1.: IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (C) No. ^yA of 2010 FETITIONER ^ • 1. SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION Through its Authorized Representative Mr. Pan Yanwei_ Having its Principal Office at: 236, Gongyebei Road, Jinan Shandong Province, People's Republic of China. AND Having its Site Office at: Balconagar, Korba, Chhattisgarh. Versus RESPONDENTS 1.' STATE OF CHHATTISGARH •% Through the General Administration Departaiient Mantralaya, Raipur CHhatUsgarh. 2. SANDEEP BAKSHI JUDICIAL ENQUIRY COMMISSION Through its Secretary, Sandeep Bakshi Judidal Commission, Collectorate Building, Korba, Chhattisgarh jA(^^ SL.i^ HIGH COURT OF CHHATTISGARH : BILASPUR PETITIONER WRIT PETITION (0 N0.2728 OF 2010 Sepco Electric Power Construction Corporation RESPONDENTS Versus State of Chhattisgarh & Another ,n/ ftF^. Post for pronouncement ofthe orde' on ^''Uay of July, 2010 Sd/- Satish K. Agnihotri Judge ^ HIGH COURTOF CHHATTISGARH : BILASPUR PETITIONER WRIT PETITION (0 N0.2728 OF 2010 Sepco Electric Power Construction Corporation RESPONDENTS Versus State of Chhattisgarh & Another (Writ petitions underArticle 226/227 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Manish Sharma, Advocate for the petitioner. Shri Y.S. Thakur, Dy. Advocate General for the State/respondent No.1. Shri V.C. Ottalwar and Shri Rajeev Shrivastava, Advocates for the respondent No.2. ORDER (Delivered on this _5^_day ofJuly, 2010) 1. By this petition, the petitioner/Sepco Electric Power Construction Corporation (for short "Sepco") seeks a writ or direction to modify rule No.1 of the respondent/Enquiry Commission (for short "the Commission"} by including English as an additional language in the proceedings of the Commission, supply of English translated copy of the orders, proceedings & rules and to quash the orders dated 20th February, 2010 (Annexure P/11) and 7th March, 2010 (Annexure P/12) whereunder the Commission observed that the Chinese employees of Sepco would be permitted to have assistance of translators and accordingly a directioh was ^ ^..7:?:^'^\ ^..^ l^ made to the State Government to make arrangement of the translator at the expenses of Sepco. By order dated 7th March, 2010 (Annexure P/12) whereby the request of Sepco to permit them to file documents in English and the proceedings may be conducted in English was rejected on the ground that the incident has taken place at Korba (Chhattisgarh). The language ofthearea is Hindi. Mostofthe persons understand Hindi. Ifthe proceedings are conducted in Hindi, no person would be prejudiced. Thus, by earlier order Sepco was madeavailable assistance of the translator. There would not be any change in the language of the proceedings for one person. Shri Sharma, learned counsel appearing for Sepco, in the beginning of arguments, would submit that Sepco does not want to press all the reliefs sought for in'the writ petition except that all the documents, which are filed in Hindi and recording of proceedings, which are in Hindi, which may be used against Sepco at the time of examination and cross-examination, may be provided with English version along with the Hindi documents at the expense of Sepco. Shri Thakur, learned Deputy Advocate General appearing for the State/respondent No1 and Shri Ottalwar & Shri Shrivastava, learned counsel appearing for the Commission, would submit that the Commission has already granted permission to avail assistance of interpreter at the expense of f '' ~':':' ^'',:>"... 1 \"v: •^-^^. "^^s^ 6. Sepco. Thus, Sepco would not be prejudiced and as for use of recording of statement of proceedings in Hindi is concemed, the interpreter would be available for converting the Hindi documehts into English to make them able to understand the proceedlngs and respond to the same accordingly. 1 have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. Indisputably, there are some employees in Sepco, who are Chinese nationals. The enqulry has been instituted to go into the conduct, misconduct, aetion, non-action, negligence, delinquence or deliberate action on the part of the officers and employees involved in the construction of chimney in the premises of Bharat Aluminum Company Limited (BALCO), which collapsed during construction, causing loss to the property and persons. Without going into the nature of enquiry or scope of enquiry, it is well settled principle of natural justice i.e. audi alterm partem that "no person shall be condemned unheard". If a person against whom, documents are being used or proceedings are passed or statements are made by either parties, witnesses, which the Chinese nationals, who do not understand Hindi, they must be provided English version of all the documents granting reasonable time to understand the u same and make effective participation in the enquiry proceedings. 7. Provisions of Section 8B of the Commissions of Inquiry Act, 1952 (for short "the Act, 1952") also provides that the Commission shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence. 8. Reasonable opportunity means that the person should understand the charges and documents filed in support of charges, proceedings recorded by fhe Commission and statements made by parties to enable them to respond effectively. 9. Provisions of Sections 278 and 279 of the Code of Criminal Procedure, 1973 (for short "the Cr.P.C.") read as under: "278. Procedure in regard to such evidence when completed- (1) As the evidence of each witness taken under section 275 or section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, ifnecessary, be corrected. (2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead ofcorrecting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary. (3) If the record of the evidence is in a language different from that in which it has been given and the witness does not .- '^. '',' ' r 10. 11 understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands. 279. Interpretation ofevidence to accused or his pleader. - (1) Whenever any evidence is given in a language not understood by the accused, and he is present in Court in person, it shall be interpreted to him in open Court in a language understood by him. (2) If he appears by pleader and the evidence is given in a language other than the language of the Court, and not understood by the pleader, it shall be interpreted to such pleader in that language. (3) When documents are put for the purpose of formal proof, it shall be in the discretion of the Court to interpret as much thereofas appears necessary." Provisions of sub-section (3) of Section 278 and section 279 of the Cr.P.C. prescribe that if the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands. In Article 14 of the International Convention on Civil and Political Rights (ICCPR)1, ratified by India provides that a person charged with criminal offence shall have the right "to have free assistance of an interpreter if he cannot understand orspeak the language used in court'. http://www2.ohchr.org/english/1aw/ccpr.htm t, (?' '\-- l.il f«SSi '"-'^'.t'Sf^. Ife 12. The Human Rights Committee General Comment No. 13/21 adopted on 12 April, 1984, commented on Article 142, inter alia, as noted in para 8 that the first concerns the right of everyone to be informed in a language which he understands of the charge against him. Further in para 13, it states as under: "Subparagraph 3(f) provides that if the accused cannot understand or speak the language used in court he is entitled to the . assistance of an interpreter free of any charge. This hght is independent of the outcome of the proceedings and applies to alliance as well as to nationals. It is ofbasic importance in cases in which ignorance of the language used by a court or difficulty in understanding may constitute a major obstacle to the right of defence." 13. The European Convention of Human Rights (ECHR) states in Articles 5(2) and 6, which read as under: "5(2). Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him. 6. Everyone charged with a criminal offence has the following minimum rights: (a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him^ (b)to have adequate time and the facilities for the preparation of his defence; 2http://sim.law.uu.nVSIM/CaseLaw/Gen_Com.nsf/6a53968e2906c409cl25688700 55fbbe/7ed542c53fl 98d83cl25688700532c3 l?OpenDocument http://www.hri.org/docs/ECHR50.html a.u.S'i^ '_^:.'?>>••-.; 2;; ^' ^ i 1 (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of Justice so require; (d)to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court" (Emphasis supplied) 14. The International Criminal Court in the case of The Prosecutor v. Jean-Pierre Bemba Gombo while considering Pre-Trial of Mr. Jean-Pierre Bemba wherein the language of the Court was English and Mr. Jean-Pierre Bemba knew only French language not English, observed as under: "14. The interpretation adopted by the Single Judge is further supported by the language of article 67(1)(f) of the Statute, which provides for the accused's hght to have "such translations as are necessary to meet the requirements of faimess. Article 67(1)(f) of the Statute represents a constituent element of the n'ght to a fair trial and in conjunction with article 67(1)(a) ofthe Statute requires that the accused be in a position to have knowledge of the charges against him and the supporting evidence thereto. Therefore, if the accused cannot fully understand or speak the See H. Friman, "Rights ofPersons Suspected or Accused ofa Crime", in Roy S. Lee (ed.), "The International Criminal Court: The making ofthe Rome Statue". Kluwer Law Intemational, The Hague, The Netherlands. 1999, pp. 252-253. ECtHR, Monnel and Morris v the United Kingdom, Judgment of2 Mareh 1987, para. 53, Kamasinski v. Austria, Judgment ofl9 December 1989, para. 62, Kostovski v The Netherlands, Judgmentof20 November 1989, para. 39; Granger v the United Kingdom, Judgment of28 March 1990, Series A no. 174, para. 43; and Poitrimol v France, Judgment of23 November 1993, para 29 '-t^;1,;.,'\. \~~"1. •i t>^-' ^ language used in the court proceedings, for the purpose of particlpating effectively in hiS criminal trial he has the hght to be furnished with the translation of all those documents which are necessary for him to understand the nature, cause and content ofthose charges 15. The principles as aforestated is applicable not to the trial of an accused only but to a prooeedings of the enquiry commission also as the same ultimately leads to imposition of penalty or trial or prosecution ofthe accused persons, if, found guilty in the enquiry. In the case on hand, indisputably the Chinese nationals do not know Hindi language, but know and understand English, thus, it is directed that the Chinese nationals shall be provided English version of the documents, prooefedings and statements of ottier witnesses, if required and are relevant in the proceedings for the Chinese nationals to respond in the enquiry proceedings, at their expense. 16. With the aforesaid observations and directions, the writ petltion is disposed of. Gowri Sd/- Satish K. Agnihotri Judge EQHR, Stanford v the United Kingdom, Judgment of23 Febmary 1 994, para. 26; and V v. United Kmgdom, Judgment of 16 December 1999> para. 85 ECtHR, Kamasinski v Austria, Judgment of 19 December 1989, para, 74, and Lueclicke, Belkacem Kocv. Germany, Judgmentof28Movember 1978, para. 48"