Criminal Appeal No 114 of 1988
From the Judgment and Order dated 1181987 of the Bombay High Court in Criminal Writ Petition No 733 of 1987
Dr YS Chitale Shambhu Prasad Singh Mrs Jayshree Wad Mrs Aruna Mathur Manoj Wad and Vijay Tulpule for the Appellant
AS Bobde Advocate General for the State of Maharashtra AM Khanwilkar and AS Bhasme for the Respondents
The Judgment of the Court was delivered by SEN J
This appeal by special leave directed against the judgment and order of a Division Bench of the Bombay High Court dated August 11 1987 raises a question of far reaching importance
The question is whether a Commission of Inquiry constituted under section 3 of the hereinafter referred to as the Act  is a Court for purposes of section 1951b of the Code of Criminal Procedure 1973
We had the benefit of hearing Dr YS Chitale learned counsel appearing on behalf of the appellant Dr Baliram Waman Hiray who at one time was the Health Minister of Maharashtra and Shri AS Bodbe learned counsel appearing on behalf of the State Government as to the purport and effect of the inclusive of sub section
3 of section 195 of the Code which provides that in cl
b of sub s1 the term Court means a Civil Revenue or Criminal Court and includes a tribunal constituted by or under a Central Provincial or State Act if declared by that Act to be a Court for the purposes of this section
In Lalji Haridas vs The State of Maharashtra  Anr   a Constitution Bench of this Court by a majority of 32 held that the proceedings before an Income tax Officer under section 374 of the Indian Income tax Act 1922 were judicial proceedings under section 193 of the Indian Penal Code and such proceedings must be treated as proceedings in any Court for the purposes of section 1951b of the Code
We thought that the controversy had been set at rest by the decision of the Constitution Bench in Lalji Haridas  case
Dr Chitale learned counsel however contends that there is a change in the law because of the introduction of sub section
3 of section 195 of the Code and points out that Parliament has brought about the change to implement the 41st Report of the Law Commission and relies PG NO 946 on paras 1590 1593 1594 and 1599
In the course of his submissions he has brought to our notice the words in parenthesis added by the Finance Act 1985 introducing the following change in section 136 of the Income tax Act 1961 wef April 1 1974 from which the Code of Criminal Procedure 1973 came into force
section 28 of the Finance Act amended section 136 of the Income tax Act and it was provided that the words and every income tax authority shall be deemed to be a Civil Court for the purposes of section 195 but not for the purposes of Chapter XXVI of the Code of Criminal Procedure 1973 shall be inserted and shall be deemed to have been inserted at the end wef
1st day of April 1974
Dr Chitale s contention is that unless there was a similar change brought about in the Commissions of Inquiries Act the Commission cannot be deemed to be a Court for the purposes of section 195 1b of the Code
We find great difficulty in dealing with the question involved in this appeal because many diverse problems will have to be considered
In order to appreciate the point involved it is necessary to state a few facts
The State Government of Maharashtra by a notification dated February 21 1986 issued under section 3 read with section 51 of the appointed Shri Justice B Lentin Judge of the High Court of Bombay as a one man Commission of Inquiry to probe into the deaths of 14 patients in the government run Jamsetjee Jee Bhoi Hospital Bombay between January 22 1986 and February 7 1986 after they were administered contaminated glycerol
The aforesaid notification of the State Government was to the effect MEDICAL EDUCATION AND DRUGS DEPARTMENT Mantralaya Bombay 400 032
dated 21st February 1986
No JJH
2088712MED 4 Whereas certain deaths of patients alleged to be due to drug reaction occurred in Neuro Surgery Neurology Opthalmology and Nephrology Departments of JJ Hospital Bombay during January February 1986 And whereas the Government of Maharashtra is of the opinion that it is necessary to appoint a Commission of Inquiry under the 60 of PG NO 947 1952 for the purpose of making an inquiry into the causes and the circumstances leading to the aforesaid incidents of death at JJ Hospital Bombay being definite matters of public importance and for making a report thereon to the State Government Now therefore in exercise of the powers conferred by section 3 and sub section 1 of section 5 of the said Act and of all other powers enabling it in this behalf the Government of Maharashtra hereby appoints a Commission of Inquiry consisting of Shri Justice B Lentin Judge of the High Court of Judicature at Bombay to inquire into and report on the causes and circumstances leading to the occurrence of the said deaths in Neuro Surgery Neurology Opthalmology and Nephrology Departments of JJ Hospital Bombay during January February 1986 and particularly    xxx xxx xxx The Government of Maharashtra hereby directs that having regard to the nature of inquiry to be made by the Commission and other sub section 4 and sub section 5 of section 5 of the said Act shall apply to the said Commission
The Commission shall submit its report to State Government within a period of 3 months from the date of publication of this Notification in the Official Gazette
By order and in the name of the Governor of Maharashtra
JP BUDHAVANT Deputy Secretary to Government By the terms of reference the Commission was required inter alia to enquire into and report on the causes and circumstances leading to the occurrence of the unfortunate deaths and to fix the responsibility of the persons and officers responsible for the purchase and supply of sub standard drugs on the basis of the mounting evidence gathered by Lentin Commission
There emerged a corrupt and venal nexus between the drug firms engaged in manufacturing and supply of sub standard and adulterated drugs and the PG NO 948 delinquent Food  Drugs Administration and Hospital staff on the one hand and the appellant and Bhai Sawant two former Health Ministers and certain Government officials on the other
In the course of its investigation it discovered that there were as many as 582 grossly defaulting drug companies whose products including the crucial life saving drugs were sub standard
The Commission s report was an indictment of the State s public health system and constant ministerial interference
It was particularly severe on the machinations of Bhai Sawant the then Health Minister who the Commission observed had a hairbreadth escape from being served with a notice to show cause why he should not be prosecuted for perjury under sections l93 and 228 of the Indian Penal Code 1860
The Court issued show cause notices on four persons including the appellant Dr Baliram Waman Hiray for giving false evidence in an attempt to cover up the charges of rampant corruption brought against them
The State Government placed the report of the Lentin Commission before the State Legislature on March 30 1988 and accepted its recommendations
One of the recommendations was that a separate enquiry be held by a retired High Court Judge into the charges of corruption against the appellant Dr Baliram Waman Hiray and Bhai Sawant the two former Health Ministers and in particular of the misfeasance and malfeasance on the part of one Dr SM Dolas who was the Food  Drugs controller of the State who had an unprecedented long time for as many as 15 years and other delinquent officers of the concerned departments holding them responsible for the deaths
The report indicted both the Health Ministers in no uncertain terms
But we are not concerned with the follow up action that the Government has taken in bringing the guilt to book
The controversy before us is limited to the question whether the Commission was a Court for the purposes of section 1951b of the Code of Criminal Procedure 1973
On June 23 1987 the Commission by its order directed its Secretary to issue a show cause notice to the appellant as to why he should not be prosecuted for the offence of giving false evidence on oath under section 193 of the Indian Penal Code 1860 read with section 340 of the Code of Criminal Procedure 1973the relevant portion whereof reads AND WHEREAS you are summoned by the Commission under Section 4 of the  to give evidence before it and you did give evidence before it on PG NO 949 22nd April 1987 23rd April 1987 24th April 1987 27th April 1987 28th April 1987 29th April 1987 4th May 1987 5th May 1987 8th June 1987 and 9th June 1987    AND WHEREAS the Commission is prima facie of the opinion that it is expedient in the interests of justice that an inquiry should be made into the offence under Section 193 of the Indian Penal Code referred to in clause b of sub section 1 of Section 195 of the Criminal Procedure Code which appears to have been committed by you in or in relation to the proceedings before this Commission   NOW THEREFORE TAKE NOTICE that the Hon ble Mr Justice B Lentin Commission of Inquiry has fixed this Notice for hearing on Friday the 26th June 1987 at 245 pm in Court Room No 37 First Floor Main High Court Building Bombay 400 032 when you are required to appear either in person or by an Advocate to show cause if any why proceedings should not be initiated against you as hithertofore stated for the offence ot giving false evidence before the Commission
 It was stated in the notice that the appellant gave self contradictory answers specified in columns A  and B  in Schedule I one of which had necessarily to be false
The relevant excerpts of sections 191 and 193 of the Indian Penal Code
section 340 of the Code of Criminal Procedure and sections 4a 55 and 6 of the were set out in Schedule II
In response to the notice the appellant appeared through counsel and showed cause
Amongst other grounds the appellant contended firstly that in law the appellant s evidence would not technically constitute perjury and even if it were so
this was not a fit case where in the interests of justice it was expedient that an inquiry should be made against the appellant into the alleged offence under section 193 of the Indian Penal Code
referred to in cl
b of sub section
1 of section 195 of the Code of Criminal Procedure which appeared to have been committed in or in relation to the proceedings before it Secondly the Commission of Inquiry was not a Court for the purposes of section 1951b and section 340 of the Code
It was stated that while perjury before the Commission was doubt punisable it was not for the Commission to give a finding in terms of section 340 PG NO 950 or to file a complaint but for the Government or a public spirited person  to do so
The Commission by its well considered order dated July 71987 repelled each of these contentions and held that the case was a fit one where in the interests of justice it was expedient to prosecute the appellant
Any other course would in its words bring the sanctity of oath and administration of justice into ridicule and contempt 
The Commission observed that the appellant was not illiterate or semi literate person who could plead confusion of mind in the witness box as indeed he does not
By profession he was a medical practitioner but he played a prominent part in public life for several years he held various portfolios as Cabinet Minister in the Government of Maharashtra including Health
According to the Commission he was by far the most intelligent and shrewdest witness who had given evidence before it
Unlike the other witnesses he never recanted in an attempt to deliberately distort the truth
It went on to observe that normally witnesses are not allowed to be represented by counsel
However in a departure from normal practice the Commission allowed this latitude to the appellant so that justice should not only be done but should be seen to be done to him and he had a counsel of his choice
Accordingly the Commission directed its Secretary to take necessary steps for expeditious filing of the complaint in the proper forum and directed that the appellant should in the meanwhile furnish a personal bond in the sum of Rs500 for his appearance before the Metropolitan Magistrate
The Secretary to the Commission accordingly filed a complaint on July 17 1987 against the appellant under sections 193 and 228 of the Indian Penal Code being Criminal Case No 1121w of 1987 in the Court of the Additional Chief Metropolitan Magistrate at Esplanade Bombay
On the same day the appellant filed a petition in the High Court under article 226 of the Constitution assailing the legality and propriety of the impugned order passed by the Commission and the consequent direction to its Secretary to lodge a complaint against the appellant for giving of false evidence
On July 20 1987 the learned Metropolitan Magistrate issued process under section 193 of the Indian Penal Code against the appellant and further issued a bailable warrant in the sum of Rs500 with one surety in the like amount
A Division Bench of the High Court by its judgment dated August 117 1987 repelled the contentions advanced by the appellant and accordingly dismissed the writ petition
We may first reproduce the statutory provisions bearing on the controversy
The relevant provision of section 191 of the Indian Penal Code insofar as material reads PG NO 951 191
Giving false evidence Whoever being legally bound by an oath or by an express provision of law to state the truth or being bound by law to make a declaration upon any subject makes any statement which is false and which he either knows or believes to be false or does not believe to be true is said to give false evidence
 Section 1951b of the Code of Criminal Procedure provides  1951 No Court shall take cognizance bi of any offence   or in relation to any proceeding in any Court or except on the complaint in writing of that Court or of some other Court to which that Court is subordinate Sub section
3 of section 195 of the Code provides that in cl
b of sub section
1 the term Court  means a Civil Revenue or Criminal Court and includes a tribunal constituted by or under a Central Provincial or State Act if declared by that Act to be a Court for the purposes of this section
We may then set out the relevant provisions of the 
The relevant provision contained in sub section
1 of section 3 provides as follows 3
Appointment of Commission 1 The appropriate Government may if it is of opinion that it is necessary so to do and shall if a resolution in this behalf is passed by the House of the People or as the case may be the Legislative Assembly of the State by notification in the Official Gazette appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification and the Commission so appointed shall make the Inquiry and perform the functions accordingly
 Section 4 vests in the Commission the powers of a Civil Court while trying a suit under the Code of Civil Procedure and reads as follows PG NO 952 4
Powers of Commission The Commission shall have the powers of a civil court while trying a suit under the Code of Civil Procedure 1908 in respect of the following matters namely a summoning and enforcing the attendance of any person from any part of India and examining him on oath b requiring the discovery and production of any document c receiving evidence on affidavits d requisitioning any public record or copy thereof from any court or office e issuing commissions for the examination of witnesses or documents f any other matter which may be prescribed
 Section 5 empowers the appropriate Government by a notification in the Official Gazette to confer on the Commisson additional powers as provided in all or any of the sub sections
2 3 4 and 5 of that section
Sub sections
4 and 5 of section 5 of the Act which are relevant for our purposes provide as follows 4
The Commission shall be deemed to be a civil court and when any offence as is described in section 175 section 178 section 179 section 180 or section 228 of the Indian Penal Code 45 of 1860is committed in the view of presence of the Commission the Commision may
after recording the facts constituting the offence and statement of the accused as provided for in the Code of Criminal Procedure 1898 5 of 1898 forward the case to a magistrate having jurisdiction to try the same and the magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under section 482 of the Code of the Criminal Procedure 1898 5 Any proceeding before the Commission shall be PG NO 953 deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code 45 of 1860
 Section 6 provides 6
Statements made by persons to the Commission No statement made by a person in the course of giving evidence before the Commission shall subject him to or be used against him in any civil or criminal proceeding except a prosecution for giving false evidence by such statement Provided that the statement a is made in reply to a question which he is required by the Commission to answer or b is relevant to the subject matter of the inquiry
 By section 8 the Commission is empowered to regulate its own procedure including the time and place of its sittings etc
In support of the appeal Dr YS Chitale learned counsel for the appellant submits that the Commission of Inquiry appointed by the State Government under sub section
I of section 3 of the Act read with section 5 is merely a fact finding body appointed by the Government for the information of its mind  and the mere fact that the procedure adopted is of a legal character and that it has the power to administer an oath will not impart to it the status of the Court and therefore is not a Court for the purposes of section 1951b of the Code
He submits that it is well settled that a Commission of Inquiry has not the attributes of a Court inasmuch there is no lis before it and it has no powers of adjudication of rights
He further points out that the language of section 6 of the Act is plain enough to show that no statement by a person before a Commisson of Inquiry can subject him to or be used against him  in any civil or criminal proceedings except in a prosecution for giving false evidence before the Commission
The question before the Court the learned counsel contends is not whether the appellant can be prosecuted for perjury for giving false evidence which is an offence punishable under section 195lb or for the offence of intentional insult of the Commission punishable under section 228 of the Indian Penal Code but whether the Commission was a Court  for the purposes of section 1951b
A Commission by reason of section 4 has the same powers of a Civil Court while trying a suit under the Code PG NO 955 of Civil Procedure 1908 but such investiture of power is for a limited purpose ie in respect of the matters specified therein namely summoning of witnesses requiring the discovery and production of the relevant documents receiving evidence on affidavits requisitioning any public record or copy thereof from any court or office issuing commissions for examination of witnesses or documents etc
Still in the very nature of things it has not the trappings of a Court
The learned counsel relies upon the decision of the Nagpur High Court in MV Rajwade vs Dr SM Hassan  Ors ILR 1954 Nagpur 1 where the question arose whether the Commission of Inquiry was a court  within the meaning of the and which was referred to by this Court in Brajnandan Sinha vs Jyoti Narain  while holding that the public under the is not a Court  within the meaning of the 
He also relied upon the later decision of a Division Bench of the Madhya Pradesh High Court in Puhupram  Ors
vs State of Madhya Pradesh  Ors and to a judgment of a learned Single Judge of the Kerala High Court in Balakrishnan vs Income Tax Officer Ernakulam  Anr Dr Chitale submits that sub section
3 of section 195 of the present Code has brought about a change in the law
He traced the legislative history behind the enactment of sub section 3 of section 195 and pointed out that in Jagannath Prasad vs State of Uttar Pradesh  this Court held that a Sales Tax Officer acting under the Uttar Pradesh Sales Tax Act 1948 was merely an instrumentality of the State for purposes of assessment and collection of tax and even if he was required to perform certain quasi judicial functions he was not a Court  for the purposes of section 1951b of the Code
Nor could he be treated to be a Revenue Court within the meaning of section 1952 of the Code
He then referred to the decision in Lalji Haridas vs State of Maharashtra  Anr
supra where a Constitution Bench by a majority of 32 took a view to the contrary and held that proceedings before an Income Tax Officer under section 37 of the Indian Income Tax Act 1922 while exercising his powers under sub sections
1 2 and 3 thereof were judicial proceedings for the purposes of sections 193 196 and 228 of the Indian Penal Code and therefore must be treated as proceedings in any Court for the purposes of section 1951b of the Code although the Act did not expressly said so
The learned counsel points out that the definition of Court  in section 1952 as originally enacted used the word means  instead of the word includes  which later was substituted by the Criminal Procedure Code Amendment Act 1973
This gave rise to a controversy whether tribunals or officers PG NO 955 acting in judicial capacity or exercising quasi judicial functions should be regarded as Courts for the purposes of section 1951b 
The substitution of the word includes  for the word means  in the definition if anything added to the difficulties of this complex issue
It necessarily gave rise to the question what else besides Civil Revenue and Criminal Courts was covered by the generic term Court 
The learned counsel drew our attention to the decision of this Court in Shri Virindar Kumar Satyawadi vs The State of Punjab  a three Judges Bench speaking through Venkatarama Ayyar J observed at p 1018 It is a familiar feature of modern legislation to set up bodies and tribunals and entrust to them work of a judicial character but they are not Courts in the accepted sense of that term though they may possess as observed by Lord Sankey LC in Shell Company of Australia vs Federal Commissioner of Taxation  some of the trappings of a Court
 It was then observed It may be stated broadly that what distinguishes a Court from a quasi judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment
To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it
And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law
When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi judicial tribunal what has to be decided is whether having regard to the provisions of the Act is possesses all the attributes of a Court
 In support of his submissions Dr Chitale relied upon the 41st Report of the Law Commission paragraphs 1593 to 15101 and in particular referred to the following passage in para 1599 where it was observed that in any concrete case this question is bound to create problem of interpretation  and accordingly suggested a change in law he purposes of section 1951b PG NO 956 We consider that for the purpose of clauses b and c court should mean a civil court or a revenue court or a criminal court properly so called but where a tribunal created by an Act has all or practically all the attributes of a court it might be regarded as a court only if it is declared by that Act to be a court for the purposes of this section The learned counsel contends that Parliament accordingly enacted sub section
3 of section 195 to put an end to the controversy
In view of the change in law brought about by section 1953 it is urged that a tribunal constituted by or under a Central Provincial or State Act can be deemed to be a Court  only if it is declared to be so by that Act for the purposes of section 195
According to the learned counsel it is now a familiar feature of recents Act to insert a specific provision deeming a tribunal to be a Court and wherever such a provision is not there the Court cannot deem a tribunal to be a Court
According to him it is no more a question of interpretation but one of express enactment
He accordingly contends that the majority decision in Lalji Haridas  case no longer holds the field
There appears to be considerable force in the argument 
Pursuing the same line of thought ie there is a change of law brought about by sub section
3 of section 195 of the Code the learned counsel contends that Parliament had to step in and expressly amend section 136 of the Income tax Act 1961 to put the matter beyond controversy
Sec 136 of Income tax Act 1961 as originally enacted provided by legal fiction that any proceeding under this Act before an income tax authority shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code 1860
Interpreting section 136 before its amendment the Court has as already stated in Lalji Haridas  case held that the proceedings before the Income tax Officer being deemed to be judicial proceedings under section 193 Indian Penal Code must be treated as proceedings in any Court for the purpose of section 1951b Criminal Procedure Code
It also added that under the provisions of the Indian Income tax Act of 1922 it could not be held that the Income tax Officer is a Revenue Court contrary to the rule laid down in Jagannath Prasad s case
In the course of his arguments the learned counsel has brought to our notice the words in parenthesis added by section 28 of the Finance Bill 1985
The Finance Bill by section 28 brought about a change in the law and added the words 28
Amendment of section 136 of the Income tax Act the PG NO 957 words and figures and every incometax authority shall be deemed to be a Civil Court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure 1973 2 of 1974 shall be inserted and shall be deemed to have been inserted at the end with effect from the 1st day of April 1974
 The reason for the change is given in the Notes on Clauses in the Finance Bill 1985 and it reads Clause 28 seeks to amend section 136 of the Income tax Act relating to proceedings before income tax authorities to be judicial proceedings
This amendment seeks to secure retrospectively that an income tax authority shall be deemed to be a Civil Court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure 1973 from the date of its commencement that is 1st April 1974
 This is also evident from paragraph 119 of the Memorandum explaining provisions in Finance Bill 1985 and it reads 119
Under the existing provisions
proceedings before income tax authorities are deemed to he judicial proceedings within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code
It is proposed to provide that an income tax authority shall be deemed to be a Civil Court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure 1973
This amendment is intended to secure that prosecution proceedings for offences under the relevant provisions of the Indian Penal Code may be launched on the complaint of the concerned income tax authority
The proposed amendment will take effect from 1st April 1974 that is the date from which the Code of Criminal Procedure 1973 came into force
 According to Dr Chitale this was nothing but legislative declaration of the law contrary to the law declared by this Court in Lalji Haridas  case which is permissible under article 141 of the Constitution
While the learned counsel accepts that under article 141 the law declared by the Supreme Court is binding on all Courts in India in other words the law declared by the Supreme Court is made PG NO 958 the law of the land there is nothing to prevent the legislature to bring about a change in the law
Finally the learned counsel also drew attention to the existing legislative practice where certain enactments constituting a Tribunal contain a provision that the Tribunal shall be deemed to be a Court for the purposes of section 1952 of the Code
The learned counsel referred us to section 40 of the Indian Railways Act 1890 section 23 of the and section 18 of the 
These provisions which are almost similar provide that the Tribunal under the Indian Railways Act the Commissioner under the and the authority appointed under the shall be deemed to be a Civil Court for the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure 1898
Likewise section 18 of the provides that the authority appointed under the Act shall be so deemed to be a Court for the purposes of section 195 of the Code
We shall consider all these aspects in their proper context
In his reply Shri Arvind Bobde learned Advocate General appearing on behalf of the State Government argued with great clarity and precision and repelled the contentions advanced on behalf of the appellant
According to the learned Advocate General there was no need to amend the Act merely because of the enactment of sub section
3 of section 195 of the Code and the majority view in Lalji Haridas  case is binding on us and is still good law
His submissions were on these lines
While under section 4 of the Act a Commission of Inquiry has the power of a Civil Court while trying a suit under the Code of Civil Procedure l908 in respect of the matters enumerated therein the legislature has not rested at that
Parliament has made express provision by the use of a legal fiction in sub section
4 of section 5 of the Act that a Commission of Inquiry shall be deemed to be a Civil Court and has further by the use of another legal fiction in sub section 5 thereof enjoined that any proceedings before a Commission of Inquiry shall be deemed to be judicial proceedings
On a combined reading of sub sections
4 and 5 of section 5 the learned Advocate General contends that the conclusion is irresistible that a Commission of Inquiry is a Court for the purposes of section 1951b as laid down in Lalji Haridas  case
In other words the submission is that while section 4 invests a Commission of Inquiry with the power of a Civil Court following the familiar pattern of statutes constituting special tribunals the legislature has gone further and put the matter beyond doubt by enacting sub sections
4 and 5 of section 5
The contentions advanced on behalf of the appellant were it is said the submissions made before the Court in Lalji Haridas  case and the Court has dealt PG NO 959 with the question as to whether there was a distinction between a case where a statute constituting a tribunal provides that the tribunal shall be deemed to be a Court for the purposes of section 1951b and a case where a statute does not expressly say so
The majority on a construction of the various provisions of the Act expressed the considered view that the absence of such a provision makes no difference
It was further not open for us to say that the decision in Lalji Haridas  case was no longer binding on us merely by the enactment of sub section
3 of section 195 of the Code
The learned Advocate General then read out the provisions of section 1951b of the Code of Criminal Procedure 1898 and of the present Code as well as the interpretation clause in sub section
3 of section 195 of the present Code and the analogous provisions in sub section
2 of section 195 of the old Code to impress upon us that there was no textual difference in the language of section 1951b
As regards the interpretation clause it was pointed out that the first part of section 1952 of the old Code used the word means  which was later substituted by the word includes 
The first part of section 1952 was therefore an inclusive one but the second was an exclusionary clause so as to exclude the Registrar or the SubRegistrar under the Indian Registration Act from the purview of the expression Court  as defined by the first part of section 1952
In contrast the definition of the term Court  in sub section
3 of section 195 of the present Code is exhaustive
However it is urged that all that section 1953 of the present Code does is to provide that in clb the term Court  as defined in section 1953 means a Civil Revenue or Criminal Court and includes a tribunal constituted by or under a Central Provincial or State Act if declared by that Act to be a Court for the purposes of this section
The definition of Court  in the first part of section 1953 of the Code is therefore restrictive while the second is inclusive
It is contended that the definition of a word may either be restrictive of its ordinary meaning or it may be extensive of the same
Sometimes definition of a term contains the words means and includes  which may inevitably raise a doubt as to interpretation
According to the learned Advocate General the inclusive part of the definition of Court  in section 1953 of the Code was ex abundanti cautela and was merely declaratory of the law
It is submitted that the first part of sub section
4 of section 5 of the Act fulfils the requirements of the inclusive part of the definition of Court  in section 1953 of the Code
Therefore the Act was in line with sub section
3 of s 195 of the Code there was no occasion for Parliament to effect an amendment of the Act particularly having regard to the majority decision in Lalji Haridas  case
PG NO 960 The learned Advocate General with much learning and resource submits that there are different types of legislative practices
One such instance is that of sub section
4 of section 37 of the Indian Income Tax Act 1922 inserted in the Act in 1956 which provides that any proceeding before an Income Tax Officer shall be deemed to be a judicial proceeding like in sub section
5 of section 5 of the here
Our attention was drawn to the following observations of Gajendragadkar CJ speaking for the majority in Lalji Haridas  case as to the purport and effect of section 37 of the Indian Income Tax Act at pp
709 710 The expression judicial proceeding is not defined in the Indian Penal Code but we have the definition of the said expression under section 4m of the Cr
Procedure Code
Section 4m provides that judicial proceeding includes any proceeding in the course of which evidence is or may be legally taken on oath
The expression Court is not defined either by the Cr
PC or the IPC though Court of Justice  is defined by section 20 of the latter Code as denoting a Judge who is empowered by law to act judicially alone or a body of Judges which is empowered by law to act judicially as a body when such Judge or body of Judges is acting judicially
Section 3 of the Evidence Act defines a Court  as including all Judges and Magistrates and all persons except the Arbitrators legally authorised to take evidence
Prima facie there is some force in the contention that it would not be reasonable to predicate al out every judicial proceeding that it is a proceeding before a Court
and so it is open to the appellant to urge that though the proceeding before an Income tax officer may be a judicial proceeding under section 193 IPC it would not follow that the said judicial proceeding is a proceeding in a Court as required by section 1951b Cr
PC And to the operative part of the judgment delivered by the learned Chief Justice at pp
710 711 It is true the Additional Solicitor General has mainly relied upon the relevant provisions of several statutes in support of his construction and in so far as it appears that certain provisions in some of the said statutes in terms extend the application of section 195 Cr
PC to the proceedings to which they relate the argument does receive support but PG NO 961 we hesitate to hold that the omission to refer to section 1951b Cr PC in section 374 of the Act necessarily means that the intention of the legislature in enacting section 374 was merely and solely to provide for a higher sentence in regard to the offence under section 193 IPC if it was committed in proceedings before the Income tax Officer
It is plain that if the argument of the Additional Solicitor General is accepted the result would be that a complaint like the present can be made by any person and if the offence alleged is proved the accused would be liable to receive higher penalty awardable under the first paragraph of section 193 IPC without the safeguard correspondingly provided by section 1951b Cr
Could it have been the intention of the legislature in making the offence committed during the course of a proceeding before an Income tax Officer more serious without affording a corresponding safeguard in respect of the complaints which can be made in that behalf We are inclined to hold that the answer to this question must be in the negative The learned Chief Justice then concluded After careful consideration we have come to the conclusion that the view taken by the Bombay High Court should be upheld though for different reasons
Section 374 of the Act makes the proceedings before the Income tax Officer judicial proceedings under section 193 TPC and these judicial proceedings must be treated as proceedings in any Court for the purpose of section 1951b Cr
PC That we think would really carry out the intention of the legislature in enacting section 374 of the Act Incidentally the learned Advocate General also drew our attention to the following observations at p 706 where the majority was dealing with section 1952 of the old Code saying that it was not necessary to deal with the effect of that provision because they did not propose to base their decision on the ground that the Income tax Officer was a Revenue Court under that sub section and added The only point of interest to which we may incidentally refer is that this sub section gives an inclusive though not exhaustive definition and takes within its purview not only Civil and Criminal Courts but also Revenue Courts PG NO 962 while excluding a Registrar or Sub Registrar under the Indian Registration Act Another decision to which the learned Advocate General relied upon is that of this Court in Balwant singh  Anr
vs L C Bharupal Income Tax Officer New Delhi  Anr where a three Judges Bench speaking through Shelat J reiterated the majority view in Lalji Haridas  case and held that the proceedings before an Income tax Officer for the registration of a firm under section 26A of the Indian Income tax Act 1922 were judicial proceedings in a Court for the purposes of section 1951b of the Code
Another legislative practice to which our attention was drawn by the learned Advocate General was the one employed in section 34 of the UP Urban Buildings Regulation of Letting Rent  Eviction Act 1972
Sub section
l of section 34 of that Act provides that the District Magistrate the Prescribed Authority or any appellate authority shall for the purposes of holding any inquiry or hearing any appeal under the Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure 1908 when trying a suit in respect of the matters enumerated therein just like section 4 of the 
Then comes sub section
2 which may be extracted below 2 The District Magistrate the Prescribed Authority or appellate or revising authority while holding an inquiry or hearing an appeal or revision under this Act
shall be deemed to be a Civil Court within the meaning of sections 345 and 346 of the Code of Civil Procedure 1908 and any proceeding before him or it to be a judicial proceeding within the meaning of sections 193 to 228 of the India Penal Code Act No XLV of 1860
 In Chandrapal Singh  Ors
vs Maharaj Singh  Anr  a 3 Judges Bench speaking through Desai J held that in view of the specific provision made in sub s2 of section 34 of the UP Rent Act
a District Magistrate must be deemed to be a Civil Court within the meaning of section 193 of the Indian Penal Code as well as for the purposes of sections 1951b and 482 of the Code of Criminal Procedure
We were referred to the following passage in that judgment Now sub section 2 of Section extracted hereinbefore would show that the expression District Magistrate  which would include any officer authorised by him to exercise perform and discharge his powers functions and duties PG NO 963 shall be deemed to be a civil court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure 1898
Sections 345 and 346 of the Code of Criminal Procedure 1973 are corresponding to Sections 480 and 482 of the CrPC 1898
As a corollary it would follow that the Rent Control Officer shall be deemed to be a civil court within the meaning of Sections 345 and 346 of the Cr PC 1973 and in view of sub section 2 of Section 34 of the Rent Act shall be a civil court for the purpose of section 193 IPC
Section 1953 Cr
PC provides that the expression Court  in Section 1951bi will include a tribunal constituted by or under a Central Provincial or State Act if declared by that Act to be a court for the purposes of the section
Section 1951bi provides a pre condition for taking cognizance of an offence under Section 193 IPC viz a complaint in writing of the court
In view of the specific provision made in sub section 2 of Section 34 of the Rent Act that for the purposes of Sections 345 and 346
PC Rent Control Officer assuming it to be a tribunal as held by the High Court and not a court would be deemed to be a civil court and therefore for purposes of Sections 193 and 228 IPC a fortiori any proceeding before it would be a judicial proceeding within the meaning of Section 193 IPC
If therefore according to the complainant false evidence was given in a judicial proceeding before a civil court and the persons giving such false evidence have committed an offence under Section 193 IPC in or in relation to a proceeding before a court no court can take cognizance of such offence except on a complaint in Writing of that court
 Placing reliance on these observations the learned Advocate General contends that according to the ratio in Chandrapal Singh s case a Commission of Inquiry is a Court for the purposes of section 195 1b
According to him the first part of sub s4 of s5 of the Act satisfies the requirements of the inclusive part of the definition of Court  as contained in sub s3 of s195 of the Code
Another legislative practice according to the learned Advocate General was the one adopted by section 28 of the Finance Act 1985 where the law enacted contains a legal fiction that any proceeding under the Income tax Act before an income tax authority shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the PG NO 964 purposes of section 196 of the Indian Penal Code viz every income tax authority shall be deemed to be a Civil Court for the purposes of section 195 but not for the purposes of Chapter XXVI of the Code
According to him the amendment brought about in section 136 of the Income tax Act was nothing but legislative exposition of the law  as declared in Lalji Haridas  case
To substantiate his submission that the legislature adopted different methods to achieve the same end he drew our attention to section 23 of the and section 18 of the where like section 136 of the Income tax Act 1961 as now amended by section 28 of the Finance Act 1985 the analogous provision which he says is a combination of two provisions like sub sections
4 and 5 of section S of the  into one enacts that the Commissioner appointed under the shall be deemed to be a Civil Court for all purposes of section l9S of the Code and by section 18 of the  that the authority appointed under the Act shall be deemed to be a Court for the purposes of section 195 of the Code
The phraseology may differ but the learned Advocate General contends the method is the same
He also referred to sub section
4 of section 108 of the Customs Act 1952 which provision is in pari materia with sub section
5 of section 5 of the  and enacts that every proceeding before a Customs Officer shall be deemed to be a judicial proceeding within the meaning of ss193 and 228 of the Indian Penal Code
It would be seen that the underlying theme of all these submissions of the learned AdvocateGeneral is by placing emphasis on sub section
4 of section 5 of the which provides that a Commission of Inquiry shall be deemed to be a Court
He contends that the legal fiction must be given its full effect and therefore the Commission must be treated to be a Civil Court for all purposes 
And in the alternative he submits that the word deemed  is also sometimes used by the legislature in order to remove any doubt in the matter
We shall consider all these aspects in their proper context
After the conclusion of the hearing Dr Chitale learned counsel for the appellant has furnished a list of 11 enactments where Parliament while enacting a law has made an express provision that the Tribunal shall be deemed to be a Court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure 1973
For instance
sub section
6 of section 20 of the Aluminium Corporation of India Limited Acquisition and Transfer of Aluminium Undertaking Act 1984 provides that any investigation before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code and the Commissioner shall be deemed to be a Civil Court for the PG NO 965 purposes of section 195 and Chapter XXVI of the Code of A Criminal procedure 1973
Similar provisions are contained in section 186 of the Amritsar Oil Works Acquisition etc Act 1982 section 226 of the Bengal C  P Works Ltd Act 1980 section 216 of the Bengal Immunity Co Ltd Acquisition  TOU Act 1984 section 196 of the Bird  Company Ltd Acquisition etc Act 1980 section 123d of the Cine Workers etc
Regulation of Employment Act 1981 section 372 of the Emigration Act 1983 section 135 of the  sections 14 of the  section 19 of the Illegal Migrants Determination by Tribunals Act 1983 and section 95 of the  deeming the Commissioner or the Tribunal appointed under the respective Acts for investigation of claims to be a Civil Court for the purposes of section 195 and Chapter XXVl of the Code of Criminal Procedure 1973
Of these eleven enactments 5 relate to acquisition of certain industrial undertakings and there is provision made for investigation of claims for the purposes of payment of compensation
The sixth relates to regulation of the conditions of employment of a class of workmen
The remaining five enactments provide for creation of a tribunal for investigation of claims or entrusted with certain adjudicatory functions
It would therefore appear that Parliament in its wisdom wherever thought it fit has inserted a special provision for deeming a tribunal to be a Court for the purposes of section 1951b but has left the other enactments like the untouched although sub section
3 of section 195 has been on the Statute Book for the last over 14 years
This lends support to the submission of Dr Chitale that it is no more a question of interpretation but one of express enactment
The crucial question that falls to be determined in this appeal is whether sub section
3 of section 195 has brought about a change in the law and therefore the majority decision in Lalji Haridas  case no longer holds the field as submitted by Dr Chitale appearing on behalf of the appellant or was merely declaratory of the law as declared by the Court in Lalji Haridas  case as argued by the learned Advocate General and therefore the decision in Lalji Haridas  case is still good law
It cannot be doubted that sub section
3 of section 195 of the Code has been enacted by Parliament to implement the recommendations of the 41st Report of the Law Commission which brought about the unsatisfactory state of law due to conflict of opinion between different High Courts as to the meaning of the word Court  in section 1951b read in the context of section 1952 of the earlier Code
The interpretative exercise undertaken by the Courts over the years as to the precise meaning of the term Court  as defined in section 1951b of the old Code prior to the introduction of sub s3 of section 195 of the present Code PG NO 966 reveals an endless oscillation between two views each verging on a fringe of obscurity and vagueness
As echoed by Lord Macmillan in his Law  Other Things at p 48 In almost every case except the very plainest it would be possible to decide the issue either way with reasonable legal justification and that in such cases ethical considerations operate and ought to operate
 In that uncertain state of law the Law Commission observed in paragraph 1599 of its Report that it felt that in any concrete case this question is bound to create problem of interpretation and accordingly suggested a change in law for the purposes of section 195 of the Code
It felt that the term Court  for the purposes of clauses b and c should mean a Civil Revenue or a Criminal Court properly so called but where a tribunal created by an Act has all or practically all the attributes of a Court it might be regarded as a Court only if declared by the Act to be a Court for the purposes of section 195
Indibutably the introduction of the inclusive clause in the definition of Court in subs
3 of section 195 has brought about a change in the law
No rule is more firmly established than the principles enunciated in Heydon s case
which have been continually cited with approval not only by the English Courts but also by the Privy Council as well as this Court
The principles laid down in Heydon s case have been enunciated in Craies on Statute Law 6th edn
at p 96 as follows That for the sure and true interpretation of all statutes in general be they penal or beneficial restrictive or enlarging of the common law four things are to be discerned and considered 1 what was the common law before the making of the Act 2 What was the mischief and defect for which the common law did not provide 3 What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth 4 The true reason of the remedy
And then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy and to suppress subtle inventions and evasions for the continuance of the mischief and pro privato commodo and to add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico
 PG NO 967 These rules are still in full force and effect with the addition that regard must now be had not only to the existing law but also to prior legislation and to the judicial interpretation thereof
The Court applied the rule in Heydon s case in The Bengal Immunity Company Limited vs The State of Bihar  Ors in the construction of article 286 of the Constitution
After referring to the state of law prevailing in the then Provinces prior to the Constitution as also to the chaos and confusion that was brought about in inter State trade and commerce by indiscriminate exercising of taxing powers by the different provincial legislatures founded on the theory of territorial nexus SR Das Actg
speaking for himself and Vivian Bose and Jafer Imam JJ
proceeded to say It was to cure this mischief of multiple taxation and to preserve the free flow of inter State trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the constitution makes adopted article 286 of the Constitution
 An illustration of the application of the rule is also furnished in the construction of section 2d of the 
In RMD Chamarbaugwalla vs The Union of India  Venkatarama Ayyar J speaking for the Court after referring to the previous state of the law to that mischief that continued under that law and to the resolutions passed by different State Legislatures under article 252 1 of the Constitution authorising Parliament to pass the Act stated Having regard to the history of the legislation the declared object thereof and the wording of the statute we are of opinion that the competitions which are sought to be controlled and regulated by the Act are only those competitions in which success does not depend on any substantial degree of skill
 A further example is furnished in the construction of section 163 of the Indian Income tax Act 1922 which provides In computing the total income of any individual for the purpose of assessment
there shall be included a so much of the income of a wife or minor child of such individual as arises directly or indirectly
 The question before the Court was whether the word individual  occurring in section 163 meant only a male or also included a female
After finding that the said word in the setting was ambiguous Bhagwati J speaking for himself and JL Kapur JJ
in The Commissioner PG NO 968 of Income tax Madhya Pradesh  Bhopal vs Sodra Devi  observed In order to resolve this ambiguity therefore we must of necessity have resort to the state of the law before the enactment of the provisions the mischief and the defect for which the law did not provide the remedy which the legislature resolved and appointed to cure the defect and the true reason of the remedy After taking into account these factors the learned Judge went on to say It is clear that the evil which was sought to be remedied was the one resulting from the widespread practice of husbands entering into nominal partnerships with their wives and fathers admitting their minor children to the benefits of the partnerships of which they were members
This evil was sought to be remedied by the enactment of section 163 in the Act
 There is no need to burden the judgment with numerous citations
Following the rule in Heydon s case it appears to us that to construe sub section
3 of section 195 of the Code it is not only legitimate but highly convenient to refer both to the former Code and the state of uncertainty brought about due to conflict of views between different High Courts and to the present Code which seeks to provide the remedy
It was to cure this mischief that Parliament brought in sub section
3 of section 195 of the Code and put an end to the controversy
Law must be definite and certain
If any of the features of the law can usefully be regarded as normative it is such basic postulates as the requirement of consistency in judicial decision making
It is this requirement of consistency that gives to the law much of its rigour
At the same time there is need for flexibility
Professor HLA Hart regarded as one of the leading thinkers of our time observes in his influential book The Concept of Law  depicting the difficult task of a Judge to strike a balance between certainty and flexibility Where there is obscurity in the language of a statute it results in confusion and disorder
No doubt the courts so frame their judgments as to give the impression that their decisions are the necessary consequence of predetermined PG NO 969 rules
In very simple cases it may be so but in the vast majority of cases that trouble the courts neither statute nor precedents in which the rules are legitimately contained allow of only one result
In most important cases there is always a choice
The judge has to choose between alternative meanings to be given to the words of a statute or between rival interpretations of what a precedent amounts to
It is only the tradition that judges find  and do not make  law that conceals this and presents their decisions as if they were deductions smoothly made from clear pre existing rules without intrusion of the judge s choice
 Faced with the difficulty the learned Advocate General with his usual astuteness says that although he cannot fall back on the inclusive part of the definition of Court  in sub section
3 of section 195 of the Code laid particular emphasis on the main part of the definition and contended that the mere absence ot an express provision in the deeming the Commission to be a Court for the purposes of section 195 of the Code it would not necessarily imply that the Commission is not a Court for the purposes of section 195 particularly when sub section
4 of section 5 in express terms provides that the Commission shall be deemed to be a Civil Court and sub section
5 expressly provides that any proceeding before the Commission shall be deemed to be judicial proceeding within the meaning ot sections 193 and 233 of the Indian Penal Code
The learned Advocate General contends that the use of the words deemed to be  indicates that the proceedings before a Commision of Inquiry are not judicial proceedings but by legal fiction they have to be regarded as judicial proceedings for the purposes of sections 193 and 228 of the Indian Penal Code
It is contended that the word deemed  is however sometimes used by the legislature in order to remove any doubt in the matter
He drew our attention to the following observations of Lord Radcliffe in St Aubyn v 
Attorney General   
The word deemed  is used a great deal in modern legislation
Sometimes it is used to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail
Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain
Sometimes it is used to give a comprehensive description that includes what is obvious what is uncertain and what is in the ordinary sense impossible
 PG NO 970 The main thrust of the argument of the learned Advocate General that a Commission of Inquiry should be regarded as a Court for the purposes of section 1951b stems from a wrongful hypothesis that subs
4 of section 5 of the Act is in two parts
He contends for the purpose of his submission that sub section
4 of section 5 of the Act consists of two separate provisions the first of which deals with the status of a Commisson of Inquiry as a Civil Court and the second deals with the power of the Commission to forward a case under section 482 of the earlier Code corresponding to section 346 of the present Code when any offence as is described in section 175 section 179 section 180 or section 228 of the Indian Penal Code is committed in view of or presence of the Commission to a Magistrate having jurisdiction to try the same
The submission is that sub section 4 is in two parts dealing with separate subject matters and merely because they are joined by the word and  the first part cannot be projected into the second
We are afraid we are unable to agree with this line of reasoning
It would not be correct to contend that the legal fiction contained in the first part of sub section
4 is complete in itself and therefore a Commission of Inquiry must by reason of the legal fiction contained therein be deemed to be a Civil Court for all purposes 
The argument fails to take note of the fact that the words for all purposes  are not there in the first part of sub section
4 and the Court cannot in the guise of interpreting the provision supply any casus omissus
The first part of sub section
4 merely provides by the legal fiction that a Commission of Inquiry shall be deemed to be a Civil Court and it stops there
We are quite clear that the first part cannot be read in isolation but must take its colour from the context in which it appears
It would not be correct to contend that the fiction created by the first by the words shall be deemed to be a Civil Court  is full and complete in itself
The purpose and object of the legal fiction created by the first part of sub section
4 is reflected in the second
A Commission of Inquiry is therefore fictionally a Civil Court for the limited purpose of proceeding under section 482 of the old Code or under section 346 of the present Code
A fortiori the legal fiction contained in sub section
5 of section 5 which relates to the proceedings before the Commission is necessary confined to offences that are punishable under sections 193 and 228 of the Indian Penal Code and does not extend beyond that
In Lalji Haridas case the majority of this Court held that the proceedings before an Income tax Officer under section 374 of the Indian Income tax Act 1922 were judicial proceedings under section 193 of the Indian Penal Code and such proceedings must be treated as proceedings in any Court for the purposes of section 1951b of the Code
It must be remembered that the decision in Lalji Haridas  case was rendered prior to the enactment of sub section
3 of section 195 of PG NO 971 the present Code
The Court was therefore concerned with the defintion of the term Court  under section 1952 of the earlier Code which was an inclusive one
There being no express provision akin to section 40 of the Indian Railways Act section 23 of the or section 18 of the  the matter was one of construction
The question therefore whether an Income tax Officer was a Court for the purposes of section 1951b was more a question of interpretation than one of express enactment after the amendment of section 126 of the Income tax Act 1961 by section 28 of the Finance Act 1985
The decision of the majority in Lalji Haridas  case is now more of academic interest
The decision in Balwant Singh s case does not carry the matter any further
It would be convenient at this stage to deal with the decision of this Court in Chandrapal Singh s case
Under the scheme of the UP Urban Buildings Regulation of Letting Rent  Eviction Act 1972
various functions are entrusted to different authorities
The District Magistrate as defined in section 3c is vested with the power of making an order of allotment under section 161a
In making such an order of allotment under cl
a or on order of release of accommodation under cl
b of section 161 the District Magistrate clearly exercises a quasijudicial function and therefore has a duty to hear
The landlord has a right to have the order passed by the District Magistrate under section 161b for release of the building or part thereof for any of the purposes set out in section 162
The District Magistrate may release the building or any part thereof or any land appurtenant thereto under section 161b where any of the aforesaid conditions are proved to exist to his satisfaction
The expression District Magistrate  as defined in section 3c is an inclusive one and it includes an officer authorised by the District Magistrate to exercise perform and discharge all or any of his powers functions and duties
Such an officer is normally designated as the Rent Control  Eviction Officer
Under section 20 of the Act the powers of eviction are exercisable by the regular Civil Courts
In cases not falling under section 20 but under section 21 the powers are exercisable by the Prescribed Authority
A landlord may apply for release of the accommodation on the ground of bona fide requirement under section 211a before the Prescribed Authority
The expression Prescribed Authority  as defined in section 3e means a Civil Judicial Officer or Judicial Magistrate authorised by the District Magistrate to exercise perform and discharge all or any of the powers functions and duties of the Prescribed Authority under the Act
The hierarchy of Courts is clearly established because section 18 of the Act contemplates an appeal from an order of the District Magistrate to the District PG NO 972 Judge
Although therefore Desai J in delivering the judgment of the Court has not referred to the definition of District Magistrate in section 3c and that of the Prescribed Authority under section 3e or the provision for an appeal under section 18 of the Act
but has referred the authority as the Rent Control Officer which expression is not used in the Act
Presumably when the learned Judge when he described the Rent Control Officer at p 471 of the Report as a Civil Court meant that the authorities designated under the Act were Civil Courts In any event considering the nature of functions to be performed under the UPRent Act the authorities designated would be Civil Courts
In contrast a Commissions of Inquiry constituted under the Commission of Inquiry Act is neither a Civil Court nor a Criminal Court or a Court properly so called in the strict sense of the them
In view of the change in law we fail to appreciate the contention of the learned Advocate General without meaning any disrespect that the principles laid down by the majority in Lalji Haridas  case that on a combined reading of sub sections
4 and 5 of section 5 of the read in the context of sub section
4 an Income tax Officer must still be regarded to be a Court for the purposes of section 1951bdespite the enactment of sub section
3 of s 195
A Commission of Inquiry is not a Court properly so called
A Commission is obviously appointed by the appropriate Government for the information of its mind  in order for it to decide as to the course of at action to be followed
It is therefore a fact finding body and is not required to adjudicate upon the rights of the parties and has no adjudicatory function
The Government is not bound to accept its recommendations or act upon its findings
The mere fact that the procedure adopted by it is of a legal character and It has the power to administer an oath will not impart to it the status of a Court
In Virindar Kumar Satyawadi vs State of Punjab supar a threejugdes Bench speaking through Venkatarama Ayyar J relying upon the celebrated decision of the House of Lords in Shell Co of Australia vs Federal Commissioner of Taxation
explained the legal connotation of the term Court in these words What distinguished a Court from a quasi judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the right of parties in a definitive judgment
to decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it
And it also imports an obligation PG NO 973 on the part of the authority to decide the matter on a consideration of the adduced and in accordance with law
When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi judicial tribunal what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court
 It is a familiar feature of modern legislation to set up bodies and tribunals and entrust them with work of a judicial quasi judicial or administrative character but they are not Courts in the accepted sense of that term though they may possess as observed by Lord Sankey LC in Shall Co of Australia s case some of the trappings of a Court
Venkatarama Ayyar J in Virindar Kumar Satyawadi has referred to several decisions of the Courts in England and Australia as to what are the essential characteristics of a Court as distinguished from tribunals exercising quasi judicial functions
About a decade later in Jagannath Prasad vs
State of Uttar Pradesh supra case this Court following its earlier decision in Smt
Ujjam Bai vs State of Uttar Pradesh held that no doubt a Sales The Officer appointed under the UP Sales Tax Act 1948 is an instrumentality of the State employed for the purposes of assessment and collection of taxes and merely because he has
in the discharge of his duties to perform certain quasi judicial functions ie has certain powers which are similar to the powers exercised by Courts still is not a Court as understood in section 195 of the Code
The Court relied upon the decision of the House of Lords in Shell Co of Australia for the view that a Sales Tax Office was not a Court in the strict sense of that term
It referred with approval to the following observations of Lord Sankey LC where he enumerated some negative propositions to contra distinguish a tribunal from a Court In that connection it may be useful to enumerate some negative propositions on this subject I A tribunal is not necessarily a Court in this strict sense because it gives a final decision 2
Nor because it hears witnesses on oath 3
Nor because two or more contending parties appear before it between whom it has to decide
Nor because it gives decisions which affect the rights of subjects
Nor because there is an appeal to a Court
Nor because it is a body to which a matter is referred by another body
See Rex
Electricity Commissioners 1924 1 KLB 171 PG NO 974 There had been prior to the enactment of sub section
3 of section 195 of the present Code a sharp conflict of opinion between the High Courts as to what are the Courts and what are not for the purposes of section 1951b of the old Code
The question whether a Commission of Inquiry constituted under the was a Court within the meaning of the and whether the proceedings before the Commission of Inquiry were judicial proceedings directly arose before a Division Bench of the Nagpur High Court in M V Rajwade vs Dr SM Hassan supra
Bhutt J speaking for himself and BP Sinha CJ held that a Commission of Inquiry constituted under the was not a Court within the meaning of the 
The learned Judge rightly observed that the legal fiction created by the first part of sub section
4 is for the limited purpose specified in the second and that the purpose for which the fiction is created is therefore to be gathered from what follows after the words which create the fiction
In dealing with the fiction Bhutt J observed Applying this test in the instant case it would appear that the purpose for which the fiction is created in sub section 4 of Section 5 of the  is to be inferred from the words that follow the expression the Commission shall be deemed to be a Civil Court
It would not be correct to contend that the above expression is full and complete in itself and what follows it only denotes the limitation on the full fledged status and powers of a civil Court that the Commission would otherwise have possessed
If that was the intention of the Legislature the sentence would have been completed after the words civil court and what follows it would have been the subject of a separate sub section or sentence
It is therefore clear that under the  the Commission is fictionally a civil court only for the purpose of the contempts punishable under sections 175 178 179 180 and 228 of the Indian Penal Code 1860 subject to the condition that it has not the right itself to punish the contemners a right which other Courts possess under Section 480 of the code of Criminal Procedure 1898
Similarly it follows that the fiction relating to the proceedings before the Commission is confined to offenses that are punishable under Sections 193 and 228 of the Indian Penal Code I860 referred to in sub section 5 of the Act and does not extend beyond this limit
 PG NO 975 The learned Judge then dealt with a Commission of Inquiry constituted under the and held that the Commission has not the attributes of a Court
In repelling the contention that the function of the Commission being of a advisory nature which was akin to the Judicial Committee to the Privy Council which only advised His Majesty and did not deliver any judgment themselves as well as distinguishing the decision of the Lahore High Court in MM Khan vs Emperor ILR holding that the Special Commissioners appointed under the constituted a Court within the meaning of section 195 the learned Judge observed An enquiry under the Commissions of Inquiry Act 1952on the other hand is of wholly different character
There is no accuser no accused and no specific charges for trial nor is the Government under the law required to pronounce
one way or the other on the findings of the Commission  The learned Judge relied upon the following observations of the Judicial committee of the Privy Council In re
Maharaja Madhava Singh LR 1905 31 IA 239 where the Judicial Committee in dealing with the Commissioners appointed by the Viceroy and the Governor General in Council for the purpose of enquiring into the truth of a certain imputation against the Maharajah observed It is sufficient to say that the Commission in question was one appointed by the Viceroy himself for the information of his own mind in order that he should not act in his political and sovereign character otherwise than in accordance with the dictates of justice and equity and was not in any sense a Court or if a Court was not a Court from which an appeal lies to His Majesty in Council
 The learned Judge rightly observed that the ratio decidendi in that case was that the Commissioner were not a Court and held that the observations made by the Judicial Committee apply mutatis mutandis to a Commission of Inquiry constituted under the  and observed The Commission in question was obviously appointed by the State Government for the information of its own mind in order that it should not act in exercise of it power otherwise than in accordance with the dictates of justice PG NO 976 and equity in ordering a departmental enquiry against its officers
It was therefore a fact finding body meant only to instruct the mind of the Government without producing any document of a judicial nature
The two cases are parallel and the decision must be as in In re Maharaja Madhava Singh D  that the Commission was not a Court
The term Court  has not been defined in the 
Its definition in the  is not exhaustive and is intended only for purposes of the Act
The  however does contemplate a Court of Justice  which as defined in section 20 Penal Code 1860 denotes a Judge who is empowered by law to act judicially 
The word Judge  is defined in Section 19 as denoting every person Who is empowered by law to give in any legal proceeding civil or criminal a definitive judgment or a judgment which if not appealed against would be definitive or a judgment which if confirmed by some other authority would be definitive   The minimum test of a Court of Justice in the above definition is therefore the legal power to give a judgment which if confirmed by some other authority would be definitive
Such is the case with the Commission appointed under the  whose recommendations constitute a definitive judgment when confirmed by the Government
This however is not the case with a Commission appointed under the  whose findings are not contemplated by law as liable at any stage to confirmation by any authority so as to assume the character of a final decision  We are in agreement with these observations
PV Dixit CJ
speaking for himselt and GP Singh J In Puhupram  Ors
vs State of Madhya Pradesh  Ors stated the law thus It is not necessary to stress that the inquiry which the Commission is going to hold is not an inquiry by a civil or criminal Court and the proceedings thereof are not PG NO 977 judicial proceedings of a Court of law
See Chiman Singh vs State AIR 195 MB 44 MV Rajwade vs Dr SM Hassan AIR 1954 Nag
71 and Ram Krishna Dalmia vs Justice Tendolkar AIR l958 SC 5381 The decision just cited point out what is Court and what are judicial proceedings of a Court of law
Judged by the tests laid down in those decisions there can be no doubt that the inquiry which the Commission is going to held is not a judicial proceeding of a Court of law
The Commission has not been asked to give a decision as to the respective rights and liabilities of any person or to punish any wrong
In an inquiry of this nature there is no issue between parties for the Commission to decide and no defendant or an accused person to be tried
There is no lis 
 We are satisfied that the decision of the Nagpur High Court in MV Rajwade s case and that of the Madhya Pradesh High Court in Puhupram lay down the correct law
The least that is required of a Court is the capacity to delivery a definitive judgment 
and merely because the procedure adopted by it is of a legal character and It has power to administer an oath will not impart to it the status of a Court That being so it must be held that a Commission of Inquiry appointed by the appropriate Government under section 31 of the is not a Court for the purposes of section 195 of the Code
In conclusion we wish to clarify that this judgment of ours will not prevent the State Government from launching a prosecution against the appellant for commission of the alleged offences under sections 193 and 228 of the Indian Penal Code 1860 if otherwise permissible in law
In the result the appeal succeeds and is allowed
The judgment and order passed by the High Court are set aside and the proceedings pending in the Court of the Additional Chief Metropolitan Magistrate at Esplanade Bombay in Criminal Case No 1121 W of 1987 against the appellant for having committed alleged offences punishable under sections 193 and 228 of the Indian Penal Code 1860 on a complaint filed by the Secretary to the Commission are quashed
RSS Appeal allowed


Summary:
The State of Haryana through Haryana Urban Development Authority HUDA acquired some land under the land Acquisition Act for the purpose of development and utilisation of that land for industrial purposes of Gurgaon under the Haryana Urban Development Authority Act 1977
The appellants herein filed writ petitions in the High Court challenging the validity of the acquisition of land
The High Court dismissed the writ petitions
Hence the writ petitioners filed these appeals by special leave
Some other affected persons also filed writ petitions in this Court Dismissing all the appeals and the writ petitions
this Court HELD The first ground of attack to the acquisition that the sub stance of the notification under section 41 of the Act has not been published in the locality of the land said to be acquired is without any foundation
Whether the substance of the notification was published or not is pre eminently a question of fact
It is apparent from the statement made in paragraph 8 of the affidavit in reply of the land Acquisition Collector that the substance of the notification was published in the concerned localities
It is further stated in the affidavit that pursuant such PG NO 1050 PG NO 1051 publication 157 of the land owners filed objections to the proposed acquisition
This fact has not been disputed by the appellants
In view of these facts the first ground of attack is without any foundation whatsoever
1054D E The second ground of attack was that the sole purpose of the acquisition was for a profiteering venture of the Government to acquire land at nominal price and then to re sale the same at a high profit Reliance was placed on an application for intervention filed in this matter by Haryana State Industrial Development Corporation HSIDC which showed that HUDA sold the land to HSIDC at a very high price paid by HSIDC out of the amounts received from intended allotteesentrepreneurs
In the opinion of this Court the facts stated in the application of the HSIDC do not support the contention of the appellants
It is true that as stated in the said application HSIDC paid a sum of Rs 174 crores to HUDA but nothing turns out on that
The land was acquired by the Government for the purpose of development and industrialisation
The Government can do it itself or through other agencies
In the instant case the land was acquired at the instance of HUDA and thereafter HUDA had transferred the same to HSIDC
It is not that the land was transferred in the same condition as it was acquired
But we are told by the learned Counsel appearing on behalf of HUDA and HSIDC that before transferring HUDA had made external developments incurring considerable cost and HSIDC in its turn has made various internal developments and in this way the land has been fully developed and made fit for industrialisation
Thus there was no motive for HUDA to make any profit
1058E H 1059A The Public purpose in question is development and industrialisation of the acquired land
The appellants have not challenged the said public purpose
In the absence of any such challenge it does not lie in the mouth of the appellants to contend that the acquisition was merely a profiteering venture by the State Government through Haryana Urban Development Authority
Even assuming that HUDA has made some profit that will not in any way affect the public purpose for which the land was acquired and the acquisition will not be liable for any challenge on that ground
1059B D Arnold Rodricks vs State of Maharashtra AIR 1966 SC 1788 referred to
When a point which is ostensibly a point of law i6 required to be substantiated by facts the party raising the point if he is the writ petitioner must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent from the counter PG NO 1052 affidavit
If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit as the case may be the Court will not entertain the point
1059F G There is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit
While in a pleading that is a plaint or a written statement the facts and not evidence are required to be pleaded in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it
1059G H The contention of the appellants that the acquisition is for HSIDC which is a company  within the meaning of section 3e of the Act and accordingly the acquisition is invalid for the non compliance with the provisions of Part III of the Act is untenable
In the notification under section 41 it has been clearly stated that the development and industrialisation of the acquired land would be made under the Haryana Development Authority Act 1977 by HUDA
It is therefore manifestly clear that HUDA was the acquiring authority and not HSIDC
It is for HUDA to develop the land fully either by itself or by any other agency or agencies
HUDA has transferred the land to HSIDC for the purpose of development and allotment to various persons
It is too much to say that as HUDA has transferred the acquired land to HSIDC the latter is the acquiring authority
1060B D The contention that the petitioners have been discriminated inasmuch as the land of other persons in the village has not been acquired is without any substance whatsoever
The Government will acquire only that amount of land which is necessary and suitable for the public purpose in question
The land belonging to the petitioners have been acquired obviously considering the same as suitable for the public purpose
1061D