HC orders fair testing of ‘SSP clip’ calling to disrupt Punjab rural poll

Disposing of two petitions, the Bench of Chief Justice Sheel Nagu and Justice Sanjiv Berry issued “a writ of mandamus directing that for the purposes of investigation and the FIR already registered, the electronic material, including the audio clip, be forwarded to an independent agency which is not under the control or supervision of the state”.

Directions were also issued against interference in the investigation process.

Flagging serious concerns over the fairness of the probe into the incident, the Bench made it clear that the “ultimate object of the Election Commission was to conduct free and fair polls, which could be ensured only when its actions were free, fair and impartial”.

Expressing disappointment over the manner in which the commission handled the matter despite earlier judicial concern, the Bench observed: “When this court had expressed its concern about the fairness with which the election process was being conducted, especially in Patiala, it had expected the commission to rise to the occasion.”

The court asserted it was “a little surprising” that its earlier observation — that the verification of the electronic material should be entrusted to an independent agency — was ignored. “In all fairness, the commission ought to have risen to the occasion and should have forwarded the electronic material to an independent agency to assuage all suspicion or complaints,” the court asserted.

The Bench made it clear that the entire administrative and police machinery remained under the control, supervision and discipline of the Election Commission during the elections. Jurisdictional issues could not be cited to say the audio clip could not be sent to an agency outside its domain. “It is all under you till the declaration of results. Every step that is taken — whether by the police or otherwise — is under your control,” the Bench asserted.

The matter has its genesis in petitions seeking, among other reliefs, an independent probe into the alleged conduct of an SSP whose voice was purportedly heard in a circulated audio clip. An FIR under provisions relating to spreading misinformation, along with IT Act offences, was registered, and the clip was claimed to be under investigation.

Among other things, it was alleged that the clip revealed “directives to halt opponents at homes or routes, act on local MLA's orders, shield ruling AAP supporters with positive reports, and ensure returning officers reject entries, engineering uncontested wins and violating the model code of conduct".

The Election Commission and the state government’s stand before the Bench was that forensic examination could not progress because the original recording device had not been produced and placed before the investigating agency. It was stated in a report placed before the Bench that the original device was not produced, despite repeated notices to the complainants.

The Bench, however, remained unconvinced. Referring to the commission’s constitutional and statutory powers during elections, the Bench observed, “If that officer or SIT functions under your control, you can even suspend him,” the court observed.

When the commission contended there was no express mandate authorising it to send the matter to an external agency, the Bench asserted, “You have ample powers. The question is of free and fair elections…. Show us the provision which restrains you.”