Criminal Appeal Nos 703 7 12 of 1989 and 13 of 1990
From the Judgment and Order dated 27101989 of the Designated CourtJudge at Jalgaon in Crl
Appln
No 524 of 1989 in TADA Case No 9 of 1989 dated 291989 in Crl
Appln
No 357 of 1989
WITH Special Leave Petition Crl No 2459 of 1989
From the Judgment and Order dated 15111989 of the Bombay High Court in Crl
Appln
No 687 of 1989
Appellant in person in Crl
A No 703 of 1990
BA Masodkar UR Lalit and GB Sathe for the Appel lant Petitioners
VN Patii and AS Bhasme for the Respondents
SK Pasi for the Intervenor
The Judgment of the Court was delivered by AHMADI J
These three appeals arise out of the charge levelled by the police against the five petitioners of the above special leave 637 petition under Section 3 of the Terrorists and Disruptive Activities Prevention Act 1987 hereinafter called the Act  Sections 302 307 read with Sections 147 148 and 149 IPC and Section 37 of the Bombay Police Act 1951 for the murder of one Raju alias Avtar Singh son of the appellant of Criminal Appeal No 70389 and for injuries caused to his companion Keshav Vitthal the first informant
The facts giving rise to these proceedings are as under On the afternoon of the 12th July 1989 when Raju and his companion Keshav were proceeding on a motor cycle at about 300 pm they were intercepted by the accused Jiten dra and one another known as a wrestler
Following some altercation and heated exchange of words between them the other three accused persons arrived at the spot
Two of them were armed with knives and the third possessed an iron rod
On seeing them Keshav who was on the pillion seat took to his heels whereupon Raju who was in the driver s seat aban doned the motor cycle and ran in another direction
Two of the accused persons ran after Raju while the others includ ing the wrestler chased Keshav
On being over taken accused Vijay gave a knife blow on the chest of Keshav and his companion Santosh dealt blows with the iron rod
Thereafter all the three fled from the scene of occurrence
The Other two who had chased Raju are alleged to have killed him as he was found lying in an unconscious condition on the road
Both the injured were removed to the hospital
Raju suc cumbed to the injuries soon after reaching the hospital
Keshav however responded to medical treatment and has survived to give evidence
On the same day at about 530 pm the first information report was lodged by the injured Keshav
On the basis there of an entry was made in CR No 138 of 1989 and a case under Section 302 and 307 read with Sections 147 148 and 149 IPC and Section 37 of the Bombay Police Act was registered
The accused were arrested on 15th July 1989 and were taken on remand for 9 days which period was extended upto 29th July 1989 on which data the Investigating Officer invoked Section 3 of the Act
On 3rd August 1989 the accused moved an application in the Designated Court Jalgaon for bail inter alia contending that the provisions of the Act had been wrongly and maliciously invoked
The said application was heard and decided by the Designated Court on 2nd Septem ber 1989 which took the view that Section 3 of the Act was wrongly applied
Against that order the State of Maharashtra has preferred Criminal Appeal No 71289
As the accused were directed to approach the regular court they moved two bail applications before the Fourth Additional Sessions Judge Ahmad 638 nagar
The said bail applications were however rejected on 25th September 1989
Against the said rejection the accused approached the High Court
While those matters were pending in the High Court the prosecution submitted a charge sheet against the accused in the Designated Court at Jalgaon
Thereupon the High Court rejected the applications
The accused again approached the Designated Court for bail
The Designated Court once again came to the conclusion that in the facts and circumstances of the case Section 3 of the Act had no application and discharged the accused on that count under Section 227 of the Code of Criminal Procedure 1973 hereinafter called the Code 
By the said impugned order of 27th October 1989 the case was ordered to be transferred to the Court of Sessions Ahmadnagar on the other charges and the accused were granted liberty to move that court for bail
Against the said order Criminal Appeal No 70389 has been preferred by Raju s father while the State of Maharashtra has filed Criminal Appeal No 1390
Thereupon the accused approached the High Court for bail but the High Court rejected their application and directed early hearing of the case
Special leave petition No 2459 89 is preferred by the original accused against the said order
The Act was enacted to make special provisions for the prevention of and for coping with terrorist and disruptive activities and for matters connected therewith or incidental thereto
Section 2d defines the expression disruptive activity  to have the meaning assigned to it in section 4
Section 2h defines the expression terrorist act  to have the meaning assigned to it under section 31 of the Act
The relevant part of Section 31 provides that whoever with intent i to overawe the Government as by law estab lished or ii to strike terror in the people or any section of the people or iii to alienate any section of the people or iv to adversely affect the harmony amongst different sections of the people does any act or thing by using any of the lethal weapons mentioned therein in such a manner as to cause death ofor injuries to any person or persons commits a terrorist act
Section 32 lays down the penalty for the commission of such an act
Section 41 prescribes the penalty for indulging in any disruptive activity
Sec tion 42 defines a disruptive activity to mean any action taken in whatever manner i which questions disrupts or is intended to disrupt whether directly or indirectly the sovereignty and territorial integrity of India or ii which is intended to bring about or supports any claim whether directly or indirectly for the cession of any part of India or the secession of any part of India from the Union
Section 6 provides enhanced penalty for aiding any terrorist or disruptionist
Part III of the Act creates the machinery for trying 639 terrorists and disruptionists charged with the commission of any offence under the Act
Section 9 empowers the Central Government as well as the State Governments to constitute by notification one or more Designated Courts for such area or areas or for such case or class or group of cases as may be specified in the notification
Section 96 provides that a person shall not be qualified for appointment as a Judge or an Additional Judge of a Designated Court unless he is immediately before such appointment a Sessions Judge or an Additional Sessions Judge in any State
Section 11 says that every offence punishable under the provisions of the Act or the rules made thereunder shall be tried by a Designated Court constituted under Section 91 of the Act
Section 121 is relevant for our purpose and reads as under When trying any offence a Designated Court may also try any other offence with which the accused may under the Code be charged at the same trial if the offence is con nected with such other offence
 Section 14 sets out the procedure and powers of Designated Courts
Sub section 3 of the Section 14 is relevant for our purpose
It reads as under Subject to other provisions of this Act
Designated Court shall for the purpose of any offence have all the powers of a Court of Sessions and shall try such offences as if it were a Court of Sessions so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Sessions
 Section 16 offers protection to witnesses
Section 17 gives procedence to trials by Designated Courts
Section 18 empow ers the Designated Courts to transfer cases to regular Courts
This Section reads as under Where after taking cognizance of any offence a Designated Court is of opinion that the offence is not triable by it it shall notwithstanding that it has no jurisdiction to try such offence transfer the case for the trial of such of fence to any court having jurisdiction under the Code and the court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence
 Section 19 provides for an appeal to the Supreme Court both on facts 640 and on law from any judgment sentence or order other than an interlocutory order of a Designated Court
Section 201 makes an offence under the Act or the rules a cognizable one
Sub section 8 of section 20 lays down that notwith standing anything contained in the Code no person accused of an offence punishable under the Act or any rule made thereunder shall if in custody be released on bail or on his own bond unless the public prosecutor has been given an opportunity to oppose his release and where he opposes his release the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail
Section 21 mandates the Designated Court to presume unless the contrary is proved that the accused has commit ted an offence under Section 31 if one of the four things set out in clauses a to d is proved
Section 22 permits identification of the offender on the basis of his photo graph
Section 28 empowers the Central Government to make rules on any of the matters set out in clauses a to f of sub section 2 thereof
Such rules have to be laid before both the Houses of Parliament
This in brief is the scheme of the Act
Under Section 143 of the Act a Designated Court is conferred with the powers of a Court of Sessions and is required to try any offence under the Act as if it were  a Court of Sessions
The procedure which it must follow at the trial is the one prescribed in the Code fox the trial of cases before a Court of Sessions
This is of course subject to the other provisions of the Act which means that if there is any provision in the Act which is not consistent with the procedure stipulated in the Code for such trials it is the procedure in the Act that shall prevail
The procedure for trial before a Court of Sessions is set Chapter XVIII of the Code
Section 225 places the public prosecutor in charge of the conduct of the prosecution
Section 226 requires him to open the prosecu tion case by describing the charge against the accused and stating by what evidence he proposes to bring home the guilt against the accused
Once that is done the Judge has to consider whether or not to frame a charge
Section 227 of the Code reads as under If upon consideration of the record of the case and the documents submitted therewith and after hearing the sub  missions of the accused and the prosecution in this behalf the Judge considers that there is not sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing
 641 Under this section a duty is cast on the judge to apply his mind to the material on record and if on examination of the record he does not find sufficient ground for proceeding against the accused he must discharge him
On the other hand if after such consideration and hearing he is satisfied that a prima facie case is made out against the accused he must proceed to frame a charge as required by Section 228 of the Code
Once the charge is framed the trial must ordinari ly end in the conviction or acquittal of the accused
This is in brief the scheme of Sections 225 to 235 of the Code
Section 227 introduced for the first time in the New Code confers a special power on the Judge to discharge an accused at the threshold if upon consideration  of the record and documents he considers that there is not suffi cient ground  for proceeding against the accused
In other words his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there exists sufficient grounds for proceeding with the trial against the accused
If he comes to the conclusion that there is sufficient ground to proceed he will frame a charge under section 228 if not he will discharge the accused
It must be remembered that this section was intro duced in the Code to avoid waste of public time over cases which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure
The next question is what is the scope and ambit of the consideration  by the trial court at that stage
Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the con clusion of the evidence adduced by the prosecution after the charge is framed It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged
At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evi dence with a view to separating the grain from the chaff
All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution
In the State of Bihar vs Ramesh Singh  this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for 642 proceeding against the accused
If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged by cross examination or rebutted by the defence evidence if any cannot show that the accused committed the offence then there will be no sufficient ground for proceeding with the trial
In Union of India vs Prafulla Kumar Samal  Anr   this Court after considering the scope of section 227 observed that the words no sufficient ground for proceeding against the accused  clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judi cial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution
In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredi ents constituting the said offence
After considering the case law on the subject this Court deduced as under 1 That the Judge while considering the question of fram ing the charges under section 227 of the Code has the un doubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out
2 Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial
3 The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application
By and large however if two views are equally possible and the Judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully within his right to discharge the accused
4 That in exercising his jurisdiction under section 227 of the Code of Judge which sic under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth piece of the prosecution but has to con 643 sider the broad probabilities of the case the total effect of the evidence and the documents produced before the Court any basic infirmities appearing in the case and so on
This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial
 Again in Supdt  Remembrancer of Legal Affairs West Bengal vs Anil Kumar Bhunja  Ors  this Court observed in paragraph 18 of the Judgment as under The standard of test proof and judgment which is to be applied finally before finding the accused guilty or other wise is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure 1973
At this stage even a very strong suspicion rounded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence
From the above discussion it seems well settled that at the Sections 227 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence
The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case
The Act is a penal statute
Its provisions are drastic in that they provide minimum punishments and in certain cases enhanced punishments also make confessional state ments made to a police officer not below the rank of a Superintendent of Police admissible in evidence and mandates raising of a rebuttable presumption on proof of facts stated in clauses a to d of sub section 1 of Section 21
Provision is also made in regard to the identification of an accused who is not traced through photographs
These are some of the special provisions introduced in the Act with a view to controlling the menace of terrorism
These provi sions are a departure from the ordinary law since the said law was found to be inadequate and not sufficiently effec tive to deal with the special class of offenders indulging in 644 terrorist and disruptive activities
There can therefore be no doubt that the Legislature considered such crimes to be of an aggravated nature which could not be checked or controlled under the ordinary law and enacted deterrent provisions to combat the same
The legislature therefore made special provisions which can in certain respects be said to be harsh created a special forum for the speedy disposal of such cases provided for raising a presumption of guilt placed extra restrictions in regard to the release of the offender on bail and made suitable changes in the procedure with a view to achieving its objects
It is well settled that statutes which impose a term of imprisonment for what is a criminal offence under the law must be strict ly construed
In Usmanbhai Dawoodbhai Memon  Ors
vs State of Gujarat  this Court in paragraph 15 of the judgment observed as under The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law
The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country
Since however the Act is a drastic measure it should not ordinarily be resorted to unless the govern ment s law enforcing machinery fails
 To put it differently the ratio of the decision is that the provisions of the Act need not be resorted to if the nature of the activities of the accused can be checked and con trolled under the ordinary law of the land
It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or not sufficiently effective for tackling the menace of terrorist and disruptive activi ties that resort should be had to the drastic provisions of the Act
While invoking a criminal statute such as the Act the prosecution is duty bound to show from the record of the case and the documents collected in the course of investiga tion that facts emerging therefrom prima facie constitute an offence within the letter of the law
When a statute pro vides special or enhanced punishments as compared to the punishments prescribed for similar offences under the ordi nary penal laws of the country a higher responsibility and duty is cast on the Judge to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution
Therefore when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law
But that does not mean that the judicial officer called upon to decide whether 645 or not a case for framing a charge under the Act is made out should adopt a negative attitude
He should frame a charge if the prosecution shows that the material placed on record and the documents relied on give rise to a strong suspicion of the accused having committed the crime alleged against him
We may now proceed to apply the law stated above to the facts of the present case
The prosecution case against the five accused persons is that they formed an unlawful assem bly killed Raju and injured keshav with intent to strike terror in the people or any section of the people  ie the residents of the locality by the use of lethal weapons such as knives and iron rods and thereby committed offences punishable under Section 31 of the Act read with the offences under the Penal Code and the Bombay Police Act
When the complaint was lodged by the injured Keshav on 12th July 1989 no offence under section 31 of the Act was registered
The offence under section 31 of the Act was introduced for the first time on 29th July 1989
That means that between 12th July 1989 and 29th July 1989 the Inves tigating Officer collected evidence which enabled him to register an offence under section 31 of the Act
When the first bail application was disposed of on 2nd September 1989 the Designated Court came to the conclusion that prima facie section 31 of the Act had no application
In taking that view the Designated Court examined the statements of witnesses on which reliance was placed to support the prose cution case that section 31 of the Act was attracted
It may be stated that accused Santosh Rathod runs a cycle repair shop
On the day previous to the occurrence the deceased Raju had gone to the cycle shop as his tube was punctured
At that time accused Jitendra and some others were present at the cycle shop and in their presence accused Jitendra is alleged to have stated as under Presently Raju and Keshav are having dominance in the town
We would become dadas of the town upon taking lives out of them
Then there would not be any rival to us in this town
Upon commission of murder of Raju and Keshav on account of tenor the people would be scared
 This is unfolded in the statements of Raju Narain Sukharam Shinde and Bhau Saheb
Thus according to the prosecution the genesis of the crime was to gain supremacy in the underworld by eliminating the members of the rival gang
Ram Lokhande speaks about the incident in question and states that he had heard the assailants stating that on the elimination of Raju and Keshav they will become the Dadas and 646 no one will dare to raise his voice against them
Bhika spoke about the previous incident on the same day at about 1130 am which shows that there was rivalry between the two gangs
Mr Masodkar the learned counsel for the State Government as well as the appellant of criminal Appeal No 70389 therefore contended that the acts of violence were perpetrated with intent to strike terror in the people at large and in particular the residents of the locality in which the crime was committed
Our attention was also drawn to certain statements of witnesses to the effect that some of the accused persons were related to the members of the Shiv Sena party
The Designated Court came to the conclusion that the material placed before it and the statements re corded by the Investigating Officer did not disclose the commission of an offence under Section 31 of the Act
According to the Designated Court the intention of the accused persons was not to strike terror in the people or a section of the people but only to eliminate Raju and Keshav with a view to gaining supremacy in the underworld
The learned Judge presiding over the Designated Court then proceeds to add as under True it is that few people might have been terror striken and terror might have been the fall out of naked act but to strike the terror amongst people was not the object of this naked act
If at all people are getting terror striken it is those few people who live by the crime and not the people law abiding majority of citizens
Going by these statements there is nothing more to this crime than a strife between two warring factions staking claim to the supremacy of underworld The learned Judge also came to the conclusion that there was nothing on record to show that the Government s law enforc ing machinery had failed and it had become necessary to resort to the drastic provisions of the Act with a view to combating the menace of terrorism
We have carefully considered the statements of the witnesses on which the prosecution relies in support of its contention that the accused had committed an offence under section 31 of the Act
We think that the Designated Court was right in coming to the conclusion that the intention of the accused persons was to eliminate Raju and Keshav for gaining supremacy in the underworld
A mere statement to the effect that the show of such violence would create terror or fear in the minds of the people and none would dare to oppose them cannot constitute an offence under section 31 of the Act
That may indeed 647 be the fail out of the violent act but that cannot be said to be the intention of the perpetrators of the crime
It is clear from the statement extracted earlier that the inten tion of the accused persons was to eliminate the rivals and gain supremacy in the underworld so that they may be known as the bullies of the locality and would be dreaded as such
But it cannot be said that their intention was to strike terror in the people or a section of the people and thereby commit a terrorist act
It is clear that there was rivalry between the party of the accused on the one hand and Raju and Keshav on the other
The former desired to gain suprema cy which necessitated the elimination of the latter
With that in view they launched an attack on Raju and Keshav killed the former and injured the latter
Their intention was clearly to eliminate them and not to strike terror in the people or a section of the people
It would have been a different matter if to strike terror some innocent persons were killed
In that case the intention would be to strike terror and the killings would be to achieve that objective
In the instant case the intention was to liquidate Raju and Keshav and thereby achieve the objective of gaining suprema cy in the underworld
The consequence of such violence is bound to cause panic and fear but the intention of commit ting the crime cannot be said to be strike terror in the people or any section of the people
We are therefore of the view that the Designated Court was fully justified in taking the view that the material placed on record and the documents relied on did not prima facie disclose the commis sion of the offence punishable under section 31 of the Act
It was next contended by the learned counsel for the State of Maharashtra that under section 121 when trying the offence under the Act the Designated Court was entitled to try any other offence with which the accused were charged at the same trial since the offences punishable under the Penal Code and the Bombay Police Act were committed in the course of the same incident
Section 121 no doubt empow ers the Designated Court to try and offence punishable under any other statute along with the offence punishable under the Act if the former is connected with the latter
That however does not mean that even when the Designated Court comes to the conclusion that there exists no sufficient ground for framing a charge against the accused under sec tion 31 of the Act it must proceed to try the accused for the commission of offences under other statutes
That would tantamount to usurping jurisdiction
Section 18 therefore in terms provides that where after taking cognizance of any offence the Designated Court is of the opinion that the offence is not triable by it it shall notwithstanding that it has no jurisdiction to try such offence 648 transfer the case for the trial of such offence to any court having jurisdiction under the Code
Therefore when the Designated Court came to the conclusion that there was no prima facie evidence to frame a charge under section 31 of the Act it was justified in transferring the case to the Court of Sessions Ahmadnagar which alone had jurisdiction under the Code
Once the Designated Court came to the con clusion that the evidence was not sufficient to frame a charge under section 31 of the Act the Designated Court had no alternative but to resort to Section 18 and transfer the case to the competent court under the Code
We there fore do not see any merit in the contention of the learned counsel for the State of Maharashtra that even after the Designated Court came to the conclusion that no ground was made out under section 31 of the Act it was duty bound by virtue of section 121 of the Act to proceed with the trial for the other offences under the Penal Code and the Bombay Police Act
We think the course adopted by the Designated Court in transferring the case to the Sessions Court in clearly in keeping with section 18 of the Act
Before we part we may state that Mr Lalit the learned counsel for the accused tried to urge before us that the provisions of the Act were intended to deal with political terrorism intended to undermine the security of the State and not to ordinary law and order problems
We do not con sider it necessary to go into this larger question because in our opinion the Designated Court was fight in coming to the conclusion that this was a case of inter gang rivalry not attracting Section 31 of the Act
In the above view that we take all the three appeals fail and are dismissed
Mr Lalit the learned counsel for the accused stated that since the High Court has directed expeditious disposal of the case he would not press the special leave petition directed against the High Court s order refusing bail
In view of the said statement the Special leave petition No 245989 will stand disposed of as not pressed
We may however state that the Sessions Court to which the case stands transferred should endeavour to complete the trial as early as possible preferably within four months from the date of receipt of this Court s order
TNA Petition disposed of


Summary:
The President of India made a reference under Article 3171 of the Constitution to this Court for inquiry and report on the conduct of the respondent a Member of the Punjab State Public Service Commission
In a letter addressed to the Governor of the State with a copy to the Chief Minister the Chairman of the Punjab State Public Service Commission complained that on 24111982 while she was proceeding to her office from the Committee Room along with the respondent and three other members
after interviewing candidates for certain appoint ments the respondent without any provocation gave a full blooded hard slap across her face when she was discussing with him regarding his absence on previous days
The other three members who were just behind her also addressed a joint letter to the Governor about the incident
Since the Governor was not available in the State the Chairman and the three members reported the matter to the Chief Minister and handed over the letters to him
The Chief Minister forwarded the complaint to the Government of India and directed the Chief Secretary to take necessary action in the matter
The Chief Secretary recorded the statements of the members
Thereafter the respondent received a charge sheet from the Chief Secretary asking for his reply
Besides taking several objections the respondent denied the version of the Chairman and claimed that during the course of the discussions when the Chairman lost her temper and was going to attack her with a raised hand he caught her hand to avoid attack and insult
The other three members generally supported the Chairman s allegations
After considering the reply of the respondent and the statements 578 of the three other members the President of India made the Reference
This Court directed notice to be served on all the five members of the Commission and they filed their sworn state ments
Affidavits were also filed by several other persons who claimed to have knowledge of the incident or of its background
Overruling the objections of the respondent that since the incident if assumed to be true may lead to his indict ment of having committed a criminal act or in any event an act which may expose him to civil action the Reference should not have been made by the President without fully satisfying himself by getting the matter investigated that a prima facie case was made out and that this Court should not make an enquiry into allegations involving disputed facts as that may prejudice a future action in the ordinary civil or criminal court this Court directed the District and Session Judge Delhi to nominate an Additional District and Session Judge for the purpose of recording evidence and transmitting the same to this Court
Accordingly the evi dence which was led before the Additional District and Sessions Judge was forwarded to this Court
It was contended on behalf of the respondent that the Reference must be treated to have become infructuous and need not be answered because the respondent s tenure had already expired and he could not be removed from his office and it was futile to examine the evidence recorded in the case in pursuance of the order of this Court and to record a finding on the correctness or otherwise of the allegations made against him that the period of six years had been rigidly fixed making it clear that the period should not be extended and the member on the expiration of his term would be ineligible for reappointment and that the principle as applicable to the Government servants in the disciplinary proceedings should be made applicable to the members of the Public Service Commission also
It was also contended that the evidence of complainant and other witnesses relied upon by her were not fully consistent and that their case had been developing from stage to stage which indicated its unreliable nature and that several important documents were not filed in the proceeding by the State and Public Service Commission in spite of repeated requests which had preju diced the respondent
Answering the Reference this Court HELD 11 The conduct of a Member of the Public Service 579 Commission has been considered important enough to be di rectly dealt with by the Constitution itself
The efficiency and purity of administration are greatly dependent on the right choice of the candidates to be entrusted with official duty and to ensure that suitable persons in whom the public may have full faith are selected it was considered necessary to have a body with members of integrity sinceri ty and practical wisdom capable of commanding the confidence of the people for examining the merits of the candidates and make available to the appointing authorities their conclu sion
Taking into account the possibility of their being subject to pressure they were given special protection by the Constitution under Article 317 providing that they except in cases covered by Clause 3 can be removed from their office only by an order of the President on the ground of misbehaviour after an inquiry by the Supreme Court in this regard
The fact that the apex Court of the country was entrusted with such a duty indicates the great importance which has been attached to the office of the Member of the Commission
Under clause 2 of Article 317 authority to suspend the Chairman or Member of the State Commission pending an inquiry by the Supreme Court has been vested with the Governor
Hence the conduct of a Member of the Commis sion under scrutiny of this Court in a reference made by the President cannot be ignored on account of the tenure being over
585B E 12 The Regulations flamed under Article 318 by the Governor do not and cannot deal with removal and suspension of a Member of the Commission since they are exclusively covered by Article 317
The Constitution while dealing with the removal of a Member of the Commission does not provide for extending the term of a Member pending enquiry into his conduct
The issue therefore must be treated as a live one even after the expiry of a Member s tenure
The President of India has requested the Court to investigate into the con duct of a Member and this Court ought to convey its conclu sions rather than refuse to answer the question
583F G 586A B 13 The case of a government servant is subject to the special provisions governed by the law of master and serv ant but the position of Member of the Commission is differ ent
The latter holds a constitutional post and is governed by the special provisions dealing with different aspects of his office as envisaged by Articles 315 to 323 of Chapter II of part XIV of the Constitution
The reference will have to be answered on the merits of the case with reference to the complaint and the respondent s defence
586D E 580 RT Rangachari vs Secretary of State AIR 1937 PC 27 State of Assam and Others vs Padma Ram Sarah AIR 1965 SC 473 Dinesh Chandra Sangma vs State of Assam and Others   BJ Shefat vs State of Gujarat and Oth ers  and CL Verma vs State of Madhya Pradesh and another JT  distinguished
21 There is no dispute that some incident did take place on 24111982 in the Public Service Commission build ing
The respondent was absent earlier which led to some discussion between the complainant Chairman and the respond ent
According to the Chairman s evidence she received a hard slap across her face although she was talking to the respondent politely
Her statement that the respondent had slapped her without any provocation and that she was talking to him politely cannot be accepted
The version of the respondent with respect of the manner in which she was asking for his explanation may be correct
She was used to her arrogant ways and authoritarian manner while talking even with her colleagues and hence the statement of the respondent that she was assuming a bossy posture and was insisting on an on the spot oral explanation from him may be correct
583F 582D 601D E The evidence on record does indicate that the Chairman was attempting to exercise her power in an authoritarian manner and lost her patience even with her colleagues if she was not readily obeyed and on more than one occasion in the past she got annoyed with the other Members and attempted to get them removed from the Commission
However the other three Members of the Commission have pledged their oath in support of the allegation that the respondent had slapped the Chairman
The circumstances in which the things proceed ed also corroborated their version
Over and above all this the statements made by the respondent himself go to support to a great extent the complainant s case of physical as sault
598F G 599F G All the three Members of the Commission are unanimous and emphatic in stating that the respondent did slap the Chairman hard on her face
They also say that this was without provocation which means that there was no physical provocation on the part of the Chairman
The three witnesses were cross examined at great length and were subjected to a very large number of searching questions
There is no mate rial coming out of the same on the basis of which they can be discredited
Though it was not a completely unprovoked situation in which respondent had hit the Chairman his statement that the provocation was not limited to a verbal duel and extended to the Chairman raising her hand 581 as if to assault him justifying him to slap her cannot be accepted as correct
The Chairman did not attack or intimi date respondent with physical violence and the respondent losing his self control at the arrogance of the Chairman in her talk with him slapped her
601F G 603A B D 22 Persons occupying high public offices should main tain irreproachable behaviour
A certain minimum standard of code of conduct is expected of them
What may be excusable for an uneducated young man cannot be tolerated if a Member of a Public Service Commission is involved
Besides the respondent and the Chairman were not thrashing out a person al matter or a private dispute
They were discussing a question involving their office and this in broad day light in the open corroder of the Commission s building
Whatever the provocation offered by the Chairman the respondent was not justified in losing his cool to the extent of indulging in physical violence
That the violence should have been directed against a lady makes his conduct all the more reprehensible
The respondent miserably failed in maintain ing the standard of conduct expected of a Member of the Commission and thereby brought great disrepute to his of fice
Hence the respondent s conduct amounted to misbeha viour within the meaning of Article 3171 of the Coustitu tion and it rendered him liable to be removed from his office of the Member of the Punjab Public Service Commis sion
604G H 605A B 3
The refusal to produce the documents prayed for by the respondent has not prejudiced him since he was not entitled to those documents