Goswami Wadhwa Commission Of ... vs Central Bureau Of Investigation
1989 Latest Caselaw 425 Del

JUDGMENT

D.P. Wadhwa, J.

(1) By this order I propose to dispose of an application (MA No. 21/89) filed by the Delhi Bar Association (DBA) for summoning the record of investigation by the Central Bureau of Investigation (for short 'CBI') investigating into two incidents of 21-1-1988 and 17-2-1988. It was admitted at the Bar that the application though made by the Dba is also by the Advocates to whom notices under Section 8B of the Commissions of Inquiry Act 1952 (for short 'the Act') had been issued. The purpose for which the record was desired to be summoned was to cross-examine Mr. Jinder Singb, S.I., who was in-charge of Police Post Tis Hazari during the relevant period and also Mr. Rajesh Yadav who admittedly led the mob to Tis Hazari Court on 17-2-1988,

(2) On notice being issued, the Cbi has opposed the application.

(3) Arguments have been addressed by Bawa Gurcharan Singh, Advocate, for the Dba and for advocates falling under Section 8B of the Act, Mr. K.T.S. Tuisi, Senior Advocate, for police officers falling under Section 8B of the Act, Mr. G. Ramaswamy, Additional Solicitor General, and Mr. Anil Dev Singh, Senior Advocate, for the Cbi, Mr. R.P. Lao, Standing Counsel for the Delhi Administration, and Mr. D.R. Sethi, Advocate, for the Committee.

(4) To understand the rival contentions, it will be appropriate to know a little background of the case.

(5) The Committee was constituted by an order dated 23-2-1988 of the Administrator, Union territory of Delhi, to inquire into certain matters of public importance. Some of these were

(1)the incident and reported lathi charge on 21-1-1988 outside the office of the D.C.P. (North), Delhi, and

(2)the circumstances leading to the presence of a mob in Tis Hazari Courts premises on 17-2-1988 and the resultant violence. The Committee was requested to ascertain the facts leading to the aforesaid incidents with a view to identifying those responsible for the incidents so that stringent action could be taken against all those responsible. The Committee was also requested to submit an interim report.

(6) In respect of the incident of 21-1-1988, an F.I.R. (No. 20 of 21-1-1988) was lodged by S.I. Jinder Singh and case under Sections 147/ 148/149/332/353/186/427, Indian Penal Code, registered against some advocates. The investigation of the case on the request of D.C.P. (North) was transferred to the Crime Branch of the Delhi Police. An F.I.R. (No. 47 of 17-2-1988) in respect of the incident of 17-2-1988 was also lodged by S.I. Jinder Singh and investigation for offences under Sections 147/148/149/427, Indian Penal Code, was pending, the principal accused being Mr. Rajesh Yadav. Mr. Rajesh Yadav had also filed a complaint in respect of the incident of 17-2-1988. The Committee submitted its interim report on 9-4-1988. The Committee recommended that investigation of the cases pertaining to the incidents of 21-1-1988 and 17-2-1988 be entrusted to the CBI. Paragraph 15 of the interim report would be relevant and may be set out there under :- "WE may also note that the first information report recorded as regards the incident of 21-1-1988 has been stated by Ms. Bedi herself as not to have been correctly recorded. We have already observed about the F.I.R. of the incident of 17-2-1988 to be perfunctory in nature. The investigations in respect of both these incidents are stated to be with the local police, but, we feel, for obvious reasons, that the investigation should be taken in hand by an independent agency. Exact course of action we may, however, suggest when we submit our final report. The independent agency which we can think of at present would be the Central Bureau of Investigation."

The recommendation of the Committee was accepted and the investigation was entrusted to the Cbi where cases pertaining to F.I.R, 20 of 21-1-1988 and F.I.R. 47 of 17-2-1988 were respectively registered as RC4/88-SIU Iii and Rc 5/88-SIU III. It is stated that investigation in both these cases is continuing.

(7) In terms of the Act and the Rules made there under, the Committee prescribed its procedure. It is not necessary to detail the proceedings so far held by the Committee except to note that in Smt. Kiran Bedi and Jinder Singh v. The Committee of Inquiry and another (MR 1989 Sc 714), a case arising out of an order to the Committee, the Supreme Court emphasised the importance attached with regard to the matter of safeguarding the reputation of a person being prejudicially affected by the inquiry (paras 21 to 24 of the report). Under Section 8B of the Act, the Commission shall give to a person falling under clause (a) or clause (b) thereof, a reasonable opportunity of being heard in the inquiry and to produce evidence in his defense, and under clause (a) of Section 8C, that person may cross-examine witness other than a witness produced by him. He has a further right to address the Commission and to be represented by a legal practitioner.

(8) During the course of the proceeding of the Committee, the Cbi made available to the Committee original files of investigation conducted by the local police (including the Crime Branch) which were returned on a letter received from Chi to enable it to proceed with the investigation. Again, on the request of the Dba these tiles were summoned and were made available to the Committee. Since then, these files are in the custody of the Committee. These files, however, do not contain any record prepared by the Cbi during investigation. Then. again on the request of Dba the case property relating to F.I.R. No.20 of 21-1-1988 was summoned from the Cbi which was made available and the case property has since been made part of evidence of the proceedings before the Committee.

(9) During the course of his cross-examination. Mr. Jinder Singh stated that he was examined by Cbi (see statement dated 25-7-1989). This, it appears, led to the tiling of the present application. Mr. Jinder Singh was earlier cross-examined with reference to his F.I Rs. and also the statements recorded by the Delhi Police under section 161 of the Code of Criminal Procedure 1973 (for short 'the Criminal Procedure Code'). The Cbi has not claimed privilege but has disputed the jurisdiction of the Committee to call for the records. During the course of arguments, it was made clear that what was required was not whole of the record of investigation conducted by the Cbi but only the statements of Mr. Jinder Singh and Mr. Rajesh Yadav recorded under Section 161, Criminal Procedure Code or their statements recorded in police diaries. The objection of the Cbi is based on the provisions of Sections 161, 162, 172 and 173 Criminal Procedure Code It is stated that under Sub-section (2) of Section 172, the police files could be called by a criminal court during any inquiry or trial which may use such diaries not as evidence in the case but to aid it in such inquiry or trial and that under Sub-section (3) of Section 172, neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the court. It is stated that since the applicants were accused it would be against law to allow them to inspect the investigation files containing the statements of witnesses. Reference was made to Section 162 Criminal Procedure Code to show that the use of the statements of she witnesses recorded under Section 161 Criminal Procedure Code was limited and further that the accused would get statements only after filing of the charge-sheet under Section 173 Criminal Procedure Code . For the CBI. it appears to me the objections are more on the ground of principle rather than on the particular facts of this case. For me, however, it is otherwise. I am only concerned with my jurisdiction and the right of the Dba and the advocates falling under Section 8B of the Act to effectively cross-examine the witnesses.

(10) Under the Act, a Commission is set up for the purpose of making an inquiry into any definite matter of public importance. It is not therefore that a commission is appointed as a matter of course to inquire into all sort of matters. The report of the Commission is to be laid before the House of the people or, as the case may be, the Legislative Assembly of the State, subject, of course, to Sub-section (4) of Section 3 of the Act. The Commission is to investigate and discover the true facts. For this to be purposeful, the Commission has been invested with various powers. Under Section 4 of the Act, the Commission has the powers of a civil court while trying a suit under the Code of Civil Procedure 1908. requiring the discovery or production of any document and requisitioning any public record or copy thereof from any court of office. Under Sub-section (2) of Section 5, the Commission has further power to require any person, subject to any privilege which may be 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 deemed to be legally bound to furnish such information within the meaning of Sections 176 and 177 of the Indian Penal Code. Under Sub-section (3) of this section, the commission or any gazetted officer authorised by it may enter any building or place where the Commission has reason to believe that any books of account or other documents relating to the subject-matter of the inquiry may be found and may seize such books of account or documents or take extracts or copies there from, subject to the provisions of Sections 102 and 103 Cr PC. (old), in so far as they may be applicable. Under Section 5A, the Commission has power to utilise the services of certain officers and investigation agencies for conducting investigation pertaining to the inquiry. Section 6 may also be noticed at this stage. This section is to the effect that no statement made by person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding. Counsel for the Cbi led me through various provisions contained in Chapter Xii Criminal Procedure Code to contend that I had no jurisdiction in the matter and could not direct production of record by the Cbi and if I did so that would be interference in the investigation of a criminal trial. Reference was made to State of West Bengal v. S.N. Basak . In this case the Supreme Court agreed with the interpretation given by the Privy Council in Emperor v. Nazir Ahmad (AIR 1945 Pc 18) on the statutory duties and powers of the police and powers of the court. It was held that the police had the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a magistrate and this statutory power of the police to investigate could not be interfered with by the exercise of revisional power or the inherent power of the court when there was no case pending at the time excepting that the person against whom the investigation had started had appeared before the court, had surrendered and had been admitted to bail. This authority has no application to the present controversy. Then, reference was made to another decision of the Supreme Court in Sammbhu Nath Jha v. Kedar Prasad Sinha and others . In this the Supreme Court was of the view that the inquiry and investigation by the Commission did not amount to usurpation of the function of the courts of law and that the scope of the trial by the courts of law and the Commission of Inquiry was altogether different and further that in any case it could not be said that the Commission would be liable for contempt of court if it proceeded to inquire into matters referred to it by the Government notification. In appointing a Commission of Inquiry under Section 3 of the Act and in making the inquiry contemplated by the notification, the Commission is performing its statutory duty. Reference was also made to a Bench decision of the Delhi High Court in Director, CBIv. Ram Jethmalani (LPA No. 94/86, decided on 16-3-1988). In this case, the question for consideration was whether a member of the public, who was not a party or person affected, had any right either to inspect the record of a case or to obtain certified copies of the documents collected during investigation by the CBI. This judgment, therefore, cannot have any application to the present case.

(11) MR.RAMASWAMY said that Cbi investigated cases having great import and any order directing production of the record would have serious consequences on the course of investigation. He said the accused should have no linking as to the nature of investigation being conducted and that till the final report was submitted the investigation had to be kept secret. He said investigation would be jeopardised if the source of information was disclosed or even the further course of action Mr Anil Dev Singh. supplementing the arguments of Mr, Ramaswamy, submitted that it was up to Cbi to give or not to give statements or case diaries and any order by the Committee directing production of record would be direct interference with the investigation not contemplated by Chapter Xii CrP.C. He referred to a decision of the Supreme Court in I. J. Rao, Asstt, Collector of Customs and Another v. Bibhuti Bhushan Bagh and Another . The question in this case was the extension of period for issuing 174 show cause notice under Section 124 of the Customs Act 1962. In the case where there has been seizure of goods this notice has to be given within 6 months of the seizure but under the proviso to Sub-section (2) of Section 110 of the Customs Act 1962, the period of 6 months may, on sufficient cause being shown, be extended by the Collector of Customs for a period not exceeding 6 months. The court held that the person from whose possession goods were seized was entitled to notice before the Collector of Customs considered the proposal to extend the period but that right of that person did not extend to information concerning the nature and course of the investigation. This case also has no application to the controversy before me.

(12) Mr. K.T.S. Tulsi, appearing for the police officers to whom notices under Section 8B of the Act had been given, broadly supported the arguments of the counsel for the CBI. He said that in any case power to summon documents from the police file did not extend to summoning of case diary. He said Criminal Procedure Code clothed the investigation with secrecy and that I should not summon the record which was prohibited. He voiced concern that if a civil court could summon the investigation file before a report was submitted, that would be infringing the provisions of Cr. P.C. He, however, conceded that provisions of Section 172 Criminal Procedure Code were applicable only when there was trial or inquiry respecting the offence in question. Mr. Tulsi said that in ordering summoning of the record, this Committee would be sitting on a pedestal higher than that of any court civil or criminal. He said in civil cases wherever the court directed supply of statements recorded under Section 161 Criminal Procedure Code it was only after charge-sheet had been submitted.

(13) Mr. bawa also laid stress on the provisions of Chapter Xii Cr.P.C. He said there was nothing sacrosanct in these provisions and others in the Criminal Procedure Code for the proposition that till charge-sheet was submitted no court could look into the statements recorded under section 161 Criminal Procedure Code or the case diary of the investigation. He strongly relied on a decision of the Allahabad High Court in Mahabirji Birajman Mandir v Prem Narain Shukla and others , to contend that cai)e diary could be summoned when a party to a civil proceeding desired to utilise the case diary. Mr. Bawa also referred to a decision of the Supreme Court in Kehar Singh and others v. The State (Delhi Admn.) , to contend that he had full right to be entitled to see a statement of a witness and to confront him and contradict him under Section 145 of the Evidence Act 1872. He said his right to the statement of a witness recorded under Section 161 Criminal Procedure Code or in the case diary could not be denied on any principle of law. Mr. Bawa also referred to S.J. Chowdhary v. The State (1984 CrI.L.J. 864) where the Delhi High Court held that accused was entitled to copies of statements which were recorded in police diaries.

(14) Mr. R.P. Lao, appearing for the Delhi Administration, advanced the view that this Committee had all the power to summon the record from whatever quarter to find the truth. He said when the Committee itself had powers under Section 5A of the Act there appeared to be no reason why the committee could not refer to the investigation conducted by the Cbi and it was immaterial if charge-sheet had been filed or not. He referred to the report of Justices Thakkar Naiarajan Commission of Inquiry and said that the Committee had been bestowed with powers under Sections 4, 5 and 5A of the Act and these powers had been conferred advisedly and in full realisation of the comprehensive role the (committee bad to play, i.e. the role of an investigator in the first instance and thereafter the role of a discoverer of facts. Mr. Lao said that the work of the Committee was to gather materials for itself, sift the same according to their quality and relevance, and then find out for itself what the facts of the case were. Mr. Lao said the Cbi could not withhold the documents. He, there! ore, disagreed with the stand of the Cbi and that of the police officers falling under Section 8B of the Act.

(15) Mr. D.R. Sethi, learned counsel for the Committee, submitted that the Cbi did not claim privilege and the provisions of Criminal Procedure Code did not bar production of the record. Mr. Sethi said it was unnecessary to refer to the provisions of Criminal Procedure Code and in support of his submissions he referred to a decision of the Supreme Court in Bhagalpur bindings case i e. Khatri and others etc. v. State of Bihar and others . This judgment, to my mind, is fully applicable in the present case. In this case, the question for consideration before the Supreme Court was if certain documents called by it were liable to be produced or their production was barred under some provision of law. Similar arguments were raised as in the present case before me. With reference to Section 4 Criminal Procedure Code the court observed that it was apparent that the provisions of Criminal Procedure Code were applicable where an offence under the Indian Penal Code or under any other law was being investigated, inquired into, tried or otherwise dealt with. Some of the principles laid in this judgment may be deduced as under :-

(1)The object of Section 162 Criminal Procedure Code is to protect the accused both against overzealous police officers and untruthful witnesses.

(2)The ban imposed by Section 162 against the user of a statement recorded by Police during investigation is a limited one, and is confined to an inquiry or trial in respect of an offence then under investigation. Such a statement can be used in collateral proceedings, e.g. in civil or writ proceedings subject to relevancy.

(3)Similarly, the restriction regarding the use of police diary (case diary) is intended to operate only in an inquiry or trial for an offence. A case diary can be used in a civil or writ proceedings.

(4)The contention that the disclosure or production of case diary would jeopardise the secrecy of the investigation and defeat the object was rejected.

(5)Sections 162 and 172 Criminal Procedure Code and Sections 122, 123, 124, 126 and 129 of the Evidence Act being exceptions to the legitimate demand for reception of all relevant evidence in the interest of justice, they must be strictly interpreted and not expansively construed, "for they are in derogation of the search for truth". It would not, therefore, be right to extend the prohibition of Section 172 Cr.P.C. to cases not falling strictly within the terms of the section, by appealing to what may be regarded as the principle or spirit of the section. That is a feeble reed which cannot sustain the argument of the learned Advocate appearing on behalf of the State. It would in fact be inconsistent with the constitutional commitment of this court to the rule of law.

(6)Reports of police officers/C.I.D. as a result of investigation, the correspondence between them and nothings on their tiles can be used in collateral proceedings, e.g. civil or writ proceedings,

(7)Where the law imposes partial or limited ban or restriction on doing something, the scope and applicability thereof must be strictly construed, and, in no case, should be enlarged or extended by any process ol' analogy or on the ground of secrecy or on the plea of interest of justice, or the like The fact that investigation is pending or is already complete may, thus be immaterial.

(16) It was submitted by Mr. Anil Dev Singh that the judgment of the Supreme Court in Khatri's case would not be applicable inasmuch as in this case charge-sheet had been submitted. I do not agree with this contention. It cannot be said that principles of law laid by the Supreme Court would have been any different if charge-sheet had not been filed. Such an argument is impermissible : (see B. M. Lakhani Malkapur Municipality . I am bound by ihe law as laid by the Supreme Court.

(17) Apart from what the Supreme Court has said, I am of the opinion that the Committee has powers under the Act to summon the case diaries. The Committee is inquiring into definite matters of public importance. It has to come to the truth. There can be no compromise on this. It has for that purpose power to requisition any public record from any court or office. The Committee can also require any person to furnish information on the matters or points subject-matter of the inquiry. This is of course subject to right to claim privilege. I need not go into the question if the claim of privilege is bona fide or valid as privilege has not been claimed. Then, to various persons notices under Section 8b of the Act have been issued. They have full right to safeguard their reputation and to lead defense and to cross-examine the witnesses. This right to cross-examination includes the right to cross-examine a witness with reference to his previous statement and to contradict him if necessary, as provided under Section 145 of the Evidence Act. Section 165 of this Act may also be referred to. Full right of cross-examination has to be afforded to a person falling under Section 8B of the Act and also to others who have been allowed to cross- examine a witness. Both S.I. Jinder Singh and Mr. Rajesh Yadav are important witnesses to the two separate incidents under inquiry. Their testimony directly affects the lawyers falling under Section 8B of the Act and the DBA. Purpose of cross-examination is to test their statements given in examination-in-chief and if necessary to destroy them. Cross-examination is a powerful and effective weapon for stripping away the inaccurate and false statements, if any, and for arriving at the truth. There can be no two opinions on this,

(18) I may at this stage quote the following passage from the address given by Sir Cyril Salmon, Chairman, Royal Commission appointed by the British Government to investigate the working of the Tribunal of Inquiry (Evidence) Act 1921 :- "IN all countries, certainly in those which enjoy freedom of speech and a free Press, moments occur when allegations and rumours circulate causing a nation-wide crisis of confidence in the integrity of public life or about other matters of vital public importance. No doubt this rarely happens, but when it does it is essential that public confidence should be restored, for without it no democracy can long survive. This confidence can be effectively restored only by thoroughly investigating and probing the rumours and allegations so as to search out and establish the truth. The truth may show that the evil exists, thus enabling it to be rooted out, or that there is no Foundation in the rumours and allegations by which the public has been disturbed. In either case, confidence is restored. How, in such circumstances, can the truth best be established?"

In our country, the Commissions of Inquiry Act 1952 has been promulgated and powers of a Commission have been defined therein. It is unnecessary to compare the powers of a Commission under the Act with any court cither civil or criminal. The Commission acts within its powers under the Act to accomplish its job and the controversy that it is not on a higher plank than a civil or criminal court, is to my mind, unnecessary. Nor by ordering the production of case diaries in the present case would the Committee be usurping the powers of the Cbi to investigate. I am not concerned for the time being with the investigation into other matters by the CBI. No argument is needed to show that the investigation conducted by the Cbi is quite relevant for my purpose as the incidents being inquired into by me as well as the Cbi arc the same

(19) Then, there is another angle. The investigation was transferred to Cbi on the recommendation of the Committee. Part of the investigation had already been done by the local police and the Crime Bench of the Delhi Police. On requisition being made, Cbi readily forwarded to the Committee case diaries up to the stage of investigation by the Delhi Police. Copies of statements recorded under Section 161 Criminal Procedure Code were furnished to all persons concerned and S.I. Jinder Singh has been cross-examined with reference to the same. Case property was also produced by the Cbi which had been seized by the Delhi Police during the course of investigation and the case: properly now form part of the pnci.edings of the Committee. When now it comes to production of case diaries of the Cbi, reference to various provisions of CrPC, and specially Chapter Xii there of is being made to claim bar to the production of case-diaries. Investigation is one whole and is conducted under the Code of Criminal Procedure both by the Delhi Police and the CBI. Cbi is not, therefore, some sort of' superior investigating agency to claim bar for its own case diaries and not for the Delhi Police's case diaries. No reason has been shown why two different standards have been adopted by the CBT. No principle is involved in the present case for the Cbi to claim protection under the provisions of Criminal Procedure Code Apprehension of the Cbi that the course of investigation would become known to the accused or that they would come to know some secret information the Cbi might have gathered, is misconceived in the present case. In any case, I am not for .the present at all interested to know that. If such a situation arises the Cbi will be well within its right to claim privilege and the validity of the privilege so claimed would be gone into at that time. This is not that stage. Mr. Anil Dev Singh said that I could see the case diaries myself but when told him that If I found contradictions in the statements recorded by the Cbi and those given before the Committee, would those statements be then shown to counsel for the applicant, he said that at that time he would address further arguments. I cannot comprehend such a course.

(20) In view of the principles stated above, I will hold that the provisions of CrPC. are no bar to the production of case diaries. C.BI however, need not produce whole of the case diaries. It will produce statements of S.I. Jinder.Singh and Mr. Rajesh Yadav recorded under section 161 Criminal Procedure Code or statements forming part of the case diaries. It was stated by Mr. Tulsi that Mr. Rajesh Yadav was an accused respecting the incident of 17-2-88 and his statement could not have been recorded. The Cbi has not said anything about this, Mr.RajeshYadav might have been interrogated by Cbi or inquiry must have been made from him Since Mr. Rajesh Yadav himself filed a complaint (attached with the file of F. I.R. No. 47/88) his separate statement on that basis might, have been recorded by the CBI. I wished the Cbi had not maintained silence on this.

(21) Accordingly, I order that Mr. 0.P. Chhatwal,D.S.P.,and Mr. N.K. Sharma, Inspector, Central Bureau of Investigation, who are investigating the two cases, shall produce on affidavit copies of statements of S.I. Jinder Singh and Mr. Rajesh Yadav, if any, recorded under Section 161 Cr.P.C. or though not recorded under Section 161 Criminal Procedure Code but recorded in case diaries.