9911796707
Advanced Search 
TMI Blog1988 (9) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... We had the benefit of hearing Dr. Y. S. Chitale, learned counsel appearing on behalf of the appellant, Dr. Baliram Waman Hiray, who, at one time, was the Health Minister of Maharashtra, and Shri A. S. Bobde, learned counsel appearing on behalf of the State Government, as to the purport and effect of the inclusive clause of sub-section (3) of section 195 of the Code which provides that in clause (b) of sub-section (1), the term "court" means a civil, revenue or criminal court, and includes a tribunal constituted by or under a Central, Provincial or State Act, if declared by that Act to be a court for the purposes of this section. In Lalji Haridas v. State of Maharashtra [1964] 52 ITR 423, a Constitution Bench of this court, by a majority of 3: 2, held that the proceedings before an Income-tax Officer under section 37(4) of the Indian Income-tax Act, 1922, were judicial proceedings under section 193 of the Indian Penal Code and that such proceedings must be treated as proceedings in any court for the purposes of section 195(1)(b) of the Code. We thought that the controversy had been set at rest by the decision of the Constitution Bench in Lalji Haridas' case [1964] 52 ITR 423 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Maharashtra is of the opinion that it is necessary to appoint a Commission of Inquiry under the Commissions of Inquiry Act, 1952 (60 of 1952), for the purpose of making an inquiry into the causes and the circumstances leading to the aforesaid incidents of death at J. J. Hospital, Bombay, being definite matters of public importance, and for making a report thereon to the State Government : Now, therefore, in exercise of the powers conferred by section 3 and sub-section (1) of section 5 of the said Act and of all other powers enabling it in this behalf, the Government of Maharashtra hereby appoints a Commission of Inquiry consisting of Shri Justice B. Lentin, Judge of the High Court of Judicature at Bombay, to inquire into and report on the causes and circumstances leading to the occurrence of the said deaths in Neuro-Surgery, Neurology, Ophthalmology and Nephrology Departments of J. J. Hospital, Bombay, during January-February, 1986 ; and particularly-. . . The Government of Maharashtra hereby directs that having regard to the nature of inquiry to be made by the Commission and other (sic.) sub-section (4) and sub-section (5) of section 5 of the said Act shall apply to the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers of the concerned departments holding them responsible for the deaths. The report indicted both the Health Ministers in no uncertain terms. But, we are not concerned with the follow up action that the Government has taken in bringing the guilty to book. The controversy before us is limited to the question whether the Commission was "court" for the purposes of section 195(1)(b) of the Code of Criminal Procedure, 1973. On June 23, 1987, the Commission, by its order, directed its secretary to issue a show-cause notice to the appellant as to why he should not be prosecuted for the offence of giving false evidence on oath under section 193 of the Indian Penal Code, 1860, read with section 340 of the Code of Criminal Procedure, 1973, the relevant portion whereof reads : "AND WHEREAS you are summoned by the Commission under section 4 of the Commissions of Inquiry Act, 1952, to give evidence before it and you did give evidence before it on 22nd April, 1987, 23rd April, 1987, 24th April, 1987, 27th April, 1987, 28th April, 1987, 29th April, 1987, 4th May, 1987, 5th May, 1987, 8th June, 1987, and 9th June, 1987 ; ... AND WHEREAS the Commission is prima facie of the opinion that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the appellant. Any other course would, in its words, "bring the sanctity of oath and administration of justice into ridicule and contempt". The Commission observed that the appellant was not an illiterate or a semi-literate person who could plead confusion of mind in the witness-box, and indeed, he does not. By profession, he was a medical practitioner but he played a prominent part in public life and for several years he held various portfolios as Cabinet Minister in the Government of Maharashtra, including Health. According to the Commission, he was by far the most intelligent and shrewd witness who had given evidence before it. Unlike the other witnesses, he never recanted, in an attempt to deliberately distort the truth. It went on to observe that, normally, witnesses are not allowed to be represented by counsel. However, in a departure from normal practice, the Commission allowed this latitude to the appellant, so that justice should not only be done but should be seen to be done to him and he had a counsel of his choice. Accordingly, the Commission directed its secretary to take necessary steps for expeditious filing of the complaint in the proper forum and directed that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 3 provides as follows : "3. Appointment of Commission.-(1) The appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if 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 4 vests in the Commission the powers of a civil court while trying a suit under the Code of Civil Procedure and reads as follows : "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minister an oath will not impart to it the status of a court and, therefore, is not a "court" for the purposes of section 195(1)(b) of the Code. He submits that it is well-settled that a Commission of Inquiry has not the attributes of a court inasmuch as there is no lis before it and that it has no powers of adjudication of rights. He further points out that the language of section 6 of the Act is plain enough to show that no statement by a person before a Commission of Inquiry "can subject him to, or be used against him" in any civil or criminal proceedings, except in a prosecution for giving false evidence before the Commission. The question before the court, learned counsel contends, is not whether the appellant can be prosecuted for perjury for giving false evidence which is an offence punishable under section 195(1)(b) or for the offence of intentional insult to the Commission punishable under section 228 of the Indian Penal Code, but whether the Commission was a "court" for the purposes of section 195(1)(b). A Commission, by reason of section 4, has the same powers of a civil court while trying a suit under the Code of Civil Procedure, 1908, but such investiture of power is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as proceedings in any "court" for the purposes of section 195(1)(b) of the Code, although the Act had not expressly said so. Learned counsel points out that the definition of "court" in section 195(2), as originally enacted, used the word "means" instead of the word "includes" which, later, was substituted by the Criminal Procedure Code (Amendment) Act, 1973. This gave rise to a controversy whether Tribunals or officers acting in judicial capacity or exercising quasijudicial functions should be regarded as courts for the purposes of section 195(1)(b). The substitution of the word "includes" for the word "means" in the definition, if anything, added to the difficulties of this complex issue. It necessarily gave rise to the question as to what else, besides civil, revenue and criminal courts, was covered by the generic term "court". Learned counsel drew our attention to the decision of this court in Virindar Kumar Satyawadi v. State of Punjab [1955] 2 SCR 1013, where a three-judge Bench, speaking through Venkatarama Ayyar J., observed at p. 1018 (at page 157 of AIR 1956 SC) : "It is a familiar feature of modern legislation to set up bodies and Tribunals, and entrust to them work o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt and wherever such a provision is not there, the court cannot deem a Tribunal to be a court. According to him, it is no more a question of interpretation but one of express enactment. He, accordingly, contends that the majority decision in Lalji Haridas' case [1964] 52 ITR 423 (SC), no longer holds the field. There appears to be considerable force in the argument. Pursuing the same line of thought, i.e., that there is a change of law brought about by sub-section (3) of section 195 of the Code, learned counsel contends that Parliament had to step in and expressly amend section 136 of the Income-tax Act, 1961, to put the matter beyond controversy. Section 136 of Income-tax Act, 1961, as originally enacted provided by legal fiction that "any proceeding under this Act before an income-tax authority shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code, 1860". Interpreting section 136 before its amendment, the court has, as already stated, in Lalji Haridas' case [1964] 52 ITR 423 (SC), held that the proceedings before the Income-tax Officer being deemed to be judicial proceedings un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to Dr. Chitale, this was nothing but "legislative declaration of the law", contrary to the law declared by this court in Lalji Haridas' case [1964] 52 ITR 423, which is permissible under article 141 of the Constitution. While learned counsel accepts that under article 141, the law declared by the Supreme Court is binding on all courts in India, in other words, the law declared by the Supreme Court is made the law of the land, there is nothing to prevent the Legislature from bringing about a change in the law. Finally, learned counsel also drew our attention to the existing legislative practice where certain enactments constituting a tribunal contain a provision that the tribunal shall be deemed to be a court for the purposes of section 195(2) of the Code. Learned counsel referred us to section 40 of the Indian Railways Act, 1890, section 23 of the Workmen's Compensation Act, 1923, and section 18 of the Payment of Wages Act, 1936. These provisions, which are almost similar, provide that the Tribunal under the Indian Railways Act, the Commissioner under the Workmen's Compensation Act and the authority appointed under the Payment of Wages Act shall be deemed to be a ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purposes of section 195(1)(b) and a case where a statute does not expressly say so. The majority, on a construction of the various provisions of the Act, expressed the considered view that the absence of such a provision makes no difference. It was further not open for us to say that the decision in Lalji Haridas' case [1964] 52 ITR 423 (SC), was no longer binding on us merely by the enactment of sub-section (3) of section 195 of the Code. The learned Advocate-General then read out the provisions of section 195(1)(b) of the Code of Criminal Procedure, 1898, and of the present Code, as well as the interpretation clause in sub-section (3) of section 195 of the present Code, and the analogous provision in sub-section (2)of section 195 of the old Code, to impress upon us that there was no textual difference in the language of section 195(1)(b). As regards the interpretation clause, it was pointed out that the first part of section 195(2) of the old Code used the word "means" which was later substituted by the word "includes". The first part of section 195(2) was, therefore, an inclusive one but the second was an exclusionary clause so as to exclude the Registrar or the Sub-Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not defined in the Indian Penal Code, but we have the definition of the said expression under section 4(m) of the Criminal Procedure Code. Section 4(m) provides that 'judicial proceeding' includes any proceeding in the course of which evidence is or may be legally taken on oath. The expression 'court' is not defined either by the Criminal Procedure Code or the Indian Penal Code, though 'court of justice' is defined by section 20 of the latter Code as denoting 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 or body of judges is acting judicially. Section 3 of the Evidence Act defines a 'court' as including all judges and magistrates and all persons except the arbitrators legally authorised to take evidence. Prima facie, there is some force in the contention that it would not be reasonable to predicate about every judicial proceeding that it is a proceeding before court, and so, it is open to the appellant to urge that though the proceeding before an Income-tax Officer may be a judicial proceeding under section 193, Indian Penal Code, it would not fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act." Incidentally, the learned Advocate-General also drew our attention to the following observations at p. 706 of [1964] 6 SCR (at page 427 of 52 ITR), where the majority was dealing with section 195(2) of the old Code saying that it was not necessary to deal with the effect of that provision because, they did not propose to base their decision on the ground that the Incometax Officer was a revenue court under that sub-section, and added : "The only point of interest to which we may incidentally refer is that this sub-section gives an inclusive, though not an exhaustive, definition and takes within its purview not only civil and criminal courts, but also revenue courts, while excluding a Registrar or Sub-Registrar under the Indian Registration Act." Another decision which learned Advocate-General relied upon is that of this court in Balwant Singh v. L. C. Bharupal, ITO [1968] 70 ITR 89, where a three-judge Bench, speaking through Shelat J., reiterated the majority view in Lalji Haridas' case [1964] 52 ITR 423 (SC) and held that the proceedings before an Income-tax Officer for the registration of firm under section 26A of the Indian Income-tax Act, 1922, were judicial pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of sub-section (2) of section 34 of the Rent Act, shall be a civil court for the purpose of section 193, Indian Penal Code. Section 195(3), Criminal Procedure Code, provides that the expression 'court' in section 195(1)(b)(i) will include a Tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be court for the purposes of the section. Section 195(1)(b)(i) provides precondition for taking cognizance of an offence under section 193, Indian Penal Code, viz., a complaint in writing of the court. In view of the specific provision made in sub-section (2) of section 34 of the Rent Act that for the purposes of sections 345 and 346, Criminal Procedure Code, the Rent Control Officer, assuming him to be a Tribunal as held by the High Court and not a court, would be deemed to be a civil court and, therefore, for the purposes of sections 193 and 228, Indian Penal Code, a fortiori any proceeding before him would be a judicial proceeding within the meaning of section 193, Indian Penal Code. If, therefore, according to the complainant false evidence was given in a judicial proceeding before a civil court and the persons giving such false evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1962, which provision is in pari materia with sub-section (5) of section 5 of the Commissions of Inquiry Act, and enacts that every proceeding before a Customs Officer shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code. It would be seen that the underlying theme of all these submissions of the learned Advocate-General is one of placing emphasis on sub-section (4) of section 5 of the Commissions of Inquiry Act which provides that a Commission of Inquiry shall be deemed to be a court. He contends that the legal fiction must be given its full effect and, therefore, the Commission must be treated to be a civil court for "all purposes". And in the alternative, he submits that the word "deemed" is also sometimes used by the Legislature in order to remove any doubt in the matter. We shall consider all these aspects in their proper context After the conclusion of the hearing, Dr. Chitale, learned counsel for the appellant, has furnished a list of 11 enactments where Parliament, while enacting a law, has made an express provision that the Tribunal shall be deemed to be a court for the purposes of section 195 and Chapter XXVI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the submission of Dr. Chitale that it is no more a question of interpretation but one of express enactment. The crucial question that falls to be determined in this appeal is whether sub-section (3) of section 195 has brought about a change in the law and, therefore, the majority decision in Lalji Haridas' case [1964] 52 ITR 423 (SC), no longer holds the field as submitted by Dr. Chitale, appearing on behalf of the appellant, or was merely declaratory of the law as declared by the court in Lalji Haridas' case [1964] 52 ITR 423 (SC), as argued by the learned Advocate-General, and, therefore, the decision in Lalji Haridas' case [1964] 52 ITR 423 (SC), is still good law. It cannot be doubted that sub-section (3) of section 195 of the Code has been enacted by Parliament to implement the recommendations of the 41st Report of the Law Commission which brought out the unsatisfactory state of law due to the conflict of opinion between different High Courts as to the meaning of the word "court" in section 195(1)(b) read in the context of section 195(2) of the earlier Code. The interpretative exercise undertaken by the courts over the years as to the precise meaning of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico. " These rules are still in full force and effect, with the addition that regard must now be had not only to the existing law but also to the prior legislation and to the judicial interpretation thereof. This court applied the rule enunciated in Heydon's case [1984] 3 Co Rep. 7a, and in Bengal Immunity Co. Ltd. v. State of Bihar [1955] 2 SCR 603 in the construction of article 286 of the Constitution. After referring to the state of law prevailing in the then provinces prior to the Constitution as also to the chaos and confusion that was brought about in inter-State trade and commerce by indiscriminate exercising of taxing powers by the different provincial Legislatures founded on the theory of territorial nexus, S. R. Das, Actg. C. J., speaking for himself and Vivian Bose and Jaffar Imam JJ., proceeded to say at page 675 of AIR 1955 SC) : "It was to cure this mischief of multiple taxation and to preserve the free flow of inter-State trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the Constitution makers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se [1584] 3 Co Rep 7a, it appears to us that to construe sub-section (3) of section 195 of the Code, it is not only legitimate but highly convenient to refer both to the former Code and the state of uncertainty brought about due to conflict of views between different High Courts, and to the present Code which seeks to provide the remedy. It was to cure this mischief that Parliament brought in sub-section (3) of section 195 of the Code to put an end to the controversy. Law must be definite and certain. If any of the features of the law can usefully be regarded as normative, it is such basic postulates as the requirement of consistency in judicial decision-making. It is this requirement of consistency that gives to the law much of its rigour. At the same time, there is also a need for flexibility. Professor H. L. A. Hart, regarded as one of the leading thinkers of our time, observes in his influential book "The Concept of Law", depicting the difficult task of a judge to strike balance between certainty and flexibility : "Where there is obscurity in the language of a statute, it results in confusion and disorder, No doubt, the courts so frame their judgments as to give the impressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense impossible." The main thrust of the argument of the learned Advocate-General that a Commission of Inquiry should be regarded as a court for the purposes of section 195(1)(b) stems from a wrong hypothesis that sub-section (4) of section 5 of the Act is in two parts. He contends for the purpose of his submission that sub-section (4) of section 5 of the Act consists of two separate provisions, the first of which deals with the status of a Commission of Inquiry as a civil court and the second deals with the power of the Commission to forward a case under section 482 of the earlier Code (corresponding to section 346 of the present Code) when any offence as is described in section 175, section 179, section 180 or section 228 of the Indian Penal Code is committed, in the view, or presence, of the Commission, to a Magistrate having jurisdiction to try the same. The submission is that sub-section (4) is in two parts dealing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an inclusive one. There being no express provision akin to section 40 of the Indian Railways Act, section 23 of the Workmen's Compensation Act or section 18 of the Payment of Wages Act, the matter was one of construction. The question, therefore, whether an Income-tax Officer was a court for the purposes of section 195(1)(b) was more a question of interpretation than one of express enactment after the amendment of section 136 of the Income-tax Act, 1961, by section 28 of the Finance Act, 1985. The decision of the majority in Lalji Haridas' case [1964] 52 ITR 423 (SC) is now only of academic interest. The decision in Balwant Singh's case [1968] 70 ITR 89 (SC) does not carry the matter any further. It would be convenient at this stage to deal with the decision of this court in Chandrapal Singh's case [1982] 1 SCC 466. Under the scheme of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, various functions are entrusted to different authorities. The District Magistrate as defined in section 3(c), is vested with the power of making an order of allotment under section 16(1)(a). In making such an order of allotment under clause (a) or an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of Inquiry constituted under the Commissions of Inquiry Act is neither a civil court nor a criminal court or a court, properly so called, in the strict sense of the term. In view of the change in law, we fail to appreciate the contention of the learned Advocate-General, without meaning any disrespect, that the principles laid down by the majority in Lalji Haridas' case [1964] 52 ITR 423 (SC) that on a combined reading of sub-sections (4) and (5) of section 5 of the Commissions of Inquiry Act read in the context of sub-section (4), an Income-tax Officer must still be regarded as a court for the purposes of section 195(1)(b), despite the enactment of sub-section (3) of section 195. A Commission of Inquiry is not a court properly so called. Commission is obviously appointed by the appropriate Government "for the information of its mind" in order for it to decide as to the course of action to be followed. It is, therefore, a fact-finding body and is not required to adjudicate upon the rights of the parties and has no adjudicatory functions. The Government is not bound to accept its recommendations or act upon its findings. The mere fact that the procedure adopted by it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has certain powers which are similar to the powers exercised by courts, still, he is not a court as understood in section 195 of the Code. The court relied upon the decision of the Judicial Committee of the Privy Council in Shell Co. of Australia [1931] AC 275, for the view that a Sales Tax Officer was not a court in the strict sense of that term. It referred with approval to the following observations of Lord Sankey L. C., where he enumerated some negative propositions to contra-distinguish a Tribunal from a court (at p. 420 of AIR 1963 SC) : "In that connection, it may be useful to enumerate some negative propositions on this subject : 1. A tribunal is not necessarily a court in this strict sense because it gives a final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to court. 6. Nor because it is a body to which a matter is referred by another body. (See Rex v. Electricity Commissioners [1924] 1 K. B. 171 ). " There had been, prior to the enactment of sub-section (3) of secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confined to offences that are punishable under sections 193 and 228 of the Indian Penal Code, 1860, referred to in sub-section (5) of the Act, and does not extend beyond this limit." The learned judge then dealt with a Commission of Inquiry constituted under the Commissions of Inquiry Act and held that the Commission has not the attributes of a court. In repelling the contention that the function of the Commission being of an advisory nature it was akin to the Judicial Committee of the Privy Council which only advised His Majesty and did not deliver any judgment themselves, as well as distinguishing the decision of the Lahore High Court in M. M. Khan v. Emperor [1931] ILR 12 Lah. 391, holding that the Special Commissioners appointed under the Public Servants (Inquiries) Act, 1850, constituted a court within the meaning of section 195, the learned judge observed (at page 75 of AIR 1954 Nag.) : "An enquiry under the Commissions of Inquiry Act, 1952, on the other hand, is of a wholly different character. There is no accuser, no accused and no specific charges for trial ; nor is the Government under the law, required to pronounce, one way or the other, on the findings of the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment which, if confirmed by some other authority, would be definitive . .' The minimum test of a 'court of justice', in the above definition, is, therefore, the legal power to give a judgment which, if confirmed by some other authority, would be definitive. Such is the case with the Commission appointed under the Public Servants (Inquiries) Act, 1850, whose recommendations constitute a definitive judgment when confirmed by the Government. This, however, is not the case with a Commission appointed under the Commissions of Inquiry Act, 1952, whose findings are not contemplated by law as liable at any stage to confirmation by any authority so as to assume the character of a final decision." We are in agreement with these observations. P. V. Dixit C. J., speaking for himself and G. P. Singh J., in Puhupram v State of Madhya Pradesh [1968] MPLJ 629, stated the law thus: "It is not necessary to stress that the inquiry which the Commission is going to hold is not an inquiry by a civil or criminal court and the proceedings thereof are not judicial proceedings of a court of law. [See Chimansingh v. State, AIR 1951 MB 44; M. V. Rajwade v. Dr. S. M. Hassan, AIR 1954 Nag. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
