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Bansi Lal Vs. State and anr. - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 145 of 1979
Reported inILR1981Delhi715
ActsCommission of Inquiry Act, 1952 - Sections 3; Commission of Inquiry Rules, 1972 - Rule 5; Indian Penal code, 1860 - Sections 178; Code of Criminal Procedure (CrPC) , 1973 - Sections 251
AppellantBansi Lal
RespondentState and anr.
Advocates: Rajender Dutt,; Karl Khandalawala and; A.S. Vir, Advs
Cases ReferredSwami Dhirendra Brahmachari v. Union of India and
commissions of inquiry act, 1952 - sections 3, 5, 8b & 8c--scope--commissions of inquiry rules, 1972, rule 5--indian penal code, sections 178 & 179--code of criminal procedure, 1973, section 251, 313 & 346.; in pursuance of section 3 of the commissions of inquiry act, 1952, the central government by the notification dated 28-5-77, constituted a commission comprising of justice j.c. shah a former chief justice of india to inquire into the facts and circumstance relating to subversion of lawful conventions, well established administrative procedures, misuse of powers of arrest and detention and other excesses committed during emergency by public servants and other individuals who instigated, abetted or associated themselves with such acts. with regard to the petitioner, one.....m.l. jain, j.(1) the facts of this petition are that the central government by a notification dated may 28, 1977, constituted a commission comprising mr. justice j. c. shah, a former chief justice of india, under s. 3 of the commissions of inquiry act, 1952 (hereinafter the act). the terms of the commission were broadly to inquire into the facts and circumstances relating to subversion of lawful conventions, processes and well-established administrative procedures and practices, abuse of authority, misuse of powers, excesses and malpractices, misuse of powers of arrest and detention, indiscriminate, high handed or unauthorised demolition of property during the emergency and into specific instances of mal-treatment of and atrocities on persons arrested or detained, their relatives and.....

M.L. Jain, J.

(1) The facts of this petition are that the Central Government by a Notification dated May 28, 1977, constituted a Commission comprising Mr. Justice J. C. Shah, a former Chief Justice of India, under S. 3 of the Commissions of Inquiry Act, 1952 (hereinafter the Act). The terms of the Commission were broadly to inquire into the facts and circumstances relating to subversion of lawful conventions, processes and well-established administrative procedures and practices, abuse of authority, misuse of powers, excesses and malpractices, misuse of powers of arrest and detention, indiscriminate, high handed or unauthorised demolition of property during the emergency and into specific instances of mal-treatment of and atrocities on persons arrested or detained, their relatives and close associates and' of compulsion and use of force in the implementation of family planning programme. The inquiry was to cover the acts of public servants and also the conduct of other individuals who may have directed, instigated, sided or abetted or otherwise associated themselves with the commission of the aforesaid acts by public servants. The Commission was also required to consider other relevant matters and recommend measures to prevent recurrence of the aforesaid acts in future. The inquiry was to be in regard to complaints or allegations that may be made by any individual or association in such form and accompanied by such affidavits as may be prescribed by the Commission. The Central Government also made applicable all provisions of sub-sections (2), (3), (4) and (5) of S. 5 of the Act.

(2) It appears that the following were the specific instances in which the Commission proceeded to inquire in regard to the conduct of the petitioner, Mr. Bansi Lal, who was at one time the Chief Minister of Haryana, namely; (1) detentions under Misa of Pritam Dutta of Rohtak, Ishwar Lal Choudhary of Bhiwani, Pitamber Lal Goyal of village Bapora, Bhiwani, Murlidhar Dalmia of Bhiwani, and (2) demolition of buildings in Hissar.

(3) It further appears that besides but subject to the procedure provided in the Act specially Ss. 8B and 8C thereof, and the Commissions of Inquiry Rules, 1972 (hereinafter the Rules), the Commission also evolved its own procedure and also made some regulations and. also retained freedom to modify its procedure to meet the requirements of any case. From its Interim Report, Part I, page 10, paras 3.7, 3.8 and 3.9, it transpires that it divided the inquiry into two stages; first, to ascertain primafacie whether on the materials before it, and the evidence of the person invited to appear and assist the Commission under Rule 5(2) of the Rules, there has been any excess and if so by whom; second, to issue notices under Rule 5 (2) (a) of the Rules and summons under S. 8B of the Act, if on a consideration of the evidence it appeared to the Commission necessary to inquire into the conduct of any person or the Commission was of the opinion that the reputation of any person was likely to be affected by the inquiry. After hearing the evidence of the persons to whom notices under S. 8B of the Act were issued and of the witnesses produced in support of the versions of those parties and also considering the evidence of the witnesses who had been examined for the Commission and whose presence was required by the parties to whom notices under S. 8B had been issued, the Commission was to give to the parties or their advocates opportunity to address the Commission on the evidence.

(4) In pursuance of the aforesaid procedure, the Commission made a request to Mr. Bansi Lal to attend and assist the Commission by giving such information as may be in his possession or power in respect of the aforesaid matters. Mr. Rajendra Dutt inspected the file and papers in the Commission on several dates on behalf of the petitioner. The Commission was also prepared to allow him inspection of any specific and relevant file. But, inspection of the statements of the witnesses recorded by the investigating officer was not allowed. He was told that this would be permitted when they were affirmed and read out during the public hearings of the Commission. On June 1, 1978, the petitioner sought an adjournment on the ground of being unwell, but the Commission declined to accede to the request as there was no medical certificate in support of his illness. Thereafter. five notices dated June 9, 1978, under Rule 5(2) (a) of the Rules were issued asking him to furnish statements. On the same date, five summonses were also issued to him under S. 4(a) read with S. 5(2) and S- 8B of the Act. These were served on him on June 11, 1978. The petitioner appeared on July 3, 1978, with his counsel. He submitted an application that Rule 5 (2) (a) did not apply in his case. With regard to the summonses under S. 4(a) read with Ss. 5(2) and 8B he complained that for the reasons mentioned in the application, he was unable to avail himself of the opportunity. The Commission after hearing the arguments rejected the application and called upon Mr: Bansi Lal to say whether he was willing to give evidence. He came to the witness-box but when asked by the Chairman whether he was willing to take oath, he replied that he was legally and constitutionally not bound to take oath because he had sworn oath of secrecy. The Chairman then wanted to know whether he was willing to give evidence but his reply was the same. The Commission observed that he has in effect said that he was not willing to take oath or give evidence on the plea that he was not legally and constitutionally bound to take oath whatever the expression 'legally and constitutionally' meant. The Commission dictated the entire conversation in his presence and asked him whether what has happpened in the Commission was correctly recorded. The petitioner replied that they had tape-recorded whatever he had said, and it was for the Commission to infer whether it was correctly recorded or not. The Commission concluded that Mr. Bansi Lal admitted that what had happened was correctly recorded. The Commission then proceeded to direct that complaints be filed against Mr. Bansi Lal under Ss. 178 and 179 Indian Penal Code . for refusing to take oath and give evidence on oath. Thereafter, the Chairman allowed Mr. Bansi Lal to leave the chamber. In accordance with the said direction, a complaint running into 21 pages detailing how Mr. Bansi Lal committed offences under Ss. 178 and 179 Indian Penal Code . in the presence of the Commission, and signed by the Commission, was forwarded under sub-section (4) of S. 5 of the Act read with S. 346 of the Code of Criminal Procedure, 1973, to the court of the Chief Metropolitan Magistrate, Delhi, with a request to take cognizance of the said offences and to examine Mr. Gopal Dass Kowalani of the Commission's office as its witness. It appears that the learned Chief Metropolitan Magistrate took cognizance of the offence on July 14, 1978, and isued summons to the accused. The learned Magistrate proceeded under sub-section (2) of S. 346 Criminal Procedure Code . as if the complaint was a police report and read out the notice under S. 251 Criminal Procedure Code . Mr. Bansi Lal pleaded not guilty and claimed trial. A request was made to the Magistrate for calling of the tape-recordings of the Commission's proceedings and some other documents. The learned Magistrate by his order dated March 20, 1979, rejected the application because no specific instances of misreading in the written record or omission of any relevant portion were brought to the notice of the learned Magistrate. The request for summoning certain other files was also rejected. Thereafter, Gopal Dass Kowalani was examined by the prosecution. His examination commenced on March 20, 1979, and appears to have concluded on March 27, 1979. The learned Magistrate examined the accused under S. 313 Criminal Procedure Code . on May 3, 1979. The substance of the statement of the accused is that he declined to take oath and give evidence because (i) he was not legally and constitutionally bound to take oath; he did not make a blank refusal to give evidence; there was no willful denial to take oath or give evidence, and (ii) the Commission was biased against him, and the Commission and its proceedings were nothing but political vendetta of the party in power against the Congress party.

(5) On May 15, 1979, the accused made an application for summoning the following persons and records :

(1)Under Secretary, Ministry of Home Affairs, Government of India, New Delhi, Department of Administrative Reforms or some other officer concerned along with : (i) Record of 'Reddy Commission' headed by Honble Mr. Justice P. Jaganmohan Reddy with regard to the conduct of the accused especially; (a) Record of notice under section 8B of the Commissions of Inquiry Act 1952 issued and served upon the accused; (b) Record of proceedings taken by the Reddy Commission with regard to items 1 to 12; (c) The order with regard to item Nos. 5 and 6 when the accused bycotted the proceedings; (d) Record of proceedings dated 3-7-78 of 'Shah. Commission'; (e) Record of proceedings in the form of tapes of proceedings dated 3-7-78 of Shah Commission. (2) The Secretary, Ministry of Home Affairs, Government of Haryana, Chandigarh, Along with : (i) Record of proceedings of 'Capoor Commission' relating to the 'Riwasa Incident' headed by Mr. Justice S. B. Capoor, a retired Judge of High Court and also service of notice under section 8B of the Commissions of Inquiry Act; (ii) Record of proceedings of the said Commission. (3) Secretary of the 'Maruti Ayog' through officer concerned Faridkot House, New Delhi, Along with (i) Record relating to the service of notice under section 8B of the Commissions of Inquiry Act upon the accused; (ii) Record of proceedings of 'Maruti Ayog' relating to items Nos. 3 and 13 of the accused, witnesses examined, and the record relating to the crossexamination of the witnesses in relation to the aftersaid, items. (4) Officer-in-charge, Department of Broadcasting (English and Hindi News Division) (Television), Ministry of Information and Broadcasting, New Delhi, Along with: (i) Record of evening Hindi News especially report on Shah Commission regarding 1st and second week of June 1978; (ii) Record of night English News, especially 'Report on Shah Commission' regarding 1st and second week of June 1978. (5) Editor, Bhavan's Journal Weekly through any of its employees Along with 'Bhavan's Journal Issue' dated 23-4-78 containing the article of Shri J. C. Shali's views relating to Emergency appearing through Shri M. C. Chhagla. (6) Editor 'Anand Bazar Patrika' through any of its employees along with issue dated 30-3-78. (7) Shri Daya Nand, Advocate, Dadri, District Bhiwani, Haryana. (8) Shri Jai Singh Hooda, resident of village Kaloi, District Rohtak, Haryana. (9) Mr. Justice J. C. Shah, retired Chief Justice of India (Complainant). (10) Mr. Justice P. Jaganmohan Reddy, Vice-Chancellor, Hyderabad University, Hyderabad. (11) Moharar Head Constable, Police Station Sadar Bhiwani through Shops Sadar Bhiwani along with Fir Nos. 106/78 and 263./78 registered against the accused and others. (12) Moharar Head Constable, Police Station Tosham District Bhiwani along with Fir No. 80/77 P.S. Tosham. (13) Moharar Head Constable, Police Station City Hissar, Haryana, along with Fir No. 615/77. (14) Ahlmad of the court of Special Judge, Delhi, along with Fir No. 1/78 registered against the accused, Smt. Indira Gandhi and others on the basis of the report of Justice J. C. Shah.

The learned Magistrate by his order dated July 23. 1979, rejected this application. Hence this petition under S. 482 and S. 397 Cr-.P.C.

(6) The learned counsel for the State. Mr. Karl Khandalawala, submitted at the outset that the petition being against an interdocutory order, the jurisdiction of this court cannot be invoked under S. 397 or S. 482 Criminal Procedure Code . To my mind, the impugned order is not an interlocutory order. It is a , order in the sense that it closes his defense and involves the risk of his being convicted. I, thereforee, consider that a fit case is made out where powers under S. 482. if not under S. 397, may be exercised.

(7) Having scrutinised the aforesaid list of the record and the witnesses, I find that the record of the Reddy Commission, of the Maruti Commission, of the Capoor Commission are being required to show that in similar circumstances, other Commissions did not launch such type of prosecutions. That evidence was totally irrelevant to the trial. If other Commissions chose to ignore contempt, it does not mean that the Shah Commission should follow suit. The various editors of the newspapers in which certain comments relating to the reported views of Justice Shah with regard to emergency were published are not relevant to the inquiry. I, thereforee, reserve my consideration only with regard to the following records and persons. They are :

(1)(D)Record of proceedings dated 3-7-78 of the Shah ''Commission; (e) Record of proceedings in the form of tapes of proceedings dated 3-7-78 of the Shah Commission: (7) Shri Daya Nand, Advocate, Dadri, District Bhiwani. Haryana; (8) Shri Jai Singh Hooda, resident of village Kaloi, District Rohtak, Haryana. and (9) Mr. Justice J. C. Shah, retired Chief Justice of India (complainant).

(8) With regard to the production of Justice Shah it was contended by the accused that he had great prejudice against the accused and the same prompted him to file the complaint in question. By leading Justice Shah into the witness-box, he wanted to prove the bias or animus of the complainant towards him. The learned Magistrate observed that the scope of the Inquiry in the proceedings before him was limited to ascertaining whether the accused committed offences under Ss. 178 and 179 I.P.C. and the alleged bias or animus of the complainant towards the accused is hardly material. He was further of the view that under S. 121 of the Indian Evidence Act, the Commission being in the nature of a court is privileged from appearance. The learned Magistrate commented that the object of the accused in summoning Justice Shah in defense is to vilify and humiliate him as the evidence of the complainant is neither relevant nor its purpose bona fide. With reference to the record and the taperecordings, the learned Magistrate noted that the record of the proceedings dated 3-7-78 of the Shah Commission has been tendered by the prosecution in evidence. The request for production of the tapes has already been rejected earlier on March 20, 1979. With regard to Shri Daya Nand and Shri Jai Singh Hooda, the learned Magistrate observed that their evidence was wholly irrelevant because what they were supposed to depose was that the persons appearing before the Shah Commission were being humiliated' by Justice Shah and the persons belonging to the Janata Party present inside the hall where the proceedings were conducted.

(9) The petitioner prays for setting aside the aforesaid order of the learned Magistrate and prays that the witnesses and the record requested by him be directed to be summoned in defense.

(10) Three main grounds have been stated in the petition : (1) Justice Shah being a complainant in the case was a necessary witness, (2) that Justice Shah was reluctant to file the complaint but he did so upon the insistence of Mr. P. N. Lekhi, counsel for the Union of India, and Mr. Karl Khandalawala, counsel for the Commission, and (3) that by examining the witnesses and the record aforesaid he will be able to show that there was no willful refusal or unwilling omission or innocent warding of the assistance sought for by the Commission, as there was a reasonable doubt of involvement in criminal cases in the mind of the petitioner as indicated by him in his Explanationn under S. 313 Cr.P.C. In short, he could establish lack of means read on his part.

(11) As regards the record of proceedings dated July 3, 1978, the learned counsel for the complainant submitted that there was nothing in the record which had already not been reproduced in the complaint but the prosecution was willing and ready to produce all that record before the court. In respect of the tapes, Mr. Khandalawala pointed out that even if the tapes were admissible in evidence, there was no purpose in producing them unless the petitioner was able to point out in what respect the record produced was not correct so that tapes could be played for verification. As a matter of fact, contended Mr. Khandalawala, the purpose of the accused in asking for the tapes was to buy time -by having the tapes played in the court and then fighting for what is audible or inaudible or what is said or-not said or the voices were identifiable or not. That would simply prolong the already procrastinated proceedings. I agree with the submissions of the counsel that it is not necessary for the tapes to be produced in defense. With regard to the summoning of Mr. Daya Nand, Advocate, and Mr. Jai Singh Hooda, I do not quite see why the prosecution should object to their production. If any questions not relevant to the inquiry are put to these witnesses, then the court will be fully empowered to disallow such questions. As a matter of fact the main controversy centres round calling of Justice Shah with which now I shall proceed to deal.

(12) The notices and summonses in question make it clear that the petitioner was being called by the Commission at the second' stage when the inquiry was to be held strictly in accordance with the terms of S. 8B and S. 8C of the Act, para 3.8 of the Interim Report 1. S. 5(2) of the Act compels a man on peril of prosecution under Ss. 176 and 177 Indian Penal Code . to furnish information which is useful or relevant in the inquiry. We are not in the present case concerned with that. What we are here- concerned with is S. 8B of the Act. In P. R. Nayak v. Union of India and others, I.L.R. (1973) 1 Del. 747, it. was observed that S. 8B embodies the rule of natural justice, not to condemn a person without affording him an opportunity of being heard. According to A. K. Kraipak and others v. Union of India and others, A.T.R. 1970 S.C. 150, the concept of natural justice included three main rules: (i) no one should be a judge in his own cause, (ii) aude alteram partem; and (iii) absence of bias. Opportunity of being heard was initially determined by Rules 4 and 5 of the Central Commission of Inquiry (Procedure) Rules, 1960, but the Parliament enacted these provisions in the Act itself by an amendment in 1971. The opportunity envisaged under S. 8B of the Act has been spelt out clearly in S. 8C, namely; (i) cross-examination of witnesses, (ii) right to address the Commission, and (iii) representation by a lawyer. S. 8B is an option to the petitioner, vide Swami Dhirendra Brahmachari v. Union of India and others, Civil Writ Petition No. 635 of 1978, decided by a Division Bench of this court on January 15, 1979(3). But the summons in question requires appearance and evidence on oath which is a compulsion. It is contended seriously that where conduct and reputation of a man are under inquiry, you cannot compel him to give evidence before you allow him to exercise his option. The petitioner's option has been set off by compulsion. He faced action in contempt if he refused to reply, prosecution for his activities if he told the truth and for perjury if he told a lie. The reply of the State is that the proceedings of the Commission are not analogous to civil or criminal trial, are not adversary or accusatorial in character but only inquisitorial or inquisitional in nature. There is no plaintiff or defendant, no prosecutor or accused; there are no pleadings defining issues to be tried, no charges, indictments or depositions, la short, there is no lie. The Commission is merely a fact-finding body to instruct the mind of the appropriate government. The report and proceedings of a Commission are not documents of a judicial nature. They are of quasi-judicial nature demanding a procedure consistent with rules of natural justice, the Act and the Rules. Subject thereto, the Commission is free to devise its own procedure which may vary with each case to meet any contingency that may be faced in the inquiry. But, the petitioner here contends that when a man's whole public, political or service career is at stake and it is said to him that it is necessary to inquire into his conduct and it is proposed to give him an opportunity of being heard in the inquiry and still to maintain that there is no defendant, no pleading, no accuser, no accused and no charges, is it not to press into service' the technical terms of procedural law civil or criminal to oust a person from his legitimate right to cross-examine the witnesses appearing against him before he is called upon to state his case on oath Even S. 6 of the Act which lays down that no statement made by a person in the course of giving evidence before the Commission shall subject him to or be used against him in any civil or criminal proceedings, envisages a limited prosecution for giving false evidence. The Special Courts Act, 1979, declares that prosecutions will be launched where Commissions of Inquiry have disclosed offences committed by holders of high public or political offices. That is serious in itself. That apart, the consequences of any statement made before the Commission are far more perilous than civil or criminal proceedings. It may result in public condemnation 'without trial, without appeal and without redress'. The Royal Commission in Tribunals of Inquiry, 1966, in its report, para 39, observed :

'IT is true that a Tribunal does not hold a trial but only investigates and reports. Nevertheless reputations and careers may depend upon their findings, e.g. in the Budget Leak Tribunal which was held in public, the Tribunal found that there had been an unauthorised disclosure by Mr. J. H. Thomas to Sir Alfred Butt of information relating to the budget and that use was made by Sir Alfred Butt of that information for private gain; thus ended both their political careers.' At para 64 : 'The publicity however which such hearings usually attract is so wide and so overwhelming that it would be virtually impossible for any person against whom an adverse findings was made to obtain a fair trial afterwards.'

There in U.K. such Tribunals are set up upon a resolution of both Houses of Parliament and so far no person has been prosecuted upon their findings and yet the Commission advised that because of the inquisitorial nature of the proceedings and consequent pain which they may cause to individuals. Tribunals should be set up as sparingly as possible (para 64).

(13) But, here in India Commissions are galore; their findings. do hardly end anybody's public career. Prosecutions are launched as easily as they are withdrawn.

(14) Mr. Khandalawala, however, points out that in this case the summons purports to have been issued under S. 4 and the petitioner could be summoned to give evidence under Rule 5(5)(ii) of the Rules. But the Commission has not invoked that Rule. Both Ss. 8b and 8C of the Act spell out that the person referred to in S. 8B is different from the person whose evidence is recorded by the Commission and that such a person is entitled, if he so wishes, to cross-examine a witness, to address the Commission and to be represented by a legal practitioner. It is being contended that if after prima facie satisfaction, it was thought necessary to inquire into the conduct of the petitioner, compliance of Rule 8C should have been made before he was called upon to explain his conduct. The Madhya Pradesh High Court in Puhupram and others v. State of Madhya Pradesh and others, 1968 M.P.L.J. 629, said :

'IT is not necessary for the petitioners to participate in the inquiry held by the Commission if they think that their participation will prejudice the criminal trial. No doubt, the Commission has the power of summoning and enforcing the attendance of any person. But it is reasonable to think that the Commission, constituted as it is by one of the Judges of this Court, will not compel the petitioners or any of the persons standing trial to give evidence and thus will not give a chance to them to complain that they have been prejudiced in the criminal trial by being forced to give evidence before the Commission.'

(15) The procedure adopted by the Commission was called in question. But the Commission in its order dated July 3, 1978, refused to examine the challenge. The said question is also not within the scope of the present petition. Mr. Khandalawala also draws attention to Swami Dhirendra Brahmachari (supra) in which a similar summons was challenged and it was held that neither the Act, nor the Rules, nor the summons was in violation of any provision of the Constitution. A person to whom a notice is issued under S. 8B has the option not to produce any defense but that is something quite distinct from declining by a person to take oath and give evidence when called upon by any authority competent to do so specially when he Is present before that authority. Certain aspect had to be inquired into on the basis of the material placed before the Commission and since the petitioner's conduct could be adversely commented upon, he was given an opportunity under S. 8B of the Act which he could or could not avail as he thought fit. However, in order to complete the investigation, the Commission could summon the petitioner as it did and in as much as the petitioner was present he could be called upon to give the testimony on oath. S. 8B of the Act is a facility available to a person but that facility does not allow anyone to violate the law or act in a manner which may allegedly be an offence. I am bound by these observations. The petitioner did have a lawyer and did also address the Commission. But there is nothing on the record to show that the petitioner wanted to cross-examine any witness before giving his statement on affidavit or giving evidence on qath. I reject the contention that the petitioner could not be asked to enter the witness box before he was allowed to exercise his option.

(16) The learned counsel for the petitioner contended next that Justice Shah being the complainant was a necessary witness and the prosecution should have produced him, to explain the procedure and to explain whether the refusal of the petitioner to take oath and to answer questions was willful or not. in other words, what he canvasses is that no case of willful refusal is made out against him without an examination of Justice Shah. But that would be a challenge to the furtherance of the prosecution which again is not the purpose of or prayer in the present petition. The prosecution will stand or fall by whatever evidence it has chosen to lead. Certainly, it cannot be the attempt or the anxiety on the part of the accused to examine Justice Shah to fill in the lacuna of the prosecution. He has also refrained from urging that the petitioner was not bound to take oath or answer any question because Justice Shah harboured any bias against him. The replacement of the word 'complainant [S. 224(1) Old] by the word 'prosecution's. 254 (1) New] shows that a complainat may not be required to enter the witness box. Under S. 256 Criminal Procedure Code . he need not even appear it represented or exempted. Even under the repealed Code [proviso to S. 224(1)], if a court was a complainant, the Magistrate was not bound to hear the complainant. S. 346 Cr. P.C. (New) has provided that the court shall as far as may be deal with the cage as if instituted on a police report. The procedure appears to dispense with the appearance of the complainant and that provision cannot be frustrated by allowing the accused to call the complainant court as his witness.

(17) The learned counsel for the State also relied upon S. 121 of the Evidence Act, which reads :

'NOJudge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.'

It was urged that this section gave complete protection to the Presiding Judge from appearance in the court. He also invited my attention to a decision of the Supreme Court in Union of India v. M/s. Orient Engg. and Commercial Co. Ltd. and another, : [1978]1SCR632 , wherein it was observed :

'INDEED,it will be very embarrassing and, in many cases. objectionable if every quasi-judicial authority or tribunal were put to the necessity of getting into the witness box and testify as to what weighed in his mind in reaching his verdict.'

The learned counsel for the petitioner submitted that it is not the conclusions of Justice Shah that he will be questioning about but he will question him about whether in the circumstances what happened in the Commission, there was or was not any willful refusal to take oath. He will also be questioned whether he was not willing to file a complaint but did so upon the pursuance of the Commission's counsel and on account of extraneous considerations. More importantly, it was necessary for the accused to explain the various circumstances which the Commission has detailed in its lengthy complaint. What the petitioner wanted to show in short was that his refusal in the circumstances of the case was in the eye of law no refusal at all. I do not think that the evidence of the complainant is necessary for all this purpose. The record of the Commission ad verbatim is before the court and the petitioner admits that he refused to take oath and answer questions because he was not legally and constitutionally bound to do so. The Commission, vide Interim Report I, para 3.31, was of the view that the Minister's oath (1) did not prohibit him from disclosing the information before a Commission, (2) the Constitution does not provide for any penalty for breach of such oath, (3) the obligation is not absolute as the information can be revealed in due discharge of duties, and (4) disclosure of information before a Commission set up by the Government after he has ceased to be a Minister does not amount to breach of oath. The petitioner has to show that the said view of the Commission was wrong. Since the accused has taken it upon himself to explain to the trial judge how any constitutional or legal obligation or oath of secrecy prevented him from taking oath and deposing, I am constrained to say that no case has been made out for summoning Justice Shah as a defense witness for the purposes stated in the revision petition.

(18) I thereforee, direct that the learned lower court shall call upon the prosecution to produce the record dated July 3, 1978, of proceedings before the Shah Commission, and to summon Mr. Daya Nand and Mr. Jai Singh Hooda. In respect of the other persons and records I uphold the decision of the court below. This petition is disposed of accordingly. The disposal of the case shall be expedited.

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