शिमला। हिमाचल प्रदेश हाईकर्ट ने पूर्व आईएएस अफसर सुरेंद्रमोहन कटवाल की ओर से सीडी कांड मे मुख्यमंत्री वीरभद्र सिंह और उनकी पत्नी पूर्व सांसद प्रतिभा सिंह को निचली अदालत से बरी करने फैसले को चुनौती देनी वाली याचिका को खारित कर दिया है।सीडी कांड में वीरभद्र सिंह को सेशन कोर्ट फारेस्ट ने दिसंबर 2012 में विधानसभा चुनाव के परिणाम आने से एक दिन पूर्व बरी कर दिया। एसएम कटवाल ने इस फैसले को प्रदेश हाईकोर्ट में ये कह कर चुनौती दी थी कि प्रदेश में अब वीरभद्र सिंह की खुद की सरकार सता में आ गई है और इस मामले में उन्हीं के खिलाफ आरोप है। ऐसे मेंसरकार इस फैसले को हाईकोर्ट में चुनौती नहीं देगी। उन्होंने ये याचिका टाइम लिमिट समसपत होजाने केबाद दायर की थी और ज्यादा समय हो जाने को कंडोन करने की अर्जी भी दी थी। प्रदेश हाईकोर्ट केजज जस्टिस धर्मचंद चौधरी ने आज कटवाल की याचिका को खारिज कर दिया। इस पर कटवाल ने कहा है कि वो वकीलों से राय लेकर आगमी कार्यवाही करेंगे।हाईकोर्ट की जजमेंट में कई तथ्यों का जिक्र है।ये सब जानने के लिए यहा पढ़े पूरी जजमेंट-:
High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.M.P.(M) No. 11350 of 2013.
Reserved on: 22nd April, 2015.
Decided on: 20 th May, 2015.
S.M. Katwal … Petitioner/Appellant.
Versus
Virbhadra Singh and others … Respondents.
Coram
The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.
For the petitioner/appellant : Mr. A.P.S. Deol, Senior
Advocate, with Mr. Virbahadur
Verma and Mr. Adhiraj Singh
Thakur, Advocates.
For respondents No.1 & 2 : Mr. R.S. Cheema, Senior
Advocate, with M/s. Ajay
Kochhar, Satyen Vaidya and
Vivek Sharma, Advocates.
For respondent No.3 : Mr. R.M. Bisht and Mr. P.M. Negi,
Deputy Advocates General.
Dharam Chand Chaudhary, J.
Petitioner S.M. Katwal is an IAS Officer (Retd.).
He claims himself to be a ‘ victim ’ within the meaning of Section 2(wa) of the Code of Criminal Procedure, in short to be referred as ‘the Code’, hence aggrieved by the judgment dated 24th December, 2012, in Corruption Case No.9 – S/7 of 2010, passed by learned Special Judge (Forests), Shimla, acquitting accused- private respondents Virbhadra Singh and his wife Pritibha Singh from the charges under Sections 7, 9, 11, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and under Section 120 – B of the Indian Penal Code framed against each of them . Hence he has filed a petition under Section 378(4) of the Code seeking leave to appeal along with memorandum of appeal under Section 372 of the Code. The appeal, however, is time b arred, therefore, the present peti tion for condonation of delay has been filed on the grounds, inter alia that while he was at PGI, Chandigarh during the months of January -March, 2013 attending to his ailing wife there, he came to know about the judgment dated 24thDecember, 2012 under challenge in the appeal, through newspaper. He is having no ac cess to the record nor engaged any lawyer to prosecute the case on his behalf. On coming to know that the State of Himachal Pradesh ruled by t he Congress Party Government and accused- respondent No.1 the Chief Minister, who is holding the charge of Home Department also and therefore, prosecutor and the accused became one and the same having common interest not to pursue the case for filing the ap peal against the judgment of acquittal, the petitioner has come forward to prefer an appeal against the judgme nt in the capacity of a ‘victim’ . An age old rule “nullum tempus qut locus occurrit regi” embedded in criminal justice delivery system has been pr essed into service and it is submitted that the Parliament while acknowledging the said rule has prescribed no period of limitation for filing the appeal under the proviso to Section 372 of the Code against an order of acquittal. The rule of limitation,according to the petitioner, cannot be mechanically applied in a case of this nature. He having obtained Photostat copy of the judgment under challenge in the month of August, 2013 has preferred the appeal immediately thereafter. It has been urged that the delay, as occurred in filing the appeal is not intentional,but attributed to the compelling circumstances under which he was made to search for the relevant record required for the purpose of drafting the grounds of appeal.
2. The stand of the respondent- Sta te in reply to the petition in a nutshell is that in the opinion of the District Attorney it was not a fit case for filing an appeal. The said opinion was examined in the office of Additional Director General, State Vigilance & Anti Corruption Bureau, Himachal Pradesh and the file was forwarded to Additional Secretary (Home/Vig.). Based upon the opinion of the District Attorney and that of Joint Director (Prosecution) in the office of Additional Director General, State Vigilance & Anti Corruption Bureau,Hi machal Pradesh, the case file along with relevant record was sent to the Law Department for seeking final opinion. In the office of Law Department the case being of no evidence, a conscious decision was taken for not preferring the appeal. It is pointed out that in a police challan no private individual other than victim can prefer appeal against acquittal. The petitioner allegedly is not a victim because initially it is the State Government, which took a conscious decision to hold vigilance enquiry into the allegations against accused-respondents No.1 and 2 and after submission of enquiry report a decision was taken to register a case against them. Consequently, FIR No.27 of 2009 came to be registered against them on 3rd August, 2009 at the instance of Supe rintendent of Police in the capacity of complainant. Therefore, the petitioner is stated to be neither complainant nor victim as defined under Section 2(wa) of the Code and as such is not entitled to prefer
an appeal under Section 372 of the Code.
3. Private respondents in separate reply filed on their behalf have given the details of the criminal cases , which were registered against the petitioner and all those cases the petitioner instituted against the 1st respondent and have submitted that the petitioner is under an impression that the criminal cases against him were registered at the instance of accused- respondent No.1 and the appeal has been filed by him with ulterior motive. It is denied that the petitioner came to know about the announcement of judgment of acquittal during the months of January-March, 2013. Rather the judgment dated 24th December, 2012 was given wide publicity in the print as well as electronic media on 25th December, 2012. Not only this, but the statement of the petitioner as one of th e witnesses was recorded on the day of announcement of the judgment, i.e., 24 th December, 2012 itself and while appearing as a witness he was fully aware about the conclusion of the trial. The appeal having been filed beyond the period of 90 days, is said to be time barred. It has also been urged that the petitioner is neither a complainant nor victim within the meaning of Section 2(wa) of the Code, hence not competent to file the appeal against their acquittal.
4. In the counter reply (rejoinder) while deny ing the contentions to the contrary being wrong and reiterating the case as set out in the petition , it is pointed out that accused – respondent No.1 is acting in mala fide manner and with ulterior motive to settle scores not only with the petitioner, but also with all Officers/Officials namely, Dr. D.S. Minhas, former Director General of Police, Himachal Pradesh, Shri I.D. Bhandari, the then Additional Director General, Shri Daya Sagar, Inspector (Retired) and Shri Hardesh Bisht, the then Superintendent of Police, Vigilance ( now Retired), the Investigating Officers, who supervised the proceedings in the case reg istered against him and his wife accused – respondent No.2 in one way or the other/investigated the same . The instances of harassment of the above Police Officers have also been highlighted in the counter reply with the help of documents, i.e., Annexure P – 3, representation of Dr. D.S. Minhas to Secretary (Home), Government of India against the request made by the State Government for seeking permission to charge- sheet him in connection with the case in hand registered against accused- respondents No.1 and 2, Annexure P- 4, a charge- sheet served upon Shri Daya Sagar, the then Inspector , Vigilance , who has investigated the case partly and Annexure P- 5, copy of FIR No.5 dated 29th April, 2014 registered under Section 218 of the Indian Penal Code against Shri Hardesh Bisht, the then Superintendent of Police, SI U and Shri Daya Sagar aforesaid with the allegation that they did not investigate the case against the accused in a fair manner.
5. It is in this backdrop, the questions that the petitioner has shown sufficient cause for condonation of delay and that he is victim within the meaning of Section 2(wa) of the Code and entitled to prefer the appeal under the proviso to Section 372 of the Code, have to be examined and answered, however, before that it is desirable to take note of the facts leading to the institution of the appeal along with this petition and also the arguments addressed by learned Counsel on both si des.
6. Accused- respondent No.1 Virbhadra Singh is the Chief Minister of Himachal Pradesh. Accused -respondent No.2 Pritibha Singh, a former Member of Parliament is his wife. Accused- respondent No.1 remained Chief Minister of Himachal Pradesh during the period 1985- 1990 also. PW- 21 Major Vijay Singh Mankotia, former Minister of Himachal Pradesh in the month of May, 2007 received a secret information at Shimla about the audio- cassette having recording of the voice of accused- respondent No.1. The informer arranged to supply the audio- cassette to PW- 21, which was found in an envelop alongwith his other Dak nearby the door of MLA flat where he was residing. He played and heard the audio -cassette and found the same to be containing the conversation of accused – respondent No.1 with Shri Mohinder Lal, the then Deputy Commissioner, Shimla, that of accused- respondent No.2 and said Shri Mohinder Lal and also that of Shri Kedar Nath Sharma, the then OSD – cum- Private Secretary to accused- respondent No.1 and said Shri Mohinder Lal qua the exchange of money in lacs of rupees between the accused – respondents on one side and Mr. Piyush Jain of Mini – Steel Plant, Mr. Suresh Neotia and Mr. P.C. Jain of M/s. Gujarat Ambuja Cement, Brigadier Kapil Mohan, owner of Mohan Meakin through on e Mr. Suresh Kapoor of Mohan Meakin Brewery and one Mr. Mittal of Kangra on the other.
7. PW- 21 has convened the press conference on 28th May, 2007. The audio -cassette was played in that conference in the presence of media persons and released to the media. The audio – cassette was given wide publicity in the media. Petitioner S.M. Katwal (PW – 37) having gone through the news – item in the issues of Hindi dailies “Dainik Bhaskar” and “Divya Himachal” dated 29th May, 2007, has reported the matter to Station House Officer, Police Station, Vigilance and Anti Corruption, Shimla vide petition dated 30th May, 2007 (Ext.PW – 37- A). The contents of the same read as follows :
“Your attention is invited towards the news published in the Hindi Dailies, Dainik Bhaskar and Divya Himachal of 29-5- 2007 containing details of telephonic conversation between a high officer and reportedly the present CM and his wife and mentioning others, about payment/acceptance of huge sums of money. The facts, prima facie disclose commission of off ences, under the PC Act and Specific Corrupt Practices Act, IPC (Conspiracy) and other laws. I request that a case against the persons named/mentioned therein be registered and action as per law be taken against the persons, and a copy of the FIR so regist ered may be supplied to me, as per law. It is no excuse that the case is old or that I have no locus standi. There is no time limit in such like cases and any body can set the law in motion.
Earlier also, I had requested that a case be registered about jobs on chits, and when no action was taken I had to pray to the Hon’ble High Court and as per directions of the Hon’ble Court, a case (FIR No.1/2006) was registered. It is another matter that under pressure and deliberately, no accused was named and efforts have been and are being made to dilute the offences and the cases, about which the Hon’ble Supreme Court in a recently reported case has taken a serious view. Non action or non response will mean that you are also committing an offence under sections 120 B, 217, 218 of the IPC and I may have to approach the Hon’ble High Court again impleading your as a party.”
8. On receipt of the complaint (Ext.PW37 – A) supra, the Vigilance Headquarter forwarded the same to the Secretary – cum- Director Vigilance, Government of Himachal Pradesh vide letter No.Vig- Compl.199/2007 (SML) – 8687/Confidential dated 7th June, 2007 for issuance of necessary directions in the matter. Since the complaint was against former Chief Minister of Himachal Pradesh and his wife having reference of CD released by PW- 21, the Government decided to get the matter enquired into from the Vigilance Department. The Vigilance Headquarters was directed to take appropriate action in the matter and submit the report to the Government. One CD and copy of CWP No. 1913 of 2007 (Ext.PW -37/B) filed by S.M. Katwal (PW- 37) was also forwarded to Vigilance Headquarters.
9. Consequently, the Vigilance Headquarters entrusted the enquiry to Shri Anand Pratap Singh, Superintendent of Police, State Vigilance and Anti Corruption Bureau, Southern Zone, Shimla, vide letter dated 18th February, 2008. Shri Anand Pratap Singh aforesaid sought for the service record of Shri Mohinder Lal from General Administration Department of Himachal Pradesh and also sought the voice samples of accu sed -respondents No.1 and 2 from the director, Public Relations Department, Himachal Pradesh. The record and voice samples so sought were received. It is on 2nd May, 2008 the Inquiry Officer recorded the statement of Shri Mohinder Lal in the presence of Shr i I.D. Bhandari, the then Additional Director General of Police and Shri Ashok Tiwari, Deputy Inspector General, which reads as follows:
“I have heard the CD today purported to have been converted from a tape recorded sometime in the year 1989. At that tim e there was no CD but only Tape Recorders were available. I do not know as to how and where it has been recorded. The contents of the CD contain prima facie my conversation with the then Chief Minister, his wife and Shri K.N. Sharma etc. Prima facie the vo ice in the CD is mine and as far as I remember the conversation has taken place. As regards the names of the persons and the detail thereof the same must have recorded by Rani Sahiba and may be obtained from her. The persons, who made contributions as far as I remember, were sent to the Chief Minister’s house on various occasions and the present CD is a version of those occasions which happened and appears to have been recorded on various dates and made into one tape/CD. I am available for any further clarification based on my memory at any time as and when needed, as the matter relates to long time back.”
10. The samples of voice of the accused -respondents supplied by the office of Director, Public Relations, Himachal Pradesh were sent to Forensic Science Laboratory, Chandigarh for comparison and report. The Forensic Science Laboratory has submitted its opinion, which reads as follows:
“Hence, the voice samples marked ‘Exh- Q1 and Exh – S1’ are probable voice of the same person (Smt. Praibha Singh)”. “Hence, the voice samples of speakers marked ‘Exh- Q2 and Exh- S2’ are voice of the same person (Sh. Virbhadra Singh, Former Chief Minister of Himachal Pradesh) with high probability.”
11. The record pertaining to allotment of steel plant to one Piyush Jain was requisitioned from the Managing Director, HPSIDC, Shimla. The same was received and Shri Ashok Tiwari, Deputy Inspector General (Vigilance), has examined the same on the directions of the then Additional Director General Vigilance and submitted the report on 14th May , 2008 highlighting therein that the Committee had helped Shri Piyush Jain in the matter of allotment of the steel plant. The exchange of money between R.R., who in the opinion of the Inquiry Officer could have been Shri Rangila Ram Rao, the then Industry Minister- cum-Chairman of Board of Directors and Piyush Jain also surfaced, as per the conversation recorded in the CD.
12. Shri Santosh Patial, Superintendent of Police, Sate Vigilance and Anti Corruption Bureau, Northern Range, Dharamshala, was directed to interrogate Major Vijay Singh Mankotia (PW21) in the matter. The audio-cassette was taken into possession by Shri Paras Ram, Dy.S.P. (Vigilance) on 21st May, 2008 from Major Vijay Singh Mankotia.
13. After conducting the enquiry, the Inquiry Officer Shri Anand Pratap Singh has submitted the report dated 18th August, 2008 to the Vigilance Headquarters,which reads as follows:
“To the Addl. Director General of Police SV&ACB, Shimla dated Shimla- 2, the 18th August, 2009. Subject: – Complaint against former Chief Minister and his wife made by Shri S.M. Katwal IAS (Retd.) on the basis of CD released by Sh. Mankotia. Sir, A complaint dated 16- 2- 08 (No.Home (Vig) A(5) 147/2007 MLA) was received from Principal Secretary, Home and Vigilance to enquire into the C.D. relea sed by Mr. Vijay Singh Mankotia and CWP 1913/07 filed by Sh. S.M. Katwal, IAS (Retd.) in Hon’ble High Court in this regard. 2. During enquiry, a transcript of the C.D. was made and statement of Sh. Mohindra Lal IAS (Retd.) was recorded on 02- 05- 08. The statement of Sh. S.M. Katwal IAS (Retd.) was recorded on 07- 05-08. On 15- 05- 08 the statements of Sh. Chaman Kapoor, Sh. Rajinv Bhanot and Smt. Santosh Saini were also recorded at Una. 3. On 08-05- 08, the C.D. submitted by Sh. S.M. Katwal IAS (Retd.) was sent for Auditory Analysis to Central Forensic Laboratory, Chandigarh, alongwith a Video C.D. which contained voice samples of both Sh. Virbhadra Singh and Smt. Praibha Singh, and a Digital Video Cassette, which contained the voice samples of Smt. Pratibha Singh. Both the Video C.D. and the Digital Video cassette were obtained from the Director Public Relation H.P. 4. On 21- 05- 08 Sh. Vijay Singh Mankotia also handed over an audio cassette to the Vigilance team handed by Dy.S.P SV&ACB Dharamshala purporting to c ontain the voices of Sh.Virbhadra Singh, Smt. Pritabha Singh and Sh. Mohinder Lal, IAS (Retd.). This cassette was sent to Central Forensic Science Laboratory,Chandigarh , on 23- 05- 08. 5. According to Sh. Mohinder Lal, the voices belong to him, Sh. Virbhadra Singh, Smt. Pratibha Singh and Sh. K.N. Sharma (now deceased). He has also stated that “the persons, who made contributions as far as I remember, were sent to the Chief Minister’s House on various occasions and the present CD is a version of those occasi ons whi ch happened and appears to have been recorded on various dates and made into one tape/CD”. He was evasive and did not comment on ‘how’ and ‘where’ it was recorded. 6. Sh. S.M. Katwal IAS (Retd.) in this statement has also stated that since he was po sted as SDM Rampur in the past and had worked with Sh. Virbhadra Singh in various capacities, he was familiar with his voice and was certain that the voice in the C.D. was that of Sh. Virbhadra Singh . He was also familiar with the voices of Smt. Pratibha Singh and Sh. Mohinder Lal, IAS (Retd.) and was certain that the CD in question also contained their voices. 7. Shri Chaman Kapoor, Sh. Rajiv Bhanot and Smt. Santosh Saini, whose statements were also recorded at Una have claimed to identify the voices in th e CD as those of Sh. Virbhadra Singh, Smt. Pratibha Singh and Sh. Mohinder Lal IAS (Retd.). 8. The report from Central Forensic Science Laboratory, Directorate of Forensic Science No.CFSL/301/08/Phy/62/08 – 484 dated 8/8/08), copy attached, opines as under:
“The auditory analysis of recorded speech samples of speakers marked ‘Exh- Q1 and Exh- S1’ and subsequent acoust ic analysis of the recorded speech samples of the speakers marked Exh – Q1 and Exh- S1 by using Computerized Speech Lab (CSL), revealed that voice e xhibits of speakers marked ‘Exh- Q1’ are similar to the voice exhibits of speaker marked ‘Exh – S1’ in respect of their acoustic cues and other linguistic and phonetic features. Hence the voice samples of speakers marked ‘Exh- Q1’ and ‘Exh- S1’ are probable voice of the same person (Smt. Pratibha Singh)”. “The auditory analysis of recorded speech samples of speakers marked ‘Exh – Q2’ and ‘Exh- S2’ and ‘Exh-S2’ and subsequent acoustic analysis of the recorded speech samples of the speakers marked ‘Exh – Q2’ and ‘Exh- S2’ by using Computerized Speech Lab (CSL), revealed that voice exhibits of speakers marked ‘Exh – Q2’ are similar to the voice exhibits of speakers marked ‘Exh- S2’ in respect of their acoustic cues and other linguistic and phonetic features. Hence the voi ce samples of speakers marked ‘Exh – Q2’ and Exh- S2’ are voice of the same person (Sh. Virbhadra Singh, Former Chief Minister of Himachal Pradesh) with high probability”. 9. A study of the transcripts and contents of the C.D. r eveals a total of nine conversations by Sh. Mohinder Lal, four with Smt. Pratibha Singh, four with Sh. Virbhadra Singh and one with K.N. Sharma. During the course of the conversation the following points comes to notice:
1) The conversations took place immediately prior to the Lok Sabha Elections of February, 1990, as there is discussion regarding 4 seats of Lok Sabha from Himachal Pradesh, and since Shri Mohinder Lal is of the opinion that these conversations took place in 1989, it may be reasonably inferred that the conversations took place during the last months of 1989 and may have gone into the early months of 1990 before the Vidhan Sabha elections.
2) The following persons appea red to have made contributions’:1) Atma Ram 2.) Owner of Ambuja Cement 3.) Mr. Jain (In connection with a hotel in Manali 4.) Mr. Kapur of Mohan Meakins 5) Owner of Kangra Flour Mills 6.) One Mr. Mittal from Kangra 7.) Some person from Gujarat 8.) Some person from K&K 9.) One Mr. Neotia. 10.) Mr. Piyush Jain (in connection with the allotment of a steel plaint) 3. There is also a reference of helping “these people as and when the opportunity arises” 4.) There is mention of collection of more than 25 lacs as against the target of 1 5 lacs. 10. During enquiry the following facts also came to light: 1. A project wa s awarded to Gujarat ambuja Cement Ltd. for the manufacture of all types of cements for Rs. 150 crores on 19.2.90, and that this project was under consideration during the period when conversation took place. 2. A mini steel plant project of Mr. Piyush Ja in (Sl No. 10) was under consideration during the period when conversation took place.
3. A case of Hotel Honeymoon Inn (then called Hotel Hill Huts) was also pending with the government during the period when conversation took place. An FIR for illegal purchase was also registered against Sh. Satish Chand Jain (Sl No.3) along with revenue employees, in the Vigilance department in 1989 and was under investigation at the time of these conversations. The case was not charge sheeted subsequently because Mr. Satish Chand Jain passed away. A departmental inquiry against revenue officials was ordered. The land was eventually transferred to Hotel Hill Huts by the order of Financial Commissioner-cum- Secretary (Rev) vide order No.Rev 2 F(10)38/88 dated 10/9/1992. 4. Shri Mohinder Lal’s case for promotion into the super time Scale was also pending for which DPC was to take place at the time of these conversations and there are references to it. 11. The contents of the C.D. Suggest that Sh. Mohinder Lal I.A.S. (Retd.), posted as Director of Industries, was a conduit for arranging delivery of money to Sh. Virbhadra Singh through various industrialists. It is quite obvious that a record was maintained of the amount collected. There is also a reference of an amoun t having being paid by Sh. Piyush Jain ‘Rao Sahab’ on allotment of the Steel Mill. 12. Since the voice samples have been matched by CFSL the identity of the speakers is clear. Furthermore, Sh. Mohinder Lal, IAS (Retd.) in his statement identifies these voices as his own and as those of Sh. Virbhadra Singh and Smt. Pratibha Singh. It is also pertinent to mention here that no clues recording where or how or by whom the C.D was made, came to light during inquiry, as the matter in question pertains to 1989. Shri S.M. Katwal IAS (Retd.) only mentions that the C.D was found in his letter box during the time of Lok Sabha Elections. Shri Mohinder Lal, IAS (Retd.) and Sh. Vijay Singh Mankotia has also not provided any information in this regard. 13. During the course of enquiry evidence of allotment of Ambuja Cement and Steel Mill to Sh. Piyush Jain and case of Hotel Honeymoon Inn on behalf of Sh. Sathish Chand Jain also came to light. It cannot be established where any favours were indeed given to any of the c ontributors mentioned above in the letter. But it is quite clear that these matters were pending with the Government towards the end of 1989. 14. Sec. 13 1(d) (ii) and (d) (iii) of the PC act 1988 define Criminal Misconduct as under: 13. Criminal Misconduct by Public Servant (1) A Public servant is said to commit the offenc e of criminal misconduct, (d) if he, — (ii) by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage, without any public interest. The inquiry is complete and the fa cts that have come to light have been disused above. The entire record collected during the course of enquiry is in the custody of the undersigned. Hence the report is submitted as desired by your letter No. Vig. Compl – 199/2007(SML) – 2418 dated 18/2/2008.”
Thanking You ,
Yours faithfully, Sd/ –
A.P.
Singh, SP SV&ACB SR Shimla.”
14. The Additional Director General of Police State Vigilance and Anti Corruption Bureau, Himachal Pradesh has forwarded the report to Principal Secretary (Home) and Vigilance vide letter No.16345 dated 9th September, 2008, with his opinion that prima facie a cognizable of fence is found to have been committed by the accused-respondents and that it is the Government, which is the competent authority to take final decision in this regard.
15. The matter was examined in the Home Department and vide letter No.Home(Vig.)A(5)147/2007 (MLA&MP) Govt. of HP Department of Home (E – Section) dated 31st July, 2009, the Vigilance Headquarter was informed as under:
“As per opinion of the Law Department, the Police Officer has to take an independent decision after due application of mind. You ar e therefore, requested to take further necessary action in the matter. Enquiry report as received from your office is returned herewith.”
16. The above communication was receiv ed in the Vigilance Headquarter on 1st August, 2009 and on the receipt thereof , Dir ector General of Police, State Vigilance and Anti Corruption Bureau, Shimla, has ordered as under:
“Get the case registered in P.S. SV&ACB, Shimla and let it be investigated by S.P. (SIU) SV&ACB, Shimla.”
17. It is how the case vide FIR No.27 of 2009 came to be registered against the accused – respondents by Shri Arvind Digvijay Singh Negi, the then Additional Superintendent of Police, Incharge, Police Station, State Vigilance and Anti Corruption Bureau, Shimla, under Sections 8, 9, 10, 13(1) (d)(i)(ii) read wit h Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120 -B of the Indian Penal Code.
18. The investigation was entrusted to Special Investigating Unit vide letter No.Reader/SR/09- 5045 dated 3rd August, 2009. The Investigating Officer had obtained the notifications qua appointment of accused-respondent No.1 as Chief Minister of Himachal Pradesh. The transcript of CD in nine separate parts was got prepared and each and every part carefully analyzed. It transpired that Super Time Scale was due to Shri Mohinder Lal on 1st January, 1990; however, the same was released to him well before the due date on 23rd November, 1989. The required action in the matter including constitution of the Committee for the purpose was taken on the same day, i.e., 23rd November, 1989 itself. In the opinion of the investigating agency it wasdone to help Shri Mohinder Lal, who was apprehending the defeat of the Congress Party in 1989 General Election of Lok Sabha followed by the election of HP Legislative Assembly in the month of February, 1990, hence was in hurry in the matter of his induction in super time scale on promotion. Shri Mohinder Lal died on 19th January, 2009 during the investigation of the case and in his place his son Kavinder Lal (PW – 22) was associated in t he investigation of the case.
19. The permission to set- up cement plant by Gujarat Ambuja Cement was also found to be expedited in haste allegedly on receipt of bribe. In the matter of installation of modified Effluent Treatment Plant by Mohan Meakin, no action was taken by the concerned Department and it so happened on account of accused – respondent No.2 received ` 2 lacs from its owner. The case to grant permissi on to set- up mini steel plant by one Piyush Jain was also found to be given with a view to help him in lieu of the money received from him by the accused- respondents and also Shri Rangila Ram Rao, the then Industry Minister; however, no case could be registered against Mr. Rao for want of sufficient evidence.
20. The perusal of the transcript of the CD further reveals that lacs of rupees were taken in bribe by the accused- respondents in connivance with Shri Mohinder Lal. Though involvement of Shri Mohinder Lal was also established, however, as he died during the course of investigation, therefore, no challa n could be filed against him.
21. In view of the investigation conducted in the matter, the investigating agency has arrived at a conclusion that accused -respondent No.1 has committed the offence punishable under Sections 10, 13(1)(d),(i), (ii) read with Secti on 13(2) of the Prevention of Corruption Act and 120- B of the Indian Penal Code, whereas accused- respondent No.2 under Sections 8 and 9 of the Prevention of Corruption Act and 120- B of the Indian Penal Code.
22. The report under Section 173 of the Code of Criminal Procedure was filed accordingly against both accused- respondents in the Court of learned Special Judge (forests), Shimla. This has led to registration of Corruption Case No.9- S/7 of 2010 against them.
23. Learned Special Judge after taking into consideration the police report and the documents annexed therewith and hearing learned Public Prosecutor as well as defence Counsel, has prima facie found a case under Sections 7, 13(1)(d) read with Section 13(2), 11 of the Prevention of Corruption Act and Sectio n 120- B of the Indian Penal Code made out against accused- respondent No.1, whereas under Section 9 of the Prevention of Corruption Act and Section 120-B of the Indian Penal Code against accused- respondent No.2. Charges against both of them were framed acco rdingly to which they pleaded not guilty and claimed trial.
24. After holding full trial, learned Special Judge has arrived at a conclusion that the prosecution has failed to prove its case against accused – respondents beyond reasonable doubt and vide judgment dated 24th December, 2012 they have been acquitted from the charges framed against each of them.
25. As noticed at the very outset , the State has not preferred any appeal against the judgment of acquittal. It is the petitioner, who claims himself to be the complainant and ultimately a victim within the meaning of Section 2 (wa) of the Code, has filed the appeal under the proviso to Section 372 along with a petition under Section 378 (4) of the Code seeking leave to appeal. Since the appeal is barred by 96 days, the present petition has been filed with a prayer to condone the delay so occurred in filing the same.
26. Mr. A.P.S. Deol, learned Senior Advocate assisted by M/s. Virbahadur Verma and Adhiraj Singh Thakur, Advocate s, has made many fold submissions to substantiate the question of maintainability of the appeal, the petitioner a victim within the meaning of Section 2(wa) of the Code and to persuade this Court that the appeal on condonation of delay may be entertained.
27. As the respondent- State and also accused-p rivate respondents have raised the question of locus -standi of the petitioner to file the appeal and that he has not suffered any loss or injury including physical or mental, economic loss or impairment of his fundamental right through acts and omissions f or which the accused persons were charged, hence not a ‘victim’ within the meaning of Section 2(wa) of the Code . The petitioner, however, claims himself to be a ‘victim’, hence, it is urged that the proviso to Section 372 extends a right in his favour to file the appeal. Besides, while raising the question of fairness of the trial and learned Special Judge allegedly ignored the merits, it is urged that on condonation of delay as occurred in filing the appeal, the same be decided on merits.
28. Therefore, the fo llowing points arise for consideration of this Court:
(1 ) Whether the petitioner is a ‘victim’ within the meaning of Section 2(wa) of the Code and he has locu s- standi to file an appeal under the proviso to Section 372 of the Code against the judgment of acquit tal passed by learned Special Judge (Forests), Shimla on 24th December, 2012?
(2 ) Whether the petitioner has been able to show sufficient cause to condone the delay, as occurred in filing the appeal?
(3 ) Whether the merit of the case has been ignored by the trial Court?
(4 ) Whether fair trial has not been conducted by the trial Court?
Point No.1.
Brief b ackground:
29. There is no quarrel that proviso to Section 372 of the Code incorporated by way of amendment on and with effect from 31st December, 2009, extends a right in favour of a victim to prefer an appeal against the judgment passed by the Court acquitting the accused or convicting for a lesser sentence or imposing inadequate compensation either to the Sessions Court or to the High Court, as the case may be. In Cr.M .No.790 -MA of 2010(O&M), titled M/s. Tata Steel Ltd. v. M/s. Atma Tube Products Ltd. and others along with its connected matter Cr.M.A. No.547- MA of 2011(O&M), titled Kesar Singh v. Dheeraj Kumar, Punjab and Haryana High Court though has held that in an ap peal filed under the proviso to Section 372 of the Code , the leave to appeal under Section 378 of the Code is not required to be obtained in a case of private complaint and the victim is a complainant. He has got two options, i.e. either to file appeal against the order of acquittal recorded by the trial Court to the High Court under Section 378 of the Code or to the Sessions Court, as the case may be under the proviso to Section 372 of the Code. The present, however, is a case where the proceedings against accused- respondents No.1 and 2 have been launched consequent upon registration of a criminal case against both of them. In a case of this nature, as per Division Bench of our own High Court in Joginder Singh v. State of Himachal Pradesh, 2013(2) RCR (Cr iminal) 60 , leave to appeal is required to be obtained by the victim for filing an appeal under the proviso to Section 372 of the Code.
30. Any how the main dispute herein is as to whether the petitioner is a victim within the meaning of Section 2(wa) of the Code and has locus- standi to file the appeal or not.
31. The urge to find out true answers to the questions so formulated vis- à -vis the law laid down by the Apex Court and various High Courts by way of judicial pronouncements led to lengthy arguments addressed on behalf of the petitioner by Mr. A.P.S. Deol, learned Senior Advocate assisted by bright young lawyers S/Shri Virbahadur Verma and Adhiraj Singh Thakur, Advocates, whereas the private respondents by Mr. R.S. Cheema, learned Senior Advocate a ssisted by S/Shri Ajay Kochhar, Satyen Vaidya and Vivek Sharma , Advocates and respondent No.3 – State by S/Shri R.M. Bisht and P.M. Negi, learned Deputy Advocate General. Respective contentions of learned Counsel representing the parties.
32. Though it is Mr. Cheema, who has raised the question of maintainability of the petition for condonation of delay and also leave to appeal as well a s the appeal filed therewith, this Court allowed Mr. Deol to address arguments first in counter to the question so raised.
33. Mr. Deol h as drawn the attention of the Court to the definition of the ‘victim’ as defined in Section 2(wa) of the Code, the same reads as follows:
“Victim means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir.”
34. The ‘victim’, therefore, is a person, who has suffered any loss or injury on account of an act or omission with which the accused persons have been charged. The emphasis, therefore, is on terms “loss” or “injury”. The term “loss” has not been defined in the Code. However, it is Section 23 of the Indian Penal Code, which de fine s term “wrongful loss” as follows:
“ “Wrongful loss” .- “Wrongful loss” is the loss by unlawful means of property to which the person losing it is legally entitled.”
35. The term “injury” is also defined in Section 44 of the Indian Penal Code, which reads as follows:
“44. “Injury”. – The word “injury” denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.”
36. According to Mr. Deol, Ext.PW- 37/A is the complaint , which has been made by the petitioner and thereby set into motion the machinery. He is a public spirited person and as the acquittal of the accused persons has resulted in “loss” or “injury” to him, therefore, he is a ‘victim’ and as such entitled to file the appeal under the proviso to Section 372 of the Code.
37. In support of his contentions , he placed reliance on the decision of Full Bench judg ment of Punjab and Haryana High Court in M/s. Tata Steel’s case supra. In this judgment terms “victim”, “wrongful loss” and “injury” have been discussed in detail and liberally construed.
38. Mr. Deol has also placed reliance upon a decision of the Apex Court in Sheo Nandan Paswan v. State of Bihar and others, AIR 1987 SC 877.
39. Another precedent relied upon is the judgment of Bombay High Court in Balasaheb RangnathKhade v. State of Maharashtra and others, 2012 (2) CCR 381 . It is the observations in paras 47 a nd 48 of this report which have been pressed into service.
40. Mr. Deol has also placed reliance on a Division Bench judgment of this Court in Joginder Singh’s case supra. In this judgment also it is held that a victim has a right to file an appeal against a judgment of acquittal of the accused and also conviction for lesser offence as well as inadequacy of compensation on obtaining leave to appeal under Section 378 (4) of the Code.
41. Mr. Deol has also placed reliance on a Division Bench judgment of Gauhati High Court (Agartala Bench) in C.M. Appl (Crl) 89 of 2011 in Crl. A. No.13 of 2011, titled Gouranga Debnath v. State of Tripura and others and on that of Punjab and Haryana High Court in Ram Kaur @ Jasw inder Kaur v . Jag bir Singh @ Jabi and others (2010) 3 RCR (Cri.), 391 (DB) .
42. A Full Bench of Gujarat High Court in Bhavuben Dineshbhai Makwana v. State of Gujarat and others, 2013 Cri.L.J. 4225 has also held that the victim can file an appeal under the proviso to Section 372 of the Code to challenge therein the order of acquittal or conviction for lesser offence or award of inadequate compensation, irrespective of the State has also filed an appeal against the same order.
43. Mr. R.S. Cheema, learned Senior Advocate, while repelling the arguments addressed by Mr. Deol on the question of maintainability of the delay petition , the peti tion for leave to appeal and the appeal, has strenuously contended that the petitioner is n either a complainant nor even an informant and rather a whistle blower, as the FIR against the acc used- respondents was
registered on the basis of the complaint made by Superintendent of Police, State Vigilance and Anti Corruption Bureau, Shimla. The petitioner’s claim that he being a public spirited person and as such is a complainant/first informant is not sustainable. The proceedings have been initiated by the petitioner merely to wre ak-vengeance against the private respondents as he is under the impression that the criminal cases have been registered against him at their instance. T herefore, according to Mr. Cheema, the petitioner is inimical towards accused – respondents No.1 and 2. He according to Mr. Cheema, at the most is a whistle- blower. A whistle- blower cannot be termed to be a ‘victim’. It is also urged that even if the petitioner is to be trea ted as an informant or a complainant in that event also he has no right to prefer an appeal as the proviso to Section 372 of the Code extends a right only in favour of a victim and not in favour of the complainant/ first informant . From the case law referred to by Mr. Deol, it is pointed out that there is not even a single decision in which a view that complainant has a right to file an appeal in terms of Section 372 of the Code, is taken.
According to Mr. Cheema, in M/s. Tata Steel’s case supra, the point in issue was qua the definition of victim, whereas in Balasaheb Rangnath Khade’s case the question examined and answered was with regard to the requirement of obtaining leave to appeal by the victim to file an appeal under the proviso to Section 372 of the Code. The judgment rendered by Full Bench of Gujarat High Court in Bhavuben Dineshbhai Makwana’s case deals only with the right of a victim to file an appeal and stated to be not relevant to the present controversy. The ratio of the law laid down by the H igh Court of Gauhati (Agartala Bench) in Gouranga Debnath’ s case deals only with the question that the father of a person murdered, is victim or not whereas that of the Apex Court in Sheo N andan Paswan’s case deals with the question of a non-informant to challenge an order of withdrawal of prosecution by the Prosecutor.
44. Per contra, Mr. Cheema has placed reliance on the judgment of the Apex Court in National Commission for Women v. State of Delhi and another, (2010) 12 SCC 599. It is held in this judgment th at the impression ‘victim’ has to be interpreted in appropriate legal perspective. It was a case of atrocities against woman and the Apex Court has held that National Commission for Women was neither victim nor complainant to file the appeal. This judgment reads as follows:
“11. An appeal is a creature of a Statute and cannot lie under any inherent power. This Courtdoes undoubtedly grant leave to the appeal under the discretionary power conferred under Article 136 of the Constitution of India at the beh est of the State or an affected private individual but to permit anybody or an organization pro- bono publico to file an appeal would be a dangerous doctrine and would cause utter confusion in the criminal justice system. We are, therefore, of the opinion t hat the Special Leave Petition itself was not maintainable.”
45. Reliance has also been placed upon a Division Bench judgment of Punjab and Haryana High Court in CRM No.26221 of 2011 and CRM No.A- 402 – MA of 2011, titled Parmod Kumar v. Har Parkash and others, in which petitioner Parmod Kumar, who had lodged the FIR, was not held to be a victim.
Discussion and the conclusion drawn:
46. Now analyzing the rival submissions and also the law cited at the bar, proviso to Section 372 of the Code extends an indefeasible r ight to the victim to prefer an appeal against an order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. There is no quarrel in this regard. The petitioner is a victim or not, is a question hotly contested on both sides.
47. It is well established from the law cited on both sides that it is not necessary that an informant or the complainant is always a victim and proviso to Section 372 of the Code confers a right upon the victim alone to prefer an appeal and not on an informant or a complainant. The appeal is a creation of statute and the right to file an appeal has to be determined with reference to the relevant statutory provisions.
48. In a case of prosecution launched on the registration of FIR a nd presentation of police report under Section 173 of the Code, it is only the State, which is competent to prefer the appeal and the statute does not confer power on a complainant or informant, who is not a victim , to prefer an appeal against the acquittal.
49. Adverting to the case in hand, of course, on the complaint Ext.PW – 37/A made by the petitioner , he set into motion the machinery because it is consequent upon said complaint the Government ordered an enquiry into allegations in the complaint, which was conducted by Shri Anand Pratap Singh, Superintendent of Police, State Vigilance and Anti Corruption Bureau. He submitted the report and it is on the basis thereof FIR No.27 of 2009 under Sections 8, 9, 10, 13(1)(d)(i)(ii) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120 – B of the Indian Penal Code was registered against accused – respondents No.1 and 2.
50. As per the decisions cited at the bar and the law as discussed hereinabove, laid down therein, the proviso to Section 372 of the Code empowers the victim to prefer an appeal against an order acquitting the accused or convicting for lesser sentence or imposing inadequate compensation. None of the precedents so cited except for M/s. Tata Steel Limited and Gouranga DebNath’s cases su pra, however, deal with term ‘victim’ within the meaning of Section 2(wa) of the Code. The Full Bench of Punjab and Haryana High Court in M/s. Tata Steel Limited, after examining the term ‘victim’ within the meaning of Section 2(wa) of the Code and also words “l oss” and “injury” within the meaning of Sections 23 and
44 of the Indian Penal Code with the help of the case law relied upon has held that words “l oss” and “injury” used in Section 2(wa) are synonymous and that a person, who has suffered an injury i n body or mind or reputation or to his/her property, is a ‘victim’ within the meaning of Section ibid. No doubt, as per law laid down by the Full Bench, ‘victim’ is a person not only suffered with an injury in body or mind or to the property, but reputatio n also, is a victim. This judgment reads as
follows:
जजमेंट ज्यादा लंबी होने की वजह से यहां से हटा दी गई है
53. I n rest of the judgments cited on behalf of the petitioner, the only legal question dealt with pertain s to the entitlement of a victim to prefer an appeal against a judgment of acquittal under the proviso to Section 372 of the Code, qua which there is no t much quarrel, hence need no further elaboration.
54. The question, however, arises that the petitioner before this Court is covered by the meaning so assigned to term ‘victim’ or not. The answer to this poser in all fairness and in the ends of justice would be in the negative for the reason that irrespective of t he complaint Ext.PW- 37/A having been made by him, he is not a complainant nor the case is registered at his instance. He at the most is a whistle blower. On going through the reply to this petition filed on behalf of accused- respondents No.1 and 2 , t he petitioner is an accused in criminal cases registered vide FIR No. 3 of 2003 under Section s 465, 467, 468, 471 of the Indian Penal Code and 13(2) of the Prevention of Corruption Act, FIR 15 of 2003 under Section s 420, 467, 468, 471, 120 – B of the Indian Penal Code and 13(2) of the Prevention of Corruption Act, FIR No. 27 of 2005 under Section s 420, 467, 468, 471 of the Indian Penal Code and 13(2) of the Prevention of Corruption Act, FIR No. 11 of 2006 under Section s 420, 467, 468, 471 of the Indian Penal Code and 13(2) of the Prevention of Corruption Act, FIR No.1 of 2004 under Section s 420, 467, 468, 471 of the Indian Penal Code and 13(2) of the Prevention of Corruption Act, FIR No.4 of 2003 under Section s 420, 467, 468, 471, 120B of the Indian Penal Code and 13(2) of the Prevention of Corruption Act, and FIR No.2 of 2004 under Section s 420, 467, 468, 471, 120B of the Indian Penal Code and 13(2) of the Prevention of Corruption Act, in Police Station, Enforcement North Zone, Dharamshala. Therefore, all these cases were registered against him at a time when accused – respondent No.1 was the Chief Minister of this State. No t only this, but three Civil Suits bearing No.5 of 2004, 5 of 2005 and 8 of 2005 have been instituted by the petitioner against accused -respondent No.1. It can reasonably be believ ed that both accused – respondent
No.1 and the petitioner are inimical to each other. Therefore, the possibility of he having initiated these proceedings against the accused – respondents merely to wreak- vengeance against them cannot be ruled out. Although, the kind of “loss ” and “injury” as discussed by the Full Bench of Punjab and Haryana High Court in M/s. Tata Steel Limited and Gauhati High Court in Gouranga Debnath’s case have not been suffered by the petitioner and at the most he can only be said to have suffered with mental injury or emotional suffering and for that matter even every citizen suffers such loss and injury if an offence of the nature already committed by the accused- respondents is found to be committed by a person occupying such a high position , yet keeping in view that t he petitioner has not set the machinery in motion in the capacity of a public spirited person and rather on account of he being inimical to the accused -respondents , h e cannot be termed as ‘victim’ within the meaning of Section 2(wa) of the Code nor competent to prefer an appeal under the proviso to Section 372 of the Code.
55. Of course, charges against accused -respondents No.1 and 2 are that of corruption, therefore, if any “loss” or “injury” including the emotional loss or mental injury is cau sed by their cquittal , it cannot only be to a particular individual, like the petitioner, but also to the public at large. As already said, the term ‘victim’ is wide enough and to be cons trued liberally in a case having charges of corruption that too against a person occupying high position and at the helm of affairs. What to speak of complainant or informant hav ing suffered loss on account of acquittal of an accused from the charge of this nature, any one else may also feel aggrieved, however, this alone is not sufficient because under the proviso to Section 372 of the Code, it is a victim alone competent to prefer appeal. In this case
since the petitioner is inimical to accused – respondents No.1 and 2, therefore, if he claims himself to be a ‘victim’ , it is difficult to believe. I am, therefore, in agreement with Mr. Cheema that the petitioner is not a victim within the meaning of Section 2(wa) of the Code for the reason that an informant or complainant has no right to prefer an appeal. The amendment empow ers only a ‘victim’ and no ne else to prefer an appeal, not a complainant or first informant that too when the criminal proceedings were launched consequent upon the investigation conducted on registration of FIR. It is worth to mention here that in National Commission for Women v. State of Delhi and another, supra the Apex Court has not held the National Commission for Women as ‘victim’ i n – spite of that case being that of atrocities/crime against women. To my mind in that case the National Commission was on better footing as compared to the petitioner in the case in hand.
56. In another precedent cited by Mr. Cheema , Parmod Kumar, at whose instance the FIR was registered , was not held to be a victim by the Punjab and Haryana High Court.
57. As regards Sheo Nandan P aswan’s case supra, the same also does not deal with the questions arising in the present case at all. In this case, learned Public Prosecutor moved an application for withdrawal of prosecution, which was opposed by Sheo Nandan Paswan . The said applicati on was allowed and the accused Dr. Jagannath Misra and others were ordered to be disch arged. Sheo Nandan Paswan filed a revision against the said order, which was dismissed by the High Court. Sheo Nandan Paswan challenged the orders of learned Courts below before the Hon’ble Supreme Court. Therefore, the questions involved in Paswan’s case were entirely different and dealt with the locus standi of a non – informant to challenge an order of withdrawal of prosecution. It was not a case of an appeal against acquittal. The reference by the Hon’ble Supreme Court in para 14 to a decision of the Constitution Bench in A.R. Antulay’s case stating that anybody could set the machinery of law in motion on commission of a crime and file the complaint, does not render any assistance to the petitioner, who has to plead his case on the basis of a statutory right to file an appeal.
58. In view of what has been said in para supra, it would not be improper to conclude that the right to file an appeal is creature of statute and the same need determination with reference to the statutory provisions. In a case, where the prosecution is launched on the basis of an FIR, it is only the State, which can prefer an appeal against the acquittal and not the complainant or informant, who is not a victim. Therefore, when t he petitioner is not proved to be a victim, he is not entitled to prefer an appeal under the proviso to Section 372 of the Code against the acquittal of the accused-respondents. This takes us to the second question which pertains to the delay as occurred in filing the appeal.
Point No.2.
Brief b ackground:
59. After having said that the petitioner is not a victim within the meaning of Section 2 (wa) of the Code and as such not competent to file the appeal, it is deemed appropriate to go into the question of limitation also.
60. Now coming to the question of delay the reasons therefor as mentioned in paras 2 to 4 of the petition read as follows:
“2. That the applicant received knowledge of the judgment dated 24.12.2012 through Newspaper when he was attending to his sick wife who was undergoing treatment for a serious ailment at PGI, Chandigarh during the months of Jan- March, 2013.
3. That the applicant had no access to the file record since he had not engaged any private counsel for prosecuting this case. On receiving knowledge that the State of Himachal Pradesh which is ruled by Sh. Virbhadra Singh (respondent No.1) and who is also holding charge of Home Department would not let the prosecution department to file any appeal again st his acquittal, the petitioner has come forward as a ’victim’ to prefer an appeal against the judgment of acquittal. The competent authority to give fitness/unfitness certificate for filing appeal in the High Court was special public prosecutor, appoint ed in the case by present Govt. after declaration of result of State Assembly on 23.12.2012. The said prosecutor was appointed by the Govt. headed by Sh. Virbhadra Singh by Home Department which intern was headed by Respondent No. 1. Thus the prosecutor and the accused became one and the same having common interest not to peruse the case in effectiveness.
The State Govt. department of Home is thus happy to oblige the accused in this case i.e. Respondent No. 1 and 2 by not filing any appeal against the acquittal and has let the period of limitation expire conveniently for obvious reasons. In this peculiar circumstance the delay in filing the appeal may kindly be considered in the light of above stated facts.
4. That although Section 372 Cr.P.C does not provide a period of limitation for filing an appeal by the victim. However, the period as provided under Article 114 of the Limitation Act has bee n made applicable by certain decisions rendered by the Hon’ble High Courts in the country. Full Bench of t he Gujarat High Court in the case of Bhavu Ben Dinesh Bhai Makwana vs. State of Gujarat Crl Appeal No. 238 of 2012 and 608 of 2012 has held that the period of 90 days should be a reasonable period for the victim to file an appeal since the said period is the longest period of limitation for filing an appeal prescribed by the legislature. This view is based upon the well recognized principles of criminal jurisprudence (Crime never dies), the Maxim “nullum tempus qut locus occurrit regi” (Lapse of time is no bar to Crown in proceedings against offenders) is an age old rule embedded in criminal justice delivery system. The public policy behind this rule is that a criminal offence is considered as a wrong committed against the State and the Society. The aforesaid rule of prudence has been duly acknowledged by the Parliament as it has prescribed no period of limitation for filing an appeal under proviso to Section 372 of the Code against an order of acquittal. It would be pertinent to mention here that the applicant /appellant has got the Photostat copy of the judgment in the month of August, 2013.”
61. The response on behalf of accused-respondents is that not only the petition but also theappeal is mala fide, filed with an ulterior motive to settle
score with them as he is under the impression that the criminal cases registered against him during the period 2003 to 2006 detailed in earlier part of this judgment were registered at the behest of accused – respondent No.1. It is denied that the petitioner acquired knowledge of passing judgment of acquittal during the period January- March, 2013. As averred in reply to the peti tion, the case of the accused – respondents is that the petitioner appeared as PW- 37 on 24th December, 2012 in the Court. The impugned judgmen t was announced on that day itself . The judgment so delivered was given wide publicity in Print and electronic media on 25th December, 2012. The petitioner, therefore, was fully aware abou t passing of the judgment on 24 th December, 2012 and he has filed the appeal due to personal grudge and vindictive attitude against the accused- respondents. The petitioner’s claim that he is a victim within the meaning of Section 2(wa) was also denied being wrong. The allegations against the accused- respondents and other functionaries of the State are stated to be baseless, malicious and defamatory. The averments that accused – respondent No.1 having taken over as Chief Minister of Himachal Pradesh and Minister in charge of Home Department, the department of Home obliged him by not filing the appeal against his acquittal, have also been denied being wrong. In this behalf, it is submitted that since the competent authority had found the present a case of no evidence, hence rightly decided not to file appeal. It is denied that no period of limitation is prescribed for filing an appeal under the proviso to Section 372 of the Code and stated that the period of limitation as provided under Article 114 of the Limitation Act is 90 days. It is also denied that the petitioner got Photostat copy of the judgment in A ugust, 2013. He rather intentionally and deliberately suppressed the source from where he got the copy of the judgment. The copy of the judgment annexed to the appeal is shown to have been prepared on 31st December, 2 012. Therefore, according to accused respondents, the petitioner has no right to file the appeal. Otherwise also, the petition discloses no cause or reason muchless sufficient cause or reason for condonation of delay.
62. The respondent- State in preliminary submissions has come forward with the version that on receipt of the copy of judgment of acquittal, the District Attorney has examined the matter and opined that it was not a fit case for filing the appeal. The opinion of District Attorney was forwarded to Additional Director General, State Vigilance and Anti – Corruption Bureau, Himachal Pradesh and was examined in Vigilance Headquarters by Joint Director (Prosecution). The file along with the opinion of Joint Director was sent to Additional Chief Secretary (Home). The Home Department has forwarded the matter to Law Department for seeking opinion. In the opinion of the Law Department, i t was a case of no evidence; therefore, a thoughtful and conscious decision not to file appeal by the State was taken.
63. The petitioner should have been vigilant and approached the Court within the reasonable time for redressal of his grievances. He however, remained negligent. Otherwise also, the present being a police case, it is only the victim, who alone is competent to file an appeal under the proviso to Section 372 of the Code. The petitioner in this case is not a victim, hence not competent to file the appeal. It is denied that the Home Department has obliged the accused- respondent No.1 by not filing the appeal against the judgment. It is also denied that no limitation is prescribed for filing an appeal under the proviso to Section 372 of the Code. It is submitted that the procedure as prescribed under Section 378 of the Code for filing the appeal against the acquittal is applicable for filing the appeal under the proviso to Section 372 of the Code also.
64. In rejoinder to the reply filed on behalf of the accused/respondents, while pointing out the alleged revengeful and vindictive attitude of accused respondent No .1 on becoming Chief Minister of the State, the instances of initiation of criminal/departmental proceedings against Dr. D.S. Minhas, the then Director General of Police, Himachal Pradesh, who allegedly has ordered the registration of FIR No.27 of 2009 against the said accused and monitored the investigation conducted therein, Shri I.D. Bhandari, on the charges of snooping upon certain politicians now in power, Inspector Daya Sagar (Retd.), the Investigating Officer., who allegedly have been charged with re cording statements of Brigadier Kapil Mohan and Shri P.C. Jain, the witnesses examined by the prosecution in the trial against the accused/respondents allegedly falsely and Shri Hardesh Bisht, the then Superintendent of Police, SIU one of the I nvestigating Officer, who filed final report under Section 173 of the Code against accused- respondents No.1 and 2. Therefore, the complaint is that, it is not the petitioner, but the accused – respondent No.1, who is vindictive and inimical not only against the petitioner but also against all those who any how or other monitored/investigated the case FIR No. 27 of 2009, which was registered against him and his wife Pratibha Kumari, accused No.2 on taking over as Chief Minster of the State.
65. The representation Annexure P – 3 to the rejoinder highlighting the alleged acts of vindictiveness on the part of accused – respondent No.1, made by Dr.D.S. Mi nhas to Shri Anil Goswami, Secretary (Home) to the Government of India against the communication made by respondent- State for se eking permission to charge- sheet Dr. Minhas. Annexure P – 4 (Colly.) is a communication addressed to Additional Superintendent of Police, Police Station, State Vigilance and Anti-Corruption Bureau, Shimla- 2, with a request to serve charge- sheet upon Shri D aya Sagar, aforesaid and Annexure P- 5 , copy of FIR No.5 of 2014 registered against Shri Hardesh Bisht, S uperintendent of Police, SIU and Shri Daya Sagar, Inspector (Retd.), aforesaid have also been pressed in to service . Respective Contentions of learned Counsel for the parties.
66. Mr. Deol, learned Senior Advocate has argued that the petitioner have not engaged any counsel in the trial Court nor have any access to the record and decided to file appeal against the judgment of acquittal only on coming to know that respondent-State will not file the appeal. T herefore, the delay, which a ccording to Mr. Deol, is not inordinate and on the other hand the offence like immorality and corruption by the persons occupying high position the term sufficient cause ” , has been sought to be liberally construed. Therefore, on condonation of delay the appeal has been sought to be entertained and decided on merits.
67. In order to buttress the arguments so addressed, Mr. Deol, has placed reliance on the
judgment of the Apex Court in State of Tamilnadu v. N. Suresh Ranjan and others , 2014 ( 1 ) RCR (Cr.) 572 . While answering the issue of delay, the observations made by Hon’ble Apex Court are as under:-
“10. The contentions put forth by Mr. Sorabjee are weighty, deserving thoughtful consideration and at one point of time we were inclined to reject the petition s filed for condonation of delay and dismiss the special leave petitions. However, on a second thought we find that the validity of the order impugned in these special leave peti tions has to be gone into in criminal appeals arising out of Special Leave Petitions (Criminal) Nos. 3810 -3811 of 2012 and in the face of it, it
shall be unwise to dismiss these special leave petitions on the ground of limitation. It is worth mentioning here that the order impugned in the criminal appeals arising out of Special Leave Petition (Criminal) Nos. 3810-3811 of 2012, State of Tamil Nadu by Ins. of Police, Vigilance and Anti Corruption v. N. Suresh Rajan & Ors., has been mainly rendered, relying on the decision in State by Deputy Superintendent of Police, Vigilance and Anti Corruption Cuddalore Detachment s. K. Ponmudi and Ors.(2007 -1MLJ-CRL.-100), which is impugned in the present special leave petitions. In fact, by order dated 3rd of January, 201 3, these petitions were directed to be heard along with the aforesaid special leave petitions. In such circumstances, we condone the delay in filing and re -filing the special leave petitions. ”
68. The reliance has also been placed on the judgment again tha t of the apex Court in State (NCT of Delhi) v. Ahme d Jaan , 2008 Cri.L.J, 4355. In this judgment, the A pex Court, after taking note of the law laid down in various judicial pronouncements has elaborated the expression “sufficient cause ” as follows:-
“……… The expression “sufficient cause” is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice – that being the life -purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression “every day’s delay must be explained” does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non -deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice -oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step -motherly treatment when the State is the petitioner. The delay was accordingly condoned. ”
70. Mr. Deol then placed reliance on a full Bench judgment of Gujarat High Court in State of Gujarat v. Kaliashchandr a Badriprasad, 2001 (1) RCR (Cr iminal ) 162 and on that of Gauhati High Court in Gouranga Debnath’s case supra.
71. Reliance has also been placed on a Division Bench judgment of our own High Court in Joginder Singh’s case cited supra.
72. On the other hand Mr. Cheema, learned Senior Advocate has very fairly submitted that he would have not raised any objections to the plea of condonation of delay, but the petition, according to hi m, does not disclose sufficient cause and rather has been filed for extraneous consideration with mala fide intention to harass the accused – respondents on account of enmity. The very foundation that the petitioner came to know about the passing of impugne d judgment somewhere in January-March 2013, on the face of it is false, as according to Mr. Cheema , the acquittal of the accused followed by taking over as Chief Minister, Himachal Pradesh by accused- respondent No.1 on the next day i.e. 25th December, 2012 , the judgment was given wide publicity not only in print media but also in electronic media.
73. The day when the judgment was pronounced i.e. 24th December, 2012 , the petitioner was present in the Court as a witness. The copy of judgment is not certified one. The same is Photostat copy having been prepared on 31st December, 2012. There being no explanation as to who applied for the same and when its copy was supplied, renders the explanation so coming forth absolutely false. The petitioner is a convict and his convict ion even affirmed by the High Court also, of course the appeal he filed is pending disposal in the Hon’ble Supreme Court . H is perception is that the criminal cases against him were registered at the instance of accused – respondent No.1. H e , according to Mr. Cheema, is inimical to the accused – respondent s and betting for personal interest and not for the cause of public at large. Mr. Cheema has fairly conceded that the Courts have wider discretion in the matter of condonation of delay; however, the discretion should also be exercised judiciously depending upon the facts and circumstances of each case. According to Mr. Cheema, in the present case neither any plausible explanation is forthcoming nor is sufficient cause found to have been shown. It has, t herefore, been urged that the delay cannot be condoned. Mr. Cheema has placed reliance on the judgment of Apex Court in Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and another (2010) 5 SCC, 459. Anoth er judgment as relied upon is again that of Apex Court in Lanka Venkateswarlu (dead) by LRs . v. State of Andhra Pradesh and others, (2011) 4 SCC 363. Reliance has also been placed on the judgment of Apex Court in Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, (2012 ) 5 SCC 157. 74. On the similar lines are the arguments addressed qua this aspect of the matter on behalf of the respondent – State.
Discussion and the conclusion drawn :
75. The above stated factual and legal position takes us to the adjudi cation of the question of condonation of delay. The present is a case where the delay of 96 days has occurred in filing the appeal. The same has been sought to be condoned on the above grounds in the petition discussed in para supra .
76. It is well settled at this stage that a party seeking the condonation of delay has to show “sufficient cause ” warranting condonation of delay .
77. As per the law laid down by the Apex Court in Ahme d Jaan’s case supra, the expression sufficient cause’ should be interpreted liberally and in a meaningful manner to sub- serve the ends of justice. Also that the expression ‘every day’s delay must be explained’ should also be applied in a rational common sense by taking pragmatic approach to do substantial justice.
78. To the similar effect is the ratio of the judgment again that of Apex Court in Lipok A.O’s case supra relied upon in support of the case of the petitioner. Be that as it may, however, one should also not lo st sight of the fact that the expiry of the period of limitation prescribed for filing appeal/petition results in existence of a valuable right to the opposite party and such right should not be taken away by condoning the delay without sufficient cause. It is apt to make reference to the judgment of A pex Court in P.K. Ramachanderan v. State of Kerala, AIR 1998 SC, 2276. It is held in this judgment that the law of limitation may harshly affect a particular party, but it has to be applied with all rigors when the statute so prescribes and the Courts have no powers to extend the period of limitation on equitable grounds.
79. Here the delay has been sought to be condoned on the following grounds:
i ) the petitioner came to know about the judgment under challenge somewhere in January -March 2013 at such a time when he was looking after his ailing wife in PGI Chandigarh;
ii ) the trial was being conducted by the public prosecutor and as he had not engaged any counsel hence not having the record of the case;
iii ) photocopy of the judgment was made available to him in the month of August, 2013; and
iv ) on coming to know that the Home Department with a view to oblige accused respondent No.1, who by that time took over as the Chief Minister of Himachal Pradesh, not opted for filing appeal against the judgment of acquittal.
80. Now applying the law as discussed hereinabove in the light of the explanation so forthcoming, taking a lenient view of the matter and pragmatic approach as well keeping in mind that the matter should normally not be closed merely that it is time barred and the merit should not be made to suffer, this Court find s itself unable to agree with the explanation as set forth in the petition for seeking the condonation of delay for the reason that the same does not constitute “ sufficient cause ” as is required to be shown for seeking the condon ation of delay. In the case in hand, the explanation as forth coming is absolutely vague, cryptic and highly unbelievable. The judgment under challenge has been passed on 24th December, 2012. The petitioner on that day was very much present in the Court bec a u se he appeared as one of the witnesses. The pronouncement of judgment on 24th December, 2012, followed by oath taking ceremony of accused- respondent No.1 on the very next day, i.e., 25th December, 2012, were such events , which were given wide publicity in print and electronic media. T he petitioner, a Himachali and being an IAS Officer (R etired) can reasonably be believed to have gone through the reports in print media and the news in electronic media regarding acquittal of the accused – respondent by learned trial Court on 24th December, 2012. The plea that he came to know about the acquittal of the accused respondents somewhere during January -March, 2013 is not only palpably false but vague, evasive and absurd also. Therefore, on that basis the delay as occurred in filing the appeal could have not been condoned even if the appellant is held to be a ‘ victim ’having right to prefer appeal against the judgment of acquittal. It may be that the petitioner was not represented by a counsel nor had any access to the records of the case ; however, no explanation is forthcoming to show as to how and what efforts he made to obtain the record and from whom. It is also missing that he applied for the ertified/uncertified copies of record on a particular day and the date on which the same w as supplied to him.
81. Surprisingly enough, t he petitioner even does not have certified copy of the judgment under challenge because it is only a photocopy of certified copy, which has been filed along with the appeal. It is not known as to who applied for the same. The stamp of copying agency, however, reveals that the certified copy was complete for delivery on 31st December, 2012 and was actually delivered on 23rd February, 2013. The petitioner is persuading this Court to exer cise discretion in his favour in the matter of condonation of delay even without disclosing the name of the person, who has supplied him the P hotostat copy of the judgment. There is no explanation as to why he himself did not apply for the certified copy of the judgment under challenge. It is again absurd and evasive that he filed the appeal on coming to know that the Home Department with a view to oblige the accused- respondent No.1, has not preferred appeal against the impugned judgment because he has no t disclosed the source of such information and also when he came to know about it.
The present is a case where there is nothing on record to show that since when the limitation start running because here the petitioner has neither applied for certified co py of the judgment nor is it his case that he came to know on a particular date about passing of the impugned judgment or the date when he received information qua the State Government having decided not to prefer an appeal against the impugned judgment. The explanation for condonation of delay as forth coming is therefore, neither plausible nor cogent and reliable nor constitute sufficient cause. The grounds raised rather are absolutely vague, absurd, cryptic and evasive also. The present, therefore, is a case where the petitioner has miserably failed to show sufficient causewarranting the condonation of delay as occurred in filing the appeal . Therefore, th is is no t a case warranting liberal construction of expression “sufficient cause” nor any ground for taking pragmatic and justice oriented approach as held by the A pex Court in Lipok AO’s and Ahme d Jaan’s case s supra, is made out . The present rather is a case where sufficient cause has not been shown nor from the petition any ground is made out warranting condonation of 96 days ’ delay as occurred in filing the appeal. The present rather is a case where an order condoning the delay would amount to take away a valuable right having accrued in favour of the accused- respondents on the expiry of the perio d prescribed for filing the appeal. I n the given facts and circumstances, the right so accrued in favour of the accused respondents cannot be taken away.
82. Mr. Deol has also placed reliance on a Full Bench judgment of Gujarat High Court in Kaliashchandra Bad raiprasad’s case supra. However, the law laid down therein is not attracted in this case for the reason that the question referred to the full bench in that case was as to whether delay can be condoned without hearing an accused or not, which has been answ ered in affirmative while holding that the delay cannot be condoned without hearing the accused and also that in a case of acquittal rather the delay should not be condoned without sufficient cause . The law laid down in this judgment is hardly of any help to the case of the petitioner and rather substantiate the cau se of the accused- respondents for the reason that the petitioner has failed to show sufficient cause and as such the delay cannot be condoned.
83. The question for determination before a Division Bench of Gauhati High Court in Gouranga Debnath’s case was with regard to exclusion of time by extending the benefit of Section 470 of the Code in certain cases because in that case initially instead of filing an appeal , revision petition was filed, which later on was sought to be withdrawn and dismissed as such. It is
in this backdrop, it was held that on coming to know the revisional proceedings and the appeal cannot be pursued together, the petitioner having withdrawn the revision petition in good faith, was held entitled to the benefit of Section 470 of the Code. This, however, is not the point in issue in the case in hand.
84. Coming to the Division Bench judgment of our own High Court in Joginder Singh’s case supra, it has been held that the procedure as prescribed for filing the appeal under Section 378 of the Code is applicable even to an appeal under the proviso to Section 372 of the Code. Therefore, the limitation for filing an appeal under the proviso to Section 372 has been held to be 90 days. Anyhow, there is no quarrel on this score as the petitioner himself submits in the petition that the period of limitation prescribed for filing appeal under Section 372 of the Code is 90 days.
85. Now coming to the judgment of Apex Court in N. Suresh Ranjan’s case, supra, true it is that the delay of 2171 days as occurred in filing the appeal has been ordered to be condoned, however, on consideration of the facts that the accused , a former Minister, charge -sheeted with the allegations of corruption and in possession of disproportionate assets in his own name and also in the name of his wife, friend s and sons as compared to their known sources of income , was discharged by the trial Court and the order affirmed by the High Court. It is in the nature of the allegations and gravity of the offence committed, the Apex Court , while holding that the validity of the order impugned should be gone into in appeal, has condoned the delay.
86. The present is not a case of discharge of the accused- respondent s and rather they both have faced the charge and it is on appreciation of the evidence available on record learned trial Court has acquitted them from the charge.
87. On behalf of the accused – respondents reliance has been placed on a judgment rendered in Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation , Lanka Venkateswarlu (dead) by LRs. v. State of Andhra Pradesh and others and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai’s cases supra. The ratio of these judgments is also that w hile considering the petition for condonation of delay the Court should apply the law in a pragmatic manner to sub – serves the ends of justice and nothing beyond that.
88. The crux of what has been said hereinabove, therefore, would be that the Courts have wide discretion in the matter of condonation of delay, however, the same should be exercised judiciously and only in a case where sufficient cause is found to be shown. In the case in hand there is nothing to infer that the delay is bonafide and occurred owing to the circumstances beyond the control of the petitioner. The petitioner, for the reasons already recorded, seems to be inimical to accused- respondent No.1. The so called v indictive attitude of the said respondent towards the petitioner and other officers named in rejoinder to the reply filed by accused- respondents is not a n issue to be discussed and decided in the present petition being not the part of the record of this case. The o fficers named in the rejoinder in case feel that in order to wreak – vengeance against them, they have been victimized by accused respondent No.1 on account of they having monitored/ investigated the case registered against him vide FIR No. 27 of 2009, they are at liberty to have re course to appropriate remedy available to them against the said respondent, in accordance with law. H owever, so far as this petition is concerned, the so called vindictive and revengeful attitude of the accused- respondents towards them can not be treated a ground for condonation of delay. Therefore, even if the petitioner had been held to be a ‘victim’ and competent to file the appeal under the proviso to Section 372 of the Code in that event also the same sh ould have not been entertained being time barred.
89. In view of what has been said hereinabove no case for condonation of delay , as occurred in filing the appeal , is made out. Therefore, the petition for seeking leave to appeal and the appeal itself being time barred cannot be entertained. Consequently, the petition being without any merit deserves to be dismissed.
Point No. 3.
Brief background:
90. Irrespective of the findings that the petitioner is not a victim within the meaning of Section 2 (wa) of the Code, hence not competent to file an appeal under the proviso to Section 372 of the Code and that s ufficient cause has also not been shown for condonation of delay of 96 days as occurred in filing the appeal, it is deemed appropriate to examine the merits of the case also because the Apex Court in Lipok A.O.’s case supra has held that the Court should decide the matters on merits unless the case is hopelessly time barred and without merit.
Respective c ontentions of learned Counsel.
91. Mr. Deol, learned Senior Advocate has mainly emphasized on the transcripts of the CD and also the statement Ex.PW- 22/A of late Mohinder Lal, the then Director (Industries), Himachal Pradesh, who as per the transcripts of CDs allegedly spoken with respondents/ accused and late Shri K.N. Sharma, the then OSD to accused respondent No.1 to prove the acceptance of bribe by both accused from Suresh Neotia, Vice President of M/s. Gujarat Ambuja Cement, P.C. Jain, its Chairman , late Shri Suresh Kapoor of Mohan Meakin and Piyush Jain, one of the applicants for allotment of mini Steel Plant etc. The report Ext .PW- 32/E and PW- 33/H qua a nalysis of voice samples of both the accused have also been pressed into service. According to Mr. Deol, out of 4 points formulated by learned Special Judge for adjudication no point pertains to the CD and it has vitiated the judgment under challenge, which according to him is perverse, hence not legally sustainable. It is further urged that tape is a document within the meaning of Section 3 of the Evidence Act, hence such evidence having come on record should have been relied upon . While arguing that tap e- recorder is admissible in evidence, reliance has been placed on a judgment rendered by a Constitutional Bench of the Apex Court in S. Partap Singh v. State of Punjab, AIR 1964 SC 72 and on the strength of the ratio thereof, contended that like any other document a tape -recorder is also document. The tape- recorder version should have not be en ignored merely because of capable of being tempered with as according to Mr. Deol for that matter any other document is also capable of being tempered with. Reliance has also been placed on another judgment of the Apex Court in Yusufalli Esmail Nagree v. The State of Maharashtra, AIR 1968 SC 147 , in which it has been held that if a statement is relevant and accurate tape – recorder of such statement, is also relevant an d admissible.
92. Mr. Cheema, while repelling the arguments addressed on behalf of the appellant- petitioner has urged that Suresh Neotia of Ambuja Cement was neither associated during the course of investigation nor examined as a witness though was available. Shri S.S. Sodhi, General Manager (Personnel), Ambuja Cement (PW – 18) though was examined, however, turned hostile
and not supported the prosecution case . Though charge is that Shri Neotia paid a sum of ` 3 lacs to accused respondent No.1 in Himachal Bhawan D elhi, however, no evidence to substantiate the same is produced. It is further urged that again there is no evidence that Brigadier Kapil Mohan (PW- 26) of Mohan Meakin through
one Suresh Kapoor and in consultation with PW – 30 H.N.
Handa has paid a sum of `2,00,000/- to accused
Pratibha so that on account of non- installation of
modified Effluent Treatment Plant (ET Plant ) electricity
and water supply to Brewery premises are not
disconnected. Shri P.C. Jain, PW- 25 of M/s. Gujarat
Ambuja Cement has also not supported the prosecution
case and turned hostile. It is further argued that P.C. Jain
and Brigadier Kapil Mohan rather filed CWP
Nos .145 of 2011 and 1856 of 2011 in this Court on the
ground that they never made the statement under
Section 161 of the Code with a prayer to direct the
investigating agency to record their statements
correctly. Major Vijay Singh Mankotia (PW – 21) allegedly
produced the audio- cassette before the Police and not
CD. The audio -cassette was also ordered to be
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excluded from the evi dence by the trial Court in its order
framing charge, passed on 25
th
June, 2012 against the
accused person.
93. In order to persuade this Court to discard the
audio – cassette/CD as legal and acceptable evidence,
reliance has been placed on a recent judgment
r endered by the Apex Court in Anvar P.V. v. P.K. Basheer
and others, AIR 2015 SC 180 . It is urged that no doubt an
electronic record is a documentary evidence under
Section 3 of the Indian Evidence Act, however, whether
it is genuine or not is a question to be taken into
consideration in accordance with the legal provisions
and also in the given facts and circumstances of the
case.
94. Mr. Cheema, while disputing the authenticity
of the audio cassette/CD has urged that the report
Ex.PW – 32/E cannot be relied upon particularly when as
per the final report Ex.PW- 33/H received from Forensic
Science Laboratory, it was not possible to verify the
authenticity of the audio recording in exhibits C/1 and
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A/1. While inviting the attention of this Court to the reply
Ex.PW – 32/G , in response to the quarries of the laboratory
made vide letter Ex.PW – 32/F, it is urged that the Forensic
Science Laboratory was not apprised with correct
position as at that time Mohinder Lal was also alive.
95. Mr. R.M. Bisht, learned Deputy Advocate
General has also urged that Audio cassette has already
been discarded by learned Special Judge being not a
material piece of evidence. Original tape was neither
sealed nor seized. According to Mr. Bisht, the bribe
allegedly was obtained by accused responden ts No.1
and 2 somewhere in 1989 – 90. At that time CDs were not
in existence. Therefore, according to Mr. Bisht, it is for this
reason the present was found to be a case of no
evidence and as such no appeal was preferred by the
respondent State.
Discussion and the conclusion drawn:
96. Now analyzing the rival contentions in the
light of the given facts and circumstances and also
evidence available on record, admittedly CD (Compact
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Disk) was not in existence in the year 1989 – 90 when the
alleged recorded talk be tween Mohinder Lal and
accused- respondent No.1, Mohinder Lal and accused -respondent No.2 and Mohinder Lal and Kedar Nath
Sharma qua exchange of money had taken place . Of
course, tape- recorder used to be there at that time and
as such the audio-cassette of recorded talk was being
prepared. PW – 21 Major Vijay Singh Mankotia is not sure
that packet he received through secret source was
audio – cassette or CD. According to him, when the
document, which he understood audio- cassette played
in the press – conference, t he same was found to be a CD
made by someone else. Even if it was an audio- cassette
learned Special Judge has excluded the same from
record being not admissible in evidence at the stage of
consideration of charge, as is apparent from order
dated 25
th
June, 2012. If it was a CD, the same again is
not admissible in evidence for the reason that as per
evidence available on record the same has been
prepared on the basis of recording done on 1
st
January,
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1995. Above all, CDs were not in existence during the
yea rs 1989- 90, when the occurrence took place.
97. As noticed supra, the technology of CD was
not in existence in the year 1989 – 90 when accused-respondents No.1 and 2 allegedly received bribe and
committed offence. The CD being of 1
st
January, 1995
rather is bela ted and creation of undisclosed and
unauthenticated version. No evidence is forth – coming
that what was the device used for making the recording
in the CD. Whether such device(s) was technically in
order, again there is no evidence in this behalf. Who has
made the recording, is also missing. According to PW- 21
also, the CD might have been prepared by someone
else.
98. The law on the question of admissibility of an
electronic document in evidence is no more res -integra
as the Apex Court in Anvar P.V. v. P.K. Basheer supra
while taking note of the provisions contained under
Sections 22A, 45A, 59, 65A and 65B of the Indian
Evidence Act has held as follows:
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“ 13. Any documentary evidence by way of an
electronic record under the Evidence Act, in
view of Sections 59 and 65A, can be proved only
in accordance with the procedure prescribed
under Section 65-B. Section 65-B deals with the
admissibility of the electronic record. The purpose
of these provisions is to sanctify secondary
evidence in electronic form, generated by a
computer. It may be noted that the Section starts
with a non obstante clause. Thus,
notwithstanding anything contained in the
Evidence Act, any information contained in an
electronic record which is printed on a paper,
stored, recorded or copied in optical or
magnetic media produced by a computer shall
be deemed to be a document only if the
conditions mentioned under sub-Section (2) are
satisfied, without further proof or production of
the original. The very admissibility of such a
document, i.e., electronic record which is called
as computer output, depends on the satisfaction
of the four conditions under Section 65B(2).
Following are the specified conditions under
Section 65B(2) of the Evidence Act:
(i ) The electronic record containing the
information sho uld have been produced by
the computer during the period over which
the same was regularly used to store or
process information for the purpose of any
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activity regularly carried on over that period
by the person having lawful control over the
use of that computer;
(ii ) The information of the kind contained in
electronic record or of the kind from which
the information is derived was regularly fed
into the computer in the ordinary course of
the said activity;
(iii ) During the material part of the said period,
the com puter was operating properly and
that even if it was not operating properly for
some time, the break or breaks had not
affected either the record or the accuracy of
its contents; and
(iv ) The information contained in the record
should be a reproduction or derivation from
the information fed into the computer in the
ordinary course of the said activity.
14. Under Section 65B(4) of the Evidence Act,
if it is desired to give a statement in any
proceedings pertaining to an electronic record, it
is permissible pro vided the following conditions
are satisfied:
(a) There must be a certificate which identifies
the electronic record containing the
statement;
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(b) The certificate must describe the manner in
which the electronic record was
produced;
(c) The certificat e must furnish the particulars
of the device involved in the production of
that record;
(d) The certificate must deal with the
applicable conditions mentioned under
Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person
o ccupying a responsible official position in
relation to the operation of the relevant
device.
15. It is further clarified that the person need
only to state in the certificate that the same is to
the best of his knowledge and belief. Most
importantly, suc h a certificate must accompany
the electronic record like computer printout,
Compact Disc (CD), Video Compact Disc (VCD),
pen drive, etc., pertaining to which a statement
is sought to be given in evidence, when the
same is produced in evidence. All these
s afeguards are taken to ensure the source and
authenticity, which are the two hallmarks
pertaining to electronic record sought to be used
as evidence. Electronic records being more
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susceptible to tampering, alteration,
transposition, excision, etc. without such
safeguards, the whole trial based on proof of
electronic records can lead to travesty of justice.
16. Only if the electronic record is duly
produced in terms of Section 65B of the Evidence
Act, the question would arise as to the
genuineness thereof and in that situation, resort
can be made to Section 45A – opinion of
examiner of electronic evidence.
17. The Evidence Act does not contemplate or
permit the proof of an electronic record by oral
evidence if requirements under Section 65B of
the Evidence Act are not complied with, as the
law now stands in India.”
99. The larger Bench of the Apex Court has
overruled two – Judge Bench judgment of the same Court
in State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru,
(2005) 11 SCC 600 and has further held as follows:
“…Thus, in the case of CD, VCD, chip etc.,
the same shall be accompanied by the
certificate in terms of Section 65B obtained at
the time of taking the document, without
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which the secondary evidence pertaining to
that electronic record is inadmissib le.”
100 . In the case before the Apex Court also
certificate in terms of Section 65B of the Evidence Act
was not produced in respect of the CDs relied upon,
hence the Apex Court has held that the same cannot
be admitted in evidence.
101 . In this case the condition s specified under
Section 65B (2) of the Evidence Act are not at all satisfied
because nothing is there to show that the information in
the CD was being regularly stored or processed in the
computer or being regularly fed into the computer in the
ordinary course of activity and that the computer at the
relevant time was being operated properly or when not
operated properly the break, if any, not effected either
the record or the accuracy of its contents as well as that
the information in the electronic record (CD in the
present case) is reproduction of the information fed into
the computer in the ordinary course of the activity. The
certificate duly signed by a responsible official dealing
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with the operation of the relevant device within the
meaning of Section 65B(4) of the Evidence Act
identifying the statement contained in the CD, the
manner in which CD was produced, device used for
preparation of the CD and its production by PW – 21, who
does not know anything as to how the same is prepared
and by whom and w ith what device, rendered the
document in admissible in evidence. It is not known as to
who played the CD and maker of the statement has
neither initialed the CD nor signed the transcript of the
contents thereof. The CD during the course of enquiry
and investigation remained unsealed throughout. The
prosecution story reveals that it was unsealed when
received by enquiry officer , remained unsealed during
the course of enquiry and received unsealed by the
Investigating Officer along with other records of the
case. The CD Ext.PW- 21/B, therefore, is not a document
to be relied upon in evidence.
102 . The Forensic Science Laboratory had sought
for the following information before the CD/audio
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cassette is analyzed vide letter dated 9
th
September,
2008 (Ext.PW- 32/F):
“i) Recording device with which questioned sample
was recorded is not provided which is essential to
authenticate the recordings;
ii) How and when it was recorded may be
informed?
iii) The control samples may be provided as per the
transcription of the question sample.”
103 . The reply (Ex.PW – 32/G) to the letter
Ex.PW – 32/F supra given by the Superintendent of Police,
State Vigilance & Anti Corruption Bureau, reveals that
the Bureau was not in a position to satisfy the three
conditions find mentioned in the letter Ext.PW – 32/F supra.
Meaning thereby that neither the device used for
making recording of CD nor origin of CD nor control
samples as per transcription of the CD were available
with the Vigilance Bureau. True it is that in the opinion of
the Forensic Sc i ence Laboratory Ext.PW- 32/E qua the
voice – samples Ext.Q2 and Ext.S2 were found to be that
of the voice of accused respondent No.1, however, as
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regards the voice samples Ext.Q1 and Ext.S1 in the
opinion of the examiner, most probably the same were
that of t he voice of accused- respondent No.2. However,
the report Ext.PW- 33/H is fatal to the prosecution case for
the reason that as per the same it w as not possible for
the expert s to verify the authenticity of the tape -recording version in the absence of phone c all details
and original recording device. The evidence as
produced, therefore, is tainted. The prosecution rather
has withheld the material required by the Central
Forensic Science Laboratory as is apparent from the
perusal of letter Ext.PW- 32/F and PW- 32/G. In the report
Ext.PW- 33/H, CD is marked as C/1, whereas the audio-cassette as A/1. In the opinion of the Scientific Officer
against Item No.9 “Results of examination sub – paras vii.,
viii and ix”, it could not be ascertained that the
conversation in C/1 and A/1 was recorded at the
instance of Mohinder Lal or at that of the accused -respondents. Also that the authenticity of the audio
recording in Ext.C/1 and A/1 could not be verified in
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absence of phone call details and original recording
device. Ext.C/2 and V/1 the specimen of voice
recording were returned un – exami ned. Thus, there hardly
remains any legal and acceptable evidence to arrive at
a conclusion that the deal of accused-respondents with
the representatives of Ambuja Cement, Mohan Meakin
Brewery, and Mini – Steel Plant etc. had taken place
through Mohinder Lal and that they obtained the bribe
and extended undue favour to these industrial units.
104 . The law laid down in S. Partap Singh ’s and
Yusufalli Esmail Nagree ’s cases supra cited on behalf of
the petitioner, is not at all attracted in the present case
because the point in issue in S. Partap Singh’s case was
qua the tape -recording version capable of being
tempered with and it is in that background held that like
other documentary evidence tape – recordi ng can also
be tempered with, but it should not be taken to
conclude that the tape- recordings are not legally
admissible in evidence. In Yusufalli Esmail Nagree’s case
it is held that a tape – recorder statement if recorded
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accurately is also relevant and admissible. As a matter of
fact, there cannot be any quarrel so far as the law so
laid down in the judgments supra is concerned ,
however, for the detailed reasons hereinabove, in the
case hand, CD/audio – cassette cannot at all be
considered as legal and accep table evidence.
105 . Much has been said about the statement
Ext.PW- 22/A of late Mohinder Lal. The same reads as
follows:
“I have heard the CD today purported to have
been converted from a tape recorded sometime
in the year 1989. At that time there was no CD
but only Tape Recorders were available. I do not
know as to how and where it has been recorded.
The contents of the CD contain prima facie my
conversation with the then Chief Minister, his wife
and Shri K.N. Sharma etc. Prima facie the voice in
the CD is mine and as far as I remember the
conversation has taken place. As regards the
names of the persons and the detail thereof the
same must have recorded by Rani Sahiba and
may be obtained from her. The persons, who
made contributions as far as I remember, were
sent to the Chief Minister’s house on various
occasions and the present CD is a version of
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those occasions which happened and appears
to have been recorded on various dates and
made into one tape/CD. I am available for any
further clarification based on my memory at any
time as and when needed, as the matter relates
to long time back.”
106 . It is seen that the CDs as per this statement
were not available at that time. Mohinder Lal was not
aware of as to where it was recorded. Although, he has
said that so far his memory, it was his conversation and
the person who made contributions as far as he
remembered were sent to the Chief Minister’s house on
various occasions and the recording also made on
various dates, but made into one tape/CD. When the
CD/audio – cassette has already been discarded,
therefore, the statement of late Shri Mohinder Lal is
hardly of any help to the prosecution case. He was not
ava ilable to make statement in the Court. Though PW- 22
Dr. Kavindra Lal, his son, has been examined to prove this
document, however, t he evidence as has come on
record by way of his statement is also hear- say hence
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not admissible in evidence. Above all, the statement
Ext.PW- 22/A is vague. The maker of the statement late
Shri Mohinder Lal could not recognize his voice with all
certainty and rather said that prima facie the voice in
the CD was his voice . It is, therefore, not safe to place
reliance on such a statement. Nothing can be made out
therefrom qua the demand, offer or acceptance of
bribe by the accused persons. He repeatedly used the
words “as far as I remember”, “appears to have been
recorded”. The statement, therefore, is absurd also and
no findings can be recorded on such statement.
107 . There are contradictions in the statements of
PW- 31 I.D. Bhandari, the then Additional Director General
of Police and PW-32 A.P. Singh, Superintendent of Police
because as per the version of former, Mohinder Lal was
interrogated by PW – 32 A.P. Singh. He has not said that
Mohinder Lal was interrogated in his presence, however,
as per version of PW – 31 he was called by the Additional
Director General of Police to his office and before
recording the statement of Mohinder Lal by him CD was
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already heard by Mohinder Lal. The statement of
Mohinder Lal has not been endorsed by any police
officer. Therefore, in the considered opinion of this Court
the statement Ext.PW – 22/A cannot be held to be
admissible in evidence by any stretch of imagination.
108 . If the CD/audio cassette is excluded from the
record, there hardly remains any evidence connecting
the accused – respondents with the commission of
alleged offence. The charge under Section 7 of the
Prevention of Corruption Act against accused-respondent No.1 is that while the Chief Minister of the
State of Himachal Pradesh , he has obtained ` 2 lacs
towar ds illegal gratification from Shri Suresh Neotia of
M/s. Gujarat Ambuja Cement for clearance of its
cement plant at Darlaghat. The allegations are that Shri
Suresh Neotia, Chairman of M/s. Gujarat Ambuja
Cement, accompanied by PW- 25 P.C. Jain met
accused- respondent No.1, the then Chief Minister of
Himachal Pradesh in Himachal Bhawan at New Delhi
and Shri Neotia paid a sum of `2 lacs to the said
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accused- respondent for early installation of the plant.
Surprisingly enough, said Shri Suresh Neotia has neither
been associated during the course of investigation nor
examined as a witness.
109 . Shri P.C. Jain, of course, has stepped into
witness box as PW – 25, however, has not at all supported
the prosecution case, as according to him he never met
the then Director (In dustries) in the year 1989 nor any
political executive , head of the State , in connection with
seeking per mission of IPARA (Industrial Projects Approval
and Review Authority) nor entered into the financial deal
with any functionary of the State in connection with
seeking such permission. He had not talked with the
Chief Minister also. He, therefore, turned hostile to the
prosecution. In his cross – examination conducted by
learned Public Prosecutor though it is admitted that Shri
Suresh Neotia was the Chairman of M/s. Gujarat Ambuja
Cement, however, it is denied that he accompanied by
Shri Suresh Neotia met accused- respondent No.1 in
Himachal Bhawan at New Delhi and that said Shri Neotia
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paid a sum of ` 2 lacs to the said accused for early
installation of the c ement plant. When confronted with
his statement Ext.PW- 39/E recorded under Section 161 of
the Code, he has denied making of such statement. It is
also denied that he went to Holly – Lodge , the residence
of the Chief Minister and met with accused Pritibha Singh
to whom he paid `3 lacs for seeking early clearance of
IPARA permission . In a nutshell , Shri P.C. Jain has denied
all the suggestions put to him in his cross- examination,
being wrong. In his further cross – examination conducted
by learned defence Counsel he rather stated that writ
petition Ext.RX was filed by him when he came to know
from his son about the contents of the statement
recorded by the police. The writ petition was filed on the
ground that his statement was wrongly recorded by the
police. Therefore, the charges under Sections 7 and 11
of the Prevention of Corruption Act against accused-respondent No.1 are not at all proved.
110 . PW- 18 S.S. Sodhi, General Manager
(Personnel) of M/s. Gujarat Ambuja Cement tells us that
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P.N. Neotia was the Chairma n of M/s. Gujarat Ambuja
Cement and its head office was at Bombay. Shri P.C.
Jain was also Chairman of the Company. He, however,
expressed his inability to state that it is Shri P.C. Jain, who
had been liaisoning with the State Government at the
time of i nstallation of the cement plant of the Company
at Darlaghat. He was also declared hostile and his
version in cross- examination also remained the same. In
his cross- examination conducted by learned defence
Counsel , he expressed his ignorance as to whether Shri
P.C. Jain was Pres ident or Senior Vice President because
according to him, Mr. Jain retired well before he joined
duties at Darlaghat.
111 . Now coming to the charge against accused-respondent Pritibha Singh that she received ` 2 lacs from
one Suresh Kapoor, an employee of M/s. Mohan Meakin
Limited and ` 3 lacs from PW- 25 P.C. Jain of M/s. Gujarat
Ambuja Cement Plant for exercising influence on her
husband accused – respondent Virbhadra Singh to ensure
early clearance of IPARA in favour of M/s. Gujarat
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Ambuja a nd to ensure that electricity and water supply is
not stopped to the premises of M/s. Mohan Meakin
Limited on account of non – installation of modified ET
Plant, there is again no evidence to substantiate the
same for the reason that Shri Suresh Kapoor of M/s.
Mohan Meakin Limited, on account of his death , was not
available to make statement in the Court and as regards
Shri P.C. Jain, as noticed supra, he has not supported the
prosecution case at all.
112 . PW- 30 H.N. Handa also turned hostile to the
prosecution because as per his version, he never
received any notice from the State Pollution Control
Board for installation of modified ET Plant at Solan, as
according to him, such plant was already installed.
When cross- examined by learned Pubic Prosecutor, he
expressed his ignorance that in the year 1983 State
Pollution Control Board made correspondence with the
Company qua installation of new modified ET Plant and
ordered disconnection of water and electricity supply if
the plant is not installed. It is also deni ed that on receipt
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of the said notice , he contacted Brigadier Kapil Mohan,
the Managing Director of the Company and that he
asked him to contact Mohinder Lal (since dead) and act
accordingly. It is also denied that he was asked by
Mohinder Lal to pay `2 lacs to accused- respondent No.2
in Hol l y – L odge and that he handed over `2 lacs to Suresh
Kapoor for payment thereof to accused – respondent
No.2. It is also denied that said Shri Suresh Kapoor had
paid the money to accused- respondent No.2 and
informed him wh en came back to Solan. It is also
denied that he informed Mohinder Lal qua the payment
so made and it is thereafter no notice qua installation of
modified ET Plant was made. He has denied his
statement Ext.PW- 39/C having been recorded by
Inspector Daya Sagar, as per his version .
113 . Now coming to the statement of Brigadier
Kapil Mohan, Managing Director of Mohan Meak in
Private Limited, he has stepped into the witness box as
PW- 26. He was also turned hostile to the prosecution, as
according to him, though notice for installation of
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modified ET Plant was received in the year 1983 from
State Pollution Control Board, yet he never asked H.N.
Handa (PW- 30) to contact Mohinder Lal, the then
Director of Industries. Therefore, he was also cross-examined by learned Pu blic Prosecutor, but in sundry
because nothing material lending support to the
prosecution case could be elicited. He has denied his
statement Ext.PW- 39/D having been recorded by
Inspector Daya Sagar (PW -39) at Gaziabad. He has also
denied his relations w ith accused – respondent Virbhadra
Singh. It is denied that he asked PW- 30 to make payment
to accused – respondents, if required to be made in order
to avoid the installation of modified ET Plant. It is also
denied that the Company made the payment of money
to State Government functionaries and not counted for
the same in the accounts. According to this witness , he
had filed petition Ext.RS for seeking a direction to record
his statement in a proper manner.
114 . PW- 38 Amar Singh has also not supported the
prosecution case that late Suresh Kapoor disclosed him
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about he having brought ` 2 lacs for being paid to
accused- respondent No.2 Pratibha Singh. He has denied
that he made statement Ext.PW -39/B.
115 . Now coming to the evidence as has come
on record by way of the testimony of PW- 21 Major Vijay
Singh Mankotia, the star prosecution witness, his
statement also not lends any support to the prosecution
case. He rather is turned hostile to the prosecution.
According to him, original audio – cassette, he played in
the press con ference is Ext.PW- 21/B and that in his
opinion the same is the original one . Except for
Ext.PW- 21/B, he allegedly had another audio – cassette
Ext.PW- 21/C and that in his opinion voice in the audio -cassette was that of accused Virbhadra Singh, accused
Pritabha Singh, Mohinder Lal and Kehar Nath Sharma.
When further cross- examined by learned defence
Counsel while stating that audio- cassette Ext.PW – 21/B
was not prepared in his presence and that he is not
aware as to who and where it was prepared and that
the CDs/audio – cassette were played extensively in the
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election at Hamirpur by Bhartiya Janta Party, has
demolished the entire prosecution case. His admission
that no identification mark was put by him on the audio -cassette recovered by the police from him and that
CD/audio – cassette like Ext.PW- 21/B are being largely
manufactured and distributed, render the authenticity
and genuineness of this document highly doubtful. The
statement of PW – 21 only reveals that there was an
audio – cassette he received from secret source,
however, his statement is not suggestive of that
Ext.PW- 21/B is the same audio- cassette he produced
before the police. He has simply produced the same
before the police. He has not said anything as to how
and at what time as well as about the i dentity of the
person, who has prepared the same. Therefore, the
audio – cassette/CD does not stand for the test of legal
scrutiny, as discussed in detail in this judgment in paras
supra.
116 . Another star witness is none- else but
petitioner S.M. Katwal, who has stepped into the witness
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box as PW- 37. He also tells us about one CD he found to
have been kept in an envelop in his letter – box and on
hearing the same he found the voices of Mohinder Lal,
Virbhadra Singh and Pratibha Singh therein. He has also
said that since he remained posted in various capacities
in the Government, therefore, was well conversant with
their voices. He made the petition Ext.PW – 37/A to Station
House Officer, State Vigilance and Anti Corruption
Bureau, Shimla. He also filed writ petition Ext.PW- 37/B in
the High Court. The CD was handed over by him to his
lawyer. His testimony in cross – examination is very
interesting as he expressed his inability to tell that the CD
received by him was original or copied one, when the
same was received. In the complaint Ext.PW – 37/A there
is no mention of CD , which he admits to be correct and
tells us that the report he made to the police was based
on the news published in a section of newspapers . He
further tells us that he did not put any identification ma rk
on the CD and that the CD given by him to the lawyer is
still in existence or not , he cannot tell . He also expressed
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his ignorance about the enquiry, if any, made by the
police from him qua the CD. Nothing incriminating has
come in the statement of the petitioner connecting the
accused- respondents with the commission of offence.
117 . The testimony of PW – 31 and PW- 32, as
already noticed, is contradictory on certain aspects
because according to Shri I.D. Bhandari (PW- 31), Shri
Mohinder Lal might have been called by Shri A.P. Singh
(PW – 32) for the purpose of interrogation and that he did
not associate himself with any enquiry, whereas as per
the version of PW- 32, Mohinder Lal was called by the
then ADGP (PW -31) and it is PW- 31 who called Mohinder
Lal to his off ice. When he reached in the office of ADGP,
the CD was already heard by the ADGP (PW- 31) and
Mohinder Lal. PW- 32, no doubt, tells us that CD was
seized by him; however, it was not original. He had
asked Santosh Patial, Superintendent of Police, State
Vigilance and Anti Corruption Bureau, Dharamshala to
seize the CD, but he had sent audio – cassette in a sealed
condition. He admits that original audio – cassette was
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never seized and sent to Forensic Science Laboratory.
On the CD, no identification mark was th ere and the
same remained unsealed during the course of enquiry
he conducted. The statement of PW – 32, who, as a
matter of fact, conducted the enquiry in this matter also
not substantiate the prosecution case, in any manner
whatsoever. The testimony of th is witness and that of
PW- 31 I.D. Bhandari and PW- 21 Major Vijay Singh
Mankotia rather are contradictory with each other.
118 . PW- 39 is Daya Sagar, who has partly
investigated the case. Though, as per his version,
statements Exts.PW- 39/A to PW – 39/E of S/Shri Vijay Singh
Mankotia, Amar Singh, H.N. Handa, Kapil Mohan and
P.C. Jain, were rightly recorded by him, however, as
noticed supra the above witnesses have stated in one
voice that their statements were not recorded by the
police as per their version and they rather resiled from
the statements so recorded. Therefore, PW – 39 is also of
no help to the prosecution case.
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119 . As discussed hereinabove, the testimony of
the material prosecution witnesses also not lends any
support to the prosecution case. PW – 25 P.C. Jain and
PW- 26 Brigadier Kapil Mohan rather have filed two
separate writ petitions in this Court on the ground that
their statements in this case have been recorded
wrongly by the police. The writ petitions were disposed
of by a Division Bench of this Court with the observations
that the appropriate course available to them was to
have moved to senior officers for recording of their
statements. Consequently, petition Ext.RZ was moved by
PW- 25 with a request to record his statement correctly.
120 . The remaining prosecution witnesses are
formal in nature. The evidence as has come on record
by way of their testimony could have at the most been
used as link evidence had the prosecution been
otherwise able to bring guilt home to the accused
persons beyond all reasonab le doubt. Therefore, on
merits also, no case is made out to interfere with the
impugned judgment.
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Point No.4:
Brief Background and respective contentions :
121 . On the question of fairness of trial, the
complaint is that after declaration of the result of the
Hi machal Pradesh Legislative Assembly Election on 20
th
December, 2012 the proceedings in the trial witnessed
tremendous speed and that about 20 witnesses were
given up by the prosecution thereafter, i.e., during the
period 20
th
December, 2012 to 24
th
December, 2012 . It is
further contended that special Prosecutor conducting
the trial on behalf of the prosecution was abruptly
replaced by a new Prosecutor. Judgment was delivered
on a day before accused – respondent No.1 took over as
Chief Minister of Himachal Pradesh. The evidence
available on record has not been discussed. Mr. Deol
has, therefore, urged that the judgment under challenge
has been passed in haste to the reasons best known to
learned Special Judge. The same allegedly being
perverse has been sought to be quashed.
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122 . On the other hand, Mr. Cheema has urged
that who is the material witness, given up by the
Prosecutor remained unexplained . N othing to this effect
is forth- coming on record. Also that the present being a
case under the Prevention of Corruption Act otherwise
was also required to be decided at the earliest. It is
pointed out from the record that the charges against the
accused were framed in the month of June, 2012,
whereas the impugned judgment passed on 24
th
December, 2012. The present, therefore, is said to be not
a case, where it can be said that learned Special Judge
has delivered the judgment in a haste. It is rather the
prosecution not proceeded in the matter in a fair
manner and irrespective of technology of CD was not
available in the year 1989 by hook and crook believing
the audio – cassette to be a genuine document, booked
both the accused falsely in the case. The investigation
according to Mr. Cheema has not been conducted in a
fair and impartial manner.
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Discussion and conclusion drawn:
123 . On analyzing the arguments addressed on
both sides, true it is that on and after declaration of the
result of Himachal Pradesh Legislative Assembly on 20
th
December, 2012, 24 witnesses were summoned for
examination. Out of the eight witnesses summoned for
20
th
December, 2012 only one witness H.N. Handa could
be recorded whereas statement of Rajinder Tarlokta was
deferred for the next day, i.e., 21
st
December, 2012 and
one witness was given up by the prosecution. Remaining
five not present on that day were ordered to be
summoned for 22
nd
December, 2012 , i.e., after one day .
On 21
st
December, 2012, out of eight witnesses plus PW
Rajinder Tarlokta aforesaid, statements of three including
Rajinder Tarlokta were recorded and four were give up,
whereas PW S.K. Jain was not present on that day. There
is nothing in the order passed on 21
st
December, 2012
that PW A.P. Singh summoned for that day was present
or not. Similarly on 22
nd
December, 2012, out of eight
witnesses, five including aforesaid A.P. Singh were
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recorded and six given up. PW Daya Sagar being
Investigating Officer was ordered to be examined on
24
th
December, 2012 along with remaining PWs S.M.
Katwal and Amar Singh Thakur. On that day, i.e., 22
nd
December, 2012, though learned Public Prosecutor
prayed for a long date, yet learned Special Judge while
recording that only PWs S.M. Katwal and Amar Singh
Thakur are left to be examined, adjourned the trial to 3
rd
day, i.e., 24
th
December, 2012. On that day, statements
of the remaining three witnesses were recorded. The
statements of both accused under Se ction 313 of the
Code were also recorded and on hearing arguments,
the judgment was also delivered on the same day.
124 . Be it stated that out of total 59 witnesses, 24
were ordered to be summoned on the above three
dates and those witnesses not present on a particular
date were ordered to be summoned either on the next
day or a day next to it as discussed hereinabove. The
trend, however, was not so before 20
th
December, 2012.
For example on 16
th
November, 2012 PW Amar Singh was
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not present, whereas PW Rajinder Tarlokta though
present but not produced the record. The case though
was adjourned to 17
th
December, 2012 , i.e., after one
month for recording remaining prosecution evidence
including that of S/Shri Amar Si ngh and Rajinder Tarlokta,
however, they both were not summoned or bound down
for 17
th
November, 2012 and rather Amar Singh was
recorded on 24
th
December, 2012 whereas Rajinder
Tarlokta on 20
th
/21
st
December, 2012. Again on 9
th
November, 2012 when PW Nagin Nanda could not
appear despite service, no order is passed on that day
qua his appearance on the next date , i.e., 16
th
November, 2012. The order passed on 7
th
November,
2012 reveals that some of the witnesses were not present
on that day. Though, the case was already listed for 8
th
and 9
th
November, 2012 also for recording prosecution
witnesses, however, such witnesses were not ordered to
be summoned/produced for the next day or day
thereafter.
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125 . True it is that the cases in respect of offence
under Prevent ion of Corruption Act, 1988 need
expeditious hearing and disposal. The cases under the
Act are, otherwise also , being fast- tracked and taken up
for hearing on priority basis , both at the High Court and
District Courts levels, under the Mission Mode Program me
and instructions/guidelines issued by the Supreme Court
and also the High Court from time to time. Even under
sub – section (4) of Section 4 of the Prevention of
Corruption Act also a case registered under the Act is
required to be heard on day- to – day ba sis. But sudden
change in the trend of proceedings in the case in hand
during the period from 20
th
December, 2012 to 24
th
December, 2012 casts a doubt that learned trial Judge
being guided by instructions issued by the High Court or
the provisions ibid under the Act proceeded in the case
to dispose it of expeditiously because had it been so the
speed in the proceedings observed during the period of
four days, i.e., 20
th
December, 2012 to 24
th
December,
2012, the speed should have been the same right from
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very beginning. Anyhow, there being nothing on record
that learned trial Judge did so for some extraneous
consideration or with oblique motive to help the
accused- respondent s and particularly accused-respondent No.1 to take over as Chief Minister of
Himach al Pradesh after declaration of the result of
general election o f Himachal Pradesh Legislative
Assembly on 20
th
December, 2012 , no further discussion
on this aspect of the matter is required.
126 . Although, nothing is there on record that Shri
J.L. Sharma, S pecial Public Prosecutor was removed and
rather he was very much in position upto 20
th
December,
2012, as is apparent from his presence marked in the
zimni order passed on that day. He, however, was
replaced on the next day, i.e., 21
st
December, 2012 by
Shri Ashwani Dhiman, Public Prosecutor, whereas on 24
th
December, 2012, the day when the proceedings in the
trial concluded and the judgment announced, the State
was represented by Shri L.S. Negi, learned Public
Prosecutor. The Public Prosecutor though was r eplaced
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on and after 20
th
December, 2012 , h owever, what
prejudice thereby is caused to the petitioner , Mr. Deol
has failed to spell out during the course of arguments.
The complaint that on and after 20
th
December, 2012 , 20
witnesses were ordered to be given up, is not correct
because out of 24 witnesses summoned for three days,
i.e., 20
th
to 22
nd
December, 2012 and also for 24
th
December, 2012, 13 were recorded whereas 11 were
given up.
127 . I find no substance in the submissions that the
witnesses were given up for extraneous consideration or
with malafide intention to help the accused persons.
Otherwise also, it is for the Public Prosecutor to decide as
to out of the witnesses cited in the final report, who is to
be examined in the Court and who is to be given up.
Otherwise also, Mr. Deol again could not point out during
the course of arguments as to what prejudice has been
caused to the petitioner or for that matter the
prosecution from the decision of the Public Prosecutor to
give up 11 witnesses or why the s aid witnesses were
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required to be recorded and how such evidence would
have been material for the prosecution case.
128 . True it is that learned trial Judge has avoided
the elaboration of the evidence available on record at
the pretext that it was not require d to do so. Support in
this regard has been drawn by learned trial Judge from
various judicial pronouncements made by the High
Courts including the Apex Court. The impugned
judgment reveals that the evidence has not out -rightly
been ignored, but learned tr ial Judge has referred to
and discussed the relevant evidence as and where
required to do so. Mr. Deol, therefore, failed to persuade
this Court to take a different view of the matter on this
score. Otherwise also, for want of legal and acceptable
evidence connecting both the accused with the
commission of the alleged offence even if it is held that
fair trial has not been conducted, will hardly be of any
help to the petitioner, who being not victim, is not
competent to file the appeal and even failed to show
sufficient cause for condonation of delay.
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129 . The investigation of the case seems to be not
conducted in a fair manner for the reason that
irrespective of technology on CD was not in existence in
the year 1989- 90, the same has been made basis for
registrat ion of a case against the accused persons vide
FIR No.27 of 2009 on 3
rd
August, 2009, i.e., after the expiry
of about 20 years from the commission of the alleged
offence by them. Both the accused are in their public
life because respondent No.1 is the Chi ef Minister of the
State, whereas his wife accused – respondent No.2 is a
former Member of Parliament. In the nature of the
evidence available on record, discussed supra, they
have rightly been acquitted from the charges.
Therefore, on this score and on merits also, no case is
found to be made out against the m.
Crux of the above discussion and conclusion drawn:
130 . In view of what has been said hereinabove,
the petitioner has no locus -standi to file the appeal as he
i s not a victim within the meaning of Section 2(wa) of the
Code, hence not competent to file the appeal against
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the judgment of acquittal dated 24
th
December, 2012
passed by learned Special Judge (Forests), Shimla.
131 . Admittedly, the petitioner has been
convicted in few of the cases which were registered
against him during the period when accused-respondent No.1 previously was also the Chief Minister of
Himachal Pradesh. Of course, appeals against his
conviction he preferred are pending disposal in the
Supreme Court. Admittedly, the petitioner has also
instituted civil and criminal cases against accused -respondent No.1, out of which few stands disposed of
whereas few are still pending disposal. The facts,
therefore, remain that the petitioner is inimical to
accused- respondent No.1.
132 . The petition even does not disclose sufficient
cause as required for condonation of 96 days’ delay, as
occurred in filing the appeal. The expiry of the limitation
prescribed for filing the appeal has resulted in a valuable
right in favour of the accused -respondents and the same
cannot be taken away on such grounds, which are not
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only vague, absurd, but false also. On merits also, no
case is found to be made out against the accused-respondents. Therefore, there is no merit in this petition
and the same is accordingly dismissed. Consequently,
the petition for seeking leave to appeal and the appeal
itself shall also stand dismissed. Pending application(s), if
any, shall also stand disposed of.
May 20, 2015 (Dharam Chand Chaudhary),
(rc/ps) J udge.
(111)
