S.M. Katwal vs Virbhadra Singh And Others

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No. 11350 of 2013.

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Reserved on: 22nd April, 2015. Decided on: 20th May, 2015.

S.M. Katwal ... Petitioner/Appellant. Versus

Virbhadra Singh and others ... Respondents.

Coram r to The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.

Whether approved for reporting?1 Yes.

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 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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judgment dated 24th December, 2012, in Corruption

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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

barred, therefore, the present petition 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 24th

December, 2012 under challenge in the appeal, through

newspaper. He is having no access to the record nor

engaged any lawyer to prosecute the case on his

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behalf. On coming to know that the State of Himachal

Pradesh ruled by the Congress Party Government and

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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 appeal against the judgment of

acquittal, the petitioner has come forward to prefer an

appeal against the judgment in the capacity of a

'victim'. An age old rule "nullum tempus qut locus

occurrit regi" embedded in criminal justice delivery

system has been pressed 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

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immediately thereafter. It has been urged that the

delay, as occurred in filing the appeal is not intentional,

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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-State 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,

Himachal 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

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preferring the appeal. It is pointed out that in a police

challan no private individual other than victim can prefer

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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 Superintendent 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

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under an impression that the criminal cases against him

were registered at the instance of accused-respondent

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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 the witnesses was recorded on the

day of announcement of the judgment, i.e., 24th

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 denying

the contentions to the contrary being wrong and

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reiterating the case as set out in the petition, it is pointed

out that accused-respondent No.1 is acting in mala fide

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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

registered 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

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charge-sheet served upon Shri Daya Sagar, the then

Inspector, Vigilance, who has investigated the case

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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, SIU 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

sides.

::: Downloaded on - 15/04/2017 18:12:56 :::HCHP -9- 6. Accused-respondent No.1 Virbhadra Singh is

the Chief Minister of Himachal Pradesh. Accused-

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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

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qua the exchange of money in lacs of rupees between

the accused-respondents on one side and Mr. Piyush

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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 one 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

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telephonic conversation between a high officer and reportedly the present CM and his wife and

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mentioning others, about payment/acceptance of

huge sums of money. The facts, prima facie disclose commission of offences, 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 registered 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 120B, 217, 218 of the IPC and I may have to approach the

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Hon'ble High Court again impleading your as a party."

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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

to dated 7th June, 2007

issuance of necessary directions in the matter. Since the r for

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

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Corruption Bureau, Southern Zone, Shimla, vide letter

dated 18th February, 2008. Shri Anand Pratap Singh

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aforesaid sought for the service record of Shri Mohinder

Lal from General Administration Department of Himachal

Pradesh and also sought the voice samples of accused-

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 Shri 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 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

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names of the persons and the detail thereof the same must have recorded by Rani

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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

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same person (Sh. Virbhadra Singh, Former Chief Minister of Himachal Pradesh) with high

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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

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Vijay Singh Mankotia (PW21) in the matter. The audio-

cassette was taken into possession by Shri Paras Ram,

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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. released 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

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Kapoor, Sh. Rajinv Bhanot and Smt. Santosh Saini were also recorded at Una. 3. On 08-05-08, the

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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 contain 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 occasions which happened and appears to have been recorded on various dates and made into one tape/CD". He was evasive and

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did not comment on 'how' and 'where' it was recorded. 6. Sh. S.M. Katwal IAS (Retd.) in this

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statement has also stated that since he was posted

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 the 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 acoustic analysis of the recorded speech samples of the speakers marked Exh-Q1 and Exh-S1 by using Computerized Speech Lab (CSL), revealed that voice exhibits of speakers marked 'Exh-Q1' are similar to the voice exhibits of speaker marked 'Exh-S1' in respect of their

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acoustic cues and other linguistic and phonetic features. Hence the voice samples of speakers

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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 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". 9. A study of the transcripts and

contents of the C.D. reveals 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

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Lal is of the opinion that these conversations took place in 1989, it may be reasonably inferred that

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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 appeared 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 15 lacs. 10. During enquiry the following facts also came to light: 1. A project was

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 Jain (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

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government during the period when conversation took place. An FIR for illegal purchase was also

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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 amount 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

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Lal, IAS (Retd.) in his statement identifies these voices as his own and as those of Sh. Virbhadra

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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 contributors 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 offence 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

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servant, obtains for any person any valuable thing or pecuniary advantage, without any public

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interest. The inquiry is complete and the facts 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 offence 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)

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dated 31st July, 2009, the Vigilance Headquarter was

informed as under:

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"As per opinion of the Law Department, the Police Officer has to take an independent

decision after due application of mind. You are 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 received in

the Vigilance Headquarter on 1st August, 2009 and on

the receipt thereof, Director 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

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Vigilance and Anti Corruption Bureau, Shimla, under

Sections 8, 9, 10, 13(1) (d)(i)(ii) read with Section 13(2) of

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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 was

done to help Shri Mohinder Lal, who was apprehending

the defeat of the Congress Party in 1989 General

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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

the 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 permission 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

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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 challan 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 Section 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

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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

Section 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 accordingly 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

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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, Advocates, 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.

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27. As the respondent-State and also accused-

private 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 for 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 following 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 locus-standi to file an appeal under the proviso to Section 372 of the Code

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against the judgment of acquittal 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 background:

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

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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 appeal 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 (Criminal) 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.

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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 assisted 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

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condonation of delay and also leave to appeal as well

as the appeal filed therewith, this Court allowed Mr. Deol

.

to address arguments first in counter to the question so

raised.

33. Mr. Deol has 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 defines term "wrongful loss" as follows:

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""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 judgment of

Punjab and Haryana High Court in M/s. Tata Steel's case

supra. In this judgment terms "victim", "wrongful loss"

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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 Rangnath

Khade v. State of Maharashtra and others, 2012 (2) CCR

381. It is the observations in paras 47 and 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

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(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 @ Jaswinder Kaur v. Jagbir 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

petition for leave to appeal and the appeal, has

strenuously contended that the petitioner is neither a

complainant nor even an informant and rather a whistle

blower, as the FIR against the accused-respondents was

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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 wreak-vengeance against the private

respondents as he is under the impression that the

criminal cases have been registered against him at their

instance. Therefore, 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 treated 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

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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 High

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 Nandan Paswan's case

deals with the question of a non-informant to challenge

an order of withdrawal of prosecution by the Prosecutor.

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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 that 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 Court does undoubtedly grant leave to the appeal

under the discretionary power conferred under Article 136 of the Constitution of India at the

behest 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 that the Special Leave Petition itself was not maintainable."

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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 right 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

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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 and 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,

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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 supra, 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

"loss" 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 "loss" and "injury"

used in Section 2(wa) are synonymous and that a

person, who has suffered an injury in body or mind or

reputation or to his/her property, is a 'victim' within the

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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

reputation also, is a victim. This judgment reads as

follows:

"47. Section 2(wa) of the Code defines

'victim' to mean a person who has suffered any loss or injury caused by the 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'. We find on its plain reading that the Legislature has classified the 'victim' in

two categories i.e. (i) a person who has suffered any loss or injury caused by the act

or omission attributed to the accused; and (ii)

the 'guardian' or 'legal heir' of such 'victim'. The correct understanding of the first part of

the term "victim" is contingent and is subject to the true scope of the words "loss" or "injury" contained therein. Both these words are not denied in the Code, however, its Section 2(y) says that "words and expressions used herein and not denied but defined in the Indian Penal Code (45 of 1860) have the

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meanings respectively assigned to them in that Code".

.

48. Section 23 IPC defines "wrongful loss"

and it says that "wrongful loss" is the loss by unlawful means of property to which the

person losing it is legally entitled". It is further explained that "a person is said to lose wrongfully when such person is wrongfully

kept out of any property, as well as when such person is wrongfully deprived of property". According to Section 44 IPC, the

word "injury" denotes any harm whatever illegally caused to any person, in body, mind, reputation or property". It is, thus, in the

context of offences against property, especially under Section 418 and 'mischief'

as defined in Section 425 IPC that the term 'wrongful loss' has been used in the Penal

code. The Legislature while defining 'victim' in Section 2(wa) of the code has used the

word 'any loss' before 'or injury' and has not restricted it to 'wrongful loss' only. We, thus, find that the words 'loss' and 'injury' used in Section 2(wa) are synonymous. This view is also fortified by the use of wide term 'any loss' in clause (b) as compared to 'the loss' in clause (c) of Section 357(1) of the Code.

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49. It is so acte clair that a person who has suffered any injury in body or mind or

.

reputation or to his/her property or if such

person has been caused loss of property, to which he is legally entitled to, unlawfully at

the hands of another person who has charged as an accused, is the 'victim' within the meaning of Section 2(wa). Similarly, if as

a result of the aggravated form of victimization, such 'victim' of first part does not survive, the second part of the definition

of 'victim' as defined in Section 2(wa) of the Code substitutes the first part and becomes operative whereupon the guardian (if such

'victim' was a minor or of unsound mind) or the legal heirs of the deceased victim, as the

case may be, step-in for the 'victims' for the varied purposes under the Code".

51. In Gouranga Debnath's case, Gauhati High

Court (Agartala Bench), while giving a wider

interpretation to the term 'victim', has observed that the

'victim' is a person, who individually or collectively have

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impairment to his fundamental rights through the acts or

omissions in conflict with criminal law. As a matter of

.

fact, this was the meaning assigned to term 'victim'. This

judgment reads as follows:

"41. In the case of Smt. Ram Kaur, the High Court of Punjab and Haryana while

examined the Section 2(wa) of the Code took note of the Minutes of the 96th Plenary meeting on 29th November, 1985 of the

General Assembly of the United Nations

wherein the United Nations made a Declaration of Basic Principles of Justice for victims of Crime and Abuse of Power,

recognizing that millions of people throughout the world suffer hard as a result of

crime and the abuse of power and that the right of these victims have not been

adequately recognized and also that frequently their families, witnesses and other

who aid them are unjustly subjected to loss, damage or injury. The Assembly affirmed the necessity of adopting national and international norms in order to secure universal and effective recognition of and respect for, the rights of victims of crimes and

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abuse of power. In the said declaration, the word 'victim' was defined as under:

.

6.2:- 6.2 The Declaration defines victims

as "person who, individually or collectively, have suffered hard,

including physical or mental injury, emotional suffering, economic loss or substantial impairment of their

fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States,

including those laws prescribing criminal abuse of power".

42. The aforesaid definition of victim has been

discussed in 154th Report of Law Commission, but the legislation has not adopted the said

definition and have given a restricted

meaning of the word "victim" means only a person, who has suffered any loss or injury

caused by a reason of the act or omission of the offender and victim includes his or her guardian or legal heir, which in fact subsequently incorporated in the amendment of the Code by way of inserting the clause (wa) of Section 2 of the Code.

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43. A joint reading of Smt. Ram Kaur (supra) and Section 2(wa) of the Code, we are of

.

the opinion that person who has suffered loss

due to a crime is obviously a victim and more particularly we are also in agreement with Mr.

Kar Bhowmik as well as Mr. Deb that in Section 2(wa) of the Code, there are two parts. One part is relating to victim who has

suffered loss and injury and by way of other parts, the Legislature expanded the word 'victim' even to the persons who are the

guardian and legal heirs."

52. In CRM No. 26221 of 2011 and CRM No.A-402-

MA of 2011, titled Parmod Kumar v. Har Parkash and

Others, Punjab and Haryana High Court has held as

follows:

"In terms of the proviso to Section 372 of the Code of Criminal Procedure ("Cr. PC" - for

short) only a 'victim' can file an appeal.

'Victim' has been defined in Section 2 (wa) Cr.PC to mean 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."

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53. In rest of the judgments cited on behalf of

.

the petitioner, the only legal question dealt with pertains

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 not much

quarrel, hence need no further elaboration.

54. Ther 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 the

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, the petitioner is an

accused in criminal cases registered vide FIR No. 3 of

2003 under Sections 465, 467, 468, 471 of the Indian Penal

Code and 13(2) of the Prevention of Corruption Act, FIR

15 of 2003 under Sections 420, 467, 468, 471, 120-B of the

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Indian Penal Code and 13(2) of the Prevention of

Corruption Act, FIR No. 27 of 2005 under Sections 420,

.

467, 468, 471 of the Indian Penal Code and 13(2) of the

Prevention of Corruption Act, FIR No.11 of 2006 under

Sections 420, 467, 468, 471 of the Indian Penal Code and

13(2) of the Prevention of Corruption Act, FIR No.1 of

2004 under Sections 420, 467, 468, 471 of the Indian Penal

Code and 13(2) of the Prevention of Corruption Act, FIR

No.4 of 2003 under Sections 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 Sections 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. Not 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 believed that both accused-respondent

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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 the 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, he cannot be termed as 'victim' within the

meaning of Section 2(wa) of the Code nor competent to

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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 caused by their acquittal, 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 construed 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 having 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

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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 empowers

only a 'victim' and none 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'

in-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.

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57. As regards Sheo Nandan Paswan'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 application was allowed and the

accused Dr. Jagannath Misra and others were ordered

to be discharged. 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

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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 the

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 background:

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

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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 against 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,

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appointed 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 been made applicable by certain decisions rendered by the Hon'ble High Courts in the country. Full Bench of the 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

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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 the

appeal is mala fide, filed with an ulterior motive to settle

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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

petition, the case of the accused-respondents is that the

petitioner appeared as PW-37 on 24th December, 2012 in

the Court. The impugned judgment 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 about passing of the judgment on 24th

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

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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 August, 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, 2012. Therefore, according to

accused respondents, the petitioner has no right to file

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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, it was a case of no evidence;

therefore, a thoughtful and conscious decision not to file

appeal by the State was taken.

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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

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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 recording

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 Investigating 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

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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. Minhas to Shri Anil Goswami, Secretary (Home) to

the Government of India against the communication

made by respondent-State for seeking 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 Daya Sagar, aforesaid and

Annexure P-5, copy of FIR No.5 of 2014 registered against

Shri Hardesh Bisht, Superintendent of Police, SIU and Shri

Daya Sagar, Inspector (Retd.), aforesaid have also been

pressed into service.

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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. Therefore, the delay, which

according 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:-

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"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 petitions 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 petitions 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 vs. 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, 2013, 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."

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68. The reliance has also been placed on the

judgment again that of the apex Court in State (NCT of

.

Delhi) v. Ahmed Jaan, 2008 Cri.L.J, 4355. In this

judgment, the Apex 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

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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."

69. Similar is the ratio of the judgment again that

of the Apex Court in State of Nagaland v. Lipok A.O. and

others (2005) 3, SCC, 752, which reads as follows:

"15. It is axiomatic that decisions are taken by officers/agencies proverbially at a slow pace and encumbered process of pushing the files from table to table and keeping it on the table for considerable time causing delay - intentional

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or otherwise - is a routine. Considerable delay of procedural red tape in the process of their

.

making decision is a common feature. Therefore,

certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such

default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should,

therefore, be considered with pragmatism in a justice-oriented approach rather than the technical r detection of sufficient cause for explaining every day's delay. The factors which

are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of

pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No

separate standards to determine the cause laid

by the State vis-à-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should

constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal, needed prompt action should be

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pursued by the officer responsible to file the appeal and he should be made personally

.

responsible for lapses, if any. Equally, the State

cannot be put on the same footing as an individual. The individual would always be quick

in taking the decision whether he would pursue the remedy by way of an appeal or petition since he is a person legally injured while the State

is an impersonal machinery working through its officers or servants."

70. Mr. Deol then placed reliance on a full Bench

judgment of Gujarat High Court in State of Gujarat v.

Kaliashchandra Badriprasad, 2001 (1) RCR (Criminal) 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

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him, 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 impugned 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

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conviction even affirmed by the High Court also, of

course the appeal he filed is pending disposal in the

.

Hon'ble Supreme Court. His perception is that the

criminal cases against him were registered at the

instance of accused-respondent No.1. He, according to

Mr. Cheema, is inimical to the accused-respondents 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, therefore, 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

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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 adjudication 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

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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 lost 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 Apex 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

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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.

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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 finds 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 condonation 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 because 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

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wide publicity in print and electronic media. The

petitioner, a Himachali and being an IAS Officer (Retired)

.

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 certified/uncertified

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copies of record on a particular day and the date on

which the same was supplied to him.

.

81. Surprisingly enough, the 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 exercise discretion in

his favour in the matter of condonation of delay even

without disclosing the name of the person, who has

supplied him the Photostat 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

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because he has not 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 copy 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 cause

warranting the condonation of delay as occurred in filing

the appeal. Therefore, this is not a case warranting

liberal construction of expression "sufficient cause" nor

any ground for taking pragmatic and justice oriented

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approach as held by the Apex Court in Lipok AO's and

Ahmed Jaan's cases 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 period

prescribed for filing the appeal. In 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

Badraiprasad'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 answered in

affirmative while holding that the delay cannot be

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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 cause 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

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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

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and also in the name of his wife, friends 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-respondents 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 while considering the

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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 vindictive

attitude of the said respondent towards the petitioner

and other officers named in rejoinder to the reply filed by

accused-respondents is not an issue to be discussed and

decided in the present petition being not the part of the

record of this case. The officers named in the rejoinder in

case feel that in order to wreak-vengeance against

them, they have been victimized by accused-

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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 recourse to

appropriate remedy available to them against the said

respondent, in accordance with law. However, so far as

this petition is concerned, the so called vindictive and

revengeful attitude of the accused-respondents towards

them cannot 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 should 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.

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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 sufficient

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 contentions 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

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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

analysis 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 tape-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, ::: Downloaded on - 15/04/2017 18:12:59 :::HCHP

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contended that like any other document a tape-

recorder is also document. The tape-recorder version

.

should have not been 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 and 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-

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respondent No.1 in Himachal Bhawan Delhi, 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 evidence by the trial Court in its order

framing charge, passed on 25th 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

rendered 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 respondents 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 between 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, the 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 25th 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 1st January,

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1995. Above all, CDs were not in existence during the

years 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 1st January, 1995

rather is belated 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 r 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 should 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;

r to

(iii) During the material part of the said period, the computer 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 provided 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 certificate 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 r Section 65B(2) of the Evidence Act; and

(e) The certificate must be signed by a person

occupying 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, such 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 safeguards 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 inadmissible."

.

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 conditions 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 with what device, rendered the

document inadmissible 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 9th 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 Science 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 the 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 was not possible for

the experts to verify the authenticity of the tape-

recording version in the absence of phone call 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-examined. 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-recording 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

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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 acceptable 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

available to make statement in the Court. Though PW-22

Dr. Kavindra Lal, his son, has been examined to prove this

document, however, the 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

towards 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 (Industries) in the year 1989 nor any

political executive, head of the State, in connection with

seeking permission 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 cement 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 Chairman 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 installation 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 President 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 and 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 denied 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 Holly-Lodge 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 when 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 Meakin

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 Public 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 with 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 conference 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 identity 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 mark

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 office. 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 there 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 this 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 reasonable 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

Himachal Pradesh Legislative Assembly Election on 20th

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 20th December, 2012 to 24th 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. Nothing 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 24th

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 20th

December, 2012, 24 witnesses were summoned for

examination. Out of the eight witnesses summoned for

20th December, 2012 only one witness H.N. Handa could

be recorded whereas statement of Rajinder Tarlokta was

deferred for the next day, i.e., 21st December, 2012 and

one witness was given up by the prosecution. Remaining

five not present on that day were ordered to be

summoned for 22nd December, 2012, i.e., after one day.

On 21st 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 21st December, 2012

that PW A.P. Singh summoned for that day was present

or not. Similarly on 22nd 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

.

24th December, 2012 along with remaining PWs S.M.

Katwal and Amar Singh Thakur. On that day, i.e., 22nd

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 3rd

day, i.e., 24th December, 2012. On that day, statements

of the remaining three witnesses were recorded. The

statements of both accused under Section 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 20th December, 2012.

For example on 16th 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 17th December, 2012, i.e., after one

month for recording remaining prosecution evidence

including that of S/Shri Amar Singh and Rajinder Tarlokta,

however, they both were not summoned or bound down

for 17th November, 2012 and rather Amar Singh was

recorded on 24th December, 2012 whereas Rajinder

Tarlokta on 20th/21st December, 2012. Again on 9th

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., 16th

November, 2012. The order passed on 7th November,

2012 reveals that some of the witnesses were not present

on that day. Though, the case was already listed for 8th

and 9th 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 Prevention 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 Programme

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 basis. But sudden

change in the trend of proceedings in the case in hand

during the period from 20th December, 2012 to 24th

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., 20th December, 2012 to 24th 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-respondents and particularly accused-

respondent No.1 to take over as Chief Minister of

Himachal Pradesh after declaration of the result of

general election of Himachal Pradesh Legislative

Assembly on 20th 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, Special Public Prosecutor was removed and

rather he was very much in position upto 20th 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., 21st December, 2012 by

Shri Ashwani Dhiman, Public Prosecutor, whereas on 24th

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 replaced

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on and after 20th December, 2012, however, 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 20th December, 2012, 20

witnesses were ordered to be given up, is not correct

because out of 24 witnesses summoned for three days,

i.e., 20th to 22nd December, 2012 and also for 24th

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 said 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 required 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 trial 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

registration of a case against the accused persons vide

FIR No.27 of 2009 on 3rd 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 Chief 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 them.

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

is 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 24th 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) Judge.

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