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TMI Blog1989 (1) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1988 of a lawyer being apprehended by the students of St. Stephens College, University of Delhi and being handed over to the police on the accusation of committing an offence within the campus of the said College. According to the statement of case filed before the Commit- tee on behalf of the Delhi High Court Bar Association, the said lawyer was brought by the police in handcuffs for production before a Metropolitan Magistrate on 16th January, 1988. The lawyers present pro- tested against the handcuffing but their protest was ignored by the police officials. The Metropolitan Magistrate ulti- mately discharged the lawyer on the same date and also directed the Commissioner of Police to take action against the guilty police officials. In support of their demand for action against the police officials, the lawyers went on strike from 18th January 1988. In the said statement of case it was further stated that on 20th January, 1988, Smt. Kiran Bedi, Deputy Commissioner of Police, North District, Delhi, made a statement in a Press conference justifying the action of police and criticising the order of the Magistrate in discharging a thief and that in order to express their deep conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstable and a female visitor who had come to see me for her own work . We have thought it proper not to quote the actual words of threat stated in the said affidavit. According to Smt. Kiran Bedi the situation there- after outside her office was handled by the other officers present while she remained inside the office. We are not concerned with the correctness or otherwise of either of the two versions stated above and as already pointed out we have referred to them only to indicate the background in which the Committee was constituted. Having referred in brief to the circumstances which led to the appointment of the Committee we now quote the order of reference: F.No. 10/9/88-NP-II DELHI ADMINISTRATION: DELHI (HOME POLICE-II DELHI) Dated the 23rd Feb. 1988. ORDER Whereas the Administrator of the Union Territory. of Delhi is of the opinion that a judicial inquiry is neces- sary into matters of public importance mentioned below; Now therefore, the Administrator is pleased to constitute a Committee, in consultation with the Chief Justice of Delhi High Court consisting of Mr. Justice N.N. Goswami and Mr. Justice D.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3rd February, 1988 to enquire into certain incidents which took place on the 15th January, 1988. 2 1st January, 1988 and 17th February, 1988, we pass the following order now but we shall give detailed reasons in support of this order in due course. The order is as under: 1. This order is passed on the basis of the material available on record, the various steps already taken before the Committee and other peculiar features to the case. 2. The Delhi Administration has to examine first all its witnesses as required by Rule 5(5)(a) of the Commissions of Inquiry (Central) Rules, 1972 (hereinafter referred to as the Rules) framed under the Commissions of Inquiry Act, 1952 (hereinafter referred to as the Act). Even those witnesses who may have filed affidavits already may first be examined-in-chief before they are cross-examined, since it is stated that when the affidavits were filed the deponents did not know what the other parties who have also filed affidavits had stated in their affidavits. The question whether a party has the right of crossexamination or not shall be decided by the Committee in accordance with Section 8-C of the Act. In the facts and circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all these persons to whom notices under Section 8-B of the Act are issued have to be examined at the end of the inquiry. This is obvious from the order of the Committee passed on June 29, 1988 after it was asked by this Court by its order dated June 2, 1988 to reconsider the whole question relating to the order in which the witnesses had to be examined in the case. In its order dated June 29, 1988 the Committee has observed thus: Without going into the controversy if Rule 5(5) is an independent rule or is governed bySections 8-B and 8-C of the Act, we would direct that in the circumstances of the case three persons namely, the Additional Commis- sioner of Police (Special Branch), DCP (Traf- fic) and Mr. Gopal Das Kalra, SI to whom notices under Section 8-B of the Act have been issued be examined at the end of the inquiry. If three persons referred to above to whom notices under Section 8-B have been issued are to be examined even accord- ing to the Committee at the end of the inquiry there is no justifiable reason to deny the same treatment to the peti- tioners Ms Kiran Bedi and Jinder Singh who are in the same position as those three persons. The action of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Before concluding this order we record the statement made by Shri Kuldip Singh, learned Additional Solicitor General appearing for the Delhi Administration that the Delhi Administration and its police officers will fully cooperate with the Committee so that the Committee may complete its work as early as possible. We also record the statement made by Shri G. Ramaswamy, learned Additional Solicitor General that he and his clients, the petitioners in this case hold the Committee in great respect and that they never intended to show any kind of discourtesy to the Committee. He also expresses apology for using one or two strong words against the Committee in the course of the arguments in this Court. We now proceed to give our detailed reasons in support of the aforesaid order: We find it necessary to refer to some of the regulations framed by the Committee to regulate its procedure. We also find it necessary to indicate the nature of the orders which have been challenged in these writ petitions and special leave petitions. It also seems appropriate at this very place to refer to the order of this Court passed in these proceedings on 2nd June 1988 and the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was made on behalf of the Commissioner of Police and other police officers for extension of time to file counter affidavit which was ex- tended till 13th May, 1988. The following order, how- ever, was simultaneously passed on that date. Mr. Vijay Shankar Das has been told to keep. his witnesses ready for being examined from 16th May, 1988. The Committee proposes to hold the sitting from day-today w.e.f. 16th May, 1988. For further proceedings and recording of evidence to come up on 16th May, 1988. Here it may be pointed out that Mr. Vijay Shankar Das was the counsel appearing for the Delhi Police and the effect of the order aforesaid was that the Delhi Police was required to keep its witnesses ready for being examined from 16th May, 1988. On 16th May time till 5.00 P.M. to all concerned to file their counter affidavits along with the list of witnesses was granted and further proceedings were adjourned for the next day. On 17th May, 1988, two applications were made on behalf of the Commis- sioner of Police; one for postponement of heating and the other for calling upon the Bar Association to start their evidence and to call upon the Commissioner of Police to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be present in court, but Mr. Shankar Dass undertakes that she will be present in Court tomorrow and as such no further directions are necessary. On 20th May, 1988 as the order sheet of that date indicates counter affidavit along with list of witnesses was filed on behalf of the Commissioner of Police and both were taken on record. With regard to the notice issued to Smt. Kiran Bedi on 19th May, 1988, the following order was passed: By our order dated 19.5.88, we had issued a notice to Mrs. Bedi to show cause as to why she should not be prosecuted under Section 178 of the I.P.C. for refusing to take oath in the witness box. Notice was made returnable for today. Mr. Shankar Dass who appears for Mrs. Kiran Bedi has refused to show any cause on the ground that notice was too short. We have heard the arguments of Mr. K.K. Venugopal on behalf of the Bar Associa- tion. For orders to come up on 23rd May, 1988. Mrs. Kiran Bedi who is present today is directed to be present in the Court on 23.5.88 at 10.30 A.M. On 23rd May, 1988, the Committee held that refusal of Smt. Kiran Bedi in not testifying on oath before the Commit- tee was wholly unjus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropolitan Magistrate, Delhi, for an offence under section 178of the Indian Penal Code and as is appar- ent from a copy of one of the complaints produced before us these complaints have been filed under sub-section 4 of section 5 of the Commissions of Inquiry Act, 1952 read with section 346 of the Code of Criminal Procedure, 1973. As already indicated, it is the aforesaid orders dated 17th, 20th, 23rd and 26th May, 1988 which have been challenged in these writ petitions and special leave petitions. These writ petitions and special leave petitions first came up for consideration' before K.N. Singh, J. who was functioning as the Vacation Judge. After hearing the parties he passed an order on 2nd June, 1988. The relevant portion of the order which was passed by this Court on 2nd June, 1988 in these proceedings, reads as hereunder: Learned counsel for the parties agree that the respondent Committee should be directed to re-examine the order and sequence in which parties witnesses as well as the witnesses summoned by the Committee should be examined with reference to the incidents mentioned in the Notification dated 23rd February, 1988. The Committee is accordingly directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere were allegations against a particular person he could not be said to be covered under Section 8-B which required a positive order from the Committee. It was also pointed out that a person has to be put on guard by the Committee if it considers it necessary to inquire into his conduct or the Committee is of the opinion that the reputation of that person is likely to be prejudicially affected by the inquiry. When its attention was invited to the interim report where the Committee had mentioned that conduct of various police officers particu- larly of the D.C.P. (North), Addl. D.C.P. (North) S.H.O., P.S. Samepur (Badli) and S.I. Incharge Police Post, Tis Hazari and S.I., Samaypur (Badli), was to be examined and it was submitted that consequently they were covered under section 8-B, the Committee took the view that the submission was misplaced inasmuch as when the Committee mentioned that it was to examine the conduct of various police officers and others, it did not have in view section 8-B of the Act. According to the Committee the plea that Section 8-B was attracted appeared to be an afterthought. With regard to the three persons mentioned above to whom notices under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider in any further detail, the submissions made by counsel for the parties on this point. In so far as point No. (ii) is con- cerned, it would be seen that the use of the word 'or' between clauses (a) and (b) of Section 8B of the Act makes it clear that Section 8Bwould be attracted if requirement of either clause (a) or clause (b) is fulfilled. Clause (a) of Section 8Bapplies when the conduct of any person is to be enquired into whereas Clause (b) applies to a case where reputation of a person is likely to be prejudicially affect- ed. As regards the enquiry about the conduct of Smt. Kiran Bedi and Jinder Singh, even the Committee in its interim report specifically stated that the conduct of these two petitioners among others was to be examined. Having once so stated in unequivocal terms, it was not open to the Commit- tee to still take the stand that Section 8Bwas not attract- ed in so far as they were concerned. Recourse to procedure under Section 8-B is not confined to any particular stage and if not earlier, at any rate, as soon as the Committee made the aforesaid unequivocal declaration of its intention in its interim report, it should have issued notice under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king of strin- gent action against all those responsible, even the career of the petitioners as Police officers was likely to be affected in case an adverse finding was recorded against them. In view of the aforesaid specific term of reference, the principle that the report of a Commission of Enquiry has no force proprio vigore does not on a pragmatic approach to the consequences seem to constitute sufficient safeguard so far as the petitioners are concerned. The reason for the importance attached with regard to the matter of safeguarding the reputation of a person being prejudicially affected in Clause (b) of Section 8-B of the Act is not far to seek. The following words of caution uttered by the Lord to Arjun in Bhagwad Gita with regard to dishonour or loss of reputation may usefully be quoted: Akirtinchapi Bhutani Kathaishyanti te-a-vyayam, Sambhavitasya Chakirtir mara- nadatirichyate. (234) (Men will recount thy perpetual dishonour, and to one highly es- teemed, dishonour exceedeth death. ) In Blackstone's commentary of the laws of England, Vol- I, IVth Edition, it has been stated at page 101 that the right of personal security consists in a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty, and property. In view of the foregoing discussion and the reasons already stated in our order dated 18th August 1988, we are of the view that the two petitioners namely, Smt. Kiran Bedi and Jinder Singh clearly fell within the category of persons contemplated by section 8-B of the Act and were consequently entitled to the same treatment as has been accorded by the Committee to the persons to whom notice has been issued by it under the said section. As a consequence, we are further of the opinion that our answer to point No. (iii) has to be that the Committee was not justified in calling upon the two petitioners to stand in the witness box for cross-examina- tion at the very initial stage of the enquiry. In this connection, it has to be borne in mind that Section 8-B inter alia contemplates an opportunity being given to the person governed by the said section to produce evidence in his defence whereas Section 8-C inter alia gives him the right to cross-examine the witnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was only recommendatory in nature. Since the principle is well-settled we have not considered it necessary to deal with those authorities. Likewise some cases were cited with regard to claim of privilege by a witness. Since the petitioners are not claiming any privilege but are only claiming to be treated in a reasonable way as persons governed by Section 8-B of the Act and to be meted out the same treatment which has been given to persons falling in that category, those cases also are not necessary to be dealt with. Now we come to the fourth point namely whether the orders of the Committee directing prosecution of the petitioners under Section 178 I.P.C are legal. In order to appreciate the respective submissions of the learned counsel for the parties on this point it will be useful to reproduce here Sections 178 and 179I.P.C They read: 178. Refusing oath or affirmation when duly required by public servant to make it.--Whoever refuses to bind himself by an oath or affirmation to state the truth, when required so to bind himself by a public servant legally competent to require that he shall so bind himself, shall be punished with simple imprisonment for a term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elves by an oath or affirmation. The answer to the first proposition, in our opinion, has to be in the negative whereas of the second in the affirmative. Our reasons for this conclusion are these: In McGrain v. Daugherty, 71 L.ed. 580 one of the questions which arose for consideration was whether the Senate--or the House of Representatives, both being on the same plane in this regard has power, through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution. It was held that the power of inquiry--with process to enforce it--is an essential and appropriate auxiliary to the legislative function and that the provisions in this behalf are not of doubtful meaning, but are intended to be effectively exercised, and therefore to carry with them such auxiliary powers as are necessary and appropriate to that end. While the power to exact information in aid of the legislative function was not involved in those cases, the rule of interpretation applied there is applicable here. A legislative body cannot legislate wisely or e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout power to investigate in that area, and, second, that the due process clause precluded enforcement of the subpoena. The court rejected the witness' argument, and, upon his continued refusal to produce the list, adjudged him in contempt and committed him to jail until he should comply. The Supreme Court of New Hampshire affirmed, and even after remand by the United States Supreme Court it reaffirmed its former decision. On appeal, while affirming the decision of the Supreme Court of New Hampshire the United States Supreme Court held that since the Attorney General sought to learn if subversive persons were in the State because of the legislative determination that such persons, statutorily defined with a view toward the Communist Party, posed a serious threat to the security of the State, the investiga- tion was undertaken in the interest of self-preservation and this governmental interest outweighed individual rights in an associational privacy which, however, real in other circumstances were here tenuous at best. It was further held that the governmental interest in self-preservation is sufficiently compelling to subordinate the interest in associational privacy of person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatute (18 USCS s. 6002) it was held: That a federal statute permitting the government to compel a witness to give testimony, but granting the witness immunity from the use in any criminal case of the compelled testimony or any evidence derived therefrom, does not violate the Fifth Amendment privilege against self-incrimination. In Brown v. Walker, (40 L.ed. 819) the question involved was with regard to an alleged incompatibility between that clause of the 5th Amendment to the Constitution, which declares that no person shall be compelled in any criminal case to be a witness against himself and the act of Congress of February 11, 1983 (27 Stat. at L. 443), which enacts that no person shall be excused from attending and testifying or from producing books, papers, tariffs, con- tracts, agreements and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the Commission, ...... on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g absolute immunity from binding themselves by an oath or affirmation for answering questions put to them. Indeed in the instant case the petitioners are not asserting that they could not be required at all to appear as a witness before the Committee and make statement on oath. As is apparent from our order dated 18th August, 1988 on behalf of both the petitioners it was submitted that they did not either wish to delay the proceedings or to show disrespect to the Committee but only wanted to protect their own interest by making the submission which they made before the Committee as per legal advice given to them. According to learned counsel for the petitioners the legal advice given to the petitioners was that since they were persons covered by Section 8B of the Act they were entitled to produce evidence in defence and could as such be called upon to enter the witness box at the end of the inquiry and could not be required to enter the witness box for cross-examination almost as the first two witnesses before the Committee. According to him the stand taken by the petitioners was that they being covered by Section 8B of the Act their defence would be put to serious jeopard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional. This decision is. therefore~ an authority for the proposition that if the refusal of the witness was not deliberate and intentional but was for a valid cause such refusal could not be made the basis for prosecuting the witness. In Murphy v. Waterfront Commission of New York, 12 L.ed. 2d 678 notwithstanding the grant of immunity under the laws of New Jersey and New York, petitioners, as witnesses before the Waterfront Commission of New York Harbor, refused to answer questions on the ground that the answers might tend to incriminate them under federal law, to which the grant of immunity did not purport to extend. Petitioners were there- upon held in civil and criminal contempt of court. The New Jersey Supreme Court affirmed the civil contempt judgments, holding that a state may constitutionally compel a witness to give testimony which might be used in a federal prosecu- tion against him. On certiorari, the United States Supreme Court vacated the judgment of contempt and remanded the cause to the New Jersey Supreme Court. It was held: ... We hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very initial stage was based on Section 8B seems to be apparent. The plea taken in the application made on behalf of the Commissioner of Police on 17th May, 1988 for first calling upon the Bar Association to start their evidence and to call upon the Commissioner of Police to adduce his evidence thereafter was the first indication in this behalf. This plea was, at all events, relevant qua those police officers whose conduct was to be examined. Secondly, when on 19th May, 1988 the learned counsel for Smt. Kiran Bedi was required to justify her stand of not taking oath, Section 8B was specifically plead- ed and reliance was placed on the decision in the case of Smt. Indira Gandhi and another v. Mr. J.C. Shah Commission of Inquiry, ILR 1980 1 Delhi 552 as is borne out by the order of the Committee of that date. The justification so pleaded was repelled by the Committee on two grounds, namely that Smt. Indira Gandhi in that inquiry had not filed any affidavit and that she had been summoned under Section 8B. On the view of the Committee expressed in its order dated 29th June, 1988, which will, in the absence of any material to the contrary, be deemed to be its view even on 19th May, 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stage when they were required to do so. The Committee could have on its own reconsidered the question whether the prosecutions should be pressed further when the case was referred back to it by the learned Vaca- tion Judge of this Court by his order dated 2nd June, 1988. For these reasons and the reasons already given in our order dated 18th August, 1988 we are of the opinion that the Committee should not have in the instant case directed the filing of a complaint against either of the petitioners for an offence punishable under Section 178 I.P.C. We decide point (iv) accordingly. As regards points (v), (vi) and (vii) suffice it to point out that the petitioners have apart from filing special leave petitions also filed writ petitions challenging the very same orders and since we have held that the action of the Committee in holding that the petitioners were not covered by Section 8B of the Act and compelling them to enter the witness box on the dates in question was discriminatory and the orders directing complaint being filed against the petitioners were illegal, it is apparently a case involving infringement of Articles 14 and 21 of the Constitution. In such a situa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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