Vyapam Scam: The CBI's Clean Chit Is Not the Final Word on the Matter

The details of the clean chit are not known – and the press release issued by the CBI on October 31, 2017, raises more questions than it answers.

As of date, the chargesheet filed by the CBI has not been made available, even to the accused. Credit: PTI

The headline of the press release dated October 31, 2017, on the Central Bureau of Investigation website reads like a headline of a newspaper on a sensational issue: “CBI finds no tampering in the hard disc seized by State Police ”. This is a strange issue to focus on for a prosecuting agency. It also betrays the anxiety of the CBI, to declare the Madhya Pradesh chief minister innocent in the scam. As of date, the chargesheet filed by the CBI has not been made available, even to the accused. The details of the clean chit are thus not known, apart from the press release issued by the CBI, which, for anybody conversant with the facts and history of this case, raises more questions than it answers.

The CBI’s press release is quite silent on the identity of the 490 accused or on the many allegations regarding the deaths of crucial witnesses. It is silent on the fact that the CBI did not open any new cases after the investigation was transferred to it. There is only one ‘fact’ it reveals, that as per the CBI, the Madhya Pradesh chief minister is innocent.

The press release reads:

As per CFSL report, the computer with the HDD in question was last shut down on July 15, 2013 and no file on the said HDD was accessed after July 15, 2013. All the five Excel files in the pen drive provided by the said private person to the Hon’ble high court of Delhi in W.P. (Crl.) 334/2015 as well as to CBI, containing reference ‘CM’ in it, were created or last modified on or after July 18, 2013 as per the report of CFSL whereas the alleged HDD in question was last shut down on July 15, 2013 as per CFSL report. The pen drive provided by the said private person to the Hon’ble high court of Delhi as well as to CBI contains false documents created subsequent to seizure of HDD in question. There is no grain of truth in the allegation that the HDD seized on July 18, 2013 from the office of then Principal System Analyst, Vyapam was tampered.

This hard disk is allegedly the one from which the Excel sheets which referred to ‘CM’ were recovered. Copies of these Excel sheets were made available to the ‘private person’, Prashant Pandey, a whistle blower working for the Special Task Force (STF) investigating agency then working on VYAPAM scam cases. He then copied them onto a pen drive and released them when he realised that there was some discrepancy between the actual Excel sheets and what was being purportedly investigated. Pandey was made to pay dearly for the same.

Also read: Is the CBI Abdicating Responsibility on the Vyapam Scam Investigation?

Pandey was hounded by Madhya Pradesh police in August 2014 on a suspicion that he had sensitive information in VYAPAM scam cases relating to chief minister Shivraj Chouhan and other high profile persons. He was arrested on August 6, 2014, in a false and fictitious case, his laptop and phone seized by M.P. Nagar police, Bhopal. He was released on bail subsequently on August 10, 2014, when officials from STF informed Trial Court in Bhopal that Pandey was working for the STF. This was submitted on affidavit to the Delhi high court in a writ petition filed by Pandey and police protection was granted to him. Pandey has since had to move to Delhi from Indore.

Pandey’s evidence is quite reasonable and believable. What the CBI is now claiming, that the shutdown date for the computer to which this hard disk was attached crystallises the matter, is something that has not come up in any of the previous forensic reports, and neither does it prove the inauthenticity of the Excel sheets released by Pandey. It stands to reason that when a copy is made of any file from a hard disk, its date of modification will be changed when it is so copied. To cite that as evidence of forgery is quite bizarre. The moot question is how Pandey had the same Excel sheets that were on Nitin Mohindra’s Computer on July 18, 2013 – the date of seizure of the hard disks by the Indore police.

The issue of veracity of hard disks seized from the VYAPAM office in Bhopal is instrumental to the VYAPAM scam investigation as the “deleted data” from the hard disks retrieved by the Directorate of Forensic Science, Gandhinagar, Gujarat between July 2013 and September 2013 is the basis of numerous FIR’s filed by investigating agencies. Tampering of hard disks therefore goes to the very root of the matter and would possibly discredit the entire edifice of investigation carried out so far by investigating agencies, be it Indore police, STF and now CBI.

At this point of time, the chargesheet filed by CBI or the CFSL report of Hyderabad is before the CBI court, Bhopal. No one has seen it. The assertion in the press release of CBI that “The pen drive provided by the said private person to the Hon’ble high court of Delhi as well as to CBI contains false documents created subsequent to seizure of HDD in question” would be premature.

Also read: Vyapam: How a Munnabhai-style Exam Scam Turned Into a Macabre Thriller

The veracity of the report of CFSL on the hard disks of VYAPAM office and the pen drive submitted by Pandey is yet to be adjudicated upon by the CBI court. CBI is an investigating agency not a court of law.

Certain aspects need to be highlighted in the present case before Pandey is condemned as guilty by the investigating agency, CBI:

1. As per the chargesheet of STF (then investigating agency), filed in court, the hard disk of one Nitin Mahindra was seized on July 18, 2013, by the Indore police, thereafter the seized hard disk was sent to Gandhi Nagar, DFS (Guajrat)  for analysis on July 22, 2013.
2. Anand Rai (another whistle blower in VYAPAM scam cases), in his affidavit before CBI submitted on January 23, 2016, revealed that he was in the office of IG police, Indore, Vipin Maheswari on 17 July, 2013, when Additional SP Crime Branch, Dilip Soni, who had possession of the hard disk, arrived with the hard disk in the IG’s office. The commissioner, Indore was also present at that moment. This evidence casts very grave doubts on the story of the hard disk being sealed by the investigative agency. This evidence means that the hard disk seemed to have been in circulation, much after the date of its claimed sealing. The official version is that the hard disk was sealed in Bhopal for transfer to Gujarat FSL. If that is so, then how could Dilip Soni hand over the hard disk in question to IG, police on July 17, 2013, in Indore?
3. As per the press release dated October 31, 2017, of CBI, the hard disk in question of Nitin Mohindra was last shut down July 15, 2013. If the hard disk was shut and sealed from July 15, 2013 to July 22, 2013, when it was sent to Gujarat for analysis, by Indore police, then how could Prashant Pandey, a private person, not connected to VYAPAM or Indore police, have had access to the same Excel file with “CM” and other common names in it on July 18, 2013? How could this private person have known the details of these Excel sheets and the various names and details mentioned in it?
4. As per the Truth lab report (the private lab to which the pen drives were sent by Pandey’s lawyer for forensic analysis), on the pen drive of Pandey, Excel sheets regarding Samvida Shikshak Varg 2 and 3 having “CM, “Minister 1”, “Minister 2”, “Minister 3”, “Minister 4” was modified on July 18, 2013 between 16:20  to 20:15.
5. It is to be noted that both the Excel sheets, one retrieved from hard disk of Nitin Mohindra and other from the pen drive of Prashant Pandey, had the same names of candidates and recommenders except “CM” “Minister 1” “Minister 2” “Minister 3” and “Minister 4” . This is not denied. So a private person had access to these files on July 18, 2013, with the modification which is duly proved.
6. Evidence of these files was submitted before the Delhi high court in March 2015, and put in a sealed cover by Pandey. It is on the orders of the Delhi high court and later the Supreme Court, that CBI, after many years, sent it to CFSL, Hyderabad.

These points are just for reference to show that prima facie the assertion of CBI that “The pen drive provided by the said private person to the Hon’ble high court of Delhi as well as to CBI contains false documents created subsequent to seizure of HDD in question” is to be taken with a pinch of salt.

It appears that the Final report filed by CBI before CBI court will be challenged by appropriate persons and if necessary, a formal chargesheet/complaint will be filed in the court of law to assist the court in the course of justice.

Vaibhav Srivastava is Counsel to the whistleblowers in the Vyapam Case. Partner at Srivastava Naved & Parashar Partners.