tion Civil No 626 of 1988 etc
Under Article 32 of the Constitution of India G Ramaswamy Additional Solicitor General section Murlidha ran ADN Rao A Subba Rao and Krishnan Kumar for the Petitioners
Kuldip Singh Additional Solicitor General KK Venugo pal Kapil Sibbal Lal Chand CS Vaidyanathan HS Phool ka NS Das Rajiv Khosla P Tripathi Kailash Vasdev Miss A Subhashini Harish Salve and Ravinder Sethi for the Respondents
The Judgment of the Court was delivered by OJHA J
In the writ petition and the special leave petitions filed by Smt
Kiran Bedi the orders dated 17th 20th and 23rd May 1988 passed by the Committee of Inquiry consisting of Mr Justice NN Goswami and Mr Justice DP Wadhwa of the High Court of Delhi hereinafter referred to as the Committee are sought to be quashed whereas in the writ petition and the SLP filed by Jinder Singh the order dated 26th May 1988 passed by the said Committee is sought to be quashed
In order to appreciate the respective submissions made by learned counsel for the parties it would be useful to give in brief the circumstances leading to the appointment of the Committee and also to quote the terms of reference
What ultimately assumed the shape of confrontation between lawyers and police sparked off from an alleged unfortunate incident on 15th January 1988 of a lawyer being apprehended by the students of St Stephens College University of Delhi and being handed over to the police on the accusation of committing an offence within the campus of the said College
According to the statement of case filed before the Commit tee on behalf of the Delhi 28 High Court Bar Association the said lawyer was brought by the police in handcuffs for production before a Metropolitan Magistrate on 16th January 1988
The lawyers present pro tested against the handcuffing but their protest was ignored by the police officials
The Metropolitan Magistrate ulti mately discharged the lawyer on the same date and also directed the Commissioner of Police to take action against the guilty police officials
In support of their demand for action against the police officials the lawyers went on strike from 18th January 1988
In the said statement of case it was further stated that on 20th January 1988 Smt
Kiran Bedi Deputy Commissioner of Police North District Delhi made a statement in a Press conference justifying the action of police and criticising the order of the Magistrate in discharging a thief and that in order to express their deep concern and anguish a group of lawyers went to meet Smt
Bedi on 21st January 1988 in her office which at that time was situated in the Tis Hazari Court Complex itself
Bedi however refused to come out and meet the lawyers whereupon they preferred to wait upon her till such time as she agreed to meet them
They assert that while they had waited for 15 20 minutes the police took recourse to lathi charge on the lawyers at the orders of Smt
In the said statement of case it has further been asserted that while the indefinite strike and the agitation of the lawyers demanding a judicial inquiry into the incident of lathi charge and suspension of Smt
Kiran Bedi was continuing a mob which eventually swelled to about 3000 persons came to Tis Hazari Court Complex on 17th February 1988 raising slogans in support of Smt
Bedi and against the striking lawyers
The mob used brickbats and stones causing injury to some lawyers and damage to property
According to them this mob attack was engineered by Smt
Kiran Bedi
A statement of case was also filed by Ved Prakash Marwah the then Commis sioner of Police attaching thereto affidavits of 25 police officers including an affidavit of Smt
Kiran Bedi
There is a denial on their part of the assertions and insinuations made against them by the Delhi Bar Association referred to above
With regard to the incident on 21st January 1988 the case of Smt
Kiran Bedi as is apparent from her affidavit filed along with the aforesaid statement of case is that she along with some other officers reached her Tis Hazari Office at about 1115 AM and while a meeting was in progress in connection with the arrangements for the Republic Day some time around 2200 noon slogans were heard being raised outside by an apparently large crowd approaching in our direction
Before we realised what was happening
all of sudden a group of lawyers stormed into my office pushing aside the female constable on duty at my door
They rushed towards me making violent gestures and uttering obsceneties at me
They made physical gesture 29 and threats to the effect  
The Police Officers who were sitting around my table jumped to their feet
They held back one of hysterical persons who had actually advanced in my direction and formed a ring around the lawyers and man aged to move them out of my office while bolting me inside along with my female constable and a female visitor who had come to see me for her own work
We have thought it proper not to quote the actual words of threat stated in the said affidavit
According to Smt
Kiran Bedi the situation there after outside her office was handled by the other officers present while she remained inside the office
We are not concerned with the correctness or otherwise of either of the two versions stated above and as already pointed out we have referred to them only to indicate the background in which the Committee was constituted
Having referred in brief to the circumstances which led to the appointment of the Committee we now quote the order of reference FNo
10988 NP II DELHI ADMINISTRATION DELHI HOME POLICE II DELHI Dated the 23rd Feb 1988
ORDER Whereas the Administrator of the Union Territory
of Delhi is of the opinion that a judicial inquiry is neces sary into matters of public importance mentioned below Now therefore the Administrator is pleased to constitute a Committee in consultation with the Chief Justice of Delhi High Court consisting of Mr Justice NN Goswami and Mr Justice DP Wadhwa Hon ble Judges of the High Court to inquire into and record their findings on the following i The incident of the 15th January 1988 in St Stephen s College University of Delhi regarding apprehension of a lawyer by the police
ii The incident and reported lathi charge on the 21st January 1988 outside the office of the DCPNorth Delhi
30 iii Circumstances leading to presence of a mob in Tis Hazari premises on 17th Febru ary 1988 and the resultant violence
iv Any other incidental development connected with the above
The Committee is 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 may if it deems appro priate submit an interim report within seven days of its first sitting suggesting action if any against police officials or any other involved persons pending submission of the final report within a period of 3 months
 Subsequently in pursuance of a direction issued by this Court the aforesaid notification was modified by the Admin istrator vide Notification dated 15th March 1988 by direct ing that the provisions of Sections 4 5 5 A 6 8 8 A 8 B 8 C 9 10 and 10 A of the and the rules made under Section 12 thereof shall apply to the said Committee
The Committee submitted an interim report on 9th April 1988 and during the course of proceedings before it thereaf ter passed the aforesaid orders which are the subject matter of these writ petitions and special leave petitions
After having heard learned counsel for the parties at length we passed an order on 18th August 1988 which we consider it appropriate to reproduce here with a view to avoiding the repetition of the reasons already given therein in support of the said order It is unfortunate that this case has arisen between lawyers and police who are both guardians of law and who constitute two important segments of society on whom the stability of the country depends
It is hoped that cordiality between the two sections will be restored soon
In order to avoid any further delay in the proceed ings before the Committee consisting of Goswamy and Wadhwa JJ 31 constituted by Order dated 23rd February 1988 to enquire into certain incidents which took place on the 15th January 1988
2 1st January 1988 and 17th February 1988 we pass the following order now but we shall give detailed reasons in support of this order in due course
The order is as under 1
This order is passed on the basis of the material available on record the various steps already taken before the Committee and other peculiar features to the case
The Delhi Administration has to examine first all its witnesses as required by Rule 55a of the Commissions of Inquiry Central Rules 1972 hereinafter referred to as the Rules framed under the hereinafter referred to as the Act
Even those witnesses who may have filed affidavits already may first be examined in chief before they are cross examined since it is stated that when the affidavits were filed the deponents did not know what the other parties who have also filed affidavits had stated in their affidavits
The question whether a party has the right of crossexamination or not shall be decided by the Committee in accordance with Section 8 C of the Act
In the facts and circumstances of the case to which reference will be made hereafter this direction issued to the Delhi Administration to examine its witnesses first as provided by rule 55a of the Rules referred to above does not apply to those witnesses falling under sec tion 8 B of the Act who have to be examined at the end of the inquiry as opined by the Committee itself
We have gone through the several affidavits and other material placed before the Committee and also the Interim Report dated April 9 1988 passed by the Committee
In para 13 of the Interim Report the Committee has observed thus During the course of the inquiry we have to examine the conduct of various police officers and others and particu larly as the record shows of the DCP North Addl
DCP North SHO PS Samepur Badli and SI Incharge Police Post Tis Hazari and SI
Samepur Badli
In para 14 of the Interim Report it is observed
32 Lawyers have seriously urged that this Committee should send a report recommending suspension of the DCP North Ms Kiran Bedi
Ultimately the Committee recommended the transfer of the petitioners in these cases namely Ms Kiran Bedi DCP North and Jinder Singh SI Incharge Police Post Tis Hazari
Section 8 B of the Act reads 8 B If at any stage of the inquiry the Commission a considers it necessary to inquire into the conduct of any person or b is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry the Commission shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his de fence Provided that nothing in this section shall apply where the credit of a witness is being impeached In its Interim Report the Committee has unequivocally observed that it had to examine the conduct of various police officers and in particular among others Ms Kiran Bedi DCP North and Jinder Singh SI Incharge Police Post Tis Hazari
Having given our anxious consideration to all the as pects of the case we hold that the petitioners Ms Kiran Bedi and Jinder Singh are persons who fall under Section 8 B of the Act and have to be dealt with accordingly
According to the Committee s own opinion formed in the light of the facts and circumstances of the case all these persons to whom notices under Section 8 B of the Act are issued have to be examined at the end of the inquiry
This is obvious from the order of the Committee passed on June 29 1988 after it was asked by this Court by its order dated June 2 1988 to reconsider the whole question relating to the order in which the witnesses had to be examined in the case
In its order dated June 29 1988 the Committee has observed thus 33 Without going into the controversy if Rule 55 is an independent rule or is governed by Sections 8 B and 8 C of the Act we would direct that in the circumstances of the case three persons namely the Additional Commis sioner of Police Special Branch DCP Traf fic and Mr Gopal Das Kalra SI to whom notices under Section 8 B of the Act have been issued be examined at the end of the inquiry
 If three persons referred to above to whom notices under Section 8 B have been issued are to be examined even accord ing to the Committee at the end of the inquiry there is no justifiable reason to deny the same treatment to the peti tioners Ms Kiran Bedi and Jinder Singh who are in the same position as those three persons
The action of the Committee in asking them to be cross examined at the beginning of the inquiry appears to us to be discriminatory
Mere non issue of notices to them under Section 8 B ought not to make any difference if they otherwise satisfy the conditions men tioned in Section 8 B
The issue of such a notice is not contemplated under Section 8 B of the Act
It is enough if at any stage the Commission considers it necessary to in quire into the conduct of any person
Such person would thereafter be governed by Section 8 B of the Act
The Com mittee should have considered whether the petitioners were entitled to be treated as persons governed by Section 8 B of the Act before asking them to get into the witness box for being cross examined
If the Committee had found that the petitioners were covered under Section 8 B then perhaps they would not have been asked to get into the witness box for being cross examined till the end of the inquiry
The Committee would have then asked them to give evidence along with others who were similarly placed at the end of the inquiry
On behalf of both the petitioners it is submitted that they did not either wish to delay the proceedings or to show disrespect to the Committee but only wanted to protect their own interest by making the submission which they made before the Committee as per legal advice given to them
This is not a case where the circumstances in which the several incidents that had taken place were not known to anybody else
The affidavits and other material before the Committee show that there were a large number of persons who were eye witnesses to the incidents and who could give evidence before the Committee
Taking into consideration all the aspects of the case we feel that 34 the Committee should not have in the circumstances of the case directed the filing of a complaint against either of the petitioners for an offence punishable under Section 178 IPC
In view of the foregoing we feel that the orders of the Committee directing the filing of the complaints and the criminal proceedings initiated against the petitioners before the Metropolitan Magistrate pursuant to the com plaints filed on behalf of the Committee should be quashed and we accordingly quash the said orders of the Committee and also the criminal proceedings
A judgment containing the reasons for this order will fol low
Before concluding this order we record the statement made by Shri Kuldip Singh learned Additional Solicitor General appearing for the Delhi Administration that the Delhi Administration and its police officers will fully cooperate with the Committee so that the Committee may complete its work as early as possible
We also record the statement made by Shri G Ramaswamy learned Additional Solicitor General that he and his clients the petitioners in this case hold the Committee in great respect and that they never intended to show any kind of discourtesy to the Committee
He also expresses apology for using one or two strong words against the Committee in the course of the arguments in this Court
We now proceed to give our detailed reasons in support of the aforesaid order We find it necessary to refer to some of the regulations framed by the Committee to regulate its procedure
We also find it necessary to indicate the nature of the orders which have been challenged in these writ petitions and special leave petitions
It also seems appropriate at this very place to refer to the order of this Court passed in these proceedings on 2nd June 1988 and the order of the Committee passed on 29th June 1988 in pursuance of the order of this Court dated 2nd June 1988
As is apparent from a copy of the regulations filed in these proceedings the Committee framed Regulations of procedure under Section 8 of the Commissions of Enquiry Act 1952 to be followed by the Committee of Inquiry
Regulations 8 11 14 18 and 21 which in our opinion appear to be relevant for purposes of these cases are reproduced as hereunder 8
To avoid its proceedings being unduly prolonged and 35 protracted the Committee may divide and group together the various persons Associations and departments before it in such manner as it thinks just and proper for the purposes of producing oral evidence cross examination of witnesses examined before it and for address ing arguments
Provided however any person who is likely to be prejudicially affected as provid ed in Sec
8 B of the Act shall be entitled to appear personally or through an authorised agent and to produce evidence in his or her defence
The witness whose evidence is recorded by the Committee orally on oath will be allowed to be cross examined by the concerned parties in accordance with the provisions of the Act
The affidavit or statement of case filed by any deponent can be treated as his examina tion in chief
Technical rules of the Evidence Act as such shall not govern the recording and admissibility of evidence before the Commit tee
However the principles of natural jus tice and fair play shall be followed
The Committee reserves the right to alter modify delete or add to any of these regula tions of procedure at any time during the inquiry as and when it considers necessary
 In pursuance of a notice issued by the Committee under Rule 52a of the Rules statements of case inter alia on behalf of Delhi High Court Bar Association and the Commis sioner of Police which were accompanied by affidavits in support of the facts set out in the respective statements of case were filed before the Committee
On 8th April 1988 the parties and their counsel stated that they would need two weeks  time to file counter affidavit and list of wit nesses to be examined by them
The time prayed for was granted
The proceedings on that date were adjourned to 22nd April 1988
On that date an application was made on behalf of the Commissioner of Police and other police officers for extension of time to file counter affidavit which was ex tended till 13th May 1988
The following order how 36 ever was simultaneously passed on that date Mr Vijay Shankar Das has been told to keep
his witnesses ready for being examined from 16th May 1988
The Committee proposes to hold the sitting from day today wef
16th May 1988
For further proceedings and recording of evidence to come up on 16th May 1988
 Here it may be pointed out that Mr Vijay Shankar Das was the counsel appearing for the Delhi Police and the effect of the order aforesaid was that the Delhi Police was required to keep its witnesses ready for being examined from 16th May 1988
On 16th May time till 500 PM to all concerned to file their counter affidavits along with the list of witnesses was granted and further proceedings were adjourned for the next day
On 17th May 1988 two applications were made on behalf of the Commis sioner of Police one for postponement of heating and the other for calling upon the Bar Association to start their evidence and to call upon the Commissioner of Police to adduce his evidence thereafter
The counter affidavit and the list of witnesses on behalf of the Commissioner of Police had not been filed even till 17th May 1988
The Committee dismissed both the applications referred to above and passed an order saying that since the Commissioner of Police has failed to file the counter affidavit or the list of witnesses Mr Jinder Singh SI and Mrs Kiran Bedi the then DCP North be present in Court on 19588 at 1030 AM for being cross examined
On 19th May 1988 counsel for Delhi Police was directed to produce Mr Jinder Singh SI in the witness box for being cross examined
On being informed by counsel for Delhi Police that Mr Jinder Singh was not available bailable warrant was ordered by the Committee to be issued for production of Mr Jinder Singh at 1030 AM on 23rd May 1988
Thereafter Smt
Kiran Bedi who was present in Court was directed to come in the witness box for cross examination
The relevant portion of the order passed thereafter on 19th May 1988 reads as hereunder Mrs Bedi has been asked to take oath but she has refused to do so
At this stage we called upon Mr G Ramaswamy Counsel appear ing for Delhi Police as also Mr Vijay Shanker Dass Counsel appearing for Mrs Kiran Bedi to justify the action of the witness in not taking the oath
We call upon the counsel to address because according to us prima facie offence is made out under Section 178 IPC Mr Ramaswamy relies on the judgment of this Court in Smt
Indira Gandhi and Anr
vs Mr JC Shah Commission of Inquiry ILR 19801 Delhi 5522
We have been 37 taken through certain passages of judgment and we find that the facts of case are entirely different inasmuch as no affidavit had been filed by Smt
Indira Gandhi in that case and she had been summoned merely under Section 8 B of the Commission of Enquiry Act
In the present case an affidavit of Mrs Kiran Bedi is on record
She had to be given further opportunity to make any further statement and her affidavit already filed has to be justified by cross examination
Let notice issue to Mrs Kiran Bedi to show cause why she should not be prosecuted under section 178 IPC
Since she is present she is accepting this notice
The notice is returnable for tomorrow the 20th May 1988
Ordinarily directions have to be issued to her to be present in court but Mr Shankar Dass undertakes that she will be present in Court tomorrow and as such no further directions are necessary
 On 20th May 1988 as the order sheet of that date indi cates counter affidavit along with list of witnesses was filed on behalf of the Commissioner of Police and both were taken on record
With regard to the notice issued to Smt
Kiran Bedi on 19th May 1988 the following order was passed By our order dated 19588 we had issued a notice to Mrs Bedi to show cause as to why she should not be prosecuted under Section 178 of the IPC for refusing to take oath in the witness box
Notice was made returnable for today
Mr Shankar Dass who appears for Mrs Kiran Bedi has refused to show any cause on the ground that notice was too short
We have heard the arguments of Mr KK Venugopal on behalf of the Bar Associa tion
For orders to come up on 23rd May 1988
Mrs Kiran Bedi who is present today is directed to be present in the Court on 23588 at 1030 AM 38 On 23rd May 1988 the Committee held that refusal of Smt
Kiran Bedi in not testifying on oath before the Commit tee was wholly unjustified and proceeded to file a complaint for an offence under section 178 of the Indian Penal Code
As regards Mr Jinder Singh it seems that he could not be required to appear in the witness box on 23rd 24th or 25th May 1988
On 26th May 1988 the following order was passed Mr Jinder Singh was directed to come into the witness box
When asked by us to bind himself on oath or affirmation to state the truth the witness refused to do so
Earlier we had authorised the court master to administer him the oath
But as we have already said the witness refused to take the oath
The witness states that he is willing to make a statement without oath and would be prepared to answer all the questions in cross examination
When asked if he is aware of the fact that his action in not taking the oath is punishable under Section 178 of the Indian Penal Code he says he has nothing further to state
On consideration the Committee is of the opinion that since this witness has already filed an affidavit which is a statement on oath it is not possible to record any further statement or crossex amine without oath
Mr Jinder Singh however states that he is not prepared to take the oath because he is in the nature of an accused and he cannot be asked to start the evidence and would be prepared to come in the witness box after the evidence of other party is recorded
Mr Jinder Singh at present SI at Police Post Railway Station Subzi Mandi Delhi who was SI in charge Tis Hazari Courts Delhi during January and February 1988 was summoned as a witness and was asked to step into the witness box
His statement was to be recorded on oath for the purpose of cross examination
He however refused to bind himself by an oath or affirmation to state the truth when required so to bind himself by the Committee
The Committee con siders that Mr Jinder Singh who was at the relevant time SI in charge at Tis Hazari Courts Delhi where the incidents took place is a very material witness and his case is identical to the case of Ms Kiran Bedi
For the reasons recorded in our order dated 23rd May 1988 regarding Ms Kiran Bedi we proceed to file a complaint for an offence under section 178 of the Indian Penal Code 39 In pursuance of the orders dated 23rd May and 26th May 1988 complaints were filed by the Committee in the Court of the Chief Metropolitan Magistrate Delhi for an offence under section 178 of the Indian Penal Code and as is appar ent from a copy of one of the complaints produced before us these complaints have been filed under sub section 4 of section 5 of the read with section 346 of the Code of Criminal Procedure 1973
As already indicated it is the aforesaid orders dated 17th 20th 23rd and 26th May 1988 which have been challenged in these writ petitions and special leave petitions
These writ petitions and special leave petitions first came up for consideration  before KN Singh J who was functioning as the Vacation Judge
After hearing the parties he passed an order on 2nd June 1988
The relevant portion of the order which was passed by this Court on 2nd June 1988 in these proceedings reads as hereunder Learned counsel for the parties agree that the respondent Committee should be directed to re examine the order and sequence in which parties witnesses as well as the witnesses summoned by the Committee should be examined with reference to the incidents mentioned in the Notification dated 23rd February 1988
The Committee is accordingly directed to consider afresh the order in which the parties witnesses as well as witnesses summoned by the Committee on its own are to be examined with reference to the incidents mentioned in the Notification appointing the Committee after hearing counsel for the parties
The Committee is further directed to consider the question as to the stage when main witnesses on behalf of the respective parties should be examined
The Committee will pass a reasoned order after hearing the parties
Parties agree that these questions should be considered by the Commit tee on 20th June 1988 or any subsequent date subject to its convenience In pursuance of the aforesaid order the Committee after hearing learned counsel for the parties passed an order on 29th June 1988
It inter alia took the view that the con cept of burden of proof did not appear to be quite relevant in the proceedings before a Commission under the Act which had been given free hand to lay down its own procedure subject of course to the provisions of the Act and the rules made thereunder
It also held that it would be diffi cult for the committee to lay down the manner in which the witnesses are to be 40 examined foregoing its right to examine any witness at any stage if his statement appeared to be relevant
One of the submissions made by learned counsel for the Commissioner of Police was that since serious accusations have been made by the lawyers against Smt
Kiran Bedi and the police with regard to the incidents dated 21st January and 17th February 1988 the lawyers should be first called upon to lead evidence to substantiate their allegations and the police personnel may be required to lead evidence only in rebuttal
This submission however did not find favour with the Committee
It took the view that the whole stress of learned counsel seemed to be on burden of proof and was based on certain misconceptions
Likewise the argument that Smt
Kiran Bedi and Jinder Singh also fell within the pur view of Section 8 B of the Act did not find favour with the Committee
In this connection it was pointed out that except for the three officers namely the Addl
Commissioner of Police Special Branch New Delhi DCP Traffic and Mr Gopal Das Kalra SI Police Station Samepur Badli to no other officer notice under section 8 B of the Act had been issued and that merely because there were allegations against a particular person he could not be said to be covered under Section 8 B which required a positive order from the Committee
It was also pointed out that a person has to be put on guard by the Committee if it considers it necessary to inquire into his conduct or the Committee is of the opinion that the reputation of that person is likely to be prejudicially affected by the inquiry
When its attention was invited to the interim report where the Committee had mentioned that conduct of various police officers particu larly of the DCP North Addl
DCP North SHO PS Samepur Badli and SI Incharge Police Post Tis Hazari and SI Samaypur Badli was to be examined and it was submitted that consequently they were covered under section 8 B the Committee took the view that the submission was misplaced inasmuch as when the Committee mentioned that it was to examine the conduct of various police officers and others it did not have in view section 8 B of the Act
According to the Committee the plea that Section 8 B was attracted appeared to be an afterthought
With regard to the three persons mentioned above to whom notices under section 8 B of the Act had been issued the Committee specifically held that those persons would be examined at the end of the inquiry
The Committee emphasised on the circumstance that in the inquiry before it there was no Lis as is commonly understood while trying a criminal or civil case and that principle of burden of proof had no relevance
41 These cases were then posted before this Bench for hearing
On the respective submissions made by learned counsel for the parties the following points in our opin ion arise for consideration i whether the procedure adopted by the Committee with regard to the sequence in which witnesses were to be examined was legal ii Whether Smt
Kiran Bedi and Jinder Singh the two petitioners fell within the category of persons contemplated by Section 8 B of the Act and were consequently entitled to the same treatment as was accorded by the Committee to the persons to whom notice had been issued by it under the said Section iii whether the Committee was justified in calling upon the two petitioners to stand in the witness box for crossexamination almost at the very initial stage of the inquiry iv whether the orders of the Committee directing prosecution of the two petitioners under Section 178 IPC are legal v whether an appeal is maintainable against filing of complaint the same being an administrative Act vi whether a challenge to the filing of the complaint is infructuous inasmuch as the order issuing summons to the petitioners passed by the Magistrate upon the complaints filed against them had not been challenged vii whether it is a fit case for inter ference by this Court at this stage with the filing of complaint it being open to the petitioners to prove themselves to be innocent before the magistrate With regard to point No i we are of the opinion that apart from the directions contained in paragraph 4 of our order dated 18th August 1988 regarding the stage at which persons failing under Section 8B of the Act were to be examined and also what has been observed in paragraph 2 of the said order we do not find it expedient to lay down any particular rigid procedure to be followed by the Committee with regard to sequence in which witnesses were to be exam ined by it
42 Consequently we find it unnecessary to consider in any further detail the submissions made by counsel for the parties on this point
In so far as point No ii is con cerned it would be seen that the use of the word or  between clauses a and b of Section 8B of the Act makes it clear that Section 8B would be attracted if requirement of either clause a or clause b is fulfilled
Clause a of Section 8B applies when the conduct of any person is to be enquired into whereas Clause b applies to a case where reputation of a person is likely to be prejudicially affect ed
As regards the enquiry about the conduct of Smt
Kiran Bedi and Jinder Singh even the Committee in its interim report specifically stated that the conduct of these two petitioners among others was to be examined
Having once so stated in unequivocal terms it was not open to the Commit tee to still take the stand that Section 8B was not attract ed in so far as they were concerned
Recourse to procedure under Section 8 B is not confined to any particular stage and if not earlier at any rate as soon as the Committee made the aforesaid unequivocal declaration of its intention in its interim report it should have issued notice under section 8 B to the two petitioners if it was of the view as it seems to be for which view there is apparently no justi fication that issue of a formal notice under section 8 B was the sine qua non for attracting that Section
At all events the Committee could not deny the petitioners the statutory protection of Section 8 B by merely refraining from issuing a formal notice even though on its own declared intention the section was clearly attracted
In State of Jammu and Kashmir vs Bakshi Ghulam Mohammad 1966 Suppl
SCR page 401 while dealing with Section 10 of the Jammu and Kashmir Commission of Enquiry Act 1962 which seems to be an amalgam of Section 8 B and 8 C of the Commissions of Enquiry Act 1952 and repelling the argument that section 10 applied only when the conduct of a person came to be enquired into incidentally and not when the Commission had been set up to enquire directly into the conduct of a person it was held If a Commission is set up to inquire directly into the conduct of a person the Commission must find it necessary to inquire into that conduct and such a person would therefore be one covered by section 10
It would be strange indeed if the Act provided for fights of a person whose conduct incidentally came to be enquired into but did not do so in the case of persons whose conduct has directly to be in quired into under the order setting up the Commission
It would 43 be equally strange if the Act contemplated the conduct of a person being inquired into inci dentally and not directly
What can be done indirectly should obviously have been consid ered capable of being done directly
 In State of Karnataka vs Union of India  Another 1978 2 SCR page 1 with reference to Section 8 B of the Act it was held at page 108 of the report that it was undeniable that the person whose conduct was being enquired into was exposed to the fierce light of publicity
Keeping in view the nature of the allegations made in the statements of case and the supporting affidavits filed on behalf of the various Bar Associations including the Delhi High Court Bar Association requirement of even Clause b of Section 8 B was filfilled inasmuch as if those alle gations were proved they were likely to prejudicially affect the reputation of the two petitioners
Indeed in view of the term of reference which contemplated taking of strin gent action against all those responsible even the career of the petitioners as Police officers was likely to be affected in case an adverse finding was recorded against them
In view of the aforesaid specific term of reference the principle that the report of a Commission of Enquiry has no force proprio vigore does not on a pragmatic approach to the consequences seem to constitute sufficient safeguard so far as the petitioners are concerned
The reason for the importance attached with regard to the matter of safeguarding the reputation of a person being prejudicially affected in Clause b of Section 8 B of the Act is not far to seek
The following words of caution uttered by the Lord to Arjun in Bhagwad Gita with regard to dishonour or loss of reputation may usefully be quoted Akirtinchapi Bhutani Kathaishyanti te a vyayam Sambhavitasya Chakirtir mara nadatirichyate 234 Men will recount thy perpetual dishonour and to one highly es teemed dishonour exceedeth death  In Blackstone s commentary of the laws of England Vol I IVth Edition it has been stated at page 101 that the right of personal security consists in a person s legal and uninterrupted enjoyment of his life his limbs his body his health and his reputation
44 In Corpus Juris Secundum Vol
77 at page 268 is to be found the statement of law in the following terms It is stated in the definition Person 70 CJSp
688 note 66 that legally the term person includes not only the physical body and members but also every bodily sense and personal attribute among which is the reputa tion a man has acquired
Blackstone in his Commentaries classifies and distinguishes those fights which are annexed to the person jura personarum and acquired fights in exter nal objects jura rerum and in the former he includes personal security which consists in a person s legal and uninterrupted enjoyment of his life his limbs his body his health and his reputation
And he makes the corre sponding classification of remedies
The idea expressed is that a man s reputation is a part of himself as his body and limbs are and reputation is a sort of fight to enjoy the goods opinion of others and it is capable of growth and real existence as an arm or leg
Reputation is therefore a personal fight and the right to reputation is put among those absolute personal fights equal in dignity and importance to security from violence
Accord ing to Chancellor Kent as a part of the rights of personal security the preservation of every person s good name from the vile arts of detraction is justly included
The laws of the ancients no less than those of modern nations made private reputation one of the objects of their protection
The fight to the enjoyment of a good reputation is a valuable privilege of ancient origin and necessary to human society as stated in Libel and Slander section 4 and this fight is within the constitutional guaranty of personal security as stated in Constitutional La section 205 and a person may not be deprived of this fight through falsehood and violence without liability for the injury as stated in Libel and Slander section 4
Detraction from a man s reputation is an injury to his personality and thus an injury to reputation is a personal injury that is an injury to an absolute personal right
 In DF Marion vs Davis 55 American Law Reports page 171 it was held 45 The right to the enjoyment of a private reputation unassailed by malicious slander is of ancient origin and is necessary to human society
A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life liberty and property
 In view of the foregoing discussion and the reasons already stated in our order dated 18th August 1988 we are of the view that the two petitioners namely Smt
Kiran Bedi and Jinder Singh clearly fell within the category of persons contemplated by section 8 B of the Act and were consequently entitled to the same treatment as has been accorded by the Committee to the persons to whom notice has been issued by it under the said section
As a consequence we are further of the opinion that our answer to point No iii has to be that the Committee was not justified in calling upon the two petitioners to stand in the witness box for cross examina tion at the very initial stage of the enquiry
In this connection it has to be borne in mind that Section 8 B inter alia contemplates an opportunity being given to the person governed by the said section to produce evidence in his defence whereas Section 8 C inter alia gives him the right to cross examine the witnesses who depose against him
Not only that calling upon a person governed by Section 8 B to produce evidence in his defence at the very inception of the inquiry is a contradiction in terms inasmuch as in this situation such a person would really be required to disprove statements prejudicial to him of such witnesses who are yet to be examined it would also reduce the right of cross examination by such person to a mere formality for the obvious reason that by the time the witnesses who are to be cross examined are produced the defence of such person which would normally constitute the basis for the line and object of crossexamination would already be known to such witnesses and they are likely to refashion their statements accordingly
Perhaps in a case where there is no other witness to give information about the alleged incident about which the inquiry is being held and the only person or persons who would give such information is or are the person or persons who are likely to be adversely affected by the inquiry it may be necessary to depart from the above view as a matter of necessity
But this is not one such case
There are admittedly any number of other persons who can give evidence about what happened on the relevant dates
Learned counsel for the various Bar Associations who shall 46 hereinafter be referred to as learned counsel for the re spondent expressed an apprehension that in case a person governed by Section 8 B was to be examined at the end and at that stage such person even at the risk of not producing his defence for some reason chooses not to appear as a wit ness the Committee would be deprived of knowing the facts in the knowledge of such person and such a course would obviously hamper the enquiry
To us this apprehension seems to be more imaginary than real inasmuch as the power of the Commission to call upon any person to appear as a witness under Section 4 of the Act which in terms is very wide and is not circumscribed by fetters of stage will be available to the Commission and the Commission would be entitled to call such person as a witness even at that stage
Before parting with these points we may point out that learned counsel for the respondent cited several authorities in support of the principle that the report of a Commission of Inquiry which was only a fact finding body did not have force proprio vigore and was only recommendatory in nature
Since the principle is well settled we have not considered it necessary to deal with those authorities
Likewise some cases were cited with regard to claim of privilege by a witness
Since the petitioners are not claiming any privi lege but are only claiming to be treated in a reasonable way as persons governed by Section 8 B of the Act and to be meted out the same treatment which has been given to persons falling in that category those cases also are not necessary to be dealt with
Now we come to the fourth point namely whether the orders of the Committee directing prosecution of the peti tioners under Section 178 IPC are legal
In order to appreciate the respective submissions of the learned counsel for the parties on this point it will be useful to reproduce here Sections 178 and 179 IPC They read 178
Refusing oath or affirmation when duly required by public servant to make it
Whoev er refuses to bind himself by an oath or affirmation to state the truth when required so to bind himself by a public servant legally competent to require that he shall so bind himself shall be punished with simple impris onment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both
Refusing to answer public serv ant authorised to question
Whoever being legally bound to state the truth 47 on any subject to any public servant refuses to answer any question demanded of him touch ing that subject by such public servant in the exercise of the legal powers of such public servant shall be punished with simple impris onment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both
 The Committee had in the instant case directed a com plaint to be filed against each of the petitioners for an offence punishable under Section 178 IPC and subsequently filed complaints accordingly
The charge against the peti tioners therefore was of refusal to bind themselves by an oath or affirmation to state the truth on being called upon to do so
Section 179 IPC in the context becomes relevant in so far as it deals with the consequences of refusal by the person concerned to answer questions demanded of him touching that subject with regard to which such person had bound himself to state the truth under Section 178
The context in which the two petitioners were required to bind themselves by an oath or affirmation to state the truth was to face cross examination
The petitioners were obviously placed on the horns of a dilemma
If they refused to bind themselves by an oath or affirmation to state the truth they became liable to be punished with simple imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both
If on the other hand they had to bound themselves and thereafter refused to answer any question as contemplated by Section 179 they would have again become vulnerable to identical punishment
The problem in the aforesaid background presents two propositions 1 whether on the belief that they were persons covered by Section 8 B of the Act the petitioners could avoid the consequences of Sections 178 and 179 IPC by claiming absolute immunity from binding themselves by an oath or affirmation for answering questions put to them and 2 whether they could avoid those consequences if they had valid justification for refusing to take oath or affirmation without claiming an absolute immunity from binding them selves by an oath or affirmation
The answer to the first proposition in our opinion has to be in the negative whereas of the second in the affirmative
Our reasons for this conclusion are these In McGrain vs Daugherty  one of the ques tions which arose for consideration was whether the Senate or the House of Representatives both being on the same plane in this regard has 48 power through its own process to compel a private individ ual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution
It was held that the power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function and that the provisions in this behalf are not of doubtful meaning but are intended to be effec tively exercised and therefore to carry with them such auxiliary powers as are necessary and appropriate to that end
While the power to exact information in aid of the legislative function was not involved in those cases the rule of interpretation applied there is applicable here
A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change and where the legislative body does not itself possess the requisite information which not infrequently is true recourse must be had to others who do possess it
Experience has taught that mere requests for such information often are unavail ing and also that information which is volunteered is not always accurate or complete so some means of compulsion are essential to obtain what is needed
All this was true before and when the Constitution was framed and adopted
In that period the power of inquiry with enforcing process was regarded and employed as a necessary and appropriate at tribute of the power to legislate indeed was treated as inhering in it
Thus there is ample warrant for thinking as we do that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised
 On these findings with regard to refusal by the witness to appear and testify before the Committee and being at tached as a consequence thereof it was held We conclude that the investigation was or dered for a legitimate object that the wit ness wrongfully refused to appear and testify before the Committee and was lawfully at tached that the Senate is entitled to have him give testimony pertinent to the inquiry either at its bar or before the committee and that the district court erred in discharging him from custody under the attachment
 In Uphaus vs Wyman  a witness at an investigation by the Attorney General of the State of New Hampshire conducted pursuant to a resolution of the State legislature authorizing the 49 Attorney General to determine whether there were subversives within the state refused to obey a subpoena calling for the production of a list of persons who were guests at a camp operated within New Hampshire by a voluntary corporation of which the witness was executive director
On petition of the Attorney General the Merrimack Country Court called the witness before it and the witness again refused to produce the information asserting first that by the Smith Act 18 USC section 2385 Congress had so completely occupied the field of subversive activities that the states were without power to investigate in that area and second that the due process clause precluded enforcement of the subpoena
The court rejected the witness  argument and upon his contin ued refusal to produce the list adjudged him in contempt and committed him to jail until he should comply
The Su preme Court of New Hampshire affirmed and even after remand by the United States Supreme Court it reaffirmed its former decision
On appeal while affirming the decision of the Supreme Court of New Hampshire the United States Supreme Court held that since the Attorney General sought to learn if subversive persons were in the State because of the legislative determination that such persons statutorily defined with a view toward the Communist Party posed a serious threat to the security of the State the investiga tion was undertaken in the interest of self preservation and this governmental interest outweighed individual rights in an associational privacy which however real in other circumstances were here tenuous at best
It was further held that the governmental interest in self preservation is sufficiently compelling to subordinate the interest in associational privacy of persons who at least to the extent of the guest registration statute made public at the incep tion the association they now wish to keep private
In the light of such a record we conclude that the State s interest has not been pressed in this instance to a point where it has come into fatal collision with the overriding constitu tionally protected rights of appellant and those he may represent In Sinclair vs United States  it was held Neither Senate Joint Resolution 54 nor the action taken under it operated to divest the Senate or the committee of power further to investigate the actual administration of the land laws
It may be conceded that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits but the authority of that body directly or through its committees to require pertinent disclosures in aid of its own con stitutional power is 50 not abridged because the information sought to be elicited may also be of use in such suits
 In Kastigar vs United States 12 the United States District Court for the Central District of California  ordered the petitioners to appear before a grand jury and to answer its questions under a grant of immunity
The immunity was based upon a provision of the Organized Crime Control Act of 1970 stating that neither the compelled testimony nor any information directly or indirectly derived from such testimony could be used against the witness
Notwithstanding the grant of immunity the petitioners refused to answer the grand jury s questions and were found in contempt
The United States Court of Appeals for the Ninth Circuit affirmed   rejecting the peti tioners  contention that it violated their constitutional privilege against self incrimination to compel them to testify without granting them transactional immunity from prosecution for any offence to which the compelled testimony might relate
On certiorari the United States Supreme Court affirmed
It held that the power of government to compel persons to testify in court or before grand juries and other governmen tal agencies was firmly established but was not absolute being subject to a number of exemptions the most important of which was the Fifth Amendment privilege against self incrimination
With reference to Federal Statute 18 USCS section 6002 it was held That a federal statute permitting the govern ment to compel a witness to give testimony but granting the witness immunity from the use in any criminal case of the compelled testimo ny or any evidence derived therefrom does not violate the Fifth Amendment privilege against self incrimination
 In Brown vs Walker  the question involved was with regard to an alleged incompatibility between that clause of the 5th Amendment to the Constitution which declares that no person shall be compelled in any criminal case to be a witness against himself and the act of Con gress of February 11 1983 27 Stat
at L 443 which enacts that no person shall be excused from attending and testifying or from producing books papers tariffs con tracts agreements and documents before the Interstate Commerce Commission or in obedience to the subpoena of the Commission  on the ground or for the reason that the testimony or evidence documentary 51 or otherwise required of him may tend to criminate him or subject him to a penalty or forfeiture
But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction matter or thing concern ing which he may testify or produce evidence documentary or otherwise before said Commission or in obedience to its subpoena or either of them or in any such case or proceed ing
 It was held it is entirely true that the statute does not purport nor is it possible for any statute to shield the witness from the personal dis grace or opprobrium attaching to the exposure of his crime but as we have already ob served the authorities are numerous and very nearly uniform to the effect that if the proposed testimony is material to the issue on trial the fact that the testimony may tend to degrade the witness in public estimation does not exempt him from the duty of disclosure
A person who commits a criminal act is found to contemplate the consequences of exposure to his good name and reputation and ought not to call upon the courts to protect that which he has himself esteemed to be of such little value
The safety and welfare of an entire community should not be put into the scale against the reputation of a self confessed criminal who ought not either in justice or in good morals to refuse to disclose that which may be of great public utility in order that his neighbors may think well of him
The design of the constitutional privilege is not to aid the witness in vindicating his charac ter but to protect him against being com pelled to furnish evidence to convict him of a criminal charge
If he secure legal immunity from prosecution the possible impairment of his good name is a penalty which it is reason able he should be compelled to pay for the common good
If it be once conceded that the fact that his testimony may tend to bring the witness into disrepute though not to incrimi nate
him does not entitle him to the privi lege of silence it necessarily follows that if it also tends to incriminate but at the same time operates as a pardon for the of fence the fact that the disgrace remains no more entitles him to immunity in this case than in the other
 It is in this view of the matter and in view of the provisions contained in Sections 4 to 6 of the Act and the rules framed thereunder that we are of the opinion that the petitioners on the belief that they 52 were persons covered by Section 8B could not avoid the consequences of Sections 178 and 179 by claiming absolute immunity from binding themselves by an oath or affirmation for answering questions put to them
Indeed in the instant case the petitioners are not asserting that they could not be required at all to appear as a witness before the Committee and make statement on oath
As is apparent from our order dated 18th August 1988 on behalf of both the petitioners it was submitted that they did not either wish to delay the proceedings or to show disrespect to the Committee but only wanted to protect their own interest by making the submission which they made before the Committee as per legal advice given to them
According to learned counsel for the petitioners the legal advice given to the petitioners was that since they were persons covered by Section 8B of the Act they were entitled to produce evidence in defence and could as such be called upon to enter the witness box at the end of the inquiry and could not be required to enter the witness box for cross examina tion almost as the first two witnesses before the Committee
According to him the stand taken by the petitioners was that they being covered by Section 8B of the Act their defence would be put to serious jeopardy and will be prejudicially affected if they were required to appear in the witness box for cross examination at the very inception of the inquiry even before statements of witnesses proving the accusations against the petitioners had been recorded which they were entitled to defend
That this was really the case of the petitioners will be apparent from our discussion a little later
In this background we pass on to the second proposi tion referred to above namely whether the petitioners could avoid the consequences contemplated by Sections 178 and 179 IPC by putting forth valid justification for refusing to bind themselves by oath or affirmation even without claiming an absolute immunity from binding themselves by an oath or affirmation
In Watkins vs United States  a union officer appearing as a witness before a subcommittee of the House Committee on Un American Activities refused to answer questions as to past Communist Party membership of certain persons objecting to the questions on the ground of lack of pertinency to the subject under inquiry by the subcommittee
In a prosecution in the United States District Court for the District of Columbia he was convicted of violating the statute providing for criminal punishment of witnesses before congressional committees who refuse to answer any question pertinent to the question under inquiry and the conviction was affirmed by the 53 United States Court of Appeals for the District of Columbia Circuit
On certiorari the United States Supreme Court reversed the conviction
Warren Chief Justice speaking for the five members of the Court ruled that to support a conviction under a statute a congressional investigating committee must upon objection of a witness on the grounds of pertinency state for the record the subject under in quiry at that time and the manner in which the propounded questions are pertinent thereto
Consequently refusal to answer a question on the ground that it was not pertinent was found to be a valid justification
In Flaxer vs United States  relying on the decision in Watkins Supra that the courts must accord to the defendants every right which is guaranteed to defend ants in all other criminal cases it was held that one of these guarantees is proof beyond a reasonable doubt that the refusal of the witness was deliberate and intentional
This decision is
therefore an authority for the proposition that if the refusal of the witness was not deliberate and intentional but was for a valid cause such refusal could not be made the basis for prosecuting the witness
In Murphy vs Waterfront Commission of New York 12 Led
2d 678 notwithstanding the grant of immunity under the laws of New Jersey and New York petitioners as witnesses before the Waterfront Commission of New York Harbor refused to answer questions on the ground that the answers might tend to incriminate them under federal law to which the grant of immunity did not purport to extend
Petitioners were there upon held in civil and criminal contempt of court
The New Jersey Supreme Court affirmed the civil contempt judgments holding that a state may constitutionally compel a witness to give testimony which might be used in a federal prosecu tion against him
On certiorari the United States Supreme Court vacated the judgment of contempt and remanded the cause to the New Jersey Supreme Court
It was held 
We hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testi mony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him
We con clude moreover that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in 54 investigating and prosecuting crime the Federal Government must be prohibited from making any such use of compelled testimony and its fruits
This exclusionary rule while permitting the States to secure information necessary for effective law enforcement leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the ab sence of a state grant of immunity
It follows that petitioners here may now be compelled to answer the questions propounded to them
At the time they refused to answer however petitioners had a reasonable fear based on this Court s decision in Feldman vs United States supra that the federal authorities might use the answers against them in connec tion with a federal prosecution
We have now overruled Feldman and held that the Federal Government may make no such use of the an swers
Fairness dictates that petitioners should now be afforded an opportunity in light of this development to answer the questions
Accordingly the judgment of the New Jersey courts ordering petitioners to answer the questions may remain undisturbed
But the judgment of contempt is vacated and the cause remanded to the New Jersey Supreme Court for proceedings not inconsistent with this opinion
 In this case also it is therefore clear that a valid justification put forth by the witness was considered to constitute sufficient ground to make him immune from prose cution
We have already pointed out in our order dated 18th August 1988 that if the Committee had found that the peti tioners were covered by Section 8B of the Act it would most probably itself not have required them to get into the witness box for being cross examined till the end of the inquiry
We have reached this conclusion from the circum stances that it is the Committee s own view as expressed in its order dated 29th June 1988 that persons covered by Section 8B have to be examined at the end of the inquiry
That the case of the petitioners in not taking oath for being cross examined at the very initial stage was based on Section 8B seems to be apparent
The plea taken in the application made on behalf of the Commissioner of Police on 17th May 1988 for first calling upon the Bar Association to start their evidence and to call upon the Commissioner of Police to adduce his evidence thereafter was the first indication in this behalf
This plea was at all events relevant qua those police officers whose conduct was 55 to be examined
Secondly when on 19th May 1988 the learned counsel for Smt
Kiran Bedi was required to justify her stand of not taking oath Section 8B was specifically plead ed and reliance was placed on the decision in the case of Smt
Indira Gandhi and another vs Mr JC Shah Commission of Inquiry ILR 1980 1 Delhi 552 as is borne out by the order of the Committee of that date
The justification so pleaded was repelled by the Committee on two grounds namely that Smt
Indira Gandhi in that inquiry had not filed any affidavit and that she had been summoned under Section 8B
On the view of the Committee expressed in its order dated 29th June 1988 which will in the absence of any material to the contrary be deemed to be its view even on 19th May 1988 that persons covered by Section 8B were to be examined at the end of the inquiry the fact that an affidavit of Smt
Kiran Bedi was on record could hardly justify her being called upon to enter the witness box at the very inception
As regards the second ground we have already held that the fact that no formal notice had been issued under Section 8B would constitute no justification for not treating a person to be covered by that section if otherwise the ingredients of the said section were made out
As regards Jinder Singh the order of the Committee dated 26th May 1988 quoted earlier indicates that Jinder Singh had clearly stated that he is not prepared to take the oath because he is in the nature of an accused and he cannot be asked to start the evidence and would be prepared to come in the witness box after the evidence of other party is record ed
Jinder Singh did not state that he was an accused before the Committee
In saying that he was in the nature of an accused be obviously meant that since his conduct was to be examined as contemplated by Section 8B he was entitled to appear as a witness in his defence after the witnesses on behalf of the Bar Association which was accusing him had been examined
Had the Committee not been labouring under the misapprehension that the petitioners were not covered by Section 8B because no notices under that section had been issued to them notwithstanding the fact that their conduct was to be examined on its own declared intention it would obviously not have required the petitioners to take oath for being cross examined at the stage at which it did so
The subsequent orders of the Committee directing complaints to be filed against the petitioners for an offence punishable under Section 178 IPC and the act of filing such com plaints apparently were the consequences of the aforesaid misapprehension
We have already held that the petitioners were covered by Section 8B of the Act
The action of the Committee in compelling the petitioners to enter the witness box on the dates in question for being 56 cross examined when even according to it as is apparent from its order dated 29th June 1988 persons similarly situated were to do so at the end of the inquiry was in itself discriminatory
There was therefore valid justifi cation for the refusal by the petitioners to take oath for cross examination at the stage when they were required to do so
The Committee could have on its own reconsidered the question whether the prosecutions should be pressed further when the case was referred back to it by the learned Vaca tion Judge of this Court by his order dated 2nd June 1988
For these reasons and the reasons already given in our order dated 18th August 1988 we are of the opinion that the Committee should not have in the instant case directed the filing of a complaint against either of the petitioners for an offence punishable under Section 178 IPC
We decide point iv accordingly
As regards points v vi and vii suffice it to point out that the petitioners have apart from filing spe cial leave petitions also filed writ petitions challenging the very same orders and since we have held that the action of the Committee in holding that the petitioners were not covered by Section 8B of the Act and compelling them to enter the witness box on the dates in question was discrimi natory and the orders directing complaint being filed against the petitioners were illegal it is apparently a case involving infringement of Articles 14 and 21 of the Constitution
In such a situation the power of this Court to pass an appropriate order in exercise of its jurisdiction under Articles 32 and 142 of the Constitution cannot be seriously doubted particularly having regard to the special facts and circumstances of this case
On the orders direct ing filing of complaints being held to be invalid the conse quential complaints and the proceedings thereon including the orders of the Magistrate issuing summons cannot survive and it is in this view of the matter that by our order dated 18th August 1988 we have quashed them
As regards the submission that it was not a fit case for interference either under Article 32 or Article 136 of the Constitution inasmuch as it was still open to the petitioners to prove their innocence before the Magistrate suffice it to say that in the instant case if the petitioners are compelled to face prosecution in spite of the finding that the orders directing complaint to be filed against them were illegal it would obviously cause prejudice to them
Points v vi and vii are decided accordingly
These apart from those stated in our order dated 18th August 1988 are our reasons for the said order


Summary:
The Supreme Court dismissed an appeal by special leave filed by Kehar Singh against his conviction and sentence of death awarded under section 120 B read with section 302 of the Indian Penal Code in connection with the assassination of the then Minister of India
Indira Gandhi
A Review Petition filed thereafter by Kehar Singh was dismissed on 7th September 1988 and later a writ petition was also dismissed by this Court
On 14th October 1988 Kehar Singh s son presented a petition to the President of lndia for the grant of pardon to Kehar Singh under Article 72 of the Constitution on the ground that the evidence on record of the criminal case established that Kehar Singh was innocent and the verdict of the courts that Kehar Singh was guilty was erroneous
In the petition he also urged that it was a fit case of clemency and prayed that Kehar Singh s representative may be allowed to see the President in person in order to explain the case concerning him
His request for hearing was not accepted on the ground that it was not in accordance with the well established practice in respect of consideration of mercy petitions
Thereafter in response to a further letter written by counsel for Kehar Singh to the President of India refuting the existence of any practice not to accord a hearing on a petition under Article 72 the Secretary to the President wrote to counsel that the President is of the opinion that he cannot go into the merits of a case finally decided by the highest Court of the land and that the petition for grant of pardon on behalf of Kehar Singh will be dealt with in accordance with the provisions of the Constitution of lndia
The President of India thereafter rejected the said petition
Hence these writ petitions and the special leave petition to this Court
PG NO 1102 PG NO 1103 The main issues involved in the writ petitions and the SLP were a whether there is justification for the view that when exercising his powers under article 72 the President is precluded from entering into the merits of a case decided finally by the Supreme Court b to what areas does the power of the President to scrutinise extend and c whether the petitioner is entitled to an oral hearing from the President in his petition invoking the powers under article 72
Disposing of the petitions HELD 1i The power to pardon is a part of the constitutional scheme and it should be so treated also in the Indian Republic
It has been reposed by the people through the Constitution in the Head of the State and enjoys high status
It is a constitutional responsibility of great significance to be exercised when occasion arises in accordance with the discretion contemplated by the context
1109H 1110A B W I Biddle vs Vuco Perovich  referred to 1 ii The power to pardon rests on the advice tendered by the Executive to the President who subject to the provisions of article 741 of the Constitution
must act in accordance with such advice
1110B Maru Ram vs Union of lndia  followed
2i It is open to the President in the exercise of the power vested in him by article 72 of the Constitution of scrutinise the evidence on the record of the criminal case and come to a different conclusion from that recorded by the court in regard to the guilt of and sentence imposed on the accused
In doing so the President does not amend or modify or supersede the judicial record
The judicial record remains intact
and undisturbed
The President acts in a wholly different plane from that in which the court acted
He acts under a constitutional power the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it
And this is so notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him
111lC D 2ii The legal of a effect of a pardon is wholly different from a judicial supersession of the original sentence
It is the nature of the power which is determinative
1111G Kuljit Singh vs Lt Governor of Delhi 1982 3 SCR 58 Nar A Singh vs State of Uttar Pradesh 19S5 I SCR PG NO 1104 238 and Sarat Chandra Rabha and Others vs Khagendranath Nath and Others   followed
Ex Parte William Wells   Ex Parte Garland  at 370 Ex Parte Philip Grossman   B and US vs Benz  at 358 referred to
3i There is no right in the condemned person to insist on an oral hearing before the President
The proceeding before the President is of an executive character and when the petitioner files his petition it is for him to submit with it all the requisite information necessary for the disposal of the petition
He has no right to insist on presenting on oral argument
1116A B 3ii The manner of consideration of the petition lies within the discretion of the President and it is for him to decide how best he can acquaint himself with all the information that is necessary for its proper and effective disposal
The President may consider sufficient the information furnished before him in the first instance or he may send for further material relevant to the issues which he considers pertinent and he may if he considers it will assist him in treating with the petition give an oral hearing to the parties
The matter lies entirely within his discretion
1116B C 3iii As regards the considerations to he applied by the President to the petition the law in this behalf has already been laid down by this Court in Maru Ram etc
vs Union of India 1981 I SCR 1196
1116D 4
There is sufficient indication in the terms of article 72 and in the history of the power enshrined in that provision as well as existing case law and specific guidelines need not be spelled out for regulating the exercise of the power by the President
Indeed it may not be possible to lay down any precise clearly defined and sufficiently channelised guidelines since the power under Article 72 is of the widest amplitude can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time
1116F F 5
The question as to the area of the President s power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review
However the order of the President cannot be subjected to PG NO 1105 judicial review on its merits except within the strict limitations defined in Maru Ram etc
vs Union of India  at 1249
The function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power or is vitiated by self denial on an erroneous appreciation of the full amplitude of the scope of the power is a matter for the court
1115G 1113B C Special Reference No I of 1964 1965j I SCR 413 at 446 State Rajasthan and Ors
vs Union of India  at 80 82 Minerva Mills Ltd vs Union of India  at 286 287 SP Sampath Kumar vs Union of India 1987 I SCC 124 Ak
Roy etc
vs Union of India and Anr  and KM Nanavati vs The State of Bombay 1961 I SCR 497 referred to
Gopal Vinayak Godse vs The State of Maharashtra and Ors   Mohinder Singh vs State of Punjab AIR  Joseph Peter vs State of Goa Daman and Diu   Riley and Others vs Attorney General of Jamaica and Another  Council of Civil Service Unions and Others vs Minister for the Civil Service   Attorney General vs Times Newspapers Ltd  Horwitz vs Connor Inspector General of Penal Establishments of Victoria 1908 6 CIR 38 Michael De Feritas also called Michael Abdul Malik y Ceorge Ramoutar and Ors  394 Bandhua Mukti Morcha vs Union of India   161 and Rai Sahib Ram Jawaya Kapur and Ors
vs The State of Punjab  235 6 distinguished
In the instant case having regard to the view taken on the question concerning the area and scope of the President s power under article 72 of the Constitution the Court directed that the petition invoking that power shall be deemed to be pending before the President to be dealt with and disposed of afresh
The sentence of death imposed on Kehar Singh shall remain in abeyance meanwhile
1117C D The Constitution of India in keeping with modern constitutional practice is a constitutive document fundamental to the governance of the country whereby according to accepted political theory the people of India have provided a constitutional polity consisting of certain primary organs institutions and functionaries to exercise the powers provided in the Constitution
1108H 1109A PG NO 1106 All power belongs to the people and it is entrusted by them to specified institutions and functionaries with the intention of working out maintaining and operating a constitutional order
1109B  To any civilised society there can be no attributes more important than the life and personal liberty of its members
That is evident from the paramount position given by the Courts to article 21 of the Constitution
1109C The Courts are the constitutional instrumentalities to go into the scope of Article 72
1115B