Manmohan Sarin, J.
1. Petitioner, Ms. Jayalakshmi Jaitly, has filed this writ petition, seeking quashing of the orders dated 14.9.2001, 12.10.2001, 9.11.2001, 29.11.2001, 11.12.2001, 16.1.2002 and 22.1.2002, passed by the respondent Commission, namely, Justice K. Venkataswami Commission of Inquiry. The above orders are concerned primarily with the authenticity of the tapes, the request for their forensic examination and the order in which the witnesses and 8-B notices are to be examined.
2. Petitioner, additionally, seeks an order for referring the alleged unedited camera original tapes of approx 105 hours duration for forensic examination by independent experts or a direction to the Commission to the same effect. Petitioner also seeks a direction to the respondent Commission to examine Mr. Mathew Samuel, Mr. Tarun Tejpal and Mr. Annirudh Bahal, 8-B notices, prior to her examination. Petitioner had also prayed for provision of authentic and accurate transcripts of the tapes by independent experts, after forensic examination of the tapes being carried out. In this connection, it is to be noted that transcription of tapes having been undertaken under the supervision of Commission by the Central Government, the petitioner does not press the prayer for provision of transcripts.
3. Notice to show cause in the writ petition was issued on 4.2.2002 and counter affidavits have been filed by respondent Nos. 3, 4 and 5. Written submissions have also been filed by counsel for the petitioner as well as on behalf of respondent Nos. 3, 4 and 5. Counsel for the parties have also been heard at length and judgment was reserved on 8.5.2002.
For the facility of reference, the challenge in the impugned orders of the Commission as well as the prayers made in the writ petition, can be considered under two broad categories:
(i) Order in which witnesses and 8B notices including the petitioner and respondents 3 to 5 are to be examined; and
(ii) Unedited camera original tapes to be sent for forensic examination.
4. As for the first (i) Petitioner prays that she be examined after the examination of other 8-B notices, namely, Mr. Mathew Samuel, Mr. Tarun Tejpal and Mr. Annirudh Bahal i.e. the members of the Tehelka.com.
As regards the second, the petitioner challenges the authenticity of the tapes and seeks a direction to the Commission for sending the same for forensic examination.
5. Before going into the respective contentions of the parties, it may be noted that Tehelka.com had released tapes name 'Operation West End' in the media purporting to show and expose corrupt practices i n defense deals. The video tapes shown were of a duration of four and half hours, which had been edited and made from over 100 hours of filming.
6. The Central Government under The Commission of Inquiry Act, 1952, hereinafter referred to as the Act, issued a notification dated 24.3.2001, constituting respondent No. 2 and appointing Justice K. Venkatataswami, a retired Judge of the Supreme Court of India, in exercise of powers under Section 3 of the Act to go into the allegations made in the video tapes shown in media. The notification records that the allegations stand to pass an adverse reflection on the manner in which defense procurement and other transactions have been transacted, allegedly for illicit gains and extraneous considerations. The following were the terms of reference:-
'(a) to inquire whether the transactions relating to defense and other procurement referred to in the said video tapes and transcripts have been carried out in terms of the prescribed procedures and the imperatives of national security;
(b) to inquire whether in any of the aforesaid procurement transactions, illicit gains have been made by persons in public office, individuals, and any other organisation as alleged, and if so, to what extent;
(c) to suggest action that may be taken in respect of persons who may be found responsible by the Commission for their acts of commission and/or omission in respect of the transactions referred to in Sub-clause (a) above;
(d) to inquire into all aspects relating to the making and publication of these allegations and any other matter which arises from or is connected with or incidental to any act, omission or transaction referred to in Sub-clauses (A) and (b) above.'
7. The proceedings before the Commission have been going on. Notice under Rule 5(2)(a) of the Commissions of Inquiry (Central) Rules, 1972, (hereinafter referred to as the Rules) had been issued to the petitioner and respondent Nos. 3 to 5 among others. Petitioner filed the affidavit in response thereto. Thereafter notice under Section 8-B has also been issued to the petitioner and other members of the Tehelka.com. Number of witnesses have examined by the Commission.
8. The grievance of the petitioner is that respondent/Commission had passed an order dated 29.11.2001. wherein a formula, based on general consensus, was evolved that recording of evidence of Section 8-B notices would be carried out in the order in which they appear in the flow of four and a half hours of tapes. As per the petitioner, Mr. Samuel Mathew of Tehelka.com is the first person, who appears on the tapes. However, he had other members of Tehelka.com have been listed to be examined after the petitioner, who has been listed at S.No. 24. Petitioner, claims that when the error was pointed out to respondent No. 2/Commission, vide order dated 11.12.2001, it refused to review the order of examination of 8-B notices. The Commission reasoned that Mr. Mathew Samuel, Tarun Tejpal and Mr. Annirudh Bahal come towards the end in the order of examination as they have made the tapes and it is in the fitness of things as author of tapes they should rank last among the list of 8-B notices.
9. Petitioner assails this finding. Petitioner urges that it is precisely because of the said persons being authors of the tapes, who have made the allegations against the petitioner that they should be examined before the petitioner is examined. Petitioner says that those who have made the allegations must prove the authenticity of tapes and the allegations before the petitioner can be called upon to defend herself against those allegations. Petitioner also seeks to draw support from the form of notice issued under Rule 5(2)(a), wherein in the recital, it is stated, 'Certain allegations have been made in the video tape and transcripts, released by Tehelka.com under the name 'Operation West End'. It is urged that it would logically follow that petitioner is in the position of the accused and the Tehelka.com is in the position of accuser. The impugned order requiring persons accused of mis-conduct to depose prior to those making the accusation, is against the principles of natural justice. Reliance is also placed on Smt. Kiran Bedi v. Committee of Inquiry and Anr. reported at : 1989CriLJ903 , in particular, paras 26 to 28, to urge that the examination of 8-B notices against whom allegations have been made should commence only after the allegations have been proved by the witnesses making the allegations against 8-B noticee. Petitioner, thereforee, urged that unless and until the persons, who have authored the tapes are subjected to cross-examination on the allegations made therein, petitioner cannot be asked to reply to the said allegations. The burden of proving what is claimed to be a fact is on the person asserting the alleged fact. It is only when he discharges that burden, the person, who opposed it, be required to disprove the alleged fact. Moreover, respondent/Commission has the power of a Civil Court and the proceedings before the Commission are also deemed to be judicial proceedings. Besides, under Regulations 27, if is to be guided by general principles of the Indian Evidence Act as well as the fundamental principles of natural justice, keeping in view fairness, equity and justice.
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 notices, 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 decadence 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):
'In this connection, it has to be borne in mind that Section 8-B inter alias contemplates an opportunity being given to the person covered by the said section to produce evidence in his defense, whereas Section 8-C inter alias gives him the right to cross-examine the witnesses who depose against him. Not only that calling upon a person governed by Section 8-B to produce evidence in his defense at the very inception of the inquiry is a contradiction in terms inasmuch as in this situation such a person would really be required to disprove statements prejudicial to him of such witnesses, who are yet to be examined, it would also reduce the right of cross-examination by such person to a mere formality.'
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 notices are to be examined in the order of appearance in the tapes, with the Tehelka group being examined last.
12. Learned counsel urged that the Commission under the Act is given the power to regulate its own procedure. He relied on Kehar Singh and Ors. v. The State reported at : 1989CriLJ1 , wherein the Constitution Bench of the Supreme Court observed as under:-
'The Commission under the Act is given the power to regulate its own procedure and also to decide whether to sit in Camera or in public. A Commission appointed under the Act does not decide any dispute. There are no parties before the Commission. There is no lis. The Commission is not a Court except for a limited purpose. The procedure of the Commission is inquisitorial rather than accusatorial.'
13. In the instant case, he submitted that there was neither any breach of principles of natural justice nor any unfairness or disadvantage being perpetrated on petitioner. Petitioner herself has filed the reply to the notice under Rule 5(2)(a), which is being treated with the consent of the parties, as examination-in-chief. Thus, the petitioner has already disclosed her defense and her version of events in the affidavit. Petitioner remains to be only cross-examined. Learned counsel submits that in view of the petitioner having admitted the material parts of the tape recorded conversation i.e. the meeting, her presence and her voice, it was open for the petitioner to state which part of the tape, as produced, depicting her, is disputed. Rather, the learned counsel urges that since the petitioner is claiming that tapes are doctored and there are interpolations and should be sent for forensic examination, she should be the first one to be examined and subjected to cross-examination. Learned counsel submitted that in the instant case, respondent Nos. 3 to 5 were also notices under Section 8-B and their conduct was under examination. The Central Government has levied allegations, which are to be gone into and evidence thereforee is yet to be recorded and competed. thereforee, the Commission was fully justified in directing that respondent Nos. 3 to 5 be examined in the end, in the inter se order between 8-B notices. No prejudice was being caused to the petitioner by being examined prior to respondent Nos. 3 to 5. Learned counsel submitted that reliance on Kiran Bedi's case would not advance the petitioner's case, since the order of examination under 8-B notices was to be left to the discretion of the Commission. He referred to the following observations of the Supreme Court, which in certain circumstances enable even the person prejudicially affected to be examined initially, if so necessitated. In Kiran Bedi's case (supra), the Court observed:-
'Perhaps in a case, where there is no other witness to give information about the alleged incident about which inquiry is being held and the only person or persons who could give such information is or are the person or persons who are likely to be adversely affected by the inquiry, it may be necessary to depart from the above view as a matter of necessity.'
14. Mr. Kavin Gulati, learned counsel appearing for respondent No. 3, firstly submitted that the petitioner had no right to insist on being examined in a particular order. the requirement under the Act and the Rules was to give a reasonable opportunity of hearing and a right of cross-examination. He submitted that the proceedings before the Commission were neither adversarial nor accusatorial. The Commission was a fact finding body, which was constituted in terms of Section 3 for inquiring into any definite matter of public importance. He relied on the following judgments in support of the above contentions:-
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 SCC 609;
3. Dr. Baliram Waman Hiray v. Justice B. Lentin and Ors reported at : [1989]176ITR1(SC) ;
4. State of Karnataka v. Union of India and Anr. reported at : [1978]2SCR1 ; and
5. T.T. Antony v. State of Kerala and Ors. reported at : 2001CriLJ3329 .
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 notices against the Tehelka.com personnel. In that sense Tehelka.com is also accused. as its conduct is being examined. It was, thereforee, only proper that the 8-B notices 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 disability 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 notices 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 notices 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 notices, which may be considered by the Commission on a case to case basis.
16. Having heard the learned counsel for the parties and noted the rival submission and the authorities relied on, it would be seen that the petitioner as well as respondent Nos. 3 to 5, who are Tehelka.com personnel, have filed their affidavits in reply to notice under Rule 5(2)(a). With the consent of the parties, the said replies are being treated as examination-in-chief. The question, thereforee, is only with regard to the order in which they are to be cross-examined. While it is true that the procedure evolved by the Commission was that the witnesses are to be examined in the order in which they unfolded themselves in the four and a half hours released tape. However, vide order dated 29.11.2001, the Commission listed the petitioner at S.No. 24 and respondent Nos. 3, 4 and 5 at S. Nos. 34, 35 and 36. The Commission vide order dated 11.12.2001, ruled that it would record the evidence as under:-
(a) Evidence produced by the Central Government;
(b) Evidence of Rule 5(2) (a) notices, if relevant;
(c) Evidence of any other person, whose evidence the Commission considers as relevant;
(d) Evidence of witnesses of 8-b notices, if any; and
(e) Examination of 8-B notices themselves.
17. It is correct that the nature of proceedings under the Commissions of Inquiry Act are in the nature of a fact finding Enquiry and these are not accusatorial in nature. It is inquisitorial in nature. I also find merit in the contention of the respondent that in the instant case, petitioner has had access to the four and a half hours released tape as well as transcripts of the unedited tapes. Besides, petitioner has filed her response to the notice under Rule 5(2)(a), which is to be treated as examination-in-chief. Petitioner has given her version of events. Petitioner in her affidavit has dealt with the incident in which she figures in the tapes and has sought to explain the context in which the conversation was recorded. Petitioner has also refuted some of the allegations and inferences, as are sought to be drawn. Petitioner claims that there are interpolations in the tapes, without stating as to which part of the tape recorded conversation is correct or incorrect. Petitioner arrived in para 10 of her affidavit as follows:
'They have super-imposed certain words in the tapes and transcripts later on to suit their nefarious designs.'
18. Again in para 16, it is averred, 'It appears that tehelka visual tapes are not genuine and correct. These appear to have been edited, words have been superimposed and removed to suit their nefarious purposes.' Thus the petitioner is fully aware of the case she has to meet and there would be no violation of principles of natural justice if the petitioner is required to appear prior to the authors of the tape. There is also merit in the submissions of the respondent that once the incident, as depicted in the tape and the presence of the petitioner and others in the meeting are not disputed, petitioner should be cross-examined on her role, as depicted in the tape as also the affidavit filed by the petitioner. It is also to be noted that serious allegations have been made against respondent Nos. 3 to 5 i.e. the Tehelka.com. Their actions and conduct is under scrutiny and examination. Evidence against them had been filed by the Central Government only recently. Besides, this Court in exercise of jurisdiction under Article 226 of the Constitution of India would not ordinarily interfere with the discretion exercised by the Commission in adopting the procedure of conducting the inquiry, unless the same is in violation of principles of natural justice or negates well settled principles of law or is wholly perverse. Rules 5, Sub-rule 5(a) and 5(8) show that the Commission has absolute discretion to decide the order of witnesses. Regulations 27 to 29 of Justice K.Venkataswami Commission of Inquiry (Regulation of Procedure) 2001 leaves the Commission free to evolve its own procedure. Besides, in this case, it cannot be said that the discretion has been exercised in an arbitrary or capricious manner, which would violate or negate any principles of natural justice or cause any prejudice of the petitioner. In Kiran Bedi's case on which the petitioner has placed reliance, she was a prospective 8-B noticee and she claimed to be treated in a similar fashion as all other 8-B notices. Kiran Bedi had, thereforee, prayed that she should be examined like all other 8-B notices at the end of Enquiry and not at the commencement of the Enquiry. This had been accepted by the Supreme Court. Nevertheless, in Kiran Bedi's case, the Court did not think it expedient to lay down any rigid procedure with regard to order or sequence in which the witnesses are to be examined. It was held that 8-B notices should be examined at the end, so that they have opportunity to meet the case that was sought to be urged against them. In fact, the Supreme Court in Kiran Bedi's case, did not lay down any procedure or order of examination that was to be followed among 8-B notices. It is left to the discretion of the Commission. I, thereforee, find that the impugned orders, directing the petitioner to be examined prior to the Tehelka.com witnesses, namely, respondent Nos. 3 to 5, does not call for any interference in the exercise of jurisdiction under Article 226 of the Constitution of India. The said direction is not vitiated by any illegality or arbitrariness or prejudice, which would result to the petitioner justifying interference by this Court.
REJECTION AND DEFERMENT OF THE REQUEST FOR SENDING UNEDITED TAPES FOR FORENSIC EXAMINATION
19. Petitioner submits that the rejection by respondent No. 2 Commission of the prayer made for sending the unedited camera original tapes of approx 105 hours duration for forensic examination is illegal and is causing server prejudice to the petitioner. Petitioner assails the impugned orders by submitting that respondents No. 2 Commission has grievously erred in not appreciating the necessity for authentication and examination of the tapes by forensic experts. He submits that there is no evidence available against the petitioner except the tapes, the accuracy and genuineness of which is in serious doubt. Mr. Vaidyanathan submitted that none of the Tehelka.com personnel have come forward to depose that he was the author of the tapes. Neither the maker of the tapes nor anyone who recognised the voice of the maker has come forward to depose. Several interpolations and super-impositions have been found in the edited tapes. It is not at all certain that the tapes produced before the Commission were camera original or not? In these circumstances, there was every possibility of the tape recorded statements, having been tampered with. Counsel argued while referring to the affidavit of the petitioner Annexure P.2 (page 53 of the paper book) to submit that innocuous statement of the petitioner as President of a Political party was sought to be given a totally distorted version with falsehoods added. A wrong perception was sought to be created that the petitioner knowingly entertained arms dealers and the only material that had been disclosed was the talk with R.K. Jain and R.K. Gupta. He submitted that the respondents were changing positions in as much as the earlier person to whom donation money was claimed to have been handed over was said to be one Sri Niwas. However, as an after though and in the subsequent version, it is claimed to be one Gopal Pacherwal.
20. Learned counsel submitted that he was referring to these aspects only with a view to demonstrate that in the absence of verification and authentication of the tapes, no reliance could be placed on them. Counsel submitted that as far as the petitioner was concerned, the claim for verification of tapes was confined to tapes No. 73 and 74. Learned counsel submitted that the tapes have not been proved. These were copies of copies. Petitioner has pointed out errors after errors. The expert witnesses on behalf of the petitioner and others have filed affidavits alleging gross manipulations and interpolations. Petitioner had examined qualified experts who have shown instances of tampering of the tapes. Reference was sought to be made to the report, and affidavit of Mr. Chris Mill as also of Milan Kapur. The testimony of expert shows various instances where the audio track has been stopped, extracted and inserted from somewhere else while video continues to run. The audio and video portions are out of synchronization. There are portions where the video track has been interrupted while the audio track is running continuously. The spoken words at times did not match the subtitles. The words have been edited out of conversation and words have been added in conversation. The sequence of audio and video has been changed. Despite there being more than sufficient material making out a case for sending the tapes for forensic examination and the tapes being the very basis of enquiry, the Commission has chosen not to send them and defer the decision. Counsel also urged that the doctoring or tampering is not confined only to physical appearance or participation of the persons in the tapes. Interpolation could include alteration, omission and obliteration of speech and thus making the same out of context, mixing the contents of two tapes shot on two cameras to produce a third tape. All these activities would constitute doctoring or tampering with intent to mis-lead.
The respondent Commission has relied on the testimonies of the experts of Tehelka.com, Mr. Pradeep Krishan and Mr. Uma Shanker that the format and configuration used for recording, was HI 8 with AFM sound, even though neither Mr. Pradeep Krishen nor Uma Shankar claimed any personal knowledge with regard to use of said format or configuration. Learned counsel submitted that it was possible to transfer footage recorded on HI 8 format with AFM sound on to the digital system. Hence the possibility of tampering could not be ruled out.
21. Learned counsel submits that by forensic examination, it is possible for the experts to technically verify whether the tapes are camera originals or not and whether the recording was done on HI-8 format with AFM sound and whether there are interpolations or not? He submits that serious doubts have arisen as the cash memos furnished by Tehelka.com for the purchase of tapes, on which recording is purported to have been done, could not be verified. He submits that either the shop has been found to be non-existent or not dealing with products such as tapes. As such there are serious doubts on the authenticity of the unedited tapes.
22. In these circumstances, the decision of the Commission that it would consider the request for forensic examination of the tapes at a later stage i.e. after the evidence had been recorded, would render the relief infructuous. It would then be an exercise in futility. The petitioner should not be burdened to defend herself or examine herself without the authenticity of the tapes being first established. As a matter of fact once the tapes are verified as authentic, it would subserve the ends of justice and interest of all parties. In this connection, he relief on decision of the Supreme Court in Ram Singh and Ors. v. Col. Ram Singh reported at : AIR1986SC3 . It has been held in the above authority that the satisfaction of the Court beyond reasonable doubt should be reached with regard to the tapes and recording having not been tampered. In para 32 it is observed 'every possibility of tampering with or erasure of part recorded statement must be ruled out otherwise it may render the said statement out of context and, thereforee, in admissible. The recorded cassettes must be carefully sealed and kept in safe or official custody. Reliance was placed on the above authority to urge that the Commission is, thereforee, under a legal obligation to ensure that there was no tampering of the tapes or erasure of the recorded statements and that the tapes are safely kept. Learned senior counsel also relied on R.V. Stevension v. R. v. Whitney reported at (1971) 1 All ER 678. He relied on the following passage in the judgment:
'I decide this matter on the narrow but vital question whether or not the so-called original tapes are established as original. Just as in the case of photographs in a criminal trial the original retouched negatives have to be retained in strict custody so in my view should original tape recordings.'
23. Mr. Vaidyanathan submitted that once the original tapes are impugned and a reasonable doubt is raised, the Judge on a prima facie basis can reach the conclusion that no one should hear the said evidence as the same is inadmissible.
Earlier the Commission had deferred the question of sending the tapes for forensic examination on the ground that it would be considered at an appropriate stage after evidence had been recorded. However, after examination of Expert witnesses and various irregularities and deficiencies in the recording of tapes having been brought out, the time had now arrived for sending the tapes for forensic examination. The matter could not be deferred any further at the risk of the whole proceedings becoming futile. Counsel submitted that even the rebuttal evidence of the witnesses of Tehlka.com Commission was now over. He submits that the petitioner has been ready and willing to invite the verdict on this issue. Counsel submitted that tehelka.com commission have themselves admitted that the question whether the tapes are doctored or not, can be verified with the help of machines on which the recording was done, though this was a complex procedure.
24. Learned counsel submitted that the Commission itself had considered the various options of getting the tapes technically examined from Prasar Bharti as well as from private Studio Experts, namely, U. Kay T.V. Quotation had been received from U.Kaay T.V. for a sum of Rs. 1,50,000/- and it was also sent to the Central Government for approval. The Central Government had also indicated the 'No Objection' to the same, sometime in August, 2001. However, thereafter no action was taken to pursue the same. Counsel submitted that as far as the petitioner was concerned, her request was confined to Forensic examination of Tape Nos. 73 and 74. Mr. Vaidyanathan, thereforee, prayed that a direction be issued to the Commission for sending unedited tapes for Forensic examination and pending such examination petitioner's cross-examination be deferred as the only evidence against the petitioner is contained in the tapes, the authenticity and genuineness of which is seriously questioned and is in doubt.
25. Learned counsel for the respondent Union of India, Mr. Sanjay Jain, submitted that considering the proceedings that have gone on before the Commission so far and the various anomalies, irregularities and deficiencies that have been pointed out by 8-B notices and by the experts, Union of India is of the view that it is the opportune time to have the authenticity and veracity of the unedited tapes determined by forensic examination, so that doubts in the matter are put to an end. He submits that cloud of suspicion should be blown away..
26. Learned counsel for respondents Mr. Prashant bhushan, while opposing the plea of Forensic examination of the tapes, reiterated his submissions as to the nature of proceedings before the Commission as noted earlier while dealing with the petitioner's prayer for being examined after respondents 3 to 5 had been examined. He submitted that it was a fact finding body, whose function is to establish truth on a matter of public importance through all relevant material. The enquiry could not be compartmentalized or classified or sub-divided, as per the individual terms of reference, as applicable to different parties, as if each term of enquiry was a separate and distinct enquiry to be gone into. he submitted that the technical rules of evidence do not apply to the Commission. The Commission is free to devise its own procedure and Regulation 27 of the Justice K. Venkataswami Commission of Inquiry (Regulations of Procedure) Order 2001 is as under:-
'Technical rules of the evidence act as such do not govern the recording and admissibility of evidence before the Commission. However, the Commission shall be broadly guided by the provisions of and the general principles in the evidence act as well as the fundamental principles of natural justice, keeping in view the fairness, equity and justice, as required by the circumstances.'
He relied on Union of India v. Delhi Bar Association reported at 1989 (3) L D.B. 306.
27. Learned counsel submitted that the petitioner's plea that it was essential to ascertain whether the tapes were camera originals or not and whether the same had been doctored or not and without which the entire exercise of the enquiry would be futile, is not correct. It is based on a misconception. The evidence as led before the Commission including that of the parties themselves, including that of petitioner contains acceptance of material facts and admissions with regard to transactions as depicted in the tapes. In fact, the petitioner had hardly denied any material or relevant portion of the tapes, depicting her. The Commission would be fully entitled, de hors the question of authenticity of tapes and the same being found to be camera original or not, to draw its conclusion and reach an adverse inference on the basis of averments and admissions made. It cannot be called a case of no evidence. In any case, petitioner during her cross-examination would have the opportunity to fully bring out and point out the areas or portions of the tapes, which according to her were not correct or were fabricated. She can depose as to what she stated or did not state and to explain or clarify any aspect of the matter. As regards the allegations of tapes not being camera original, he submitted that assuming, but not admitting, the tapes were not camera original, these wee copies produced by mechanical process, it was not the petitioner's case that these were completely fabricated. He stated that the Commission of inquiry, in these circumstances, had adopted the correct approach and was being guided by common sense, natural justice and fair play.
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. Millin 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. Chairs 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, thereforee, held that the question of sending the tapes for forensic examination would definitely be considered after the evidence of all 8-B notices, 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.
29. As noted earlier, the Commissioner, by virtue of Section 8 of the Act, Commission has the power to regulate its own procedure. Section 8-B requires that a person be given a reasonable opportunity of being heard by the Commission. The Commission has made its own regulation and passed the order, called, 'Justice K.Venkataswami Commission of Inquiry (Regulations of Procedure) Order 2001. Regulation 27, as noted earlier, specifically provided that technical rules of evidence act as such do not govern recording and admissibility of evidence before the Commission. The Commission has to be guided by general principles in the evidence act as well as principles of natural justice, keeping in view the fairness, equity and justice, as required by the circumstances.' Additionally the scope of interference by the Court in writ jurisdiction in proceedings of the Commission is a limited one as set out in Kehar Singh and Ors. v. The State (supra). Reference in this connection may be made to Dr. Baliram Waman Hiray v. Justice B. Lentin and Ors. (supra) on the nature, scope and functioning of the Commission of Enquiry.
Keeping the above requirements, I am of the view that the approach adopted by the Commission cannot be faulted with in the facts of the present case. This is especially so when the petitioner or for that matter any of the other 8-B notices have not denied either their physical presence, as depicted in the tapes and/or denied in any material part the conversation, as recorded. Petitioner in the affidavit filed in response to the notice under Rule 5(2)(a) not disputed any specific part of the tape recording nor specifically alleged that she did not say anything in particular as recorded in the tapes. The petitioner as noted in para 17 hereinbefore has only generally claimed that there are interpolations and certain words had been superimposed in the tapes and transcripts to suit the nefarious designs of respondents 3 to 5. Petitioners in paras 3 and 5 of her affidavit has averred as under:-
'Incidentally I was told that they wanted to make some contribution to the party. Like other political parties, my party too relies on and welcome donations from members of the public. Since at that time, our party was organising a national convention at Mysore and Srinivasa Prasad, a Samta party central minister was interested with the task of organising it and had requested the central party some contribution to the expenses of this meeting I said, please send this to Srinivasa, our minister. I did not even care to find out how much they wanted to donate and what shape it was.'
'Subsequently, the visitors made some complaint about being unable to have their product tested and being denied a fair opportunity of competition in the Ministry of defense. I made it very clear that I did not know about such things but I would believe that anything will only be accepted on its merits and that merit has two components, price and quality. I also conveyed that we could not and do not take up matter on behalf of anyone to anyone else's detriment. All I can try to ensure is that everyone gets a fair opportunity to compete.'
30. From the foregoing, it would be seen that the petitioner accepts the meeting, which took place at the residence of the defense Minister and donation was to be accepted on behalf of the party from those presenting themselves as arms dealers. Further, she would intercede with the defense minister in case dealers were not short-listed by the officials and denied a fair opportunity to compete. Without getting into the controversy on merits as to whether the tape recorded conversation itself had the requisite ingredients for an offence under the Prevention of Corruption Act, as claimed by Mr. Prashant Bhushan or not or otherwise getting into the merits of what inference can be drawn from the foregoing, it is apparent that the petitioner accepts the factum of the meeting and the conversation, which took place and recorded on the tapes. It would be for the petitioner while deposing before the Commission to explain and allege what parts of the tape recorded conversation were not correct and had been tampered with or the material parts, which she claims, have been omitted. This has unfortunately not been done so far by the petitioner. In fact, the petitioner and other 8-B notices have also not taken advantage of the order passed by the Commission on 11.9.2001, by which liberty was given to point out any discrepancies in the transcripts and recording so that a report from the Tehelka.com could be called for. It may also be noted that other 8-B notices have also in their respective affidavits confirmed the factum of the meeting with the petitioner and filed affidavits as to what transpired, namely, Sh. Surinder Kumar Surekha. Maj. Gen. P.S.K. Choudhary has also filed his affidavit. The deponents accept what has been depicted and recorded in the tapes, of course, subject to giving their own Explanationn for their utterances. The position, which, thereforee, emerges is that once the basic factum of physical presence and recording of the conversation is not disputed in material parts, it would be for the 8-B notices, who have already filed evidence by way of affidavit, which is being treated as examination-in-chief to depose and point out what has been super-imposed deleted or edited as far as material aspects are concerned and demonstrate that the inferences, which are sought to be drawn are not warranted. It is also to be noticed that as far as petitioner is concerned, she appears and is depicted in two tapes only. Petitioner, thereforee, cannot have a claim for reference of the entire unedited 105 tapes. The Commission is fully justified, in these circumstances, in holding that it is only after the examination and cross-examination of 8-B notices and other witnesses and after arguments have been heard from the parties on evidence of the experts, as recorded subsequent to 12.10.2001, that a decision would be taken on the request for sending the unedited tapes of 105 hours duration or parts thereof for forensic examination.
31. Reference in this regard may also be made to the submission of the Attorney General before the Commission, as recorded in the order dated 29.11.2001, 'According to him (A.G.) while going through those aspects questions like editing omissions as well as authenticity, which the Commission found at an early juncture, having been prima facie made out, may perhaps have to be gone into in depth in the light of the evidence that may surface during the examination of 8-B notices.'
It would be seen from the above that the position of the Union of India at that time was that the question of authenticity of tapes will have to be considered and reviewed based on the evidence, that may be recorded of the 8-B notices. The Union of India has in these proceedings supported the plea for reference of the tapes for forensic examination, so as to remove the cloud of uncertainty and in view of the evidence of the experts as subsequently recorded. This was the submission of Mr. Sanjay Jain, standing counsel of Union of India. There has been a shift in the stand of the Union of India, as noted by the Commission also.
32. The Commission has adopted the correct approach of having the evidence of 8-B notices to be recorded first so that the alleged omissions, interpolations and the doctoring of the tapes and the affected portions, if any, are brought out. This could then be considered along with the evidence of the experts, as recorded before the Commission and the Commission then after hearing the counsel would decide if there was any justification to refer for forensic examination the entire lot of unedited tapes or parts thereof, if any, as may be brought out during the recording of evidence. There also appears to be some merit in the observations of the Commission that several applications have been made by the petitioner in an attempt to stall her examination. Besides, the plea that the tapes are not camera original has been belatedly raised as an after thought.
33. In view of the foregoing discussion and considered that the Commission has the freedom to devise its own procedure, the approach adopted by the Commission cannot be faulted with or said to be vocative of principles of natural justice or causing any prejudice to the petitioner or other 8-B notices.
The writ petition has no merit and is dismissed.