LPA/364/2006 1/58 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 364 of 2006 In SPECIAL CIVIL APPLICATION No. 16500 of 2005 For Approval and Signature: HONOURABLE MR. JUSTICE M. S. SHAH AND HONOURABLE MR. JUSTICE SHARAD D. DAVE ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== UNION OF INDIA - Appellant(s) Versus NILKANTH TULSIDAS BHATIA & 7 - Respondent(s) ============================================================== Appearance : MR ND NANAVATI, Sr. Advocate with MS MEGHA JANI for Appellant(s) : 1, MR NAGESHWARA RAO, Sr. Advocate with Mr YF MEHTA for Respondent(s) :1 None for Respondent(s) : 3, 5-7. MR JITENDRA MALKAN for Respondent(s) : 4, MR KAMAL B TRIVEDI, ADVOCATE GENERAL with Mr SUNIT C. SHAH, for Respondent(s) : 8, MR PRANIK K NANAVATI for Respondent(s) : 7 ============================================================== CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE SHARAD D.DAVE LPA/364/2006 2/58 JUDGMENT Date : 20 /03/2006 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE M. S. SHAH) This appeal is directed against the order dated 7.3.2006 of the learned Single Judge directing the Railway Administration and all others not to give any further publicity to the report of the High Level Committee headed by Mr Justice UC Banerjee and not to implement and not to take any further action on the basis of the said report meaning thereby the learned Single Judge has directed that the said report shall not be further acted upon and relied upon in any manner whatsoever by anybody including the respondents. The learned Single Judge has also fixed the final hearing of the petition in the week commencing from 3.4.2006. We heard the learned counsel at length. With their consent the appeal was taken up for final disposal and is accordingly being disposed of by this judgment. F A C T S 2. On 27.2.2002, an unfortunate incident took place when 58 passengers lost their lives on account of the fire caused in the S-6 coach of Sabarmati Express near the Godhra Railway Station and more than 40 passengers sustained injuries. Criminal complaints came to be filed being CR Nos. 9 and 10 of 2002 at Godhra Railway Police Station on 27.2.2002 itself, for the offences punishable under LPA/364/2006 3/58 JUDGMENT Sections 302, 307, 147, 148, 149, 436, 153-A read with Section 120B of the Indian Penal Code and Sections 141, 150 and 153 of the Indian Railways Act, 1989. Later on, the provisions of the Prevention of Terrorists Act, 2002 were also invoked and after filing of the charge- sheets, the case is transferred to the Special Court under POTA where the trial for the aforesaid criminal offences is still pending. 3.0 Appointment of Commission of Inquiry 3.1 On 28.2.2002 i.e. on the very next day after the incident, the Chief Minister of the State of Gujarat made a statement on the floor of the Legislative Assembly that a Commission of Inquiry under Section 3 of the Commissions of Inquiry Act, 1952 (hereinafter referred to as “the CoI Act”) will be appointed to inquire into the aforesaid incident. By notification dated 6.3.2002, the Government of Gujarat appointed one man Commission of Inquiry under the said Act consisting of Mr Justice KG Shah, a retired Judge of this Court. Subsequently by notification dated 21.5.2002, the Commission was reconstituted and the terms of reference were also expanded :- (i) Mr Justice GT Nanavati, a retired Judge of the Hon'ble Supreme Court was appointed as the Chairman and Mr Justice KG Shah was appointed as a Member. (ii) The Commission was required to inquire into and report on the incident of setting on fire some coaches of Sabarmati Express train near Godhra Railway Station LPA/364/2006 4/58 JUDGMENT on 27.2.2002 and subsequent incidents of violence in the State of Gujarat in the aftermath, and adequacy of administrative measures taken to prevent and deal with the disturbances in Godhra and subsequent disturbances in the State. 3.2 The terms of reference of the reconstituted Commission (hereinafter referred to as “the Commission” or “Justice Nanavati Commission”) were amended on 20.7.2004 also. The terms as amended till 20.7.2004 were as under :- (1) To inquire into - (a) the facts, circumstances and the course of events of the incidents that led to setting on fire some coaches of the Sabarmati Express train on 27.2.2002 near Godhra Railway Station. (b) the facts, circumstances and course of events of the subsequent incidents of violence in the State in the aftermath of the Godhra incident; and (c) the adequacy of administrative measures taken to prevent and deal with the disturbances in Godhra and subsequent disturbances in the State; (d) Role and conduct of the then Chief Minister and/or any other Minister(s) in his Council of Ministers, Police Officers, other individuals and organization in both the events referred to in clause (a) and (b); (e) Role and conduct of the then Chief Minister and/or any other Minister(s) in his Council of Ministers, Police Officers. LPA/364/2006 5/58 JUDGMENT (i) in dealing with any political or non political organization which may be found to have been involved in any of the events referred to hereinabove, (ii) in the matter of providing protection, relief and rehabilitation to the victims of communal riots, (iii) in the matter of recommendations and directions given by National Human Rights Commission from time to time. (2) To ascertain as to whether the incident at Godhra was pre-planned and whether information was available with the agencies which could have been used to prevent the incident; (3) To recommend suitable measures to prevent recurrence of such incidents in future; [emphasis supplied] 3.3 The time limit for submitting the report by the Commission has been extended from time to time and the Commission is continuing with the proceedings – after examining hundreds of witnesses and receiving thousands of documents and affidavits. 4.0 Appointment of High Level Committee by Railway Administration and its Interim Report 4.1 During pendency of the above proceedings before Justice Nanavati Commission, by notification dated 4.9.2004, the Government of India in the Ministry of Railways (Railway Board) LPA/364/2006 6/58 JUDGMENT constituted a High Level Committee headed by Mr Justice UC Banerjee, a retired Judge of the Hon'ble Supreme Court of India (hereinafter referred to as “the Committee”) with the following terms of reference :- (a) to ascertain the precise cause of fire in coach S-6 of Sabarmati Express on 27.2.2002 and to recommend suitable measures to prevent such incidents; (b) to ascertain the events, developments and circumstances that took place after the train left Muzaffarpur on 25th February, 2002 and before it reached Godhra and beyond (including the States of Bihar, Uttar Pradesh and Madhya Pradesh) and if those causes individually or conjointly, contributed to the fire; (c) to ascertain why the said train, including S-6 coach was overcrowded with passengers, many of whom were without reservation, and if their behaviour in any manner contributed to the fire; (d) to ascertain if there was any wrongful act, neglect or default on the part of the officials and workmen of the railway administration and its security staff but for which such large- scale loss to life and property could have been averted; (e) to ascertain any other probable internal and external factors and/or aggravating circumstances that may have led to the tragedy; (f) to ascertain acts of commission and/or omission responsible for the cause of fire and to fix responsibility for the cause of fire and to fix responsibility for the same, individually or collectively; (g) to examine the adequacy of the fire retardant features of railway coaches and fire fighting measures with a view to LPA/364/2006 7/58 JUDGMENT inducting a superior technology and to suggest safeguards for prevention of fire on trains and at railway stations; (h) To examine the preparedness and actual response with respect to rescue and relief operations in S-6 coach and recommend measures for improving the quality of response in such situations; [emphasis supplied] 4.2 Vide notification dated 2.12.2005, the Government of India in exercise of the powers conferred by Section 11 of the CoI Act directed that all the provisions of sub-sections (2) to (5) of Section 5 of the CoI Act shall apply to the Committee. 4.3 The Committee submitted interim report dated 17.1.2005. It appears from the said report that the Committee took a prima facie view that the incident in question which took place on 27.2.2002 was an accident. The Committee referred to the accident bulletin issued by the Railway Administration on 28.2.2002, particularly item Nos. 9 to 13 which recorded the following :- “9. Brief particulars : 9166 Up MFP – ADI Sabarmati Expresse arrived at Godhra. There was some altercation between the train passenger and tea stall staff resulting in stone throwing. To avoid further trouble the train was started but stopped near the advance started due to stone throwing. The mob set fire to 3 coaches resulting in grievous injury to passengers. 10. Casualties : Killed – 7 Grievous Injury – 23, Simple – 41. LPA/364/2006 8/58 JUDGMENT 11. Relief arrangement – ARME – BRC - Ord : 8.45, Dep : 9.05 B/ Dn BRC – Ord 9.10 Fire Brigade – WKB – Ord : 8.35 12. Officers visiting the site – ADRM with branch officers. 13. Prima Facie Cause : Judicial Inquiry Ordered.” The Committee observed in the report, inter alia, as under :- “The writer of the bulletin has already come to the conclusion that the mob did set fire to the three coaches – significantly this concept of mob setting fire has been in all railway correspondence as noticed above – the undersigned has not been able to follow as to how such a conclusion could be arrived at by all and sundry in the hierarchy of officers of the railways (page 107). ..... The key issue, therefore stands out to be – can the fire thus be said to be a miscreant activity by an outsider on an overcrowded moving train. The answer, in my considered view and on the basis of the available documentary support and oral statement, cannot but be in the negative (page 123 of the paperbook). [emphasis supplied] “It is, however, made clear that after the completion of winess-action before the High Level Committee, the undersigned may add a page or two as regards the causes of fire as well along with other issues referred to the High Level Committee as noted above.” [Page 99) [emphasis supplied] LPA/364/2006 9/58 JUDGMENT Then the interim report contained, inter alia, the following conclusion :- “The corroborative statements of the witnesses before the High Level Committee stand out to be in one direction, viz., dominant presence of the Kar Sevaks in the coach. If there was such a miscreant activity, would the Kar Sevaks allow to get themselves burnt without a murmur : the answer cannot but be in the negative and it is in this context, the undersigned feels it expedient to conclude that the question of there being any miscreant activity does not and cannot arise and the report of the DRM containing such an assertion cannot but be true. ... .... Incidentally, as per the report of the Technical Expert (Electrical), there has been no electrical fault culminating in the fire. On the basis of the above enunciation and upon elimination of the “Petrol theory” or even any “miscreant activity story” both being totally absurd the fire on Sabarmati Express on 27 th February 2002 can not but be ascribed to be an accidental fire ... ... and not a deliberate attempted event.” [emphasis supplied] 5. After the above report dated 17.1.2005 was given wide publicity, Special Civil Application No. 1103 of 2005 came to be filed in January 2005 for challenging the constitution of the above High Level Committee. During the course of hearing on 31.3.2005, the said petition was permitted to be withdrawn with liberty to file a fresh petition. Accordingly on 16.4.2005, the petition giving rise to the present appeal came to be filed by Nilkanth Tulsidas Bhatia, a passenger travelling in the Sabarmati Express on the fateful day and that too in S-6 coach itself, challenging the appointment of the LPA/364/2006 10/58 JUDGMENT Committee on the basis of various contentions including the following :- (i) in view of the appointment of the Commission of Inquiry by the State Government, the Central Government had no power to appoint any new Commission or Committee in view of the express bar contained in Section 3 of the CoI Act, and much less after a lapse of more than two years and six months from the date of the incident. (ii) in view of Section 119 of the Railways Act barring the appointment of any Inquiry Committee after the appointment of a Commission under the CoI Act, the Central Government had no power to appoint any Committee in exercise of the powers under Sections 114 and 115 or any other provisions of the Railways Act. (iii) Justice Nanavati Commission had collected voluminous evidence and is still functioning. Appointment of the Committee after more than two years and six months from the date of the incident was not only unwarranted, but also mala fide. (iv) The appointment of the Committee was made LPA/364/2006 11/58 JUDGMENT to prejudice the pending trial of the criminal case. The petitioner also challenged the Central Government notification dated 2.12.2005 conferring upon the Committee the powers under Sub-sections (2) to (5) of Section 5 of the CoI Act. On behalf of the Railway Administration, counter affidavits dated 18.11.2005 and 22.12.2005 were filed. Rejoinder was also filed on behalf of the petitioner. Orders passed by learned Single Judge 6. When the petition reached preliminary hearing, the following bi-parte order was passed by the learned Single Judge on 26.10.2005 :- “Heard learned counsel for the parties. It is observed that if respondent No.6 – Commission delivers any report, the same will not be implemented by respondent Nos. 1 to 3 herein, without the permission of this Court, till the next date of hearing. S.O. to 25.11.2005.” The aforesaid order was continued from time to time. When the Committee issued summons for examining some of the witnesses, the original petitioner prayed for stay of the proceedings before the Committee on the ground that if the witnesses, who are already examined by Justice Nanavati Commission, and also the persons, who are witnesses in the criminal LPA/364/2006 12/58 JUDGMENT trial before the POTA Court, are examined by the Committee, the same will affect the prosecution and the trial pending before the POTA Court. After hearing the learned counsel for the parties, the learned Single passed the following order on 19.12.2005 on the stay application :- “... ... for the time being it will be appropriate to pass an order that if a proper application is made before respondent No. 6 (i.e. the Committee) for granting adjournment by those witnesses who are summoned, the same may be considered and dealt with objectively by respondent No.6 and respondent No.6 may adjourn the hearing and examination of the said witnesses. With this hope, at present no order is passed with regard to any interim relief at this stage pending reply to be filed by the concerned respondents to the amended petition and the same will be considered on the next date of hearing.” After the aforesaid order was passed, some of the witnesses who were examined by the Committee submitted adjournment applications and in view of the aforesaid observations, the Committee adjourned the proceedings. Those witnesses who did not submit any such adjournment application were examined. When the stay application again reached hearing on 10.2.2006, the learned Single Judge again passed a similar order suggesting that if appropriate applications for adjournment were submitted before the Committee, such applications would be considered. The petition was thereafter taken up for admission hearing as well as hearing of interim relief on 21.2.2006. The LPA/364/2006 13/58 JUDGMENT learned Single Judge heard the learned counsel for the petitioner as well as the learned counsel for the Railway Administration at length on 21.2.2006 and posted the matter for pronouncement of the orders on 7.3.2006. In the meantime, the Committee submitted its final report to the Railway Administration on 3.3.2006. In the order dated 7.3.2006, the learned Single Judge referred to the said intervening development also and was constrained to note that an impression was given to the Court that between the date of hearing on 21.2.2006 and the date of pronouncement of the order on 7.3.2006, nothing was going to happen and that no steps were taken by the Committee for summoning the witnesses during the said dates and, therefore, the learned Single Judge did not pronounce even any operative order at the last hearing which took place on 21.2.2006, but the Court was of the firm opinion that interim stay of further proceedings before the Committee was required to be granted. 7. On merits of the controversy, the learned Single Judge gave the finding that prima facie the terms of the reference of the Committee especially to inquire into the cause of fire were directly in conflict with what is being inquired into by the Commission of Inquiry appointed by the State Government headed by Mr Justice GT Nanavati. As regards the other terms of reference regarding safety measures, etc., when the Railway Administration constituted the Committee after a period of two years and six months from the date of appointment of Commission by the State Government, they could have waited till Justice Nanavati Commission appointed by the LPA/364/2006 14/58 JUDGMENT State Government submits its report. Secondly, the learned Single Judge also expressed the view that the petitioner's apprehension was prima facie justified that examination of witnesses who are already examined by the State Commission and examination of the persons who are witnesses before POTA Court in the criminal trial will adversely affect the criminal trial and the witnesses are likely to be prejudiced. The learned Single Judge also accepted that the petitioner was justified in contending that any finding to be given might prejudice the proceedings before the Commission as well as the Court conducting the criminal trial and that the petitioner himself being an injured witness in the incident that took place on 27.2.2002, was personally and vitally interested and affected by the report of the Committee. The learned Single Judge, thus gave the findings of prima facie case, the balance of convenience and irreparable loss in favour of the petitioner and against the Railway Administration. The learned Single Judge has accordingly granted interim relief directing that the report submitted by the Committee headed by Mr Justice UC Banerjee shall not be acted upon and relied upon by any of the respondents and anybody in any manner whatsoever and the Railway Administration and all others are directed not to give any further publicity to the said report and not to implement and/or to take any further action on the basis of the report, meaning thereby the said report shall not be further acted LPA/364/2006 15/58 JUDGMENT upon and relied upon in any manner whatsoever by anybody including the respondents. The learned Single Judge also fixed the final hearing of the petition in the week commencing from 3.4.2006. It is the aforesaid order which is challenged in this appeal. CONTENTIONS ON BEHALF OF APPELLANT – RAILWAY ADMINISTRATION. 8. Mr ND Nanavati, learned counsel for the appellant- Railway Administration raised the following contentions :- 8.1 The original petitioner (respondent No.1 in the appeal) had no locus standi to file such a petition challenging the appointment of the High Level Committee. The petition was not a public interest petition nor was the petitioner himself a witness summoned by the Committee. Reliance was placed on the decisions of the Apex Court in Calcutta Gas Co. (Prop.) Ltd. vs. State of WB, AIR 1962 SC 1044 (para 5) and in Mani Subrat Jain vs. State of Haryana, (1977) 1 SCC 486 (para 9). 8.2 The terms of reference of the Committee were not in conflict with the terms of reference of the State Commission. The terms of reference of the Station Commission presuppose that the coach was set on fire. The Committee was appointed to find out the precise cause of fire because it was after all the railway property LPA/364/2006 16/58 JUDGMENT which had suffered damage and the railway passengers had died or sustained injuries and, therefore, the Railway Administration was concerned with the safety of the passengers as well as the protection of its properties so that suitable measures for preventing recurrence of such incident can be taken. Strong reliance was placed on the decision of the Apex Court in State of Karnataka vs. Union of India, (1977) 4 SCC 608 (paras 22-24) in support of the contention that there may be some events and common areas of inquiry, but the inquiry may be made by different authorities for different purposes and from different angles and perspectives. 8.3 Under Section 2 of the CoI Act only the Central Government has the power to appoint a Commission in relation to any entry in any of the three lists in the Seventh Schedule. The State Government has the power to appoint a Commission of Inquiry only in relation to the subjects falling in Lists II and III of the Seventh Schedule. “Railways” is Entry 22 in List I (i.e. the Union List) and, therefore, the Central Government alone has the jurisdiction to appoint such Commission. Reliance was also placed on the decision of the Apex Court in Ram Jawaya vs. State of Punjab, AIR 1955 SC 549 in support of the contention that the exercise of power under Article 73 was enough to clothe the Central Government with the authority to appoint the Commission. LPA/364/2006 17/58 JUDGMENT 8.4 No prejudice was likely to be caused by the submission of the report of the High Level Committee or publicity being given to the same. The Railway Administration does not intend to implement the report till final hearing of the petition, but there will be no harm or prejudice caused to anyone, much less to the petitioner, if the report of the High Level Committee is tabled before the Parliament and discussed. The Government cannot be prevented from laying the report on the table of the Parliament. The direction of the learned Single Judge is in conflict with the provisions of Section 3(4) of the CoI Act. The Court is only concerned with the legal position about the binding effect or otherwise of the findings given by the Committee on the criminal proceedings and the effect of the statements of the witnesses before the Commission or the Committee. The Court is not concerned with the apprehension of a shaky witness if the Committee looks into a matter which may also be the subject matter of a criminal trial. That does not mean that prejudice is going to be caused to witnesses in the criminal trial. Strong reliance was placed on the decision of the Apex Court in Kehar Singh vs. State (Delhi Administration), (1988) 3 SCC 609 (pg. 714 paras 218-222, pg. 719 para 236, pg 722 para 245) in support of the proposition that the statements made before a Commission of Inquiry cannot be used as evidence in a criminal trial. LPA/364/2006 18/58 JUDGMENT 8.5 The learned Single Judge erred in observing that the Committee submitted the report in order to overreach the process of the Court. There was no interim stay or injunction restraining the Committee from submitting its report or giving publicity to the same. Since the term of the Committee was going to expire on 4.3.2006, the Committee was