Delhi District Court
Fir No.: 47/2 vs Uoi & Ors." on 25 January, 2012
FIR No.47/2011: PS I.P Estate (Special Cell): U/s 469 IPC Date of Order: 25.01.2012 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI FIR No.: 47/2011 PS: I.P Estate (Investigated by Special Cell) U/s 469 IPC (Cancellation Report U/s 173 Cr.P.C) Unique ID No.: 02401R0343162011 25.01.2012 Present: Ld.APP for the State. Shri L.N Rao, Addl. DCP, Special Cell alongwith Inspector A.K Singh, Special Cell in person. Shri V.K Ohri, Ld. Counsel for complainant Shri Shanti Bhushan, Senior Advocate. Shri Tripurari Rai, Ld. Counsel for Protest Petitioners Dr.Bhim Pratap Singh, Advocate and Shri Sanjeev Tayal, Advocate. O R D E R:
The arguments on two protest petitions, one filed on behalf of complainant Shri Shanti Bhushan, Sr. Advocate and another filed on behalf of advocates Dr.Bhim Pratap Singh and Shri Sanjeev Tayal were heard at length by this court on 24.01.2012.
Cancellation Report ("Not Accepted & Further Investigation Ordered") Page 1 of 13 FIR No.47/2011: PS I.P Estate (Special Cell): U/s 469 IPC Date of Order: 25.01.2012
2. I have perused the final report, the two protest petitions and the reply filed thereto by the IO.
3. Facts relevant for the purpose of disposal of the protest petitions are that on 14.04.2011, complainant Shri Shanti Bhushan, Senior Advocate, filed a written complaint to the SHO, PS I.P Extension, seeking registration of FIR in the matter on the allegations that in the evening of 13.04.2011, one journalist namely Shri Krishna Dass Rajgopal from newspaper "Indian Express" showed him one Compact Disc (CD), purportedly having recorded conversation between him, Shri Amar Singh, Member of Parliament and Shri Mulayam Singh Yadav, the former Chief Minister of UP. It was communicated to him that the said CD had been delivered at the O/o newspaper Indian Express by some anonymous person. The contents of the CD were heard by him and he found the same "defamatory" in nature. He further found the CD to be "fabricated". On the basis of the aforesaid written complaint of the complainant, FIR No.47/2011 was registered in PS I.P Estate on 15.04.2011 U/s 469 IPC. Thereafter, on 18.04.2011, the IO, Inspector Ravinder Kumar took into possession the said CD from the complainant after the complainant told him that the contents of the said CD were similar to the one which were heard by him on 13.04.2011 in the presence of Shri Krishna Dass Rajgopal, the reporter of newspaper Indian Express. In the meantime, IO got an information that the Managing Director of newspaper Indian Express had sent a copy of the CD to Hon'ble The Chief Justice of India, at Cancellation Report ("Not Accepted & Further Investigation Ordered") Page 2 of 13 FIR No.47/2011: PS I.P Estate (Special Cell): U/s 469 IPC Date of Order: 25.01.2012 his residence on 14.04.2011. Thereafter, on 20.04.2011, IO took into possession another CD alongwith its transcript from Shri H.K Juneja, Ld.Dy.RegistarcumPrincipal Secretary to the Hon'ble Chief Justice of India.
4. On 18.04.2011 itself, the IO sent the CD alongwith its transcript, received from the complainant, to Central Forensic Science Laboratory (in short "CFSL"), CGO Complex, Lodhi Colony, Delhi with the following queries:
(i) Please examine the CD and opine whether there is any splicing, tampering, editing, interpolation in the contents of the CD or otherwise?
(ii) Please opine whether the CD is genuine or otherwise?
(iii) How many person's voice/conversation is there in the CD?
(iv) Which instrument has been used in recording the CD and what is the mode of recording the same?
(v) Preserve the voices of different persons communicating in the CD so as to enable the investigating agency to compare the same with the sample voices of the persons purportedly conversing in this CD?
(vi) A copy of the CD may also be supplied to the investigating agency for record purpose and further investigation and requirement during trial, as the case may be.
(vii) Any other useful information that may be helpful in further investigation of this case.Cancellation Report ("Not Accepted & Further Investigation Ordered") Page 3 of 13
FIR No.47/2011: PS I.P Estate (Special Cell): U/s 469 IPC Date of Order: 25.01.2012
5. Thereafter, on 19.04.2011, the Director, CFSL, Lodhi Colony, Delhi gave report on the aforesaid CD, interalia observing therein that the recorded conversation in the CD was in continuity and no abrupt change in speech signal could be detected. The conversation was in contextual continuity, no abrupt change in the voice of speech signal could be detected and no change in background noise pattern throughout the recording could be observed and further opined that the recorded conversation in the said CD could not have been tampered. However, it was further stated that the complete examination for authenticity of the recorded conversation could be carried out, if original recording was made available to it for examination. It was further opined that the said audio file was copied from some source. As regards the query as to which instrument had been used in recording the CD, no opinion was given.
6. It appears that thereafter on 21.04.2011, the further investigation in this case was transferred to Special Cell by the orders of Worthy Commissioner of Police, Delhi Police. The IO of the case in his wisdom and probably on the directions of senior officers sought a second opinion on the said CD from CFSL, Chandigarh. Accordingly, the CD alongwith its transcript was sent to CFSL, Chandigarh on 25.04.2011 and opinion dated 02.05.2011 was received thereupon. CFSL, Chandigarh after thorough auditory analysis, wave form analysis and acoustic analysis of the recorded conversation in the said CD using GoldWave Software, Adobe Audition Cancellation Report ("Not Accepted & Further Investigation Ordered") Page 4 of 13 FIR No.47/2011: PS I.P Estate (Special Cell): U/s 469 IPC Date of Order: 25.01.2012 Software and MultiSpeech Software opined that the said CD was created on 17.04.2011 at about 8.10 PM, whereas the audio file therein was created on 15.04.2011 at about 9.41 PM. It further observed change in signal level, abrupt start of conversation as well as contextual variations at some place; same different words were found inserted at numerous places by electronic editing (nonlinear editing) to show the contextual continuity in the conversation; obscuration of signal and editing at coarticulation level was also observed at some places, thereby indicating proficient editing; some unusual voice and multispeaker talks were also found in the background at some places. On the basis of the aforesaid observations, it was opined that the recording present in the CD was not original and was a handiwork of postproduction editing.
7. Now, the Investigating Agency had two opinions, both diametrically opposite. The IO in his wisdom thought to have a third opinion from a Government approved expert and as such, the opinion of "Indian Computer Emergency Response Team (CERTIn)" was obtained. In "CERT In", the "Digital Forensic Analysis" of the CD was made. The CD was analysed further and Waveform of the audio was plotted on two different scales and it was observed that there was no abrupt change or any editing marks in a waveform. No part of the content contained in the CD was noticed as deleted/overwritten after the creation of CD in question. The noise level built in the waveform is also uniform showing no abrupt or any Cancellation Report ("Not Accepted & Further Investigation Ordered") Page 5 of 13 FIR No.47/2011: PS I.P Estate (Special Cell): U/s 469 IPC Date of Order: 25.01.2012 anomalous behaviour in terms of Amplitude/Bit rate. In the end, it was opined that no opinion could be given about the voices in the conversation, as no authentic voice sample of the callers were made available.
8. Thereafter, as a matter of abundant precaution, the opinion of CFSL Delhi was also obtained on the CD, which had been taken into possession by the earlier IO from the Hon'ble Supreme Court, which also concurred with the opinion earlier given by CFSL, Delhi in respect of the other CD.
9. Thereafter, on 22.07.2011, Shri Amar Singh, Member of Parliament was interrogated in the O/o InterState Cell, Crime Branch, Chankyapuri, wherein he admitted that few years back complainant Shri Shanti Bhushan had visited his house from Hotel Taj Mansingh, when Shri Virender Dutt, the then Advocate General of UP was also present. During discussion regarding a case of Shri Mulayam Singh Yadav, the then Chief Minister of UP, pending before the Hon'ble Allahabad High Court, complainant Shri Shanti Bhushan had a talk with Shri Mulayam Singh Yadav. At that time, Shri Amar Singh had left the room after handing over the receiver of the phone to the complainant and as such, he could not listen to the conversation between both of them and he joined after sometime. During his interrogation, Shri Amar Singh further stated that Shri Mulayam Singh Yadav and Shri Shanti Bhushan were known to each other from the time of Shri Raj Cancellation Report ("Not Accepted & Further Investigation Ordered") Page 6 of 13 FIR No.47/2011: PS I.P Estate (Special Cell): U/s 469 IPC Date of Order: 25.01.2012 Narain Singh, as Shri Mulayam Singh Yadav was a close follower of Shri Raj Narain Singh, whereas Shri Shanti Bhushan was his advocate.
10. Thereafter, IO appears to have obtained opinion from the Prosecution Department, which is available on record, wherein initially it was opined that there was no corroborative evidence to substantiate the reports of Forensic Laboratories and the Court may not accept the Cancellation Report. However, later on the Prosecution Department gave opinion that IO should file Cancellation Report and as such, the IO filed Final Report U/s 173 Cr.P.C, interalia praying as under:
"From the evidence collected during the course of investigation in the form of experts' opinion, there is neither substantial nor corroborative evidence to prove the commission of offence, within the meaning of Section 469 IPC. It is, therefore, prayed that the case may please be cancelled. The complainant is being informed accordingly."
11. After filing of the aforesaid report in this court, this court issued summons to the complainant, who has filed a Protest Petition, interalia raising question marks on the investigation conducted in the matter. In the Protest Petition, following points have been raised:
(a) Why the statements of Shri Mulayam Singh Yadav and Shri Amar Singh were not recorded U/s 161 Cr.P.C?
(b) The opinion given by other two private experts namely Dr.George Papcun (Ph.D) of "Sound Evidence", America and "Truth Labs", India clearly found the conversation in CD to be "doctored" and Truth Labs having analysed the contents of the Cancellation Report ("Not Accepted & Further Investigation Ordered") Page 7 of 13 FIR No.47/2011: PS I.P Estate (Special Cell): U/s 469 IPC Date of Order: 25.01.2012 said CD with the contents in an earlier CD (famously known as "Amar Singh Phone Tapping Case"), already lying submitted before the Hon'ble Supreme Court and some sentences were found verbatim copied from therein; the copies whereof were supplied to the investigating agency, but the said opinions were withheld in the final report.
(c) Report of CFSL, Delhi cannot be believed as the same was signed by four experts, instead of one and their Head Shri Rajinder Singh was at that time holding the post in an adhoc capacity and his regular appointment had to be made by a Committee chaired by the Home Minister of India.
(d) The creation of CD was the handiwork of unscrupulous persons, who were on to a spree to malign the complainant, as he was actively engaged in campaign of Civil Society Members of the "Lokpal Drafting Committee".
12. Another "Protest Petition" was filed, purportedly U/s 39 Cr.P.C on behalf of practising advocates namely Dr.Bhim Pratap Singh and Shri Sanjeev Tayal, interalia raising their objections to the acceptance of Closure Report filed in this matter, as the same would bring an impression among the general public at large that certain influential persons, who were projecting and pretending themselves as the "most honest" person on this earth would be allowed to go scot free, particularly when prima facie through the hearing of conversation they came to know that a demand of Rs.4.00 Crore in the name of a sitting judge of the Hon'ble Supreme Court of India was made therein Cancellation Report ("Not Accepted & Further Investigation Ordered") Page 8 of 13 FIR No.47/2011: PS I.P Estate (Special Cell): U/s 469 IPC Date of Order: 25.01.2012 and as such the effect thereof would be maligning the image of Indian Judiciary. It was further stated therein that report of the Government Forensic Science Laboratories were manipulated by Delhi Police on the instructions of two Cabinet Ministers of the Government of India. They prayed for taking of cognizance in the matter for offences punishable U/s 8 & 9 of the Prevention of Corruption Act, 1988.
13. In reply to both the protest petitions, a stand has been taken by the Special Cell that the complainant himself played "gimmicks" with the investigating agency, as the CD was handed over to the police by him on 18.04.2011 and prior thereto he had already obtained opinions from Dr.George Papcun (Ph.D) of "Sound Evidence", America and "Truth Labs", which fact was withheld by him from the Investigating Agency. It has been further stated that the investigation in this matter was only to ascertain whether the CD in question was a forged document, created for the purpose of "defaming" the complainant and from the opinion of FSL experts in the ratio of 2:1, it was confirmed that the CD was not doctored and as such the investigation was not carried on further. As regards not recording the statements of Shri Amar Singh and Shri Mulayam Singh Yadav, it has been stated that the same was not considered necessary as it was not within the purview of the investigating agency.
Cancellation Report ("Not Accepted & Further Investigation Ordered") Page 9 of 13 FIR No.47/2011: PS I.P Estate (Special Cell): U/s 469 IPC Date of Order: 25.01.2012
14. I have given thoughtful consideration to the arguments advanced at bar. There are certain baffling features therein. It is not clear as to why the Final Report U/s 173 Cr.P.C has been filed in this matter when it is apparently clear that only a limited investigation was conducted in the matter which according to the view of investigating agency was limited only to see as to whether the CD was doctored or not. The report could have very well been filed U/s 157 (1) (b) Cr.P.C. It is further not clear as to why investigating agency did not conduct any investigation towards knowing the source from where the said CD was prepared. This is not the case of investigating agency that the said CD came from a thin air. It is an electronic document and it was prepared somewhere at some point of time. The least which was expected from the investigating agency was to have probed as to around which time this CD was prepared, particularly when as per the case of prosecuting agency Shri Amar Singh had admitted the meeting where this conversation had taken place. Why the voice samples of Shri Mulayam Singh Yadav, Shri Amar Singh and complainant were not taken for comparing their voices with the voices appearing in the CD? Why the statement of Shri Virender Dutt, the then Advocate General of UP, who is stated to be present at the time of said conversation at the residence of Shri Amar Singh was not recorded?
15. There is further grey area which needs to be discussed here. The complainant has placed on record copies of some additional documents, interalia containing a receipt by Ct.Sudesh Kumar of PS I.P Estate, wherein Cancellation Report ("Not Accepted & Further Investigation Ordered") Page 10 of 13 FIR No.47/2011: PS I.P Estate (Special Cell): U/s 469 IPC Date of Order: 25.01.2012 he admitted having received CD in question alongwith the reports of "Truth Labs" and Dr.George Papcun (Ph.D) of "Sound Evidence" on 17.04.2011 at about 8.30 PM from the office of complainant. The allegations of the complainant against the prosecuting agency is that the prosecuting agency had copies of both the reports, but deliberately withheld the same and went on to seek opinion of their choice from Forensic Laboratories. In this regard, it appears that on the complaint of the IO of the case, an enquiry was conducted by Addl. DCP (Central), wherein Ct.Sudesh Kumar and earlier IO, Inspector Ravinder were found negligent in performance of their duties and suitable departmental action has been proposed against them.
16. From the entire gamut of facts, as argued before this court, this court fails to understand as to what prompted the investigating agency to limit its investigation in the matter to the ingredients of Section 469 IPC, whereas the settled law is that if a complaint is made to the investigating agency and it finds commission of a cognizable offence, then the matter is to be investigated thoroughly and finally and there cannot be any restraint on the power of investigating agency limiting itself to investigating only a particular offence. At this stage, this court finds some substance in the arguments of Shri V.K Ohri, learned counsel for the complainant that based upon the facts that couple of sentences in the alleged conversation were verbatim copied from an earlier recorded conversation of the year 2006 between Shri Mulayam Singh Yadav and Shri Amar Singh; the copies whereof are lying filed before the Cancellation Report ("Not Accepted & Further Investigation Ordered") Page 11 of 13 FIR No.47/2011: PS I.P Estate (Special Cell): U/s 469 IPC Date of Order: 25.01.2012 Hon'ble Supreme Court in Criminal Writ Petition (Civil) No.39/2006, titled as, "Shri Amar Singh V/s UoI & Ors.", wherein the complainant herein is admittedly an "Intervener".
17. There is another disturbing feature which needs mention here is as to why the Investigating Officer rather than conducting thorough investigation in the matter rushed to the Prosecution for opinion to file Cancellation Report in the matter, knowing fully well that the matter was investigated only in a limited fashion. In this regard, the guiding force the judgment of the Hon'ble Supreme Court in case reported as, "AIR 2000 SC 1731", titled as, "K. Sarla V/s T.S Velu", wherein the Hon'ble Supreme Court in no uncertain terms has mandated that:
"Investigation and prosecution are two different facets in the administration of criminal justice. The role of Public Prosecutor is inside the court, whereas the investigation is outside the court. Normally, the role of Public Prosecutor commences after the investigating agency presents the case in the court on culmination of investigation. Involving the Public Prosecutor in investigation is "injudicious" as well as "pernicious"
in law. At any cost, no investigating agency can be compelled to to seek opinion of a Public Prosecutor even under the orders of the court".
18. The prosecuting agency clearly failed to investigate as to what was the motive of creating such a CD. Was it to malign the complainant and Cancellation Report ("Not Accepted & Further Investigation Ordered") Page 12 of 13 FIR No.47/2011: PS I.P Estate (Special Cell): U/s 469 IPC Date of Order: 25.01.2012 in turn thwart the "Civil Society Movement" on "Lokpal Bill", which he had undertaken or was it a ploy to make the Hon'ble Supreme Court Judge to recuse himself from the Bench which was hearing "2G Spectrum" case or somewhat else.
19. It is settled law that the forensic evidence can be used only as a corroborative evidence in support of other independent evidence collected in the matter. Here the investigation has been based merely on the opinion of the experts and no investigation on factual aspects has been conducted.
20. In view of the above discussion, this court is of the firm opinion that the investigation in the matter has not been conducted properly.
Accordingly, DCP, Special Cell is hereby directed to get thorough investigation in the matter conducted on the points referred to hereinabove and file final report before the appropriate Court of Law. Considering the nature of allegations in the case, it is expected that the investigation would be conducted expeditiously. The original documents be returned to IO through DCP, Special Cell forthwith. Both the Protest Petitions stand disposed off accordingly.
21. A copy of this order be sent to DCP, Special Cell for compliance.
Dictated & Announced in the (Vinod Yadav)
open court on 25.01.2012 Chief Metropolitan Magistrate:
Delhi
Cancellation Report ("Not Accepted & Further Investigation Ordered") Page 13 of 13