Skip to content


State of Jammu and Kashmir Vs. Anwar Ahmed Aftab and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1965CriLJ212
AppellantState of Jammu and Kashmir
RespondentAnwar Ahmed Aftab and ors.
Cases ReferredSupreme Court Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Triumale
Excerpt:
- .....on the commission and it cannot be said that by putting the interpretation, which i have put, the powers of commission are reduced. in view of these circumstances, therefore, it seems to me that the act has deliberately excluded the application of the claim of privilege as contained in section 123 of the evidence act and other sections by giving the right to enforce this claim to the government, if necessary, by application of section 5 (2) of the act. this is yet another reason why i should fold that the provisions of the evidence act do not apply to the proceedings before the commission.7. it was next contended by the advocate general that even under order 11, rule 14 of the code of civil procedure, the court before calling for the production of the documents, must come to a clear.....
Judgment:

S. Murtaza Fazl Ali, J.

1. This is an application by the State against an order of the Commission of Inquiry dated 1-10-1964 by which the Commission had ordered the Advocate General to produce certain documents in respect of which the petitioners claimed privilege.

2. It appears that by a notification dated 6-5-1964, the Government constituted the present commission of inquiry for making inquiry into the firing that took place in Srinagar on 25-1-1964 and causes thereof and other matters connected therewith, In pursuance of this Notification the Commission of Inquiry started proceedings and issued notices to the concerned persons. It appears that the respondents appearing in this case also appeared before the Commission aim volunteered to assist the commission in arriving at its decision. The respondents filed an application before the Commission in which they prayed that the documents mentioned in items 1 to 8 of their petition be summoned from the government and be considered by the Commission in order to determine the facts, circumstances and causes leading to the incident which was to be inquired into by the Commission.

The Advocate General contested this application and submitted that some of the documents called for were either irrelevant or were official records in respect of which the Government could claim privilege under Section 123 of the Evidence Act. The matter was argued at length before the Commission of Inquiry who after considering the objections of both the parties found that the claim of privilege put forward by the Advocate-General was not tenable, because the rules of evidence did not apply to the proceedings before him. In the same order, the Commission further came to the conclusion that the documents were relevant and should, therefore, be produced.

3. Against this order, the present petition has been filed Dy the Advocate-General.

4. The main point taken by the Advocate-General is that the commission had no jurisdiction to refuse the claim of privilege to the Advocate-General. In support of his argument, the learned Advocate-General submitted that the Commission was constituted under the provisions of the Jammu and Kashmir Commission of Inquiry Act of 1962 and his powers have to be regulated in accordance with the provisions of that Act. My attention was particularly drawn to Section 4 sub-cls. (b) and (d) of the said Act which run thus:

(b) Requiring the discovery and production of any documents;

(d) Requisitioning any public record or copy thereof from any Court or office.

5. It was argued that since the Commission was exercising powers of a civil Court, in requiring the production of the documents or public records, the provisions of Section 123 of the Evidence Act were applicable because the Commission was deciding the case as if it were a civil Court. The contention is that the provisions of Section 123 of the Evidence Act which gives power to a party to claim privilege in the larger interest of the security of the State, is a power which has become so well established and so well known so as to become part of the rules of natural justice to be observed by any statutory body while deciding matters, which it has to decide. In my opinion, however, the contention of the learned Advocate-General is not tenable. Section 4 of the Act, no doubt, gives certain powers to the Commission to call for certain documents as provided for by the Code of Civil Procedure. In other words, Section 4 of the Act merely applies certain provisions of the Code of Civil Procedure only for certain purposes. By the application of these provisions, the Commission neither becomes a Court nor do the proceedings before it become judicial proceedings, lit is conceded before me by the Advocate-General that the proceedings before the Commission cannot be held to be judicial proceedings as defined in Section 1 of the Evidence Act. It is, therefore, manifest that the provisions of the Evidence Act do not in terms apply to the proceedings before the Commission. In my opinion, Section 123 of the Evidence Act, is in the nature of an exception to the general rule of admissibility which is found in the Evidence Act. While the principles of the Evidence Act may be applicable to the evidence produced before the Tribunal, it would not be proper on a parity of reasoning to infer that even the exceptions contained in the Evidence Act would also be applicable. Moreover, in view of Section 5 Sub-clause 2 of the Commission of Inquiry Act of 1962, it seems to me that the Act itself has impliedly excluded the application of the Doctrine of 'Privilege' as en-bodied in Section 123 of the Evidence Act from the ambit of the jurisdiction of a Tribunal appointed under this Act unless Section 5 sub-el. 2 of the Act is applied by a notification made, by the Government in pursuance of the provisions of Section 5 (1) of the Act. In other words, what Section 4 has done, is merely to apply those Sections of the Code of Civil Procedure which relate to the discovery and production of documents.

The relevant provision so far this case is concerned, is O. 11, R. 14 of the Civil P. C. Under this provision what the Court has to do, is to determine whether the document which it has called for is material to the issue in question, and once it has come to this conclusion it has got an absolute discretion to call for these documents. This discretion given in the Court under O. 11, R. 14 of the Civil P.C., is unfettered and is controlled only by the provisions of the Civil Procedure Code. In the instant case, since Section 4 of the Act has applied only O. 11, R. 14, Civil P. C. and other like provisions and has not in fact applied the provisions of the Evidence Act, it is obvious that the Commission has unfettered discretion to allow the production of the documents irrespective of the fact that these documents are privileged or not. Moreover, Section 5 (2) of the Act, which runs thus:

The commission shall have power to require any person subject to any privilege which may he claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the commission may be useful for, or relevant to, the subject-matter of the inquiry and any person so required shall be bound to furnish such information.

clearly embodies the safeguard mentioned in Section 123 of the Evidence Act. Under Section 5, Sub-clause 1 of the Act, the government has been given a discretion to apply all or any of the provisions of Sub-sections 2, 3, 5 and 6 of the Act. The position, therefore, is that the Commission enjoys unfettered powers to order for the production of documents, which have to be exercised-only an accordance with the provisions of the Civil P.C. and no provision of any other law. Thus what the Legislature has done, is to exclude for the time being, the operation of the 'Doctrine' of privilege as em-bodied in Section 123 of the Evidence Act from the ambit of the proceedings which a Commission has to hold under the Commission of Inquiry Act of 1962. The Legislature has, however, fully empowered the Government to intervene in the proceedings if a thinks that a claim of privilege has to be raised and this can be done by applying the provisions of Section 5 Sub-clause 2 of the Act. Under Sub-section 2 of Section 5 of the Act, it has been laid down that a Commission shall have the power to require any person to produce the necessary information subject, however, to any privilege which may be claimed by him, under any law for the time being in force. The privilege contemplated by this sub-section is, undoubtedly, the privilege contained in Section 123 and other allied Sections of the Evidence Act.

6. Mr. Sunder Lal who followed the Advocate-General submitted that Sub-section 2 of Section 5 of the Commission of Inquiry Act of 1962, contains additional powers of the Commission and once it is applicable then the Commission is invested with powers to call for the production of documents in spite of the fact that any party is entitled to claim privilege thereof and can thus overrule the claim of privilege in a given case. He drew my attention particularly to the words 'subject to any privilege...and any person so required shall be Bound to furnish such information.' The argument is, no doubt, an ingenious one, but it does not appeal to me. If the intention of the Legislature was to exclude the application of Section 123 of the Evidence Act, by virtue of Sub-section 2 of the said Act, then the words, 'subject to any privilege ...' would not have been mentioned therein. The Legislature should have mentioned the words 'irrespective of' or 'notwithstanding any privilege' or any other suitable word to convey this sense. Mr. Sunder Lal wants me to interpret the words 'subject to any privilege' to mean as referable to a person who possesses a privilege, or who claims a privilege or who enjoys a privilege. This is, however, neither the grammatical nor the dictionary meaning of the words Subject to any privilege...' when used in the present context.

This section merely gives power to the Commission to call for documents, but this power, however, is subject to the limitation contained in Section 123 of the Evidence Act, that is to say, it cannot compel a party to produce a document if such a party decides to choose to claim privilege thereof. Mr. Sunder Lal submitted that if this would be the interpretation, then there was no question of giving additional powers to the Commission by virtue of Sub-section 2 of Section 5 of the Commission of Inquiry Act of 1962, This argument is also based on some misconception. It is obvious that unless Sub-section 2 is made applicable by the Government under Section 5 (1) of the Act, the Court has got unfettered powers in asking for the production of documents. By exercising these powers the Court also suffers from a serious infirmity namely that it has no power to grant the claim of privilege if it is raised by a party to the proceedings. Sub-section 2 enlarges the powers of the Commission in this respect that the Commission is invested with powers to grant privilege if claimed by any person under any law for the time being in force which includes the Evidence Act. Thus Sub-section (2) does confer additional powers on the Commission and it cannot be said that by putting the interpretation, which I have put, the powers of Commission are reduced. In view of these circumstances, therefore, it seems to me that the Act has deliberately excluded the application of the claim of privilege as contained in Section 123 of the Evidence Act and other sections by giving the right to enforce this claim to the Government, if necessary, by application of Section 5 (2) of the Act. This is yet another reason why I should fold that the provisions of the Evidence Act do not apply to the proceedings before the Commission.

7. It was next contended by the Advocate General that even under Order 11, Rule 14 of the Code of Civil Procedure, the Court before calling for the production of the documents, must come to a clear finding of fact that the documents in question are relevant, which, the Commission in the instant case has not done. I am, however, unable to agree with this contention. The Commission has expressed in unmistakable language that the documents summoned by the petitioners before it are useful and necessary and will be of assistance to him in deciding the issue. In this connection, the Commission while dealing with the documents in Para 4 of the petition, observed as follows:

If the record for the month of January 1964 is brought before the Commission it would not in any manner be irrelevant because it will show, among other things, whether the same persons were continuously on duty during this period and their acquisition of knowledge about localities and the persons would help them in understanding the situation. Again if the same Magistrates were on duty throughout the month and were going on rounds to see things for themselves their estimate of the situation would be helpful in the inquiry of 25th January, 1964. I do not see therefore, any valid and cogent objection to the summoning of the file showing the number of police personnel and Magistrates on duty in the month of January 1964.

Similarly, regarding other documents called for the Commission observed as follows towards the end of its judgment:

In reality the petitioners have summoned only those documents which would assist in understanding and appreciating the affairs of 25th January 1964, These documents must contain things both for and against the petitioners and in that way the Advocate General should not grudge producing these before the Commission.

From the above, it is, therefore, clear that the Commission had applied its mind to this aspect of the matter and had come to a finding of fact that the documents concerned are relevant for the purpose of inquiry before it.

8. The learned Advocate General then contended that the reasons given by the learned Commission are wrong and this Court should interfere because the Commission has wrongly held that these documents are relevant. It is well settled that the writ jurisdiction of this Court has to be exercised according to certain well established principles; and one of such principles is that the High Court sitting in writ jurisdiction is not an appellate Court which should substitute its own opinion for the opinion of the Tribunal concerned. There must be an error of law apparent on the face of the record in order to attract this jurisdiction. This must be a clear and speaking error and not an error which appears in drawing inferences or which involves appreciation of documentary evidence. In the instant case, the Commission had jurisdiction to hold whether or not the documents were relevant. The Commission has held that the documents are relevant and has given reasons for the same. It is not for this Court, sitting in writ to determine the propriety or otherwise of the reasons given by the Commission.

9. I am fortified in my view by a recent decision of the Supreme Court in Kaushalya Devi v. Bachittar Singh : AIR1960SC1168 , where their Lordships have made the following observations:

This Court had occasion again to consider the question of the extent of the High Court's powers to interfere on a writ of certiorari in Nagendra Nath Bora v. Commr. of Hills Division : [1958]1SCR1240 . It was pointed out in that case that the principle underlying the jurisdiction to issue a writ or order of certiorari was no more in doubt; but the real difficulty arose, as it often did, in applying the principle to the particular facts of a given case. It was also pointed out that the High Court has exercised its supervisory jurisdiction in that case in respect of errors which could not be said to be errors of law apparent on the face of the record; if at all they were errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omissions to draw inferences. In other words, it was further observed, these were errors which a Court sitting as a Court of appeal, only, could have examined and, if necessary, corrected. In the present case, also we feel, with respect that what the High Court has done is to correct what may be errors in appreciation of documentary evidence or errors in drawing inferences. We are, therefore, of opinion that there was no error of law apparent on the face of the record in this case which would justify inferences by the High Court with the order of the Deputy Custodian General....

10. In the same volume there is another decision of the Supreme Court Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Triumale : [1960]1SCR890 , where it was clearly observed by the Supreme Court that an error which has to be established by a long drawn process of reasoning on points which could admit of two opinions, is not an error apparent on the face of the record. In this connection their Lordships made the following observations:

An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival contentious show the alleged error in the present case is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments. We do not think that such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ.

11. In this view of the matter, I am unable to hold that the Commission has committed an error of judgment of record in holding that the documents in question are relevant for the purpose of inquiry before it.

12. For these reasons, therefore, I do not find any merit in this petition, which is accordingly dismissed but in the circumstances without any order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //