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2018 DIGILAW 1300 (GAU)

Prafulla Kumar Mahanta v. State of Assam

2018-09-03

UJJAL BHUYAN

body2018
ORDER : UJJAL BHUYAN, J. 1. Heard Mr. R. Baruah, learned counsel for the petitioner and Mr. D. Mazumdar, learned Addl. Advocate General, Assam for the respondents. 2. By filing this petition under Article 226 of the Constitution of India, petitioner has challenged legality and validity of the constitution of Justice (Retd.) K.N. Saikia Commission of Inquiry vide notifications dated 22.08.2005 and 03.09.2005. 3. Altogether 4 reliefs have been sought for by the petitioner to the above effect. 4. This Court while admitting the writ petition on 14.03.2008 had declined to issue Rule on prayer No. 1 on the ground that petitioner by participating in the Justice (Retd.) K.N. Saikia Commission of Inquiry had submitted himself to its jurisdiction and therefore, he could not have challenged constitution of the Commission. However, by a subsequent order dated 08.08.2017, Court took the view that the writ petition has to be heard in relation to all the prayers and clarified that the Rule issued on 14.03.2008 would cover all the prayers made in the writ petition. 5. Petitioner is presently a Member of Assam Legislative Assembly and a former Chief Minister of the State. He has assailed constitution of the Justice (Retd.) K.N. Saikia Commission of Inquiry by contending that constitution of the Commission was violative of Section 3 of the Commissions of Inquiry Act, 1952. He has also contended that no opinion was formed by the State of Assam regarding any definite matter of public importance while issuing the second notification dated 03.09.2005 whereby and where under the said Commission was requested to enquire into any other incident of killing under similar circumstances which occurred during the period from January, 1998 to 2001. Petitioner has also questioned the procedure adopted by the Commission by first calling upon the petitioner to depose before the Commission which it is contended is in violation of Section 8B of the Commissions of Inquiry Act, 1952. In addition, petitioner has referred to certain adverse findings recorded by the Commission indirectly indicting the petitioner which it is contended are not supported by any concrete evidence, thereby maligning the reputation of the petitioner in the Society. This has violated his precious right to reputation which is an integral part of Article 21 of the Constitution, it is contended. 6. This has violated his precious right to reputation which is an integral part of Article 21 of the Constitution, it is contended. 6. It is in the above context that prayer has been made to declare constitution of the Justice (Retd.) K.N. Saikia Commission of Inquiry as illegal and null and void. 7. To appreciate the challenge made in the writ petition it would be apposite to briefly narrate the relevant facts leading to filing of the writ petition. 8. Secretary to the Govt. of Assam in the Home & Political (A) Department had issued notification dated 01.12.1999 stating that Governor of Assam was of the opinion that it was necessary to appoint a Commission of Inquiry under the Commissions of Inquiry Act, 1952 to make an inquiry into the alleged incident of kidnapping and attempt to murder Shri Ananta Kalita, a resident of Hajo in the district of Kamrup by a group of secret killers as reported in the newspapers on 20.9.1999. It was also stated that the said incident of kidnapping and attempt to murder Shri Ananta Kalita had assumed public importance. Therefore, in exercise of powers conferred under Section 3 of the Commissions of Inquiry Act, 1952 (1952 Act), Governor of Assam appointed a Commission of Inquiry entrusting Justice (Retd.) Safiqul Hoque, former Chief Justice (Acting) of Gauhati High Court to enquire into the aforesaid incident of kidnapping and attempt to murder Shri Ananta Kalita mentioning therein the terms of reference of the Commission. 9. It appears that Govt. of Assam in the Political (A) Department had terminated Justice (Retd.) Safiqul Hoque Commission of Inquiry. This was made clear by the Government notification dated 21.12.2002 which clarified that the date of termination of the Justice (Retd.) Sofiqul Hoque Commission of Inquiry into the alleged incident of kidnapping and attempt to murder of Shri Ananta Kalita should be treated as 22.07.2002 instead of 30.08.2001. It further appears that before such termination of Justice (Retd.) Safiqul Hoque Commission of Inquiry, Govt. of Assam in the Political (A) Department issued notification dated 03.11.2001 constituting the Justice (Retd.) Meera Sarma Commission of Inquiry to enquire into killings of 11 persons as mentioned in the said notification. It was stated that during the last few years there were incidents of death of innocent persons causing outrage and resentment amongst the public leading to vociferous public demand for conduct of impartial inquiry. It was stated that during the last few years there were incidents of death of innocent persons causing outrage and resentment amongst the public leading to vociferous public demand for conduct of impartial inquiry. Therefore, the State Government decided to conduct impartial probe into such incidents of killing which was a definite matter of public importance. Hence, Justice (Retd.) Meera Sarma Commission of Inquiry was appointed under Section 3 of the 1952 Act to enquire into the killings of 11 persons relatable to 11 police cases. The terms of reference of the said Commission were clearly mentioned in the said notification. 10. It appears that Justice (Retd.) Meera Sarma submitted her resignation and did not want to continue with the Commission of Inquiry on personal grounds. In such circumstances, exercising power under Section 3 of the 1952 Act, Government of Assam appointed Justice (Retd.) J.N. Sarma Commission of Inquiry vide the notification dated 04.11.2003 to continue with the Commission of Inquiry earlier headed by Justice (Retd.) Meera Sarma. The mandate of this Commission of Inquiry was to enquire into the killings of 11 persons relatable to 11 different police cases. The terms of the inquiry were also specifically mentioned in the notification dated 04.11.2003 wherein it was stated that the Commission of Inquiry would enquire into any other matter related to or relevant for the purpose of the present inquiry. It was mentioned in the notification that the Commission would submit its report within a period of 6 (six) months from the date of notification. Relevant portion of the notification dated 04.11.2003 is extracted hereunder:- "Notification Dated Dispur, the 4th November, 2003 PLA. 447/2001/39. In exercise of the powers conferred under Section 3 of the Commissions of Inquiry Act, 1952, the Governor of Assam is pleased to appoint Shri J.N. Sarma, Hon'ble Justice (Retd.) to head the Commission of Inquiry earlier headed by Hon'ble Justice (Retd.) Mrs. Meera Sarma who has been relieved of the charge on her own volition on personal grounds. The Commission of Inquiry headed by Hon'ble Justice Shri J.N. Sarma shall enquire into the killings of the following persons: 1. Phuleswari Das Barama PS Case No. 76/98 Date of occurrence 12.08.1998 2. Dr. Dharani Das Barama PS Case No. 76/98 Date of occurrence 12.08.1998 3. Smt. Rupjyoti Das Barama PS Case No. 76/98 Date of occurrence 12.08.1998 4. The Commission of Inquiry headed by Hon'ble Justice Shri J.N. Sarma shall enquire into the killings of the following persons: 1. Phuleswari Das Barama PS Case No. 76/98 Date of occurrence 12.08.1998 2. Dr. Dharani Das Barama PS Case No. 76/98 Date of occurrence 12.08.1998 3. Smt. Rupjyoti Das Barama PS Case No. 76/98 Date of occurrence 12.08.1998 4. Smt.Latika Das Barama PS Case No. 76/98 Date of occurrence 12.08.1998 5. Dijen Haloi Nalbri PS Case No. 5/2000 Date of occurrence 04.01.2001 6. Phulen Haloi Nalbari PS Case No. 5/2000 Date of occurrence 04.01.2001 7. Dipak Choudhury Belsor PS Case No.132/2000 Date of occurrence 07.12.2000 8. Jyotish sarma Geeta Nagar PS Case No.1/2001 Date of occurrence 03.01.2001 9. Dimba Rajkhowar Dibrugarh PS Case No.387/98 Date of occurrence 11.08.1998 10. Rajesh Misra Tezpur PS Case No.541/1999 Date of occurrence 28.09.1999 11. Rajib Koch Tezpur PS Case No.541/1999 Date of occurrence 28.09.1999 The Commission of Inquiry shall inquire into the following: (a) Circumstances in each case leading to the killing of above mentioned victims (b) Identity of the killers and accomplice s if any (c) To find out whether there was any conspiracy in targeting the victims and the motive behind such killings (d) Pinpoint responsibility who were involved directly or indirectly in the commission of such killings (e) To make recommendations to prevent recurrence of such killings (f) Any other matter related to or relevant to the purpose of this inquiry. The Commission will exercise the functions and powers as provided for in the Commissions of Inquiry Act, 1952. The proceedings of the Commission of Inquiry shall be without prejudice to any other inquiries/investigations into the said killings. The commission will submit its report within a period of 6 (six) months from the date of this Notification" 11. According to the petitioner, he could come to know from newspaper reports particularly from the report which appeared in the daily newspaper "Dainik Axom" on 17.08.2005 that the Government had rejected the report submitted by the Justice (Retd.) J.N. Sarma Commission of Inquiry. 12. Govt. According to the petitioner, he could come to know from newspaper reports particularly from the report which appeared in the daily newspaper "Dainik Axom" on 17.08.2005 that the Government had rejected the report submitted by the Justice (Retd.) J.N. Sarma Commission of Inquiry. 12. Govt. of Assam in the Home and Political (A) Department thereafter issued notification dated 22.08.2005 in exercise of power conferred under Section 3 of the 1952 Act appointing Justice (Retd.) K.N. Saikia, a former Judge of the Supreme Court of India to inquire into the killings of 11 persons which was the subject matter of enquiry of the Justice (Retd.) Meera Sarma Commission of Inquiry and later on by the Justice (Retd.) J.N. Sarma Commission of Inquiry. In addition to the terms of reference, it was mentioned that the Commission would submit its report within 6 (six) months of inquiry. Relevant portion of the notification dated 22.08.2005 is extracted hereunder:- "Notification Dated Dispur, The 22nd August, 2005 No. PLA-331/2005/1 dtd. 22.08.2005: In exercise of the powers conferred under Section 3 of the Commissions of Inquiry Act, 1952, the Governor of Assam is pleased to appoint Shri K.N. Saikia, Hon'ble Justice (Retd.) of Supreme Court of India. The Commission of Inquiry shall enquire into the killings of the following persons: 1. Phuleswari Das Barama PS Case No. 76/1998 Date of occurrence 12.08.1998 2. Dr. Dharani Das Barama PS Case No. 76/1998 Date of occurrence 12.08.1998 3. Smt. Rupjyoti Das Barama PS Case No. 76/1998 Date of occurrence 12.08.1998 4. Smt.Latika Das Barama PS Case No. 76/1998 Date of occurrence 12.08.1998 5. Dijen Haloi Nalbri PS Case No. 5/2000 Date of occurrence 04.01.2001 6. Phulen Haloi Nalbari PS Case No. 5/2000 Date of occurrence 04.01.2001 7. Dipak Choudhury Belsor PS Case No.132/2000 Date of occurrence 07.12.2000 8. Jyotish sarma Geeta Nagar PS Case No.1/2001 Date of occurrence 03.01.2001 9. Dimba Rajkhowar Dibrugarh PS Case No.387/1998 Date of occurrence 11.08.1998 10. Rajesh Misra Tezpur PS Case No.541/1999 Date of occurrence 28.09.1999 11. Rajib Koch Tezpur PS Case No.541/1999 Date of occurrence 28.09.1999 The Commission of Inquiry shall inquire into the following:- (a) Circumstances in each case leading to the killing of above mentioned victims. (b) Identity of the killers and accomplice s, if any. (c) To find out whether there was any conspiracy in targeting the victims and the motive behind such killings. (b) Identity of the killers and accomplice s, if any. (c) To find out whether there was any conspiracy in targeting the victims and the motive behind such killings. (d) Pinpoint responsibility on persons who were involved directly or indirectly in the commission of such killings. (e) To make recommendations to prevent recurrence of such killings. (f) Any other matter related to or relevant to the purpose of this inquiry. The Commission will exercise the functions and powers as provided for in the Commissions of Inquiry Act, 1952. The proceedings of the Commission of Inquiry shall be without prejudice to any other inquiry s/investigations into the said killings. The commission will submit its report within a period of 6 (six) months from the date of issue of this Notification." 13. This notification was immediately followed by another subsequent notification dated 03.09.2005 whereby and where under Governor of Assam was pleased to order that the Commission of Inquiry headed by Justice (Retd.) K.N. Saikia would inquire into any other incidents of killing under similar circumstances which occurred during the period from January, 1998 to 2001. It was further stated that Justice (Retd.) K.N. Saikia Commission shall also inquire into the alleged incident of kidnapping and attempt to murder of Sri Ananta Kalita of Hajo under the same terms and conditions as per the inquiry under reference i.e. the notification dated 03.09.2005, which is extracted hereunder:- "Notification Dated Dispur, the 3rd September, 2005 No. PLA. 331/2005/2: In continuation of the earlier Notification No. PLA. 331/2005/1 dated 22.08.2005, the Governor of Assam is pleased to order that the Commission of Inquiry headed by Shri K.N. Saikia, Hon'ble Justice (Retd.) of Supreme Court of India shall enquire into any other incidents of killings under similar circumstances which occurred during the period from January, 1998 to 2001. It shall also enquire into the alleged attempted murder of Shri Ananta Kalita of Hajo under the same terms and conditions as stipulated in the notification under reference." 14. These two notifications i.e. notifications dated 22.08.2005 and 03.09.2005 have been impugned in the present proceeding. 15. It appears that Justice (Retd.) K.N. Saikia Commission of Inquiry had commenced its inquiry proceeding in the course of which it issued notices to the petitioner under Section 8B of the 1952 Act. Copies of such notices have been annexed to the writ petition. 15. It appears that Justice (Retd.) K.N. Saikia Commission of Inquiry had commenced its inquiry proceeding in the course of which it issued notices to the petitioner under Section 8B of the 1952 Act. Copies of such notices have been annexed to the writ petition. Notice dated 19.01.2006 pertains to the case of attempted murder of Sri Ananta Kalita. It was stated that Commission was of the view that petitioner was one of the persons likely to be prejudicially affected and therefore the notice under Section 8B of the 1952 Act was issued. Similar notices were issued to the petitioner regarding killing of Dimba Rajkonwar of Dibrugarh, killing of Rajesh Misra and Rajib Koch of Tezpur, killing of Dipak Choudhury of Belsor, killing of Phuleswari Das, Dr. Dharani Das, Smti. Rupjyoti Das and Smti. Latika Das of Barama etc. Petitioner objected to issuance of such notices to him at the first instance. Petitioner submitted applications before the Justice (Retd.) K.N. Saikia Commission of Inquiry pointing out that petitioner did not get chance to cross-examine the concerned witness in each of the cases where notice was issued to him under Section 8B. 16. With such grievance petitioner had approached this Court by filing WP(C) No. 5969/2006 (Prafulla Kr. Mahanta Vs. State of Assam). During the pendency of the said writ petition, petitioner filed an interlocutory application being Misc. Case No. 3980/2007 seeking a restraint order to restrain the respondents from laying down the report of the Justice (Retd.) K.N. Saikia Commission before the Assam Legislative Assembly. It was contended that without laying down the report of the Justice (Retd.) J.N. Sarma Commission before the Assam Legislative Assembly, State could not have constituted the Justice (Retd.) K.N. Saikia Commission of Inquiry. When the Misc. Case was taken up for consideration, the then learned Advocate General for the State of Assam Shri A.K. Phukan gave an undertaking before the Court that the Government would place both the reports of Justice (Retd.) J.N. Sarma Commission as well as Justice (Retd.) K.N. Saikia Commission simultaneously before the Assam Legislative Assembly. In view of such undertaking given by the learned Advocate General, both the Misc. In view of such undertaking given by the learned Advocate General, both the Misc. Case as well as the writ petition were disposed of by this Court vide the order dated 13.11.2007 while giving liberty to the petitioner to pursue his remedy if he was so advised after the contents of the reports were made public and if the petitioner perceived any injury from such reports. 17. In the meanwhile, Justice (Retd.) K.N. Saikia Commission submitted its report in four volumes and it was placed before the Assam Legislative Assembly on 15.11.2007 alongwith the report of the Justice (Retd.) J.N. Sarma Commission of Inquiry. 18. According to the petitioner, on the basis of the second notification dated 3.9.05, Justice (Retd.) K.N. Saikia Commission of Inquiry had enquired as many as 13 cases of killings and kidnappings in addition to the 11 cases referred to it by the first notification dated 22.08.2005 along with the case of Shri Ananta Kalita. It is stated that though the report of the Justice (Retd.) K.N. Saikia Commission of Inquiry did not specifically pinpoint the persons responsible for such killings, nonetheless at various stages of the report it had referred to or pointed out towards involvement of the Home Department, Govt. of Assam. While the petitioner was the Chief Minister at that point of time, he was also Incharge of the Home Department. Casting aspersions on the Home Department was an indirect indictment of the petitioner. Such implication of the Home Department therefore cast a shadow on the fair name of the petitioner which was without any actionable evidence. It is with such grievance that the present writ petition came to be filed seeking the relief as indicated above. 19. Sri Ranjit Kr. Mahanta, who was serving as Joint Secretary to the Govt. of Assam, Home and Political Department, filed an affidavit on 15.03.2016 on behalf of respondent No-. 1. In paragraph 8 of the affidavit, it is stated that Govt. of Assam had constituted a Commission of Inquiry under the 1952 Act with Justice (Retd.) Meera Sarma on 3.11.01. Upon resignation of Justice (Retd.) Meera Sarma on personal ground, Justice (Retd.) J.N. Sarma was appointed to head the Commission of Inquiry vide notification dated 4.11.2003. 1. In paragraph 8 of the affidavit, it is stated that Govt. of Assam had constituted a Commission of Inquiry under the 1952 Act with Justice (Retd.) Meera Sarma on 3.11.01. Upon resignation of Justice (Retd.) Meera Sarma on personal ground, Justice (Retd.) J.N. Sarma was appointed to head the Commission of Inquiry vide notification dated 4.11.2003. He stated that the report of Justice (Retd.) J.N. Sarma was an interim report which was not accepted by the Government and thereafter the Commission of Inquiry headed by Justice (Retd.) K.N. Saikia was appointed on 22.08.2005. It is asserted that the Commission of Inquiry under Justice (Retd.) K.N. Saikia was not a reconstitution but a fresh constitution. In the subsequent paragraphs of the said affidavit it has been stated that due to certain discrepancies in the interim report of Justice (Retd.) J.N. Sarma Commission from the very beginning, Government decided not to accept the report and in the meanwhile the term of the Commission of Inquiry headed by Justice (Retd.) J.N. Sarma ceased to exist. Admittedly, the report submitted by Justice (Retd.) J.N. Sarma was an interim report and not a complete report. Referring to the various Inquiry Commissions constituted in this regard, it is stated that constitution of each of the Commissions were completely as per law under the 1952 Act as the matter was of definite public importance. It is further stated that Justice (Retd.) K.N. Saikia Commission had submitted its inquiry report in four parts on 21.8.2006, 7.12.2006, 15.03.2007 and 07.08.2007. Government placed all the reports before the Assam Legislative Assembly on 15.11.2007. Contending that challenge made by the petitioner to the constitution of Justice (Retd.) K.N. Saikia Commission is devoid of any substance, respondent No. 1 seeks dismissal of the writ petition. 20. An affidavit has also been filed by Sri Kanak Ch. Pathak on 15.03.2016 who was then serving as Deputy Secretary to the Govt. of Assam in the Chief Minister's Secretariat. In the said affidavit, it is stated that the objective of Justice (Retd.) K.N. Saikia Commission of Inquiry was to find out the truth as to how those killings had occurred and who were responsible. The objective was not to target any individual or personality. 21. An affidavit-in-opposition has also been filed by Sri Gajen Baruah on 03.02.2016 who was then serving as Officer on Special Duty-cum-Joint Secretary to the Assam Legislative Assembly Secretariat. The objective was not to target any individual or personality. 21. An affidavit-in-opposition has also been filed by Sri Gajen Baruah on 03.02.2016 who was then serving as Officer on Special Duty-cum-Joint Secretary to the Assam Legislative Assembly Secretariat. However, this affidavit is silent regarding the challenge made by the petitioner. 22. Mr. R. Baruah, learned counsel appearing for the petitioner has elaborately argued on Section 3 of the 1952 Act and submits that Section 3(3) only visualizes filling up of vacancy in a Commission. The said provision cannot be invoked for reconstitution of a Commission of Inquiry or replacement of a member. Referring to the second notification dated 03.09.2005, Mr. Baruah submits that the said notification is ex facie invalid inasmuch as no finding was recorded by the State Government pointing out any definite matter of public importance for the Commission of Inquiry to inquire into. Rather that power was delegated to the Commission. This led to a roving and fishing inquiry. A Commission of Inquiry appointed under Section 3 cannot on its own inquire into any matter unless the matter is referred to it by the appropriate Government. He has also found fault with the procedure adopted by the Commission by contending that it was in violation of Section 8B of the 1952 Act. Petitioner was called upon to give evidence first which is untenable. That apart, Mr. Baruah has referred to certain observations made by the Commission which indirectly indicted the petitioner without explicitly mentioning him together with the evidence. This he contends has grossly tarnished the reputation of the petitioner thus violating his right to reputation affecting his public standing. In support of his submissions, Mr. Baruah has placed reliance on the following decisions:- 1. AIR 1993 SC 825 , State of Madhya Pradesh Vs. Ajay Singh; 2. AIR 1993 SC 1239 , State of Madhya Pradesh Vs. Shri Arjun Singh; 3. (1989) 1 SCC 494 , Smt. Kiran Bedi Vs. Committee of Inquiry; 4. (2003) 8 SCC 361 , State of Bihar Vs. Lal Krishna Advani. 23. Responding to the submissions of Mr. Barua, Mr. D. Mazumdar, learned Addl. Advocate General submits that constitution of Justice (Retd.) K.N. Saikia Commission of Inquiry was a completely new and a fresh appointment and it cannot be construed to be a case of substitution or replacement. (2003) 8 SCC 361 , State of Bihar Vs. Lal Krishna Advani. 23. Responding to the submissions of Mr. Barua, Mr. D. Mazumdar, learned Addl. Advocate General submits that constitution of Justice (Retd.) K.N. Saikia Commission of Inquiry was a completely new and a fresh appointment and it cannot be construed to be a case of substitution or replacement. There is nothing in Section 3 of the 1952 Act preventing the State from appointing a fresh Commission of Inquiry because the objective of a commission of inquiry is to arrive at the truth. It is for the Government to appoint such Commissions so that the truth is known. No prejudice can be caused to any person because proceedings before a Commission of Inquiry is not adversarial and there is no lis between the parties to be decided by a Commission of Inquiry. Regarding challenge to the second notification, Mr. Mazumdar submits that the second notification dated 03.09.2005 is a continuation of the first notification dated 22.08.2005 and therefore it should not be construed in isolation. Viewed from that perspective there is no infirmity in the second notification dated 03.09.2005. Regarding challenge to the procedure adopted by the Commission being in violation of Section 8B, Mr. Mazumdar submits that a Commission of Inquiry is empowered to lay down its own procedure while conducting its day to day business. Entire objective is to find out the truth. Therefore, functioning of a Commission of Inquiry should not be constricted by applying strict rules of evidence and other technicalities. In support of his submissions, Mr. Mazumdar has placed reliance on the following decisions:- 1. AIR 1967 SC 122 , State of Jammu & Kashmir Vs. Bakshi Ghulam Mohammad; 2. AIR 1993 SC 825 , State of Madhya Pradesh Vs. Ajay Singh; and 3. AIR 2001 SC 2631 , P. Janardhana Reddy Vs. State of Andhra Pradesh. 24. Submissions made by learned counsel for the parties have been carefully considered. Also perused the materials on record. 25. Bakshi Ghulam Mohammad; 2. AIR 1993 SC 825 , State of Madhya Pradesh Vs. Ajay Singh; and 3. AIR 2001 SC 2631 , P. Janardhana Reddy Vs. State of Andhra Pradesh. 24. Submissions made by learned counsel for the parties have been carefully considered. Also perused the materials on record. 25. As noticed above primary challenge in the writ petition is to the legality and correctness of the two notifications dated 22.8.05 constituting Justice (Retd.) K.N. Saikia Commission of Inquiry to inquire into 11 cases of killings and the second notification dated 03.09.2005 enlarging the scope of the Justice (Retd.) K.N. Saikia Commission of Inquiry to inquire into other incidents of killings under similar circumstances during the period from January, 1998 to 2001 and also bringing within its fold the case of Shri Ananta Kalita. 26. The two notifications have been extracted above in detail. 27. Before examining the challenge made, it would be appropriate to refer to some of the relevant provisions of the 1952 Act. This Act has been enacted by the Parliament to provide for appointment of Commission of Inquiry and for vesting such Commission with certain powers. As per Section 2 (a) of the 1952 Act, appropriate Government means 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 means 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 HI to the Seventh Schedule to the Constitution. Section 3 is the provision dealing with appointment of a Commission. This provision has undergone certain amendments over the years; however the provision as it stands today is quoted hereunder since this provision has got a material bearing in the present proceeding. Section 3 of 1952 Act reads as under:- "3. Section 3 is the provision dealing with appointment of a Commission. This provision has undergone certain amendments over the years; however the provision as it stands today is quoted hereunder since this provision has got a material bearing in the present proceeding. Section 3 of 1952 Act reads as under:- "3. Appointment of Commission.--(1) Save as otherwise provided in the Lokpal and Lokayuktas Act, 2013, 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 each House of Parliament or, as the case may be, the Legislature 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:- Provided that where any such Commission has been appointed to inquire into any matter: (a) by the Central Government, no State Government shall, except with the approval of the Central Government, appoint another Commission to inquire into the same matter for so long as the Commission appointed by the Central Government is functioning; (b) by a State Government, the Central Government shall not appoint another Commission to inquire into the same matter for so long as the Commission appointed by the State Government is functioning, unless the Central Government is of opinion that the scope of the inquiry should be extended to two or more States. (2) The Commission may consist of one or more members appointed by the appropriate Government, and where the Commission consists of more than one member, one of them may be appointed as the Chairman thereof. (3) The appropriate Government may, at any stage of an inquiry by the Commission, fill any vacancy which may have arisen in the office of a member of the Commission (whether consisting of one or more than one member). (3) The appropriate Government may, at any stage of an inquiry by the Commission, fill any vacancy which may have arisen in the office of a member of the Commission (whether consisting of one or more than one member). (4) The appropriate Government shall cause to be laid before each House of Parliament or, as the case may be, the Legislature of the State, the report, if any, of the Commission on the inquiry made by the Commission under sub-section (1) together with a memorandum of the action taken thereon, within a period of six months of the submission of the report by the Commission to the appropriate Government." 28. A careful analysis of Sub-section (1) of Section 3 would reveal that the appropriate Government may if it is of opinion that it is necessary so to do 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 where after the Commission so appointed shall make the inquiry and perform the functions accordingly. An exception to the above would be a situation where a resolution is passed by the Parliament or by the Legislature of the State in which case the appropriate Government will appoint the Commission on the basis of such resolution. 29. Pausing for a moment, what is of importance to note is that before appointing a Commission of Inquiry, the appropriate Government must form an opinion that it is necessary to appoint a Commission of Inquiry for making an inquiry into any definite matter of public importance. In other words, before appointing a Commission of inquiry, the appropriate Government must arrive at two conclusions, viz, that there is a definite matter of public importance and that it must be enquired into. Upon fulfillment of the above two conditions, the appropriate Government must further form the opinion that it is necessary to appoint a Commission of Inquiry to enquire into such matter. Therefore, this formation of opinion involves a two tier process. The first tier comprises of there being a definite matter of public importance which must be enquired into and thereafter the second tier relates to the necessity to appoint a Commission of Inquiry to conduct such enquiry. Therefore, this formation of opinion involves a two tier process. The first tier comprises of there being a definite matter of public importance which must be enquired into and thereafter the second tier relates to the necessity to appoint a Commission of Inquiry to conduct such enquiry. Such opinion which is arrived at by the appropriate Government must be definite and cannot be vague. It has to be a definite matter and that definite matter must be of public importance. Thereafter, the appropriate Government has also to form the opinion that such matter needs to be enquired into and that it is necessary to appoint a Commission of Inquiry to conduct such inquiry. Once such opinion is formed, the appropriate Government may issue a notification publishing the same in the official gazette appointing a Commission of Inquiry specifying therein the terms of reference. 29.1. The appropriate Government must apply its mind to the above factors to form an opinion before appointing any Commission of Inquiry. In Arjun Singh (supra), Supreme Court held thus:- "8. .........................Such formation of opinion depends on the subjective satisfaction of an appropriate Government but should be based on an objective or real material and not merely on some vague allegations or hearsay evidence or to make fishing enquiry.............." 30. As per Section 3 (2), a Commission of Inquiry may consist of one or more members. If the number of members is more than one, one of them may be appointed as the Chairman. 31. This leads to Sub-section (3) of Section 3. Sub-section (3) empowers the appropriate Government to fill up any vacancy which may have arisen in the office of a member of the Commission, whether it is a one member or more than one member or a multiple member Commission at any stage of the inquiry. Thus Sub-section (3) visualizes a situation where the office of a member of the Commission falls vacant, which can be due to resignation or on account of health conditions or on account of death etc. In such a situation the vacancy can be filled up by the appropriate Government by appointing another member. 31.1. Thus Sub-section (3) visualizes a situation where the office of a member of the Commission falls vacant, which can be due to resignation or on account of health conditions or on account of death etc. In such a situation the vacancy can be filled up by the appropriate Government by appointing another member. 31.1. Examining the scheme of Sub-sections (1), (2) and (3) of Section 3, Supreme Court in Ajay Singh (supra) held that there is nothing in any of these provisions to suggest that the Government has the power to reconstitute a Commission after its appointment by replacing the existing member by another person. It was held thus: "24. In our opinion, the power of the Government to appoint a Commission of Inquiry and name the person or persons constituting it is in Sub-section (1) of Section 3 and is not an exercise divided between Sub-sections (1) and (2) of Section 3 as suggested by Shri Shanti Bhushan. Sub-section (2) merely confers the power in the Government to appoint a Commission consisting of one or more members and provides that if there be more than one member of the Commission, then one of them may be appointed Chairman of the Commission. It is not as if Sub-section (1) deals with mere appointment of a Commission of Inquiry without clothing it with its personnel and the power to appoint the member/members thereof is to be found only in Sub-section (2). That apart, there is nothing in any of these provisions to suggest that the Government has the power to re-Constitute the Commission after its appointment by replacing the existing sole member with another person. Sub-section (3) deals expressly with the Government's power to fill any vacancy which may have arisen since the constitution of the Commission. The question of replacement of a member appointed initially is obviously beyond its scope." 32. As per Sub-section (4), once the report is submitted by the Commission of Inquiry, the appropriate Government shall cause the said report to be laid before the Parliament or the Legislature of the State, as the case may be, together with a memorandum of action taken thereon within a period of 6 (six) months of submission of the report by the Commission to the appropriate Government. 32.1. 32.1. A careful analysis of Sub-section (4) of Section 3 would indicate that once a report is submitted by the Commission of Inquiry, the same has to be placed by the appropriate Government either before the Parliament or before the Legislature of the State as the case may be, together with a memorandum of action taken thereon within a period of 6 months from the submission of the report by the Commission to the appropriate Government. 33. Sections 4 and 5 deal with powers of the Commission while conducting an inquiry. 34. Section 7 of the 1952 Act is relevant and the same is quoted hereunder:- "7. Commission to cease to exist when so notified.-- (1) The appropriate Government may, by notification in the Official Gazette, declare that- (a) a Commission (other than a Commission appointed in pursuance of a resolution passed by each House of Parliament or, as the case may be, the Legislature of the State shall cease to exist, if it is of opinion that the continued existence of the Commission is unnecessary; (b) a Commission appointed in pursuance of a resolution passed by each House of Parliament or, as the case may be, the Legislature of the State shall cease to exist if a resolution for the discontinuance of the Commission is passed by each House of Parliament or, as the case may be, the Legislature of the State. (2) Every notification issued under sub-section (1) shall specify the date from which the Commission shall cease to exist and on the issue of such notification, the Commission shall cease to exist with effect from the date specified therein." 34.1. Section 7 says that the appropriate Government may by notification in the official gazette declare that a Commission shall cease to exist if it is of opinion that continued existence of the Commission is unnecessary. If the Commission is appointed in pursuance of a resolution passed by the Parliament or by the Legislature of the State, then it will cease to exist if a resolution for discontinuation of the Commission is passed by the Parliament or by the Legislature of the State. Sub-section (2) specifically provides that every notification so issued should specify the date from which the Commission shall cease to exist and on the issue of such notification the Commission shall cease to exist with effect from the date specified therein. Sub-section (2) specifically provides that every notification so issued should specify the date from which the Commission shall cease to exist and on the issue of such notification the Commission shall cease to exist with effect from the date specified therein. Therefore, what Section 7 visualizes is that once a Commission of Inquiry comes into existence, its cessation has to be declared by the appropriate Government by issuing a notification in the official gazette. But before such declaration, the appropriate Government must form an opinion that continued existence of the Commission is unnecessary. Thus, unless a Section 7 notification is issued, there is no termination or cessation of any Commission of Inquiry appointed under Section 3(1). 34.2. This position is fortified by the view taken by the Supreme Court in the case of Ajay Singh (supra). It was held thus:- "26. In this context, reference to Section 7 of the Commissions of Inquiry Act, 1952 is also apt. This provision lays down that the Commission would cease to exist when the appropriate Government by notification declares that 'the continued existence of the Commission is unnecessary'. Such a notification issued under Section 7 in the event of the continued existence of the Commission becoming unnecessary has the effect of rescinding the notification issued under Section 3 of the Act constituting the Commission. The enactment, therefore, also provides in Section 7 the only situation in which the Government can rescind the notification issued under Section 3 constituting the Commission. ..........................................................." 35. Section 8B provides that if at any stage of the inquiry the Commission considers it necessary to inquire into the conduct of any person or is of opinion that reputation of any person is likely to be prejudicially affected by the inquiry, the Commission shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence. Such a person would also have the right of cross-examination and representation by a legal practitioner as per Section 8C of the 1952 Act. 36. Having noticed and discussed the above, notification dated 04.11.2003 may now be adverted to. Such a person would also have the right of cross-examination and representation by a legal practitioner as per Section 8C of the 1952 Act. 36. Having noticed and discussed the above, notification dated 04.11.2003 may now be adverted to. This was the notification whereby Justice (Retd.) Meera Sarma was relieved from the Commission on personal grounds and Justice (Retd.) Sri J.N. Sarma was appointed in her place to inquire into the killings of 11 persons mentioned therein by invoking power under Section 3 of the 1952 Act. This notification in my opinion is in conformation to the requirement of Sub-section (3) of Section 3 on the 1952 Act. A vacancy had arisen in the Commission on account of voluntary resignation on personal grounds of the member and to fill up the vacancy the appropriate Government i.e. the State Government in this case, acted within its right in appointing Justice (Retd.) J.N. Sarma to continue with the Commission of Inquiry. Thus, Justice (Retd.) J.N. Sarma Commission of Inquiry was validly constituted vide the notification dated 04.11.2003. 37. From the pleadings as well as from the documents filed it is not clearly discernible as to when Justice (Retd.) J.N. Sarma had submitted his report though in the affidavit of respondent No. 1, it is stated that the report submitted by Justice (Retd.) J.N. Sarma was an interim report which was not accepted by the Government and the Commission of Inquiry headed by Justice (Retd.) J.N. Sarma was discontinued where after a fresh Commission of Inquiry headed by Justice (Retd.) K.N. Saikia was constituted on 22.08.2005. From the affidavit of respondent No. 1 what is discernible is that Justice (Retd.) J.N. Sarma Commission had submitted a report which was treated as an interim report by the State Government. An interim report by its very nature is not a final report. This would mean that Justice (Retd.) J.N. Sarma Commission had not completed the task assigned to it by submitting the full and complete report because its report was construed to be an interim report. Natural corollary of this would be that the Justice (Retd.) J.N. Sarma Commission of Inquiry was in existence after it had submitted its interim report. This would mean that Justice (Retd.) J.N. Sarma Commission had not completed the task assigned to it by submitting the full and complete report because its report was construed to be an interim report. Natural corollary of this would be that the Justice (Retd.) J.N. Sarma Commission of Inquiry was in existence after it had submitted its interim report. Though respondent No. 1 has stated that the interim report of the Justice (Retd.) J.N. Sarma Commission was not accepted by the State Government, there is nothing on record to show non-acceptance of such report by the State Cabinet or by any competent authority. No cabinet decision or Government notification in this regard have been placed before the Court. Even otherwise, non-acceptance of the interim report would not ipso facto mean that the Justice (Retd.) J.N. Sarma Commission was terminated or had ceased to exist thereafter. On the other hand, an undertaking was given by the learned Advocate General before this Court on 13.11.07 in the proceedings of Misc. Case No. 3980/2007 arising out of WP(C) No. 5969/2006 that the interim report of Justice (Retd.) J.N. Sarma Commission would be laid before the Assam Legislative Assembly together with the report of the Justice (Retd.) K.N. Saikia Commission of Inquiry. Relevant portion of the order dated 13.11.2007 is extracted hereunder:- "In the meanwhile, basing on certain newspaper report, the petitioner apprehends that the report of Justice K.N. Saikia Commission is going to be placed before the Legislative Assembly. Hence, the present misc. application. The prayer made in the writ petition more particularly in the second paragraph of the prayer is that unless the fate and consequent result and action of Justice JN Sarma Commission is decided by the Legislative Assembly, the respondents be restrained from placing the report of the later Commission headed by Justice KN Saikia before the Legislative Assembly. During the course of hearing, learned Advocate General appearing for the State of Assam submitted that the Government undertakes to place both the reports of Justice JN Sarma Commission as well as Justice KN Saikia Commission simultaneously before the Legislative Assembly. In view of the undertaking given by the learned Advocate General, learned counsel for the petitioner agreed for the disposal of the writ petition as well as misc. case without any further orders. In view of the undertaking given by the learned Advocate General, learned counsel for the petitioner agreed for the disposal of the writ petition as well as misc. case without any further orders. However, with a prayer that the petitioner be given the liberty to pursue his remedies if he is so advised after the contents of the reports are made public and if the petitioner perceives any injury from such reports. We, therefore, dispose of the writ petition as well as the misc. case on the basis of the undertaking given by the learned Advocate General with liberty to the petitioner, as prayed for." 38. Thereafter, as per the undertaking given by the learned Advocate General, both the reports were laid before the Assam Legislative Assembly on 15.11.2007. 39. At this stage, reference may once again be made to Section 3 and Section 7 of the 1952 Act. On the question of discontinuation or cessation of a Commission of Inquiry constituted under Section 3(1) of the 1952 Act, there cannot be any implicit termination of a Commission of Inquiry. In other words there cannot be any implicit discontinuation of a Commission of Inquiry once constituted under Section 3(1) of the 1952 Act. A conjoint reading of Section 3 and Section 7 of the 1952 Act will make it abundantly clear that the appropriate Government has to issue a notification in the official gazette declaring that the particular Commission of Inquiry shall cease to exist if it is of opinion that continued existence of the Commission is unnecessary. Such notification must specify the date from which the Commission shall cease to exist and it is from the issue of such notification that the Commission shall cease to exist with effect from the specified date. Respondents have not been able to place any such notification before the Court to indicate discontinuation or cessation of the Justice (Retd.) J.N. Sarma Commission of Inquiry. Mere expiry of time stipulated in the Section 3(1) notification for submission of report by the Commission cannot be construed to mean that the Commission had ceased to exist without there being any Section 7 notification. Mere expiry of time stipulated in the Section 3(1) notification for submission of report by the Commission cannot be construed to mean that the Commission had ceased to exist without there being any Section 7 notification. Assertion of respondent No. 1 that the Justice (Retd.) J.N. Sarma Commission was discontinued is thus devoid of any legal and factual support Therefore, when the Justice (Retd.) J.N. Sarma Commission of Inquiry was still in existence and had only submitted its interim report, the State acting as the appropriate Government could not have constituted the Justice (Retd.) K.N. Saikia Commission of Inquiry to conduct enquiry on the same subject matter. This was legally impermissible having regard to the provisions contained in Sections 3 (1), 3(3) and 7 of the 1952 Act. Viewed in the above perspective, the impugned notification dated 22.08.2005 cannot be sustained in law. 40. In so far the second notification dated 03.09.2005 is concerned, though it is couched in a language suggesting that it was a continuation of the previous notification dated 22.08.2005, considering the subject matter, it cannot be said that any definite matter of public importance was referred to the Justice (Retd.) K.N. Saikia Commission of Inquiry. It has already been discussed above, sine qua non for constituting a Commission of Inquiry for the purpose of conducting an inquiry is to form an opinion that there is a definite matter of public importance which needs to be inquired into. This opinion has to be formed by the appropriate Government on a subjective satisfaction based on objective criteria and the opinion so formed must be an honest one devoid of any ambiguity. Formation of opinion as contemplated in Section 3(1) of the 1952 Act cannot be delegated by the appropriate Government to the Commission of Inquiry. 41. Keeping the above principles in mind, the second notification dated 03.09.2005 appears to be highly questionable. Justice (Retd.) K.N. Saikia Commission of Inquiry was called upon to inquire any other incidents of killings under similar circumstances which had occurred during the period from January, 1998 to 2001. Formation of opinion vis-à-vis that there is a definite matter of public importance which needs to be enquired into was delegated by the State Government to the Justice (Retd.) K.N. Saikia Commission of Inquiry. Formation of opinion vis-à-vis that there is a definite matter of public importance which needs to be enquired into was delegated by the State Government to the Justice (Retd.) K.N. Saikia Commission of Inquiry. In the considered opinion of the Court, such a reference was not only vague but did not come within the ambit of Subsection (1) of Section 3 of the 1952 Act as well. 42. Upshot of the above discussion is that both the notifications dated 22.08.2005 and 03.09.2005 are legally untenable and cannot be sustained. Both the notifications are accordingly quashed. 43. Needless to say, since the very foundation of the Justice (Retd.) K.N. Saikia Commission of Inquiry has been found to be invalid, the reports submitted by the said Commission would be of no legal consequence. In view of the conclusions reached, it is also not necessary to delve into the other issues raised by the petitioner. 44. Writ petition is accordingly allowed but without any order as to cost.