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TMI Blog1955 (11) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... he discharge of his official duties while employed as Sub-Divisional Officer at Aurangabad and they accordinly decided that an inquiry into the truth of. the various charges against him should be made under the provisions of the Public Servants (Inquiries) Act, 1850 (Act XXXVII of 1850, hereinafter referred to as the Act) and Mr. Anjani Kumar Saran who was the then Additional District and Sessions Judge, Gaya, and was thereafter the District and Sessions Judge of that place was appointed Commissioner under the Act for making the inquiry. Gaya was fixed as the venue of the inquiry and the State Government also ordered that, during the pendency of the inquiry, the respondent will remain under suspension. The Government made the appointment aforesaid after obtaining the concurrence of the High Court on its administrative side which was obtained on the condition that an extra-temporary post of Additional District and Sessions Judge was created by the Government for the period Mr. Saran was occupied with the inquiry. The appointment was made on the 2nd June 1952 and it was expected that Mr. Saran would be able to complete the inquiry during a period of three months. The respondent, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information and doing the needful. The appellant thereafter wrote the letter complained against to the Commissioner on the 26th December 1952 being D.O. No. II/3C-306/52A-11614 which ran as under:-- Dear Mr. Saran, I am desired to refer to your memo No. 8266 dated the 26th November 1952 and to say that Government are anxious not to allow Mr. Jyoti Narayan to adopt dilatory tactics and delay the progress of the inquiry against him. I am to request you to be vigilant against such tactics adopted by Mr. Narayan. Yours sincerely, (Sd.) B. N. Sinha . The Commissioner acknowledged receipt of this letter by his D.O. letter No. 244, dated the 5th January 1953 stating that he would not allow the respondent to adopt any dilatory tactics and delay the progress of the inquiry against him. On the 2nd February 1953, the respondent filed a petition before the Commissioner stating inter alia that he had not been able to engage any lawyer or counsel for want of necessary papers and copies and prayed for an adjournment of the inquiry. He also prayed for starting a contempt of Court proceeding against the appellant but the Commissioner rejected both his prayers. The order which was pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Article 134(1), (e) of the Constitution from the High Court. The Certificate was, however, limited to the question as to whether the Commissioner appointed under the Act is a Court. At the hearing before us, the appellant filed a petition for urging additional grounds which included inter alia the ground that the High Court erred in holding that the Commissioner appointed under the Act is a Court subordinate to the High Court within the meaning of the Contempt of Courts Act for the mere reason that its orders are open to be reviewed judicially in exercise of the power vested in the High Court under article 227 of the Constitution and also the ground that the High Court erred in holding that the letter complained against tended to interfere with or obstruct the course of justice and constituted contempt of Court. The learned Attorney-General for the appellant contended in the first instance that the Commissioner appointed under the Act is not a Court. He next contended that even if he is a Court, he is not a Court subordinate to the High Court within the meaning of the Contempt of Courts Act. He lastly contended that the letter complained against did not tend to interfere wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficers to apply, the remedy . Section 3 of the Indian Evidence Act (I of 1872) defines Court as including all Judges and Magistrates, and all persons, except arbitrators. legally authorised to take evidence. This definition, however, has been held to be not exhaustive but framed only for the purpose of Indian Evidence Act and is not to be extended where such an extension is not warranted. Sections 19 and 20 of the Indian Penal Code (Act XLV of 1860) define the words Court and the Court of Justice as under:- Section 19. The word Judge denotes not only every person who is officially designated. as a Judge, but also every person-who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against would be definitive, or a judgment which, if confirmed by some other authority would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment. Section 20. The words Court of Justice denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resupposes an existing dispute between two or more parties, and then involves four requisites:--([1950] S.C.R. 459) The presentation (not necessarily orally) of their case by the parties to the dispute; ((1953] S.C.R. 730.) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and, often with the assistance of argument by or on behalf of the parties on the evidence; ([1937] 2 K.B. 309, 340) if the dispute between them is a question of law, the submission of legal arguments by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law . Maqbool Hussain s case, above referred to, was followed by this Court in S. A. Venkataraman v. The Union of India and, Another([1954] S.C.R. 1150. 122) where a Constitution Bench of this Court also laid down that both finality and authoritativeness were the essential tests of a judicial pronouncement. It is clear, therefore, that in order to constitute a Court in the strict sense of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derations of public policy, and that, as a matter of public policy, wherever a body has to decide questions, and in so doing has to act judicially, it must be held that there is a judicial proceeding to which this immunity ought to attach. It seems to me that the sense in which the word judicial is used in that argument is this: it is used as meaning that the proceedings are such as ought to be conducted with the fairness and impartiality which characterize proceedings in Courts of Justice, and are proper to the functions of a judge, not that the members of the supposed body are members of a Court. Consider to what lengths the doctrine would extend, if this immunity were applied to every body which is bound to decide judicially in the sense of deciding fairly and impartially. It would apply to assessment committees, boards of guardians, to the Inns of Court when considering the conduct of one of their members, to the General Medical Council when considering questions affecting the position of a medical man, and to all arbitrators. Is it necessary, on grounds of public policy, that the doctrine of immunity should be carried as far as this? I say not. I say that there is ample prot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e army . Both these cases, the one before the Court of Appeal and the other before the House of Lords, were concerned with the extension of the principle of immunity of members of a tribunal or witnesses in judicial proceedings and the Courts logically extended the principle of immunity beyond the Courts of Justice to tribunals or bodies of persons functioning in a manner and according to procedure which was assimilated to a judicial inquiry. The extension of the (1) L.R. 8 Q.B. 255; L.R. 7 H.L. 744. immunity to such tribunals or bodies would not, however, constitute them Courts of Justice or Courts of law. The position is thus summarised in the following passage in Halsbury s Laws of England, Hailsham Edition, Volume 8, page 526:- Many bodies are not courts, although they have to decide questions, and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality, such as assessment committees, guardians committees,, the Court of referees constituted under the Unemployment Insurance Acts to decide claims made on the insurance funds, the benchers of the Inns of Court when considering the conduct of one of their membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madras or Bombay, then through the Supreme Court of Judicature thereto. When the commission has been issued to a Court, or other person or persons having power to issue such process in the exercise of their ordinary authority, they may also use all such power for the purposes of the commission . Section 9 prescribes a penalty for disobedience to process issued as aforesaid for the purpose of the commission and sections 10 to 20 prescribe the procedure to be followed in the conduct of the inquiry. It ,may be noted that this procedure is assimilated as far as possible to the conduct of a prosecution in a Criminal Court of law and the person accused is given the fullest opportunity to enter upon his defence and lead evidence in order to clear himself of the charges levelled against him. Sections 21 and 22 lay down the functions of the Commissioners in regard to the report to be made by them to the Government of their proceedings under the commission and the powers of the Government to pass final orders on such reports. These sections have an important bearing on the question before us and they enact:- Section 21.-After the close of the inquiry the commissioners shall forthwith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Special Judge, Sessions Court, Delhi, charging him with offences under sections 161 and 165 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act and upon that summons were issued by the learned Judge directing the petitioner to appear before his Court. The petitioner thereupon challenged the legality of this proceeding in a writ petition contending, that the proceedings were without jurisdiction inasmuch as they amounted to a fresh prosecution, for offences for which he had been prosecuted and punished already. While considering whether under the circumstances there had been a violation of the fundamental right of the petitioner under Article 20(2) of the Constitution, this Court, scrutinised the provisions of the Act and the position of the Commissioner appointed, thereunder. Justice Mukherjea, as he then was, delivered the judgment of the Court and observed at page 1159:- As the law stands at present, the only purpose, for which an enquiry under Act XXXVII of 1850 could be made, is to help the Government to come to a definite conclusion regarding the misbehaviour of a public servant and thus enable it to determine provisionally the punishment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the court or other authority to which the officer concerned is subordinate for further advice and after taking the opinion of the different authorities and persons, the Government has to decide finally what action it should take . The Court was no doubt concerned in that case with finding whether the inquiry before the Commissioner was tantamount to a prosecution of the petitioner. While considering the same, however, the position of the Commissioner was discussed and the conclusion to which the Court came was that he was a mere fact finding authority, that the report made by the Commissioner to the Government was merely his expression of opinion and it lacked both finality and authoritativeness which are the essential tests of a judicial pronouncement. This conclusion is sufficient to establish that the Commissioner appointed under the Act was not a Court and his report or findings were not a definitive judgment or a judicial pronouncement inasmuch as they were not binding and authoritative and lacked finality. We are also of the same opinion. Apart from the above considerations which weighed with the Court in that case, we have also the provisions of section 8 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to hold an inquiry under the Act was not a Court and in any event was not a Court subordinate to the High Court. Mr. Justice Falshaw who delivered the judgment of the Court observed at page 50 in connection with this argument: The Public Servants (Inquiries) Act itself seems clearly to indicate that a Commissioner or Commissioners appointed under the Act constitute a Court as they are given all the powers of a Court regarding the summoning of witnesses and other matters, and the only ground on which the learned counsel for the respondent could base his argument that the Commissioner does not constitute a Court was that he can give no final decision, but merely has to draw up a report giving his findings on the charge or charges against the respondent, which is to be forwarded to the Government. In my opinion, however, this fact alone is not sufficient to make the Commissioner or Commissioners any thing other than a Court and it is to be noted that the definition of Court in section 3, Evidence Act, is very wide indeed as it reads: Court includes all Judges and Magistrate and all persons, except arbitrators, legally authorised to take evidence . The learned Judges there reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of the latter Act a construction which would be any avail to the respondent before us. The ratio which was adopted by the learned Judges was quite correct but it appears that they digressed into a consideration of the provisions of the Public Servants (Inquiries) Act, 1850 in order to emphasize the character and position of the commission appointed under the Commissions of Inquiry Act, 1952 even though it was not strictly necessary for the purpose of arriving at their decision, though it must be mentioned that while discussing the nature and function of the commission they expressed themselves correctly as under:- The Commission governed by the Commissions of Inquiry Act, 1952 is appointed by the State Government for the information of its own mind , in order that it should not act, in exercise of its executive power, otherwise than in accordance with the dictates of justice equity in ordering a departmental enquiry against its officers. It is, therefore, a fact finding body meant only to instruct the mind of the Government without producing any document of a judicial nature . We are of the opinion that neither of these cases which have been relied upon by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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