IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CMP No.8004 of 2018 in CWPIL No. 88 of 2017 Order Reserved on:14.09.2018 Date of Decision : September 20 , 2018 Court on its own motion Petitioner Versus [ENTITY] & others Respondents Coram:
The Hon'ble Mr. Justice [ENTITY], Acting Chief Justice, The Hon'ble Mr. Justice, [ENTITY], Judge.
Whether approved for reporting? Yes. 1 For the petitioner : Court on its own motion.
For the respondent : Mr.[ENTITY], Advocate General, with Mr. [ENTITY], Mr.[ENTITY], Ms.[ENTITY] & Mr.[ENTITY], Addl. AG., for the respondents-State.
Mr. [ENTITY], Mr. [ENTITY] & Mr.[ENTITY], Advocates, for the CBI-respondent No.7/applicant.
Mr.[ENTITY], Assistant Solicitor General of India, for respondent No.8.
Mr.Mr.[ENTITY], Sr.Advocate with Ms.[ENTITY] & Mr.[ENTITY], Advocates, for respondent No.9.
Mr.[ENTITY], Sr.Advocate, with Mr.[ENTITY], Advocate, for respondents No.10 & Whether reporters of Local Papers may be allowed to see the judgment?
[ENTITY], ACJ.
In terms of the present application [CMP No.8004 .
of 2018], applicant [ENTITY] (CBI), prays for release of the personal affidavits filed in a sealed cover by private respondents No.10 to 17 before this Court on 24.08.2017. The purpose being, if need be, to confront the deponents during trial pending in R.C. No.8(S)/2017/CBI/SC-I/New r Delhi and [CASE NUMBER] or other proceedings arising therefrom or in relation thereto.
2. Undisputedly no response to the application stands filed by any one of the respondents.
3. Firstly, we give a background leading to the passing of order dated 18.08.2017 and the said respondents filing their affidavits on 24.08.2017.
Background
4. In July, 2017, allegedly a 16 years old school going girl child was raped and brutally murdered. This perhaps was sometime between 4th and 6th of July, 2017 at a place falling in District Shimla. The incident shook the entire State and the whole society was clamouring for justice. With the recovery of the dead body of the child from the jungle on 06.07.2017, same day, FIR No.97 of .
2017, was registered at Police Station, Kotkhai, District Shimla, H.P.
5. There was huge outcry about the incident and the matter was extensively reported in both the print and electronic media. Taking suo motu cognizance of one such news item reported in the Tribune dated 09.07.2017, this Court on 12.07.2017, issued notice to the State when the learned Advocate General was asked to obtain instructions and the matter adjourned for 02.08.2017.
6. In the meanwhile on 17.07.2017, the State moved an application [[CASE NUMBER]], praying that the matter be referred to the CBI, in terms of request already made both by Hon'ble the Chief Minister, [ENTITY] and the Principal Secretary (Home) to the Government of Himachal Pradesh, vide their respective communications dated 15.07.2017 and 14.07.2017.
7. On 19.07.2017, after impleading the CBI as a party, the Court issued notice which was accepted by the learned standing counsel. Further the Chief Secretary to the Government of H.P., was directed to file his personal affidavit stating the events which led to the issuance of .
communication dated 14.07.2017 [request made to the CBI by Principal Secretary (Home)]. Same day, the Chief Secretary filed his affidavit, which reads as under:-
"I, [ENTITY] s/o Late Shri [ENTITY], aged 57 years, at present posted as Chief Secretary to the Govt. Himachal Pradesh, Shimla do hereby solemnly affirm and state as under:-
2. That the origin of the present incident emerges from case FIR No.97/2017 dated 6.7.2017 u/[SECTION], [SECTION] [ACT] and [SECTION] of [ACT] registered at Police Station, Kotkhai, District Shimla.
3. That on 12.7.2017 one Sh.[ENTITY] was arrested and five days police remand was obtained from the Ld. Court. That the Director General of Police, Himachal Pradesh on 12.7.2017 had constituted a SIT headed by the Inspector General of Police, Southern Range, Shimla. The SIT started investigation and arrested five accused and obtained their seven days police remand upto 20.7.2017.
4. That on the basis of physical/biologically, digital and circumstantial evidence collected, during course of investigation five accused were arrested by Shimla police on 12th July, 2017. They were produced before the court on 13th July, 2017 and were remanded to police custody until 20th July, 2017.
Meanwhile, word spread through social media that the main accused who were influential people of the area have been saved by the police and the innocent persons have been framed. This, resulted in a .
number of protests including violent ones at a number of places within and outside the State. Accordingly, five FIRs have been registered in this regard at Police Station. Theog=1, Kotkhai=3, New Shimla=1 and copy of FIRs are collectively annexed as annexure R-1(Colly).
5. That there was a persistent demand from various quarters to hand over the case CBI. Keeping in view the sensitivity of the matter, the Director General of Police, H.P., wrote to Home Department of HP Govt. to transfer the investigation to CBI.
Accordingly, Hon'ble Chief Minister, H.P. and Principal Secretary (Home) H.P. have taken up the matter with the Govt. of India to transfer the case to the CBI.
6. That on 12.7.2017 the Hon'ble High Court of H.P. took suo-moto cognizance of the mater and listed the case for 2.8.2017. However, Superintendent of Police, Shimla filed an application before this Hon'ble Court on 17.7.2017 for early hearing of the case.
7. That meanwhile the protest by certain groups continued. The police exercised utmost restraint despite serious provocation. It is further submitted that on the night intervening 18th & 19th July, 2017, one of the accused namely [ENTITY] died in-side the lockup in Police Station, Kotkhai. In this regard, a case FIR No.101/2017 u/[SECTION] [ACT] dated 19.7.2017 has been registered in Police Station Kotkhai. The SHO of Police Station, Kotkhai and sentry on duty have been suspended for dereliction of duty. Entire staff of Police Station, Kotkhai has been transferred.
In view of the foregoing situation, it will be in the best interest of the Govt. and other stakeholders that directions are passed to transfer the case to CBI in an expeditious manner, in order to address public sentiments and upheld Rule of Law in the State."
(Emphasis supplied)
8. Accounting for all the attending circumstances, including the fact that one of the accused had died in a police custody; there was huge public outcry; one of the Police Stations stood ransacked; public property was damaged; seriousness of the allegations; enormity of the crime and the ugly resultant incidents, this Court vide separate order dated 19.07.2017 allowed the said application ([CASE NUMBER]), by passing a detailed order, issuing the following directions:-
"28. Therefore, deeming it as our duty, in exercise of our writ jurisdiction, we interfere and direct as under:-
(i) We entrust the investigation of FIR No.97 of 2017, dated 6.7.2017, under [SECTION], [SECTION] of the [ACT] and [SECTION] of the [ACT]; FIR [CASE NUMBER], dated 19.7.2017, under Section 302 of the [ACT], both registered at Police Station, Kotkhai, District Shimla, Himachal Pradesh, as also role played by the officers/officials/ .
functionaries of the State, in connection thereto, to the [ENTITY].
(ii) Direct the Director CBI to forthwith constitute a Special Investigation Team (SIT) of not less than three Officers, headed by the Superintendent of Police with two other Officers not below the rank of Deputy Superintendent of Police and immediately start the investigation.
(iii) Record pertaining to the investigation conducted thus far by the SIT, so constituted by the State be handed over to the SIT of the CBI.
(iv) The State shall ensure that the entire evidence is preserved, protected and not tampered with. The Director General of Police, Himachal Pradesh, who is present in the Court, assures of such fact.
(v) The Director General of Police, Himachal Pradesh, assures that all assistance shall be rendered to the SIT for conducting an expeditious, fair, impartial investigation. Infrastructure, in the shape of vehicles, accommodation, shall be made available.
(vi) The Chief Secretary to the Government of Himachal Pradesh shall ensure that appropriate action is taken against the erring officials/officers/functionaries of the State, in accordance with law. Within a period of two weeks from today, he shall independently examine the matter and take appropriate .
action.
(vii) The Director General of Police, Himachal Pradesh shall ensure maintenance of law and order.
(viii) Affidavit of the Chief Secretary and status report by the SIT be filed not later than two weeks.
(ix) Liberty reserved to any person aggrieved or either of the parties to approach this Court.
(x) Response by the parties be filed within two r weeks."
9. It is a matter of record that in compliance of this order, Chief Secretary to the Government of H.P., filed his personal affidavit dated 31.07.2017, inter alia, stating that the case files/record of cases were handed over to the CBI under proper receipt on 23.07.2017; The Malkhana of the Police Station, Kotkhai was ransacked and burnt by the mob on 19.7.2017 and a case FIR No. 123/2017 in this matter stands registered in Police Station, Theog. However, videography of the scene of crime committed in the lock up and post mortem report and related evidence were preserved; Three key officials namely the sentry, the station house clerk and the SHO Police Station, Kotkhai were suspended following the death of accused [ENTITY] in the Police lock up. Also the Inspector General of Police, .
Southern Range, Shimla, Superintendent of Police Shimla and Addl. Superintendent of Police, Shimla, stand transferred and that the State is making every possible effort to maintain law and order and the situation has remained satisfactory and is under control.
10. Vide r order dated 17.08.2017, this Court observed that the investigation of the case was entrusted to the CBI only on 23.07.2017. Thus, in effect, from 06.07.2017 till 23.07.2017, investigation of the FIRs was conducted by different officers of the State, about which fact they also briefed the media, which fact was taken note by us in the following terms:-
"11. Having perused the reports, we are of the considered view that certain police officials of the State, who conducted the investigation with the registration of FIR No.97 of 2017, dated 6.7.2017, need to be impleaded as parties, by name, for ascertaining as to what transpired between 6.7.2017 and 19.7.2017 or for that matter upto 23.7.2017.
12. We are informed by the learned Advocate General that with the registration of FIR, dated 6.7.2017 (FIR No.97 of 2017), investigation was initially conducted by ASI [ENTITY], Police Station Kotkhai; Shri [ENTITY], Dy.SP, Theog; and SI [ENTITY], Incharge of Police Station Kotkhai, .
who joined lateron.
13. On 10.7.2017, an SIT, comprising of police Officers/officials came to be constituted, headed by Shri [ENTITY], Inspector General of Police, comprising of members Shri [ENTITY], Additional Superintendent of Police; Shri [ENTITY], Dy.S.P., Theog; and Shri [ENTITY], SHO, Police Station Kotkhai. Thereafter, on 12.7.2017, constitution of the SIT was expanded with inclusion of Shri [ENTITY], Dy.S.P.; Shri [ENTITY], Sub Inspector; and Shri [ENTITY], ASI as members.
14. With the arrest of one accused on 12.7.2017 and other five accused persons on 13.7.2017, a Press Conference, pointing out progress of the investigation, was held by Shri [ENTITY], Director General of Police, Himachal Pradesh, in the presence of Shri [ENTITY], the Officer heading the SIT.
Thereafter, SIT continued with the formal investigation till the passing of order dated 19.7.2017, on which date, this Court was informed that Co-accused [ENTITY] had died in police custody."
(Emphasis supplied)
11. Noticeably, we impleaded all the officers, who at some point in time had dealt with the issue in hand, as parties to the petition and issued notice to them.
12. We may observe that prior thereto, on 02.08.2017, CBI, had filed its first report in a sealed cover, .
which was taken on record.
13. It is in this backdrop we directed the newly added respondents, namely, Sh.[ENTITY], DGP, H.P., Shimla (respondent No.9), Sh.[ENTITY], IG, H.P., Shimla (respondent No.10), Sh.[ENTITY], ASI, [ENTITY] (respondent r No.11), Sh.[ENTITY], Dy.SP. Theog (respondent No.12), Sh.[ENTITY], S.I. (respondent No.13), Sh.[ENTITY], Addl.S.P. (respondent No.14), Sh.[ENTITY], Dy.S.P (respondent No.15), Sh.[ENTITY], S.I. (respondent No.16) and Sh.[ENTITY], ASI (respondent No.17), to file their personal affidavits in the following terms:-
"We direct respondents No.9 to 17 to file their personal affidavits, narrating the facts which came to their knowledge during the course of investigation so conducted by them or in any manner while dealing with FIR No.97 of 2017 and FIR [CASE NUMBER] so registered at Police Station, Kotkhai, District Shimla, H.P. They shall also disclose such facts which have otherwise come to their knowledge in connection with the crime in question. Also the basis which led to the conclusion of the alleged complicity of all the accused, including the one who died in police custody.
We direct that such affidavits be filed in the Registry of this Court in a sealed cover, with an accompanying affidavit stating that the contents of the affidavit placed in the sealed cover is sworn by them and that contents thereof, are true and correct to their personal knowledge and belief as also nothing material stands concealed by them. Needful shall positively be done before the next date."
(Emphasis supplied)
14. On 24.08.2017, these affidavits filed in a sealed envelope were sealed by the Court and kept in the safe custody of the Register General of this Court. It is a matter of record that save and except for affidavit filed by [ENTITY], I.G., Shimla (respondent No.10) which was seen by one of us in a bail application, neither the seals of the envelopes were ever opened nor have the contents of the affidavits read till date. The reason being that the CBI was to independently investigate the matter, uninfluenced of any stand taken by any person. The officers were to truthfully join the investigation. It is only the deponents and perhaps their learned counsel, who are aware of the contents thereof.
15. On 30.08.2017 CBI moved a similar application being [CASE NUMBER], praying for release of such .
affidavits which was subsequently withdrawn on 25.10.2017.
16. It is a matter of record that subsequently this Court passed several orders, including that on 06.09.2017, 11.10.2017, 25.10.2017, 20.12.2017, 28.03.2018 and 25.04.2018, directing the CBI to complete its investigation at the earliest.
17. Pursuant thereto, challan, in relation to rape and murder of a child being FIR No.97 of 2017 re-registered as [CASE NUMBER], stands presented in the Court of competent jurisdiction on 29.05.2018 and trial is in progress. Insofar as culpability of the accused is concerned, there is a divergent opinion. On this count, CBI differed with the investigation conducted by the State Police and all the accused arrested (five in number) by the latter were released except for one of them - who died in custody, for nothing incriminatory was found against them. Another person who was later on arrested by the CBI is now facing trial as the sole accused.
18. Challan in relation to the custodial death (of one such accused earlier arrested by the State Police) being FIR .
[CASE NUMBER] re-registered as R.C. No.9(S)/2017/CBI/SC-
I/New Delhi, stands presented in the Court having competent jurisdiction on 24.11.2017 and the case is at the stage of arguments on framing of charges. Significantly all the members of the SIT - nine police officers - stand arrested and are facing trial.
19. It is also a matter of record that till date, our orders dated 18.08.2017 and 24.08.2017, stand accepted and none of the private respondents have filed any other affidavit or placed on record any other material in support of their defence or in opposition to any of the averments made by the CBI in its various applications or the affidavits dated 19.07.2017 and 31.07.2017, filed by the Chief Secretary to the Government of H.P. Contentions of the learned counsel
20. Seeking reliance upon [PRECEDENT], Mr.[ENTITY], learned counsel, for the applicant contends that the High court being a court of record, by virtue of provisions of sub-
section 5 of [SECTION]; [SECTION]; [SECTION] of the .
[ACT] (hereinafter referred to as the Code) and [SECTION] of the [ACT], affidavits filed by the deponents are statements given on oath and as such, be released in favour of CBI to be used at an appropriate stage, if so required, either during trial or in the proceedings initiated before another Foras, including the Hon'ble Supreme Court of India, where bail application of one of the co-accused police official is pending consideration.
21. Opposing such contentions, inviting attention to the provisions of [SECTION] of the [ACT], both Mr.[ENTITY] & Mr.[ENTITY], learned Senior Advocates, argue that handing over of the affidavit to the CBI would be violative of the constitutional protection granted to the deponents.
[SECTION] of the [ACT]
22. Let us first examine as to whether the defence of constitutional immunity, by virtue of [SECTION] of the [ACT], is legally permissible, much less sustainable or not?
23. The said Article reads as under:-
"20. Protection in respect of conviction for offences. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself."
24. We are of the considered view that the deponents cannot seek protection or take shield of the said Article, for Clause (3) thereof, is neither applicable nor relevant in these proceedings. In fact, such contention in defence is totally misconceived.
25. This issue is no longer res integra and stands addressed and answered in [PRECEDENT], where the Apex Court was dealing with an identical issue. The facts being that a person though not an accused in police case, in which he was asked to depose as a witness, figured as an accused in a complaint case filed later in relation to the very same .
incident. By referring to its earlier decisions in [PRECEDENT] and [PRECEDENT], the Court in para-10 of the said report, observed that in order to bring the testimony ofr an accused within the prohibition of constitutional protection, it must be of such a character, that by itself, tends to incriminate the accused. The Court observed that the person was not an accused in the Police case and in fact a witness, whose statement was recorded under [SECTION] of the [ACT], hence not entitled to the blanket protection. It specifically observed that:
"16. As observed earlier the appellant is not an accused in the Police case and in fact a witness whose statement was recorded during the course of investigation under [SECTION] of the [ACT]. In the Police case he utmost can be asked to support the case of the prosecution but no question intended to incriminate him can be asked and in case it is done the protection under [SECTION] of the [ACT] shall spring into action. What question shall be put to this appellant when he appears as a witness is a matter of guess .
and on that basis he does not deserve the blanket protection under [SECTION] of the [ACT]. Even at the cost of the repetition we may observe that in the Police case when he appears and is asked to answer question, the answer whereof tends to incriminate him, he can refuse to answer the same, pleading protection under [SECTION] of the [ACT]. In such eventuality the Court would decide the same. Therefore, at this stage the blanket protection sought by the appellant is not fit to be granted."
26. Further in [PRECEDENT] (supra), while considering the question as to whether by simply obtaining specimen of the handwritings/ signatures/thumb impression, could the accused be said to be 'a witness against himself' within the meaning of [SECTION] of the [ACT] - infringing the constitutional immunity, if any -
by clarifying its earlier decision rendered in [PRECEDENT], the Apex Court culled out the following principles:
"16. In view of these considerations, we have come to the following conclusions:-
1. An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other .
words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
2. The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.
3. 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance;
that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.
4. Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showings parts of the body by way of identification are not included in the expression 'to be a witness'.
5. 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.
6. 'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.
7. To bring the statement in question within the prohibition of [SECTION], the person accused must have stood in the character of an r accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made."
(Emphasis supplied)
27. Where a person was called to furnish information under the [ACT], pertaining to certain irregularities committed in managing the affairs of the Company, the [ACT] Bench (Five Judges) in [PRECEDENT], held such person not entitled to the protection of [SECTION] of the [ACT].
28. Now in the instant case, the deponents at the time of filing of affidavits were not the accused persons.
Also they had not filed their affidavits in contemplation of any investigation against them, which fact, in any event, .
would have no bearing. Significantly not all of the deponents are now arrayed as accused. In any event one doesn't know as to in which of the trial(s) perhaps, contents of the affidavits are likely to be used, if at all, against them.
In these proceedings, guilt of the accused cannot be determined. Investigation which is just, fair and proper is all that we are concerned with. In our considered view, the stage as to whether averments made in the documents would tend to incriminate anyone of the deponents or not, has not arisen. This issue is left best to be determined and decided by the trial Court. The deponents are not called upon by this court to answer the question. Whether the question put during trial would be incriminating or not or otherwise has to be considered at the time it is so put. In any event, in [PRECEDENT] (supra) it already stands clarified that voluntary statement which may turn out to be incriminatory is not compulsion and to put a question to a witness is not equivalent to furnishing evidence. Further to bring the statement within the prohibition of [SECTION] of the [ACT], present accused must have stood in the character of an accused at the time they made such a .
statement, for it would not be enough that subsequently they become an accused. In view of the same, we are of the considered view that case of the deponents, be it the accused or the witnesses, with respect to the present proceedings, does not fall within the constitutional prohibition. r Court of record
29. Undisputedly the High Court of Himachal Pradesh is a court of record. The affidavits stand filed in writ proceedings initiated by this court in exercise of its extra ordinary writ jurisdiction. Now let us examine as to what really is the meaning of the word "court of record".
30. The expression court of record is nowhere defined in the [ACT], but finds mentioned in both the [SECTION] and [SECTION]. For our purpose, the latter is relevant, which we reproduce as under:-
"[SECTION]. High Courts to be courts of record. Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself."
31. Though in the context of a contempt jurisdiction, the [ACT] Bench (Five Judges) of the Apex Court in .
[PRECEDENT] (supra), clarified the term 'court of record' in the following terms:-
"12. A Court of Record is a Court, the records of which are admitted to be of evidentiary value and are not to be questioned when produced before any Court. The power that Courts of Record enjoy to punish for contempt is a part of their inherent jurisdiction and is essential to enable the Courts to administer justice according to law in a regular, orderly and effective manner and to uphold the majesty of law and prevent interference in the due administration of justice."
(Emphasis provided)
32. However earlier in Naresh Shridhar [ENTITY] & others vs. State of Maharashtra & another, AIR 1967 SC 1 (Nine Judges), it stood observed that:-
"60. There is yet another aspect of this matter to which it is necessary to refer. The High Court is a superior Court of Record and under [SECTION] shall have all powers of such a Court of record including the power to punish contempt of itself. One distinguishing characteristic of such superior Courts is that they are entitled to consider questions of their jurisdiction raised before them. This question fell to be considered by this Court in Special Reference No. 1 of 1964, 1965-1 SCR 413 at p 499. In that case it was urged before this Court that in granting bail to .
[ENTITY], the High Court had exceeded its jurisdiction and as such, the order was a nullity. Rejecting this argument this Court observed that in the case of a superior Court of Record, it is for the Court to consider whether any matter falls within its jurisdiction or not. Unlike a Court of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction. That is why this Court did not accede to the proposition that in passing the order for interim bail, the High Court can be said to have exceeded its jurisdiction with the result that the order in question was null and void. In support of this view, this Court cited a passage from Halsbury's Laws of England where it is observed that "Prima facie, no matter is deemed to be beyond the jurisdiction of a superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior Court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court".
If the decision of a superior Court on a question of its jurisdiction is erroneous, it can, of course, be corrected by appeal or revision as may be permissible under the law; but until the adjudication by a superior Court on such a point is set aside by adopting the appropriate course, it would not be open to be corrected by the exercise of the writ jurisdiction of this Court."
(Emphasis provided)
33. The [ACT] Bench (Five Judges) of the Apex Court in [PRECEDENT], while dealing with the power of the Court in restricting the media from publishing an article, required for better administration of justice, observed that:-
"33. Thus, Courts of Record under [SECTION]/[SECTION] have inherent powers to prohibit publication of court proceedings or the evidence of the witness.
In [ENTITY], this Court referred to the principles governing Courts of Record under [SECTION] [see para 60]. It was held that the High Court is a Superior Court of Record and that under [SECTION] it has all the powers of such a court including the power to punish contempt of itself. At this stage, the word "including" in [SECTION]/[SECTION] is to be noted. It may be noted that each of the Articles is in two parts. The first part declares that the Supreme Court or the High Court "shall be a Court of Record and shall have all the powers of such a court". The second part says "includes the powers to punish for contempt". These Articles save the pre-existing powers of the Courts as courts of record and that the power includes the power to punish for contempt [see Delhi Judicial Service Association v. State of .
Gujarat, 1991 4 SCC 406 and [PRECEDENT]. As such a declaration has been made in the [ACT] that the said powers cannot be taken away by any law made by the Parliament except to the limited extent mentioned in [SECTION] in the matter of investigation or punishment of any contempt of itself.
If one reads [SECTION] which refers to law in relation to Contempt of Court with the first part of [SECTION] and [SECTION], it becomes clear that the power is conferred on the High Court and the Supreme Court to see that "the administration of justice is not perverted, prejudiced, obstructed or interfered with"."
(Emphasis provided)
34. The issues stands further elaborated in [PRECEDENT], in the following terms:-
"19. The [ACT] does not define "Court of Record". This expression is well recognised in jurisdiction world. In [ENTITY] 's Dictionary of English Law, "Court of Record" is defined as:
"A Court whereof the acts and judicial proceedings are enrolled for a perpetual memorial and testimony, and which has power to fine and imprison for contempt of its authority."
In [ENTITY]'s Law Lexicon, Court of Record is defined as :
"Courts are either of record where their acts and judicial proceedings are enrolled for a perpetual memorial and testimony and they have power to fine and imprison; or not of record being Courts of inferior dignity, and in a less proper sense the King's Courts- and these are not entrusted by law with any power to fine or imprison the subject of the realm, unless by the express provision of some Act of Parliament. These proceedings are not enrolled or recorded."
In Words and Phrases (Permanent Edition), Vol. 10, page 429, 'Court of Record' is defined as under :
"Court of Record is a Court where acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the "record" of the Court, and are of such high and supereminent authority that their truth is not to be questioned."
Halsbury's Laws of England, 4th Edn. Vol. 10, para 709, page 319, states:
"Another manner of division is into Courts of record and Courts not of record. Certain Courts are expressly declared by statute to be Courts of record. In the case of Courts not expressly declared to be Courts of record, the answer to the question whether a Court is a Court of record seems to depend in general upon whether it has power to fine or imprison, by statute or otherwise, for contempt of itself or other substantive offences; if it has such power, it seems that it is a Court of record The proceedings of a Court of record preserved in its archievs are called records, and are conclusive evidence of that which is recorded therein."
"29. [SECTION] declares the Supreme Court a Court of record and it further provides that the Supreme .
Court shall have all the powers of such a Court including the power to punish for contempt of itself (emphasis supplied). The expression used in [SECTION] is not restrictive instead it is extensive in nature. If the Framers of the [ACT] intended that the Supreme Court shall have power to punish for contempt of itself only, there was no necessity for inserting the expression 'including the powers to punish for contempt of itself'. The Article confers power on the Supreme Court to punish for contempt of itself and in addition, it confers some additional power relating to contempt as would appear from the expression 'including'. The expression 'including' has been interpreted by Courts, to extend and widen the scope of power. The plain language of article clearly indicates that this Court as a Court record has power to punish for contempt of itself and also something else which could fall within the inherent jurisdiction of Court of record. In interpreting the [ACT], it is not permissible to adopt a construction which would render any expression superfluous or redundant. The Courts ought not accept any such construction. While construing [SECTION], it is not permissible to ignore the significance and impact of the inclusive power conferred on the Supreme Court. Since, the Supreme Court was designed by the [ACT] as a Court of record and as the Founding Fathers were aware that a superior Court of record had inherent power to indict a person for the contempt of itself as well as of Courts inferior to it .
the expression 'including' was deliberately inserted in the Article. [SECTION] recognised the existing inherent power of a Court of record in its full plenitude including the power to punish for the contempt of inferior Courts. If [SECTION] is susceptible to two interpretations, we would prefer to accept the interpretation which would preserve the inherent jurisdiction of this Court being the superior Court of record, to safeguard and protect the subordinate judiciary, which forms the very backbone of administration of justice. The subordinate Courts administer justice at the grassroot level, their protection is necessary to preserve the confidence of people in the efficacy of Courts and to ensure unsullied flow of justice as its base level."
(Emphasis provided)
35. The view stands re-iterated in [PRECEDENT].
36. While dealing with the issue as to whether the court of record has power to correct its own record, the Apex Court in [PRECEDENT], held that:-
"28. The other decision relied on is [ENTITY] v. State of Kerala and Anr, (2000) 1 SCC 666. This case .
arose out of the vesting of all private forests in the State of Kerala on the appointed day (10.05.1971) under the [ACT]. It is true that in para 14 it was held that:
"14. The High Court as a court of record, as envisaged in [SECTION] of the [ACT], must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a r superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law."
Hence, the High Court has not only power, but a duty to correct any apparent error in respect of any order passed by it. This is the plenary power of the High Court.
29. In para 17 of the abovementioned decision, it was held: ([ENTITY] case) "17. If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record."
There is no doubt that the High Court possess all powers in order to correct the errors apparent on the face of record. While accepting the above proposition, in the light of the scheme of the Act, we are of the view that the said decision is also not .
helpful to the stand taken by the appellant."
(Emphasis provided)
37. Thus power of the High Court as a court of record and by way of an Extra Ordinary Writ Jurisdiction are extensive. Necessarily and dutifully they are required to be exercised and applied only to advance the cause of justice.
Conscious of such fact, we had directed the deponents to place on record the affidavits.
38. The next question which arises for consideration is as to whether we should accede to the request made by the CBI for handing over such affidavits in a sealed cover or not. But before that we must deal with relevant provisions of the [ACT].
Provisions of [ACT]
39. [SECTION] of the Code deals with the information to the police and their power to investigate.
The police officer by virtue of [SECTION] has power to examine a witness supposed to be acquainted with the facts and circumstances of the case and [SECTION] inter alia prescribes any Metropolitan/Judicial Magistrate to record confession or statement so made in the course of investigation under the said Chapter.
40. [SECTION] of the Code deals with evidence in inquires and trial. Primarily it lays down the procedure to be followed. [SECTION] empowers the High Court to frame Rules, prescribing the manner in which evidence of the witness and the examination of the accused shall be taken down in a case coming before it.
41. Conjoint reading of the provisions of both [SECTION], to our mind, deal with the matters with regard to the conduct of investigation and evidence in inquiries and trial. The affidavits filed before this Court were pursuant to the proceedings initiated in the extra ordinary writ jurisdiction of this Court and not the provisions of the code. In fact, when the affidavits were filed, none of the deponents were named as an accused or witness. They did not file their affidavits by way of a confession.
42. Whether the affidavits of the deponents would really constitute a statement under [SECTION] of [ACT]
and as such can be read in evidence or as to whether the witness can take shelter of proviso to [SECTION] of the Evidence Act, is an issue, which we do not deem it appropriate to dwell upon, at this point in time, in view of .
the course of action we choose to adopt, save and except, notice the decision rendered by the Apex Court in [PRECEDENT] on this issue.
43. Whatr is a court of record already stands discussed by us. In view of the law laid down in [PRECEDENT] (supra), this Court was well within its right to choose any procedure vital for just and proper dispensation of justice, asking the party-respondents to file their affidavits, for after all, the case, at that time was only at a nascent stage and the inquiry/investigation was in progress.
44. Prudently we pondered, contemplated and debated as to what further course should be adopted in the matter. We have noticed that challans already stand filed.
45. The foundation of judicial system lies on unearthing the truth and dispensing justice. What is the meaning of words "justice" and "truth" and what is the purpose and object of the Courts, now stands well settled.
Justice & Truth
46. In Dalip Singh vs. State of Uttar Pradesh and .
others, (2010) 2 SCC 114 (Two Judges), the Apex Court reminded that Indian society cherished two basic values of life i.e., 'Satya' (truth) and 'Ahimsa' (non-violence). [ENTITY], [ENTITY] and [ENTITY] guided the people to ingrain these values in their daily life.
47. Preamble of the [ACT] refers to the term justice. Elaborating thereupon, Supreme Court in [PRECEDENT], observed that:-
"11. The Preamble of the [ACT] is the epitome of the basic structure built in the [ACT] guaranteeing justice - social, economic and political - equality of status and of opportunity with dignity of person and fraternity. To establish an egalitarian social order, the trinity, the Preamble, the Fundamental Rights in [SECTION] and Directive Principles of State Policy (for short, 'directives') in Ch. IV of the [ACT] delineated the socio-economic justice. The word 'justice' envisioned in the Preamble is used in a broad spectrum to harmonise individual right with the general welfare of the society. The [ACT] is the supreme law. The purpose of law is realisation of justice whose content and scope vary depending upon the prevailing social environment.
Every social and economic change causes change in the law. In a democracy governed by rule of law, it is .
not possible to change the legal basis of socio-
economic life of the community without bringing about any corresponding change in the law. In interpretation of the [ACT] and the law, endeavour needs to be made to harmonise the individual interest with the paramount interest of the community keeping pace with the realities of ever-
changing social and economic life of the community envisaged in the [ACT]. Justice in the Preamble implies equality consistent with the competing demands between distributive justice with those of cumulative justice. Justice aims to promote the general well-being of the community as well as individual's excellence. The principal end of society is to protect the enjoyment of the rights of the individuals subject to social order, well-being and morality. Establishment of priorities of liberties is a political judgment."
(Emphasis supplied)
48. However in the context of adjudicatory mechanism, in [PRECEDENT], the Apex Court observed that justice is a virtue which transcends all barriers. Neither the rules of procedure, nor the technicalities of law can stand in its way. Even the law bends before justice. The order of the court should not be prejudicial to anyone. Justice means justice between both the parties. The interests of justice equally demand that the .
"guilty should be punished" and that technicalities and irregularities, which do not occasion the "failure of justice";
are not allowed to defeat the ends of justice. They cannot be perverted to achieve the very opposite end as this would be counter-productive. "Courts exist to dispense justice, not to dispense with justice. And, the justice to be dispensed, is not palm-tree justice or idiosyncratic justice". Law is not an escape route for law breakers. If so allowed, it would lead to greater injustice than upholding the rule of law. The guilty man, therefore, should be punished, and in case substantial justice has been done, it should not be defeated when pitted against technicalities.
49. Further in [PRECEDENT], the Apex Court held that:-
"Unusual fact situation posing issue? for resolution is an opportunity for innovation. Law, as administered by courts, transforms into justice.
"The definition of justice mentioned in [ENTITY]'s Corpus Juris Civilis (adopted from the Roman jurist ulpian) states 'justice is constant and perpetual will to render to everyone that to which he is entitled.
Similarly, [ENTITY] described justice as 'the disposition of the human mind to render everyone his due'.
The law does not remain static. It does not operate in a vacuum. As social norms and values change, laws too have to be reinterpreted, and recast. Law is really a dynamic instrument fashioned by society for the purposes of achieving harmonious adjustment, human relations by elimination of social tensions and conflicts. Lord denning once said:
"Law does not standstill; it moves continuously. Once this is recognized, then the task of a judge is put on a higher plain. He must consciously seek to mould the law so as to r serve the needs of the time."
(Emphasis supplied)
50. Further, in Kartar Singh vs. State of Punjab, (1994) 3 SCC 569 ([ACT] Bench - Five Judges), the Court cautioned that failure of justice would have serious consequences, for it would shatter the faith of people in the system. It further observed that:-
"399. It was further held that the faith of the people is the saviour and succour of justice. Any weakening link would rip apart the edifice of law. The principle of justice is ingrained in our conscience and though ours is a nanscent democracy it has now taken deep roots in our ethos of adjudication, judicial process, be it judicial, quasi-judicial or administrative in hallmark. Respect for law is one of the essential principles for an effective operation of popular Government. It is the courts and not the legislature that our citizens primarily feel with keen abiding faith for redress, the cutting edge of the law. If they have .
respect for the working of their courts, their respect for law will survive the short-comings of every other branch of the Government. If they lose their respect for the work of the courts, their respect for law and order will vanish with it to the great detriment of the society."
(Emphasis supplied) Truth and the object of the Courts is to unearth the same
51. In [PRECEDENT], the Supreme Court held that:-
"33. The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty.
Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.
34. In [PRECEDENT], this Court observed that in such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to .
take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done.
35. What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.
36. In [PRECEDENT] this Court reproduced often quoted quotation which reads as under:
"37 Every trial is voyage of discovery in which truth is the quest"
(Emphasis in original) This Court observed that the "Power is to be exercised with an object to subserve the cause of justice and public interest and for getting the evidence in aid of a just decision and to uphold the truth."
37. Lord [ENTITY], in the case of [ENTITY] v. National Coal Board, 1957 2 QB 55 has observed that:
" In the system of trial that we evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of the society at large, as happens, we believe, in some foreign countries."
38. Certainly, the above, is not true of the Indian Judicial system. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest". In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.
39. Lord [ENTITY] further observed in the said case of [ENTITY] that:
" It's all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth "
"52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth."
(Emphasis supplied)
52. The Apex Court in [PRECEDENT] .
(Two Judges) has held that:-
"1. The case at hand immediately brings into mind two stanzas (14 and 18) of the eighth chapter of [ENTITY] dealing with role of witnesses. They read as follows :
Stanza 14 "Jatro dharmo hyadharmena Satyam Yatranrutena cha Hanyate prekshamananam Hastastatra sabhasadah"
(Where in the presence of Judge "dharma" is overcome by "adharma" and "truth" by "unfounded falsehood", at that place they (the Judges) are destroyed by sin.) Stanza 18 "Padoadharmasya kartaram Padah sakshinomruchhati Padah sabhasadah sarvan Pado rajanmruchhati"."
(In the adharma flowing from wrong decision in a Court of law, one-fourth each is attributed to the person committing the adharma, witness, the Judges and the ruler.)"
"35 This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim .
and the society and it is the community that Acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice-often referred to as the duty to vindicate and uphold the "majesty of the law". Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trail evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the Judges as impartial and independent adjudicators."
(Emphasis supplied) Conclusion .
53. Applying all the aforesaid principles, discussed thus far, we are of the considered view, about which we see no harm or prejudice caused to anyone of the parties, in fact it would be only in the spirit of furthering the cause and interest of justice, that the sealed covers be opened and the affidavits made available to all and be read as part of record of the present petition and made available to the parties to the litigation. The said document, in our considered view, does not fall within any one of the exceptions carved out under [SECTION] of the Code. In fact, affidavits in the instant petition, stand filed with a totally different purpose, the intent being, to let the officers know that this Court was serious in unearthing the truth and as such whatever was known to them they must truthfully disclose for, inter alia, just adjudication of the lis.
54. At no point in time, it was held out to the parties that these affidavits would not be opened or read as part of record of these proceedings.
55. We notice that the investigation carried out thus far, is on the basis of independent inquiry conducted by the applicant and not on the basis of pleadings of the instant petition. This however would not mean that contents of the .
affidavits should not be made known to anyone, much less the Prosecutor. As already noticed, the deponents do not have constitutional immunity, for at the time of its execution, neither were they accused nor was there any formal accusation. Also they cannot be said to be self-
incriminating in relation to the charges brought against any one of them. The contents of the affidavits are not pursuant to any question put to the deponents.
56. Reiteratingly, we clarify, that the affidavits were taken on record only for ensuring that the officers not only fully cooperate, but also disclose all such facts, which were well within their knowledge to the investigating agency.
After all one of the accused had died in police custody. The charge sheet filed by the CBI in both the cases is not before us. Why should truth be not made known to all. Obviously investigation carried out, at least with respect to one FIR, by one of the agencies was mis-directed. Is it required to be examined as to whether subsequent investigation can be faulted for the very same reason or not is, for the Prosecutor and Trial Court to examine? But it would not mean that we lack any jurisdiction or authority, which, if .
required, we would not hesitate to do so.
57. Eventually we hold that the affidavits be made available to all the parties and the applicant is at liberty to obtain certified copies thereof, for use in the manner prescribed in law with the statutory safe guards and protection provided, under the [ACT], the [ACT] and the [ACT]. Equally it shall be open for the applicant to take all steps, as may be required, in law, for unearthing the truth in relation to both the incidents of crime, should the need so arise after perusing the same.
Application stands disposed of in the aforesaid terms.
([ENTITY]), Acting Chief Justice.
([ENTITY]), Judge.
September 20th, 2018 (PK/Purohit)