IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT BENCH JAIPUR J U D G M E N T Bhim Sen Garg Vs. State of Rajasthan & Others (SB Civil Writ Petition No.1027/06) : Date of Judgment : 13th June, 2006 PRESENT HON’BLE MR. JUSTICE KS RATHORE Mr. SR Bajwa, Sr. Advocate with Mr. VP Bishnoi, for the petitioner. Mr. Mohd. Aslam, for the respondents. REPORTABLE By way of this writ petition the petitioner prayed for a writ of mandamus for quashment of FIR No.21/06 dated 27.1.06 registered at Police Station Transport Nagar, Jaipur for the offences punishable under Sections 465, 469, 471, 120-B, I.P.C. and Section 65 of Information Technology Act, 2000. During the course of investigation, the Investigating Officer has deleted the offence under Section 65 of the I.T. Act, 2000 from the purview of investigation and has proceeded to undertake further investigation only in regard to the offences under Sections 465, 469, 471, 120-B IPC. In the First Information Report, it has been alleged that some news items were published in the Newspaper which were containing aspersions against Cabinet Minister in Govt. of Rajasthan Shri Rajendra Singh Rathore, founded on some statement of one Ved Prakash Saini. In the report it has also been stated that on the basis of the newspaper reporting an enquiry was launched by the I.G.P. (Special and Economic Offences), C.I.D., Jaipur. The reporting in newspaper related to allegations on Cabinet Minister Shri Rajendra Singh Rathore pertaining to his involvement in an incident about prostitution by one Vanita wife of Ved Prakash Saini. During the course of enquiry launched by the I.G.P. (Special and Economic Offences), C.I.D., Jaipur, statements of victim Vanita, petitioner Bhim Sen Garg, Police Officers Arun Macha and Pyara Singh etc. were recorded. Vanita, in her statement recorded during the course of enquiry stated that she was in custody at Police Station Shyam Nagar, Jaipur on 10.6.2005 in connection with F.I.R. No.168/05, she had reported a News Reporter that she had never gone with any Minister or his P.A. On the conclusion of the enquiry it was found that Vanita had been sent for prostitution by her husband on 10.6.2005 to some other three persons. As such, Mahaka Bharat had published scandalous news on the basis of which the Minister’s name was being dragged in the controversy. In the aforesaid backdrop, on the basis of inquiry report, an F.I.R. No.217/05 was registered under Sections 5 and 6 of PITA Act at Police Station Jamwa Ramgarh, Jaipur. The investigation of the same was given to the Additional Superintendent of Police and it was found that no Minister or his P.A. was found to be involved in the incident. During the course of investigation of F.I.R. no. 217/05, a notice was given to the petitioner-Editor of Mahaka Bharat for providing the original C.D. on the basis of which newspaper reporting was done. In response to the notice, it is alleged that petitioner showed inability in providing the original C.D. However, a copy of C.D. was provided to the Additional Superintendent of Police by one employee of Mahaka Bharat, namely; Shri K.M. Sharma-Accounts Officer. And on receipt of copy of C.D. it was sent to FSL Jaipur for examination and a report was also given. In the report it was found that C.D. was found interpolated and it was also alleged that in the original interview by Electronic Media as also in the statement recorded under Section 164 Cr.P.C. before Magistrate, Vanita had categorically stated that she had not gone with any Minister, but Bhim Sen Garg had removed the said portions from the C.D. and by way of interpolation, committed forgery and on the basis of the interpolated C.D., a scandalous news item was published in Mahaka Bharat with an object to stigmatize the image of a particular Minister in State Government. For the offence committed by the petitioner FIR No.21/06 was registered at Police Station, Transport Nagar on 27.1.06 for the offences punishable under sections 465, 467, 471 and 120-B IPC and Section 65 of Information And Technology Act, 2000 and later on during investigation, the offence under Section 65 of the IT Act, 2000 has been deleted from the purview of investigation. The FIR no.21/06 registered at P.S. Transport Nagar is challenged by the petitioner on the ground that the impugned FIR which has been lodged against the petitioner is outcome of blatant and flagrant malicious action on the part of State Police at behest of Cabinet Minister Shri Rajendra Singh Rathore. It is also submitted that the alleged FIR has been lodged by Shri Pradeep Mohar, Additional Superintendent of Police (Special and Economic Offences) C.I.D. (C.B.), Jaipur. And after alleging allegation, learned counsel for the petitioner submitted that the FIR has been lodged against the petitioner with ulterior motive and to wreak vengeance on the petitioner with a view to spite him due to private and personal grudge. It is also contended that the impugned FIR has been lodged in utter disregard of the provisions contained in Code of Criminal Procedure as also the Evidence Act. And from reading the FIR in question it is clearly borne out that no cognizable offence is said to have been committed by the petitioner. When the contents/allegations, even if controverted, do not disclose commission of any cognizable offence, then the Police loses its power to investigate under Section 156 (1) Cr.P.C. without prior order of a Magistrate in consonance with the provisions contained in Section 155(2) Cr. P.C. Under such circumstances, the Investigating Agency would not have the requisite power to investigate as per Section 156 Cr. P.C. Thus, the alleged FIR completely defies the entire scheme relating to powers of investigation contained in the Code of Criminal Procedure. Learned Sr. Counsel Mr. Bajwa submitted briefs on account of which the impugned FIR has been lodged.:- (I) An earlier F.I.R.No. 217/2005 of Police Station Jamwa Ramgarh was registered for offence punishable under Sections 5 and 6 of PITA Act, in the wake of entire controversy arising in Print and Electronic Media, against number of persons. (II) That in the said F.I.R. investigation was carried out by the Additonal Superintendent of Police (Special and Economic Offences) C.I.D. (C.B.)-the complainant in the impugned FIR. The subject matter of his investigation was the incident, which took place on 10.3.2005 wherein victim Vanita was forced for prostitution by her husband, at the hands of number of persons. (III) Additional Superintendent of Police (Special and Economic Offences), C.I.D. (C.B.) conducted investigation in F.I.R. No.217/05 and during the course of his investigation he came to the conclusion that Ram Pratap Gupta, Vijay Singh Meena, Sardar Singh, Ved Prakash Saini, Bajrang and Badri Narain were involved in the said offence. But, however, he from his investigation, did not find Cabinet Minister Shri Rajendra Singh Rathore to be involved in the incident and to be prima facie guilty of the said offence. (IV) Subsequent to the conclusions of Additional Superintendent of Police (Special and Economic Offences) C.I.D. (C.B.) in his investigation in FIR No.217/05 PS Jamwa Ramgarh he ventured to lodge the impugned FIR as a complainant for the alleged false evidence created by Bhim Sen Garg-Editor, Mahaka Bharat, through newspaper reporting and the C.D. Footage. (V) The impugned FIR is squarely related to the false evidence about involvement of Cabinet Minister Shri Rajendra Singh Rathore, founded on the basis of tempered C.D. recording. After formulation of aforesaid points Mr. Bajwa submitted that whenever an Investigating Officer is of the opinion that some false evidence was given to implicate a particular accused, then as per the scheme of Cr. P.C., the Investigating Officer is supposed to give his conclusions qua the subject matter of investigation as also complicity of the accused, in the form of a negative report/final report qua the accused and at the same time has to recommend action against the person giving false information against that accused under Section 182 or 211 I.P.C. The impugned FIR is also challenged on the ground that the FIR has been lodged for the offences in question on the basis of the so-called interpolated C.D. The impugned FIR is also challenged on the ground that it is nowhere borne out that the disputed C.D. in question was ever in the conscious, exclusive custody/control/dominion of the petitioner as the alleged C.D. was handed over to the Police by one Shri K.M. Sharma, employee of the petitioner. Thus, the contents of the entire FIR even if taken on their face value, do not disclose that the petitioner, in any manner, was himself involved in the process of alleged tempering of the C.D. in question. In the absence of the identification of the accused, who were actually involved in preparing the C.D., the petitioner cannot be hauled up for the said offence. Learned Senior Counsel Shri Bajwa also mentioned the dates and events of the incident and submitted that on 10.3.2005, the alleged involvement of Cabinet Minister Shri Rajendra Singh Rathore in sex orgy which had allegedly taken place in R.T.D.C. Hotel- “Jheel Pryatak” in Village Jamwa Ramgarh. On 16.6.2005, in FIR No.168/05 Police Station Shyam Nagar, Jaipur, Vineeta had been arrested under P.I.T.A. and was interviewed by Print/Electronic Media. During interviews involvement of concerned Minister in the sex orgy relating to 10.3.2005 was revealed. On 21.9.2005, the news regarding involvement of the Minister has been published in the Hindi Daily News Paper “Mehka Bharat”. On 21.9.2005, Inspector General of Police Shri Liyakat Ali was deputed to conduct inquiry about the allegations of involvement of the Minister and Shri Liyakat Ali submitted interim report on 26.9.2005 wherein the Minister was absolved. And on 26.9.2005 Shri Liyakat Ali in the capacity of informant filed FIR under PITA Act at Police Station Jamwa Ramgarh regarding the sex orgy involving the Minister and FIR No.217/05 under PITA was registered. The statement of Vineeta under Section 164 Cr.P.C. was recorded in FIR No.217/05 on 28.9.2005 and in the aforesaid FIR challan has been filed against six persons for the offences under PITA on 23.11.05. After filing of challan Shri Pradeep Mohan Sharma, Additional Superintendent of Police C.I.D. filed impugned FIR No.21/06 at Police Station Transport Nagar on 27.1.2006 against the petitioner Bhim Sen Garg for the offences under Sections 465, 469, 471, 120-B I.P.C. In the impugned FIR, it is alleged against the petitioner that the petitioner is found guilty of tempering of C.D. in respect of words as well as pictures; forgery was committed by the petitioner to defame the Cabinet Minister and C.D. was misused and on its basis false news was published in the daily Hindi News Paper “Mehka Bharat”. Mr. Bajwa further submitted that the purpose of cheating. Section 471 IPC contemplates use of forged document. Thus, it is only when ingredients of Section 465 IPC are clearly spelt out in FIR, then the other two offences can be pressed into service. Mr. Bajwa further submitted that the FIR in the eye of law does not sustain as the original C.D. is not on record. On the basis of some copy no report regarding altering of C.D. can be given. The copy of C.D. was not recovered from the personal custody of the petitioner. Offence under Section 469 IPC regarding forgery of C.D. for the purpose of harming reputation is also not made out for the simple reason that FIR completely fails to spell out allegations of forgery itself. And regarding offence under Section 471 IPC there is no allegation in the FIR that the petitioner used the C.D. It is also contended that the alleged impugned FIR is second FIR and referred the case of T.T. Antony wherein Hon’ble the Supreme Court has held that no second FIR in respect of an offence which was subject matter of investigation in an earlier FIR can be registered. Therefore, second FIR giving it a colour of independent offences under Sections 465, 468, 469 and 471 IPC has been registered with a calculated design to harass the petitioner. Learned counsel for the petitioner also alleged malice and mala fide allegation against the sitting Cabinet Minister and submitted that the influence of sitting Cabinet Minister for lodging second FIR has been used and Press was gagged and right to information was crushed. Selective targeting of “Mahaka Bharat” while other news-papers and news channels were conveniently left out. And after alleging the malafide allegation against the Minister concerned, learned counsel Mr. Bajwa referred legal bar in registering impugned FIR as no separate FIR can be registered against the alleged fabrication of false evidence by a witness in the earlier FIR. No second FIR for the same subject matter can be registered and the impugned FIR is hit by Section 162 Cr.P.C. It is also contended that the impugned criminal proceedings initiated against the petitioner are pre mature as the concerned Minister has not been exonerated finally as yet and the Trial Magistrate may invoke offence under Sections 366/376 IPC and may commit the same to Court of Session and Sessions Court after recording statement of prosecutrix Smt. Vineeta may proceed against the concerned Minister under Section319 Cr. P.C. Further stated that the original C.D. might be produced during the trial and the allegations against the Minister might be fully endorsed and the trial court may believe the contents of C.D. as true and may rely on the statement of petitioner in that trial as a truthful witness. So after conclusion of trial only it will be clear as to whether the concerned Minister has been rightly indicted and as to whether the contents of C.D. are genuine. If the trial court concludes otherwise, only then the stage to proceed against the petitioner in respect of fabrication/forgery will arise. Till then any exercise to initiate proceedings against the petitioner is per se pre mature. It is also contended that the alleged FIR is false at its face value in accordance with the test laid down by Hon’ble the Supreme Court in the case Bhajan Lal as the allegation do not constitute impugned offence and allegations are prompted by malice and legal bar engrafted in Code stand attracted, should be made applicable to the present petition. Learned counsel for the petitioner has placed reliance on the judgments reported in 2004 (12) Supreme Court Cases 195; 2004(7) SCC 768; 2004 (7) Supreme Court Cases 775; AIR 1997 Supreme Court 3433; AIR 1993 Supreme Court 2644; AIR 1993 Supreme Court 2466; 1995 (4) Supreme Court Cases 392; 2001 (6) Supreme Court Cases 181 TT Antony Vs. State of Kerala and case of Bhajan Lal. Per contra, learned counsel appearing for the State emphatically denied the submissions made on behalf of the petitioner that the State police has taken any action at the behest of the Cabinet Minister Shri Rajendra Singh Rathore as alleged by the petitioner. It is also denied that the contents of the FIR speaks volumes about the malafide and ulterior motives and denied that the FIR has been lodged to wreak vengeance on the petitioner allegedly with a view to spite him due to private and personal grudge. And there is no question of violation of any provision contained in the Code of Criminal Procedure and Evidence Act as the FIR in question clearly discloses commission of cognizable offence and the investigation of FIR No.217/05 lodged with Police Station Jamuwa Ramgarh for offence under section 5 and 6 of PITA Act is concerned, the same was an altogether different incident. It was only when the petitioner in his newspaper prominently reported about the alleged involvement of a Cabinet Minister of the State Shri Rajendra Singh Rathore and alleged cover up thereof by the Police that he was required to produce the Compact Disk on the basis of which the aforesaid news item was published. When C.D. was provided by the Accounts Manager of the petitioner Shri K.M. Sharma to the Investigating Officer, this C.D. was sent to State Forensic Science Laboratory for examination. The report of the State Forensic Science Laboratory indicated as under:- “Thirty three clip-discontinuities have been detected in the video footage of the file AVSEQ01.DAT All these clips joined together make a 9 minutes 46 seconds video footage, which indicate postproduction editing. Audio examination reveal that the audio recording in the video footage is also cut & broken at some places which correspond with video clip joints.” And the conclusion of Forensic Science Laboratory clearly proved that the electronic record contained on the Compact Disk by way of audio and video was tempered with and another Compact Disk was prepared by fabrication. This C.D. was made basis of news paper reports published in daily newspaper Mahaka Bharat wherein allegations were made not only against the Minister but also against the State Police that it had tried to cover up the incident. It is therefore, denied that the allegations contained in the FIR do not disclose any cognizable offence. In fact, the result of the examination by the State Forensic Science Laboratory categorically stated that total play time of the AVSEQ01.DAT file contained in the MPEGAV folder is 9 minutes 46 seconds. In the whole of the duration of this time, the report detected 33 clip discontinuities in the video footage of the said file. All these clips when joined together make a 9 minutes 46 seconds video footage which clearly indicate post production editing. Audio examination further revealed that the audio recording in the video footage was also cut and broken at some places which correspond with video clip joints. The investigating officer of the FIR No.217/05 further requested the State F.S.L. to get an explanation note on the technical terminologies used in the report of their examination. It was thereafter that the office of the Director, Police FSL Rajasthan, Jaipur vide letter dated 25.1.2006 supplemented the aforesaid report by clarifying certain technical terminologies. It is further submitted that the Investigating Officer of FIR No.217/05 was concerned with the investigation of the offences under sections 5 and 6 of the PITA Act and in the course of investigation when it was transpired that electronic report contained on the C.D. was tempered with and another C.D. was prepared by way of fabrication which was substantiated from the report of the State F.S.L., this constituted another and independent offence punishable under sections 465, 469, 471, 120B IPC and section 65 of Information Technology Act, 2000. He, therefore, lodged this FIR with the Police Station, Transport Nagar within whose jurisdiction the registered office of Mahaka Bharat is located and C.D. was received by the investigating officer. It is, therefore, denied that any scheme contained in the Code of Criminal Procedure was violated. It is denied that any novel method was adopted for lodgment of the FIR. It is also denied that the FIR is intended to harass, humiliate and malign the petitioner. It is denied that FIR has been lodged at the behest of Shri Rajendra Singh Rathore. It is denied that the allegations in the impugned FIR would have constituted an offence under section 182/211 IPC for giving false information. As already submitted, the fabrication of the C.D. was an independent and separate offence punishable under sections 465, 469, 471, 120B IPC and section 65 of Information Technology Act, 2000. It is denied that the FIR has been lodged with a view to tiding over the alleged predicament under section 155(2) Cr. P.C. It is denied that the State F.S.L. do not give report on the basis of examination of a copy of the C.D. which is interpolated. This precisely is the allegation against the petitioner that he prepared an interpolated C.D. giving completely a new version to it and fabricating its contents. Such a C.D., therefore, cannot be considered as a secondary evidence as for the purpose of offences alleged to have been committed by the petitioner, this C.D. would constitute primary evidence. The C.D. was handed over by Shri KM Sharma Accounts Managar of the petitioner on his behalf in response to the notice given by the investigating officer. When the investigating officer handed over the notice to the person present in the registered officer of the Mahaka Bharat, Shri KM Sharma upon receiving telephone instructions from the petitioner handed over the subject C.D. to the Investigating Officer. In so far as the identification of the accused is concerned, the same would be the subject matter of investigation and petitioner cannot invite this Hon’ble Court into prejudging the issue which are essentially in the domain of the investigating officer. Learned counsel for the State with regard to argument that second FIR is barred being hit by provisions of Section 157 and 162 Cr. P.C. submitted that the case of T.T. Antony Vs. State of Kerala and Others reported in 2001 (6) SCC 181 has not been correctly appreciated and understood by the petitioner as Hon’ble the Supreme Court has observed as under:- “20. From the above discussion it follows that under the scheme of the provisions of Section 154, 155, 156, 157, 162, 170 and 173 Cr. P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr. P.C. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequently information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 Cr. P.C.” And the respondent State by referring the observation made by Hon’ble the Supreme in the case TT Antony tried to distinguish the present case and submitted that the second FIR according to the Supreme Court judgment is barred only in relation to the same cognizable offence or the same occurrence or the same incident giving rise to one or more cognizable offences. Such restriction cannot be applied in the facts of the present case where the FIR has been lodged against the petitioner on the basis of an altogether occurrence and for a different offence and being FIR against another set of accused and not against the same set of accused who have been offenders in the FIR No.217/05. In the present FIR No.21/06 the allegation against the accused is with regard to terming with and fabrication of electronic record contained on the Compact Disk (CD) which found basis of the newspaper report dated 21.9.2005. This offence has been prima facie established by report of the Forensic Science Laboratory. In view of this fact, it would be clearly evident that the FIR in question is not only pertains to different set of offence but also relates to a different occurrence which has taken place in a different transaction and against different set of accused. There would be therefore, no prohibition for lodgment of a new FIR even though the discovery of the fact with regard to the fabrication of the electronic record contained on the CD may have come to surface during the course of investigation of another FIR No.217/05. Learned counsel for the State in support of his submissions, has relied upon the following judgment:- 1. AIR 2004 SC 4320 Upkar Singh Vs. Ved Prakash & Others; 2. 2002 (1) SCC 714 Kari Choudhary Vs. Mst. Sita Devi & Ors; 3. 2006 (1) SCC 732; 4. 2004 (7) SCC 768 Gangadhar Janardhan Mhatre Vs. State of Maharashtra & Others; 5. 2003 (12) SCC 241 Hemraj and Another Vs. State of Punjab; 6. 1999(3) SCC 259 Rajesh Bajaj Vs.