petitioners. There is unexplained delay at various stages. The FIR against the petitioners has been registered out of malice. The entire case smacks of extraneous considerations for registration of case. The State or Vigilance Bureau did not at any stage seek any expert opinion about the authenticity of the instrument namely CD or audio cassette. 12. The CD was allegedly released on 28.5.2007 when by-election of Hamirpur Parliamentary Constituency was fixed for 2.6.2007 and the present Chief Minister Mr. P.K.Dhumal himself was a candidate from there and his entire political career was at stake in the said election. Mr. Vijay Singh Mankotia is a sworn opponent of petitioner No.1. The CD was utilized by respondent No.3 to file CWP No. 1913 of 2007. The respondent No.3 is deeply inimical to petitioner No.1 for more than one reasons. The investigating agency has been acting in complete coordination with the present regime. In the present case the so called inquiry was an act of manipulation and eyewash. It was directed to one end namely creation and fabrication of evidence. The inquiry report is full of gaping holes and 7 contradictions. The overall conduct of authorities is neither fair nor transparent. It is in the fitness of things not to permit the investigation of the case to remain under State Government and its agencies. The conduct of inquiry and the investigation being carried out demonstrates a persistent bias against the petitioners. The petitioners have also stated in the petition that they are ready to face any investigation by independent agency. 13. The respondents No.1 and 2 have filed reply and in the preliminary objections the grounds of maintainability and conduct of the petitioner No.1 for not co-operating in the investigation have been raised, prayer has been made for dismissal of the petition. On merits, it has been stated that on 29.5.2007 news items appeared in the newspapers that Mr. Vijay Singh Mankotia during press conference stated to have been held on 28.5.2007 at Dharamshala, had released audio compact disc claiming voices of petitioners and Mr. Mohinder Lal. It has been admitted that by-election for Hamirpur Parliamentary seat was scheduled on 2.6.2007 and Mr. P.K.Dhumal was a candidate in that election of particular political party. It has been admitted that respondent No.3 had filed CWP No. 1913 of 2007 in this Court with the prayer to get the matter investigated either by CBI or some other independent agency. In the reply affidavit on behalf of State of Himachal Pradesh on 13.12.2007 in that writ petition it was asserted that there was no source, authenticity of the compact disc and as such criminal action on the basis of unverified news item was not warranted as it disclosed no cognizable offence. At the relevant time the petitioner No.1 was the Chief Minister of the State of Himachal 8 Pradesh. The State Government re-examined the entire matter, it was considered to get the matter investigated and enquired into from the State Vigilance and Anti Corruption Bureau to elucidate the truth including authenticity of CD, source of CD and identification of voices for restoring faith of the public in the rule of law and, therefore, necessary directions were issued to the Additional Director General of Police, SV & ACB, Shimla vide letter dated 16.2.2008 to get the matter enquired into and report. 14. The present case was registered on the basis of findings of the enquiry report submitted by Mr. A.P.Singh, IPS the then SP SV& ACB, SR, Shimla which was based on the statements of witnesses, identification of the voices by the Central Forensic Science Laboratory, Chandigarh and other material on record. The petitioner No.1 after assuming the charge as Union Minister has appointed Mr. A.P. Singh, IPS as his Personal Secretary. 15. It has been alleged that during preliminary enquiry, it transpired that Mr. Vijay Singh Mankotia had released a press statement having valuable evidence in this regard. Thereafter, the audio cassette was taken into possession from Mr. Vijay Singh Mankotia vide memo dated 21.5.2008. The voice samples were also taken into possession from Director Information and Public Relation, H.P. for comparison and for identification of the voice of the petitioners. There is no legal bar to collect the relevant materials and sample of voices to find out the truth in the allegations during preliminary enquiry. The law does not prohibit the collection of the relevant material and voice samples for comparison during 9 preliminary enquiry by CFSL and report thereon to find out the truth. The allegations against the investigating agency are unfounded and contrary to facts. 16. On receipt of report of CFSL the other aspects of the inquiry were verified, the report of the inquiry officer was examined and thereafter the case was registered after seeking opinion of the Law Department. The CD was received for inquiry in SV & ACB from the State Government vide letter dated 16.2.2008. It has been denied that inquiry was ordered for political mileage and due to political rivalry. The S.P. SV & ACB, SR, Shimla submitted inquiry report on 18.8.2008 to SV & ACB headquarters. The State Government conveyed its decision vide letter dated 31.7.2009 and thereafter, the case was registered in accordance with law at SV & ACB Police Station SR, Shimla. It has been denied that registration of the case was delayed initially. The matter remained under consideration with the Government and thereafter the case was registered. The allegations of tarnishing the image of petitioners by giving undue publicity to media by respondents No.1, 2 were denied. It has been denied that the present case was registered in order to oblige the State Government. The respondents No.1 and 2 have prayed for dismissal of the writ petition. 17. The respondent No.3 has filed reply in which he has stated that he had filed CWP No. 1913 of 2007 in this Court in which besides other prayers, a prayer was made to hand over the inquiry of the scam unveiled by Mr. Vijay Singh Mankotia to CBI or any other independent agency beyond the political and bureaucratic influence of the leaders 10 and highly placed officers of the State. The CWP No. 1913 of 2007 has been disposed of in view of the fact that FIR has been registered. The respondent No. 3 has stated that in the present petition, no legal grounds have been made out for quashing of either investigation or FIR. 18. The respondent No.4 has also filed short reply on affidavit dated 26.11.2009 of Dr. S.K.Shukla, Director, Central Forensic Science Laboratory, Chandigarh. It has been stated that the prime role of the Central Forensic Science Laboratory is to assist the investigating agency and the justice delivery system. It has been denied that CFSL has given the opinion on dotted lines to oblige the State Vigilance Bureau. It has been submitted that while giving opinion/report of examination regarding the identity of the speakers all required tests were conducted in accordance with procedure and report is based upon the auditory analysis of recorded speech, sample of speakers. There is no requirement of registration of a case for obtaining opinion from CFSL. In number of cases various investigating agencies of various States approach the CFSL for conducting various examinations as well as giving its opinion with respect to Forensic Physical Sciences. It has also been stated that in the present case investigating agency vide letter dated 8.5.2008 requested the CFSL to conduct examination/comparison with respect to conversation contained in the CD released by Mr. Vijay Singh Mankotia. The investigating agency registered the complaint on 18.2.2008. The investigating agency initially only asked about the identity of speakers of recorded cassettes/CD. The investigating 11 agency alongwith aforesaid letter had sent three parcels, containing one sealed audio CD released by Mr. Vijay Singh Mankotia, one sealed VCD containing voice samples of petitioner No.1 and petitioner No.2, sealed video digital cassettes containing voice sample of petitioner No.2. The CFSL sent a communication dated 9.5.2008 to the investigating agency and asked for some information, accordingly vide communication dated 23.5.2008 investigating agency sent one parcel containing sealed one audio cassette released by Mr. Vijay Singh Mankotia. 19. The exhibits of the said case were examined and all necessary tests were conducted to ascertain the identity of speakers. The CFSL vide letter dated 8.2.2008 (sic) of Directorate of Forensic Sciences submitted its report/opinion which is based upon examination/tests conducted in laboratories with respect to the identity of speakers and comparison of voices and there is no contradiction in the same. 20. The petitioners filed supplementary affidavit dated 3.3.2010 in which it has been alleged that during the pendency of petition, petitioner No.1 received through courier a pack of three compact discs (CDs). Out of these two were audio CDs and one was video CD. In addition the pack contained transcript of two audio CDs and a list containing names of 56 persons to whom similar pack of CDs and transcript were despatched. The petitioners placed on record two CDs as Annexure P-2 and Annexure P-3, the copy of transcript of CDs as Annexure P-4 and copy of list of pesons whom similar pack of CDs and transcript were despatched as Annexure P-5. 12 It has been alleged that petitioner No.1 believes that two audio CDs contain voices of Mr. Prem Kumar Dhumal, Chief Minister, Himachal Pradesh and Mr. Daljit Singh Manhas, Director General of State Vigilance and Anti Corruption Bureau, Himachal Pradesh. In the CDs Annexure P-2 and Annexure P-3, there is reference to the CD circulated by Mr. Vijay Singh Mankotia and further certain directions were given by Mr. Prem Kumar Dhumal to Mr. Daljit Singh Manhas which directly relate to the said case. It has been submitted that opinion of respondent No.4 be called and in case there is matching of voices of Mr. Prem Kumar Dhumal and Mr. Daljit Singh Manhas appropriate FIR may be ordered to be lodged in the case and thereafter both FIRs may be investigated altogether. It has also been stated that it would be just and fair to direct investigation by some independent agency outside the State. The supplementary affidavit dated 3.3.2010 has been contested by filing reply affidavit dated 18.6.2010. The petitioners filed rejoinders to the reply of respondents No.1, 2 as well as respondent No.4 and reiterated their stand. The respondents No.1, 2 have filed sur-rejoinder to the rejoinder filed by the petitioners. 21. The petitioners have filed Cr.MP No. 141 of 2010 taking on record material filed alongwith supplementary affidavit dated 3.3.2010 by the petitioners. This application was opposed by respondents No.1 & 2. The petitioners have filed Cr.MP No. 390 of 2010 for placing on record affidavit Annexure P-6 of Mr. Vidya Sagar and affidavit Annexure P-7 of Mr. Tarun Pathak. This application has also been contested by respondents No.1, 2. The petitioners have filed yet 13 another application Cr.MP No. 391 of 2010 for taking on record supplementary affidavit dated 3.3.2010 alongwith annexures. This application has been opposed by respondents No.1, 2. The respondent No.1 has filed Cr.MP No. 431 of 2010 informing the court that investigation in FIR No. 27 of 2009 is complete and report under Section 173 Cr.P.C. has been prepared. The petitioners have also filed Cr.MP No. 432 of 2010 for clarification of order dated 7.9.2009. The petitioners have filed Cr.MP No. 594 for placing on record the documents filed with the said application. This application has been contested by respondents No.1, 2. The learned counsel for respondent No.4 has placed on record copies of correspondence of six letters exchanged between CFSL, Chandigarh and SP/Dy.S.P, SV & ACB SR, Shimla. 22. Mr. R.S.Cheema, Senior Advocate, learned counsel appearing on behalf of the petitioners at the time of hearing of the petition has not pressed relief No.(i) above, he has submitted that since as per the stand of respondent No.1 report under Section 173 Cr.P.C. has been prepared in FIR No. 27 of 2009, which is not on record, therefore, in view of this development, he is not pressing relief No.(i). But the learned Senior Advocate has submitted that it may not be construed that petitioners have conceded or admitted that on the basis of FIR No. 27 dated 3.8.2009 prima facie case is made out against petitioners. He has submitted that petitioners reserve their right for relief No.(i) in appropriate proceedings lateron, if need be. The relief No.(ii) referred above has become redundant in view of completion of investigation and preparation of final report under Section 173 Cr.P.C. 14 In these circumstances, Mr. Cheema, has pressed only relief No.(iii) mentioned above. 23. I have heard the learned counsel for the parties. On behalf of the petitioners, it has been submitted that the alleged CD in question is of the year 1989/1990. This CD was allegedly released by Mr. Vijay Singh Mankotia on 28.5.2007 at the time of press conference. It is a case where the CD allegedly revealed occurrence which allegedly took place 17/18 years prior to the release of CD in the year 2007. It has not been explained where CD remained for 17/18 years. The story is unbelievable. It has been contended on behalf of the petitioners that Hamirpur Parliamentary by-election was scheduled on 2.6.2007, Mr. Prem Kumar Dhumal was contesting said by election. The petitioner No.1 was heading election compaign of a political party which was opposing Mr. Prem Kumar Dhumal in that election. Mr. Vijay Singh Mankotia is known sworn opponent of petitioner No.1. In order to politically malign the petitioner No.1 and petitioner No.2 who is the wife of petitioner No.1 a false, concocted and fabricated story through medium of CD was circulated for political mileage. The respondent No.3 is also an opponent of petitioner No.1, he filed CWP No. 1913 of 2007 in this Court in which he made a prayer to hand over the inquiry of the scam unveiled by Mr. Vijay Singh Mankotia to CBI. The allegations were enquired by respondent No.1 but no truth was found in the allegations. On 30.12.2007 Mr. Prem Kumar Dhumal took oath of Chief Minister of Himachal Pradesh and on 16.2.2008 contrary to the stand of respondent No.1 in CWP No. 1913 of 2007 the respondent No.1 re-considered the matter and decided to get the matter enquired 15 from State Vigilance & Anti Corruption Bureau. The matter was allegedly enquired, material was allegedly collected so also the report from CFSL, Chandigarh without registration of case. 24. The petitioner No.1 in the meantime became Cabinet Minister in the Centre and thereafter, in order to harm him politically FIR No. 27 of 2009 was registered on 3.8.2009. The petitioners have high political stakes, the case is nothing but political vendetta. It has been submitted by Mr. Cheema that since names of Mr. Prem Kumar Dhumal and Mr. Daljit Singh Manhas, DGP are involved in CDs Annexure P-2 and Annexure P-3 in which reference of CD in question has been made, therefore, it is a fit case in which the investigation is to be entrusted to outside agency namely CBI. He has submitted that petitioners have been implicated on the basis of material which is inadmissible. The authenticity of the alleged conversation of petitioners with other persons in the CD in question has not at all been established. The authenticity, source of origin, genuineness of the compact disc or audio cassette has not been established. The alleged evidence is in conflict with S.65 B (4) of the Evidence Act. The preparation of report under Section 173 Cr.P.C. is no bar for transferring the investigation to CBI. The investigation in