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10. Mr. C.S. Vaidyanathan, senior counsel for the petitioner in support of the averments made in the petition and the submission in the synopsis, as filed, urged that respondent No. 2/Commission after considering the response of the petitioner to the notice under Rule 5(2)(a) of the Rules, had prima facie reached the view that the petitioner's reputation was likely to be prejudicially affected and the notice under Section 8-B was issued. Learned counsel submits that the petitioner is arraigned as in accused on the basis of allegations in the tape, as recorded and produced by the Tehelka.com by Mr. Mathew Samuel, Mr. Tarun Tejpal and Mr. Annirudh Bahal who are persons making the allegations. Respondent Nos. 3, 4 and 5 also being 8-B noticees, would not make any difference insofar as the petitioner's submission to be examined after the said person have deposed is concerned. He submitted that situation would not alter simply because certain investigations and charges were also being made against members of the Tehelka.com by Central Government. Petitioner was not concerned with those. It would be for the Central Government to lead evidence and for Tehelka.com to make their submission in that regard, if they wish to cross-examine the Government witnesses after evidence by the Government. However, as far as the petitioner is concerned, she should be examined after respondent Nos. 3 to 5 have deposed with regard to the allegations against the petitioner. He submitted that there was no rationale for respondent No.2/Commission to depart from the method, it had evolved itself. The finding of the Commission that it would be in the fitness of things, if Tehelka.Com people are examined at the end is contrary to the ratio decidende and the finding in Kiran Bedi's case. Learned counsel referred to the following observations in Smt. Kiran Bedi v. Committee of Inquiry and Anr. (Supra):

11. Mr. Prashant Bhusan, appearing for respondent Nos. 4 and 5, opposed the prayer for petitioner being examined after members of Tehelka.com. He submitted that the entire argument of the petitioner was based on a mis-conception as to the nature of the proceedings before the Commission of Inquiry. He submitted that Tehelka group comprises Journalists and professionals, who have produced the tapes and published them in larger public interest. Taking note of the expose on the tapes, the Government has constituted the Commission of Inquiry to enquire into the conduct of persons, who are seen in the tapes as well as to enquire into all other aspects of the making of the tapes. The Government as well as the Commission have interpreted the last terms of reference, namely, "all aspects leading to the making of the tapes" to the include various allegations of the doctoring of the tapes as well as the alleged ulterior motives of the Tehelka.com for making of the tapes and also the means used by them. Notices under Section 8-B have been issued by the Commission to the Tehelka group of witnesses as well as to the petitioner and many other persons. The impugned order of the Commission clearly states that the entire batch of witnesses to whom 8-B notices have been issued have to be examined after the other witnesses have been examined. Inter se, the 8-B noticees are to be examined in the order of appearance in the tapes, with the Tehelka group being examined last.

1. Shri Ram Krishna Dalmai v. Shri Justice S.R. Tendolkar and Ors. reported at 1959 Supreme Court Report 279;
2. Kehar Singh and Ors. State (Delhi Administration) reported at (1988) 2 Supreme Court Cases 609;
3. Dr. Baliram Waman Hiray v. Justice B. Lentin and Ors reported at ;
4. State of Karnataka v. Union of India and Anr. reported at ; and
5. T.T. Antony v. State of Kerala and Ors. reported at .

15. Besides, he submitted that the Clause 'd' of the terms of reference, as reproduced in para 6 would show that the Commission was also to enquire into the conduct of the respondents. The allegation of tampering of the tapes, the motive of Tehelka.com as well as the means adopted are to be examined by the Commission. Allegations have been made by the petitioner and other noticees against the Tehelka.com personnel. In that sense Tehelka.com is also accused. as its conduct is being examined. It was, therefore, only proper that the 8-B noticees of Tehelka.com are fully made aware of all the allegations made against them and have an opportunity to cross-examine all such persons making allegations of tampering, before they are asked to step into the witness box for being examined. On the other hand, petitioner has in her possession the copies of the tapes as well as transcripts. She is fully aware of the case, she has to meet. An affidavit has been filed by her without expressing any reservation or dis-ability in this regard. While Tehelka.com witnesses are yet to fully know the adverse material, which may be produced against them. The affidavit has been filed by the Central Government only in February, 2002. In this view of the matter, he urged that the order of the Commission, directing examination of the Tehelka.com noticees at the end could not be faulted with. Learned counsel also submitted that when the question of order of examination was being argued before the Commission, petitioner's counsel never raised the plea of being prejudiced rather suggestion of draw of lot etc. were even mooted, though found to be unsatisfactory. The consensus arrived at was that witnesses could be examined in the flow of four and a half hours of released tapes, as they unfold. The order of 8-B noticees was thereafter specified, wherein the petitioner appeared at S.No. 24, while respondent Nos. 3, 4 and 5 have been put at the end. The Commission also noted that replies received to notices under Rule 5(2)(a) and notice under Section 8-B, would be considered as their respective examination-in-chief and the witnesses mentioned above would straightaway be cross-examined in that order unless request to the contrary is made to the Commission by any of the noticees, which may be considered by the Commission on a case to case basis.

28. Having noted the rival submissions of the counsel for the parties on the question of rejection and deferment of request for sending the unedited tapes for forensic examination, let us consider and analyses the decision reached by the Commission.

The prayer is based on the ptitioner's assertion that it was not even certain whether the unedited tapes are camera originals or not? Further, the plea regarding tempering an interpolations is sought to be justified on the basis of the various deficiencies and irregularities pointed out by the experts during their examination. Reliance is also placed on the evidence of the experts, namely, Millin Kapoor and Chris Mills, pointing out the instances of editing and omissions of portions of the video and audio respectively, resulting in the alleged doctoring of the tapes. It has been strenuously urged that so far the unedited tapes have not even been proved by the authors of the tapes. Ultimately if these were found to be doctored then the whole process of inquiry would be futile. In my view, the petitioner has to make out a strong prima facie case that the tapes are doctored and there are interpolations in the said tapes with malicious intent in contra distinction with legitimate editing of the filmed tapes, to justify sending the tapes for forensic examination. There is merit in the submission of the counsel for the respondent that bald allegation by itself that the unedited tapes do not appear to be authentic or are doctored will not warrant sending the tapes for forensic examination. It would also be relevant to notice that the subject matter of the inquiry before the Commission are four and a half hours of edited tapes as were telecast. The unedited camera originals tapes are the source from which the said four and a half hours tapes telecast were made. It is also to be noticed that the Commission had earlier decided the preliminary issue of veracity of unedited tapes vide its detailed reasoned order dated 12.10.2001. Petitioner got her expert Mr. Millin Kapoor examined, while on behalf of Tehelka.com two experts, namely, Pradeep Krishan and Uma Shanker were examine. The Commission vide its reasoned order, considering the detailed deposition of the experts, reached the conclusion that no prima facie case had been made out to doubt the genuineness of the tapes. The Commission found the testimony of Mr. Millin Kapoor, the expert produced by the petitioner, as not reliable or trustworthy and on the other hand had found that the testimony of the expert produced by Tehelka.com, were more reliable. The Commission noticed that Mr. Milin Kapoor was not in a position to establish that visuals had been super-imposed. He was of the view that the audio part had been tapered with. Mr. Milin Kapoor had also conceded during the cross-examination that he was a film maker and not an audio engineer. It is correct that the two experts, Mr. Chirs Mills and Kartik S. Godavarthy had been examined on behalf of the petitioner and Mr. Banger Laxman before the Commission. The rebuttal examination of the expert witnesses produced on behalf of Tehelka.com has also been completed. The Commission has deferred the request as the examination of the experts had not been subjected to analysis, after hearing the arguments in support and against, of the parties. Accordingly, it recorded that at this juncture, no conclusion can be reached on the basis of the expert evidence subsequently recorded after the order of 12.10.2001. The evidence regarding the filming and recordings of the unedited tapes by the authors of the tapes was to come later. The Commission, therefore, held that the question of sending the tapes for forensic examination would definitely be considered after the evidence of all 8-B noticees, including Tehelka.com was over. The question whether the petitioner and the experts examined by her as well as by Mr. Banger Laxman have been able to demonstrate and establish interpolations and doctoring of tapes or not falls within the domain of the Commission. It would be for the Commission to appreciate opinion of the experts along with the evidence of 8-B noticee and other evidence as led and reach its finding.