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1993 DIGILAW 667 (RAJ)

Union of India v. Jaipur Enquiry Commission

1993-10-07

V.K.SINGHAL

body1993
Honble SlNGHAL, J.—In the present writ petition, the learned counsel appearing on behalf of Union of India has raised 3 points, namely : — 1. that the Jaipur Enquiry Commission appointed under the Commissions of Enquiry Act, 1952 has no jurisdiction to issue notice to Union of India or any of its Officer; 2. that the documents which were submitted only for perusal and which should not have been taken on record, were in the nature of privileged documents and no order was passed with regard to the nature of documents on 31.03.1993 and, therefore, the present order dated 17.9.1993 is based on wrong facts; 3. that sufficient information has already been provided by the State Wing of the Police Department and before issuing any notice to the officers of Intelligence Bureau, permission of the Central Govt. was required under Section 5-A of the Commissions of Enquiry Act, 1952. (2). Brief facts of the case are that a Commission of Enquiry was appointed by the State Government to enquire into the totality of the circumstances leading to the law and order situation at Jaipur on and after 24.10.1990, and to make recommendations to the Government for avoiding the recurrence of such situation in future. (3). In pursuance of the appointment of Commission for the above purposes, proceedings were started and notices were issued to the S.I.B. beside various other persons mentioned therein. An order was passed on 31.03.1993 in which the then Advocate General and the Advocate for the Commission and Advocate for C.P.I. (M) party were heard and the plea of the Department claiming privilege in relation to the reports and documents, other communications and photostat copies which were already produced before the Commission, was rejected. (4). Against the said order dated 31.3.1993, a Writ Petition was filed, bearing No. 4170/93, which was decided by a Division Bench of this Court on 26.08.1993. The writ petition was dismissed with the following 3 observations: — "1. Produce the working system of the C.I.D. (Intelligence) i.e. the item No.2 of the notices (Annexure-3 and 4). 2. Disclose the names of the officers who were deputed on duty, as mentioned in Item No. 3 of the notices (Annexure-3 and 4); and 3. to disclose the source/sources, as mentioned in Item No.5 of the notices (Anx. 3 and 4)." (5). 2. Disclose the names of the officers who were deputed on duty, as mentioned in Item No. 3 of the notices (Annexure-3 and 4); and 3. to disclose the source/sources, as mentioned in Item No.5 of the notices (Anx. 3 and 4)." (5). An application on behalf of Subsidiary Intelligence Bureau dated 30.07.1993 was submitted and orders were passed thereon by the Commission, wherein it was observed that the Commission is not prepared to take a different view than the view taken earlier in the order dated 31.03.1993. It is also mentioned that Mr. Pareek, who is representing the Intelligence Bureau was not able to satisfy with regard to any document that the disclosure of the same would be detrimental to the public interest. It was also observed by the Chairman of the Commission that care has been taken that the copies of the documents are not made available to the parties and only inspection has been allowed. (6). The first point which has been raised by the learned counsel appearing on behalf of the Union of India is that the definition clause 2 (a) defines the"appropriate Government", means— (i) the Central Government, in relation to a Commission appointed by it to make an inquiry into any matter relatable to any of the entries enumerated in List I or List II or List III in the Seventh Schedule to the Constitution; and (ii) the State Government, in relation to a Commission appointed by it to make an inquiry into any matter relatable to any of the entries enumerated in List II or List III in the Seventh Schedule to the Constitution: (7). According to the above definition, it is submitted that the power of the Commission is restricted only with regard to the authorities which are mentioned in the List II and List III of the Seventh Schedule to the Constitution and since the constitution of S.I.B. is in List-I, item No.8 therefore, the Commission has no power to issue notice with regard to the object for which it is established, to any of the officers of Central Bureau of Investigation. (8). (8). Section 3 of the Commissions of Enquiry Act, 1952 provides that the appropriate Government may, if it is of opinion that it is necessary so to do and shall, if a resolution in this behalf is passed by the House of the People, or as the case may be the Legislative Assembly of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the Inquiry and perform the functions accordingly. Section 3 gives power to the appropriate Government for appointment of Commission and the words "Appropriate Government" has been defined in Clause 2(a) of the Act of 1952 and, therefore, the definition which has been given relates to the powers of the Appropriate Government for appointment of Commission and not the power of the Commission for making any inquiry. The power of the Commission has been defined under Section 4 of the Act of 1952, which reads as under : "4. Powers of Commission : The Commission shall have the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely : — (a) Summoning and enforcing the attendance of any person from any part of India and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commission for the examination of witnesses or documents; (f) any other matter which may be prescribed." (9). From the above provision of Section 4 of the Act of 1952, no restriction is found with regard to the power of the Commission and, therefore, it cannot be interpreted that the power of the Commission is restricted only to the Officers of the State and not of the Central Government when it is appointed by the State Government. Moreover, the provisions of Section 4 (a) provides for summoning and enforcing the attendance of any person from any part of India and examining him on oath. This power widens the scope of the Commission and does not put any restriction on it. Moreover, the provisions of Section 4 (a) provides for summoning and enforcing the attendance of any person from any part of India and examining him on oath. This power widens the scope of the Commission and does not put any restriction on it. The argument of the learned counsel for the petitioner that Section 5A of the Act of 1952 can be considered in the light as putting restriction on the power of the Commission with regard to utilising the services of the Officers of the Central Government and before exercising that power, the sanction of the Central Government is necessary. The provisions of Section 5A of the Act are as under :— . "5A Power of Commission to utilise the services of certain officers and investigation agencies for conducting investigation pertaining to inquiry; (1) The Commission may, for the purpose of conducting any investigation pertaining to the inquiry, utilise the services, (a) in the case of a Commission appointed by the Cental Government of any officer or investigation agency of the Central Govt. or any State Government with the concurrence of the Central Government or the State Government, as the case may be; or (b) in the case of a Commission appointed by the State Government, or any officer or investigation agency of the State Government or Central Government with the concurrence of the State Government or the Central Government, as the case may be. (2) For the purpose of investigation into any matter pertaining to the inquiry, any officer or agency whose services are utilised under sub-section (1) may, subject to the direction and control of the Commission,- (a) summon and enforce the attendance of any person and examine him; (b) require the discovery and production of any document; and (c) requisition any public record or copy thereof from any office. (3) The provisions of Section 6 shall apply in relation to any statement made by a person before any officer or agency whose services are utilised under sub-section (1) as they apply in relation to any statement made by a person in the course of giving evidence before the Commission. (3) The provisions of Section 6 shall apply in relation to any statement made by a person before any officer or agency whose services are utilised under sub-section (1) as they apply in relation to any statement made by a person in the course of giving evidence before the Commission. (4) The officer or agency, whose services are utilised under sub- section (1), shall investigate into any matter pertaining to the inquiry and submit a report thereon (hereinafter in this section referred to as the investigation report) to the Commission within such period as may be specified by the Commission in this behalf. (5) The Commission shall satisfy itself about the correctness of the facts stated and the conclusions, if any arrived at in the investigation report submitted to it under sub section (4) and for this purpose the Commission may make such inquiry (including the examination of the person or persons who conducted or assisted in the investigation) as it think fit." (10). I am afraid that the interpretation which has been put by the learned counsel on the provisions of Section 5A, inasmuch as this provision provides utilisation of services of certain officers and investigation agencies for conducting investigation pertaining to inquiry. This power could be exercised where the Commission think that a particular inquiry should be conducted by the Intelligence Bureau. In that case before giving any direction to the Intelligence Bureau for conducting investigation, the concurrence of the Central Government would be required. The logic behind this provision is that the Officers of the State Government or of the Central Government could be made available only if necessary concurrence of the State or the Central Government, as the case may be, has been obtained. This provision is not applicable where any information is sought in accordance with the provisions of Section 4 of the Act and, therefore, I am of the view that the power under Section 5A having not been invoked by the Commission and there being no restriction on the power under Section 4 of the Act, the contention of the learned counsel for the petitioner that the Commission has no power to issue notice to the officers of the Central Government has no substance. It cannot be considered that the notice which was issued by the Commission is without jurisdiction. The first point therefore, fails. (11). It cannot be considered that the notice which was issued by the Commission is without jurisdiction. The first point therefore, fails. (11). With regard to the second point, it has been mentioned in the order of the Commission : "The Commission directed the SIB to keep his lawyer present on 26.9.92 to make its submissions, along with the State Intelligence department. Arguments were heard on the question of privilege on 24.9.92, 26.9.92 and Shri Sudhir Gupta was appearing for SIB. Arguments were also heard on 30.9.1992 and the Commission fixed 15.10.92 for further arguments. Arguments of Mr. Agrawal were further heard on 15.10.92. Arguments on the question of privilege were concluded on 22.10.1992. On this date Mr. B.D. Choudhary for SIB was present and he contended that Mr. Sudhir Gupta could not come to make his submissions on the question of privilege of the documents and his arguments be heard on 29.10.1992, and it was further ordered that arguments of Shri Gupta shall be heard on 29.10.1992 at 2 p.m. on the question of privilege claimed by SIB. On 29.10.1992 Mr. Sudhir Gupta counsel for SIB did not appear and Mr. K. Ram Central Intelligence Officer, SIB appeared before the Commission and submitted that on the next date of hearing i.e. 5.11.92 he will bring all the documents which are in his possession for the inspection of the Commission and if any argument will be required to be made in this connection the same shall be made by him or his counsel at 1.30 p.m. on that date i.e. 5.11.92. He was permitted to do so. On 5.11.92 Mr. Ram and Mr. Dhillon were present for SIB. They sought three weeks time to produce the requisite document. No further arguments were made by them on the question of privilege. Thereafter on 30.11.1992 the documents were filed on behalf of SIB. After filing documents, at no point of time any request was made either by Mr. Sudhir Gupta or by Mr. K. Ram to make further submissions the question of privilege. As a matter of fact the stand was that the order of the Commission on a similar application made by the Intelligence Department claiming privilege of the documents will govern their case also. On March 31, 1993, the Commission rejected the plea of the department claiming privilege in relation to the reports/documents produced by it before the Commission. As a matter of fact the stand was that the order of the Commission on a similar application made by the Intelligence Department claiming privilege of the documents will govern their case also. On March 31, 1993, the Commission rejected the plea of the department claiming privilege in relation to the reports/documents produced by it before the Commission. A copy of this order was also sent to SIB and a specific order was passed that the documents filed by SIB be also taken on record." (12). It has been submitted by the learned counsel for the Union of India that the Commission has already allowed inspection of the documents to the parties and now the statements are to be recorded. Inspection was allowed without the knowledge of the petitioner and that those documents were given only for the perusal and were not part of the record. Whenever a document is claimed as privileged one, there is a procedure for submission of the document and placing it on file and making it available for inspection. From the various documents, which have been produced before the Commission and mention of which has been made in the order also, it shows that the Advocate appearing on behalf of the Commission had sought time for production of documents or was not appearing. Though an application was submitted for claiming those documents as privileged one and from the order dated 31.03.1993, it appears that the application of the Union of India was not disposed of. In the order dated 17.09.1993, the Chairman of the Commission has mentioned that he has taken sufficient care not to make the copies available to any of the parties and specific order in this respect has already been passed. The inspection which has already been allowed cannot be undone now. The protection under section 123 or 124 of Evidence Act or under the Official Secret Act can not be give now. The Commission is taking sufficient care for not making the documents as public documents by observing that the copies of the said documents will not be made available to any of the party. Now the only question which remains is with regard to the Statements which are to be recorded by the Commission. The Commission is taking sufficient care for not making the documents as public documents by observing that the copies of the said documents will not be made available to any of the party. Now the only question which remains is with regard to the Statements which are to be recorded by the Commission. In this regard, Section 4 of the Act of 1952 confers power on the Commission for summoning and enforcing attendance of any person from any part of India and examining him on oath. This examination on oath, therefore, is permitted in accordance with the provisions of Section 4(a) of the Act. The only thing which could be observed is that whenever any question is put by the Commission or the other side, the reply of which is not in public interest, the counsel for the Union of India would be justified in raising objection at that time and submitting that the said question would not be in the public interest and for that purpose the Commission would also examine the relevancy of the question asked for and the documents which are claimed to be privileged one would not be referred in such statement. The order which was passed on 31.3.1993 was with regard to the documents, which were claimed as privileged one by the departmental authorities of the State and similar view has been taken by the Commission on the application submitted by the S.I.B. There is already a judgment of the Division Bench of this court referred to above, in which directions were given by this court while dismissing the writ petition. The said three directions as reproduced above would be applicable with regard to the matter of Union of India, namely the Intelligence Bureau or any officer thereof, and therefore, with the observations that the Government of India would not be obliged to produce the working system of the Intelligence Bureau and disclose the names of the officers who were deputed on duty or disclose the source of information, no further relief can be given on this point. These observations made by the Division Bench are followed by me for the. These observations made by the Division Bench are followed by me for the. reason that the officers of the Intelligence Bureau are working very secretly and, therefore, with regard to the assessment of the work and the names of the Officers and the source if it is made public then it may endanger their lives and system of working and may given chance of retaliation of any person or party. It may also be observed that any question with regard to any of the political party, may be Congress, C.P.I. B.J.P. or any other party would not be asked in a manner so that it may have any effect on the ensuing elections. Any publicity could be given by any person in favour or against any party on the basis of such statement and, therefore, it is expected that the Commission would take care of this fact as well. With these observations, the second point also fails. (13). The third point raised by the learned counsel for the petitioner that sufficient information has already been made available by the State Police and it is submitted that besides the Civil Police, R.A.C. and Intelligence Bureau of the State are the 3 Wings of the Police, which have already provided sufficient material and there is no necessity for further demanding any information from the Union of India. I am not persuaded to accept this contention, inasmuch as if the Commission feel that the enquiry which has been entrusted to it could be completed by calling any record from the Union of India or summoning of any of its Officer, it has jurisdiction in accordance with the provisions of Section 4 of the Act of 1952. The sufficiency or insufficiency is to be adjudged by the Commission and not by this court. (14). A prayer has also been made that the documents which are not relevant should be returned to the Union of India and an application has already been made to the Commission in this regard. The Commission may pass appropriate order on the application which has been submitted and since no orders have been passed in the order dated 17.9.1993 in this regard, no interference can be made by this court. (15). From the proceedings of the Commission, it appears that the matter has already been delayed sufficiently. The Commission may pass appropriate order on the application which has been submitted and since no orders have been passed in the order dated 17.9.1993 in this regard, no interference can be made by this court. (15). From the proceedings of the Commission, it appears that the matter has already been delayed sufficiently. A prayer has been made by the learned counsel that copy of this order would not be available today and, therefore, the presence of Shri K. Ram, Central Intelligence Officer may be dispensed with. (16). A copy of the order sheet is being provided to the learned counsel right now and on the basis of that he would move an application before the Commission for short adjournment, according to the convenience of the Commission. (17). With the above observations the writ petition stands disposed of.