PETITIONER: KIRAN BEDI & <NAME>. Vs. RESPONDENT: COMMITTEE OF INQUIRY & ANR. DATE OF JUDGMENT04/01/1989 BENCH: OJHA, N.D. (J) BENCH: OJHA, N.D. (J) VENKATARAMIAH, <NAME> (J) DUTT, M.M. (J) CITATION: 1989 AIR 714 1989 SCR (1) 20 1989 SCC (1) 494 JT 1989 (1) 21 1989 SCALE (1)10 ACT: <ORG>s of Inquiry Act , 1952/<ORG>s of Inquiry (Central) Rules, 1972: Sections 4 and 8-B /Rule 5(5)(a)--<ORG> of Inquiry--Examination of witnesses--Sequence of--Issuance of formal notice under s. 8-B --When arises--Holding persons not entitled to be covered by s. 8-B , and compelling them to enter witness box at the inception while directing similarly placed persons to whom notice issued to be examined at the end--Whether justified--Whether discriminatory-Persons whose conduct being inquired into called upon for being cross-examined at the inception of the inquiry while persons similarly placed directed to be enquired at the end--Refuse to bind them- selves by oath and affirmation believing to be covered by s. 8-B -Whether can avoid consequences--Refusal--When justified. Indian Penal Code . 1860: Section 178- -<ORG> of Inquiry---Directing filing of complaint for prosecution for failure to enter witness box--Whether complaint liable to be quashed for infringement of fundamental right. Constitution of India, 1950: Articles 14, 21, 32, 136 & 142-<ORG> of Inquiry--Holding persons not covered by s. 8-B of <ORG>s of Inquiry Act, 1952 and compelling them to enter witness box. while directing issue of notice to similarly placed persons-Whether discriminatory--On refusal--Directing filing of complaints under s. 178 --Whether infringement of fundamental rights--Writ Peti- tion/Special Leave Petition filed challenging order for filing complaints--Summons by Magistrate not chal- lenged--Maintainability of--Interference by <ORG>--Whether called for. HEADNOTE: A <ORG> consisting of two Judges of <ORG> was constituted by <ORG> to enquire into certain incidents in January 1988, involving the lawyers and the police sequel to an alleged incident of a lawyer, being apprehended by the students of a College, and banded over to the police on the accusation of committing an offence within the campus of the said College and his subsequently being brought in handcuffs by the police for production before a Magistrate, 21 who ultimately discharged him with direction to the Commis- sioner of <ORG> to take action against the guilty police officials. In its interim report, the <ORG> observed that it had 10 examine the conduct of various police officers, and, in particular, among others, the petitioners and recommended the transfer of the petitioners from their posts. In pursuance of a notice issued by the <ORG> under Rule 5(2)(a) of the Rules, statements of cases on behalf of <ORG> Bar Association and the <ORG>er of <ORG> together with the supporting affidavits were filed before the <ORG>. The <ORG> were required to be ready for examination from May 16, 1988 onwards but the counter affidavit and the list of witnesses had not been filed till 17th May, 1988, on which date the <ORG>er of <ORG> submitted two applications praying for postponement of hearing and for calling upon <ORG> to start their evidence first and to call upon the <ORG>er of <ORG> to adduce the evidence thereafter. Rejecting these applications, the <ORG> passed an order saying that since the <ORG> had failed to file their counter affidavit or list of witnesses, the petitioners should be present in <ORG> on May 19, 1988 for crossexamination. On the petitioners' refusing to enter the witness-box for taking oath for cross-examination, the <ORG> decided to file complaints against the petitioners for an offence under s. 178 of the Indian Penal Code and in pursuance of which complaints were filed against the petitioners in <ORG> under sub-s. (4) of s. 5 of the <ORG>s of Enquiry Act, 1952 read with s. 346 of the Code of Criminal Procedure, 1973. The petitioners challenged these orders in this <ORG> by way of writ petitions and Special Leave Petitions. This <ORG> passed an order on June 2, 1988 directing <ORG> to reconsider the whole question relating to the order in which the witnesses had to be examined in the case. In pursuance of the aforesaid order, the <ORG> passed an order on 29th June, 1988 holding that the concept of burden of proof was not quite relevant in the proceedings before a <ORG>, under the Act, which had been given free hand to lay down its own procedure subject, of course, to the provisions of the Act and the rules made thereunder and that it would be difficult for the committee to lay down 22 the manner in which the witnesses were to be examined, foregoing its right to examine any witness at any stage, if his statement appeared to be relevant, that merely because there were allegations against a particular person he would not be said to be covered under s. 8-B , which required a positive order from the <ORG>, and that when <ORG> mentioned that it was to examine the conduct of various <ORG> Officers and others, it did not have in view s. 8-B of the Act. The <ORG> specifically held that the three other persons to whom notices had been issued under s. 8-B would be examined at the end of the inquiry. On August 18, 1988 this <ORG> quashed the orders of the <ORG> directing the filing of the complaints and the criminal proceedings against the petitioners before the Metropolitan Magistrate and held (a) that the Delhi Adminis- tration had to examine first all its witnesses as required by Rule 5(5)(a) of the Rules framed under the Act; even those witnesses who may have filed affidavits already may first be examined in-chief before they were cross-examined, since it was stated that when the affidavits were filed the deponents did not know what the other parties who had also filed affidavits had stated in their affidavits; the ques- tion whether a party had the right of cross-examination or not shall be decided by the <ORG> in accordance with s. 8-C of the Act; the direction to the <ORG> to examine its witnesses first did not apply to those witnesses who fell under s. 8-B of the Act, who had to be examined at the end of the inquiry, as opined by the <ORG> itself; (b) that the petitioners were persons, who fell under s. 8-B of the Act and had to be dealt with accordingly, and (c) that if the three persons to whom notices under s. 8-B had been issued were to be examined, even according to the <ORG>, at the end of the inquiry there was no justifia- ble reason to deny the same treatment to the petitioners who were in the same position as those three persons; the action of the <ORG> in asking them to be cross-examined at the beginning of the inquiry was, therefore, discriminatory; mere non-issue of notices to them under s. 8-B ought not to make any difference if they otherwise satisfied the condi- tions mentioned in s. 8-B ; the issue of such a notice was not contemplated under s. 8-B of the Act; it was enough if at any stage the <ORG> considered it necessary to inquire into the conduct of any person and such person would thereafter be governed by s. 8-B of the Act. Reasons for this order were to be given later. Giving reasons for the above order the <ORG>, HELD: 1. Recourse to procedure under s. 8-B of the Commis- 23 sions of Enquiry Act , 1972 is not confined to any particular stage and if not earlier, at any rate, as soon as the Com- mittee made the unequivocal declaration of its intention, in its interim report to examine the conduct of the two peti- tioners it should have issued notice under s. 8-B to the two petitioners, if it was of the view, for which view there is no justification, that issue of a formal notice under s. 8-B was the sine-qua-non for attracting that Section. At all events, the <ORG> could not deny the petitioners the statutory protection of s. 8-B by merely refraining from issuing a formal notice even though on its own declared intention, the section was clearly attracted. [42C- <CITATION> ,  Suppl. S.C.R. page 401 and <CITATION> ,  2 S.C.R. page 1, relied on. 2.1 The use of the word 'or' between clauses (a) and (b) of s. 8-B of the Act makes it clear that s. 8-B would be attracted if requirement of either clause (a) or clause (b) is fulfilled. Clause (a) of s. 8-B applies when the conduct of any person is to be enquired into whereas clause (b) applies to a case where reputation of a person is likely to be prejudicially affected. [42B] 2.2 The fact that no formal notice had been issued under s. 8-B would constitute no justification for not treating a person to be covered by that section if otherwise the ingre- dients of the said section were made out. Having once stated in its interim report in unequivocal terms, that the conduct of these two petitioners among others was to be examined, it was not open to the <ORG> to still take the stand that s. 8-B was not attracted in so far as they were concerned. [42B-C] 2.3 Keeping in view the nature of the allegations made in the statements of case and the supporting affidavits filed on behalf of the various <ORG> including the Delhi High <ORG> Bar Association, requirement of even clause (b) of s. 8-B was fulfilled inasmuch as if those allegations were proved they were likely to prejudicially affect the reputation of the two petitioners. In view of the specific term of reference which contemplated taking of "stringent action" against all those responsible, even the career of the petitioners as police officers was likely to be affected in case an adverse finding was recorded against them and the principle that the report of a <ORG> of Enquiry has no force proprio vigore does not, on a pragmatic approach to the consequences, seem to constitute sufficient safeguard so far as the petitioners are concerned. [43C-E] 24 The reason for the importance attached with regard to the matter of safeguarding the reputation of a person being prejudicially affected in cl. (b) ors. 8-B of the Act is not far to seek. [43E-F] Blackstone's Commentary of the laws of England Vol-I, IVth Edition, Corpus Juris Secundum Vol. 77 at page 268 and <NAME> v. Davis, 55 American Law Reports page 171 referred to. 3.1 Section 8-B inter alia contemplates an opportunity being given to the person governed by the said section to produce evidence in his defence whereas s. 8-C inter alia gives him the right to cross examine the witnesses who depose against him. [45D] Not only that calling upon a person governed by s. 8-B to produce evidence in his defence at the very inception of the inquiry is a contradiction in terms inasmuch as in this situation such a person would really be required to disprove statements prejudicial to him of such witnesses who are yet to be examined, it would also reduce the right of crossexam- ination by such person to a mere formality for the obvious reason that by the time the witnesses who are to be crass- examined are produced, the defence of such person which would normally constitute the basis for the line and object of cross-examination would already be known to such witness- es and they are likely to refashion their statements accord- ingly. [45E-F] 3.2 Perhaps in a case where there is no other witness to give information about the alleged incident about which the inquiry is being held and the only person or persons who could give such information is or are the person or persons who are likely to be adversely affected by the inquiry, it may be necessary to depart from the above view as a matter of necessity. But this is not one such case. There are admittedly any number of other persons who can give evidence about what happened on the relevant dates. [45G] Since the two petitioners clearly fell within the cate- gory of persons contemplated by s. 8-B of the Act and were consequently entitled to the same treatment as has been accorded by the <ORG> to the persons to whom notice has been issued by it under the said section, the <ORG> was not justified in calling upon the two petitioners to stand in the witness box for cross-examination at the very initial stage of the enquiry. [54B-D] 3.3 The apprehension that in case a person governed by s. 8-B  25 was to be examined at the end and at that stage such person even at the risk of not producing his defence, for some reason, chooses not to appear as a witness, the <ORG> would be deprived of knowing the facts in the knowledge of such person and such a course would obviously hamper the enquiry is more imaginary than real inasmuch as the power of the <ORG> to call upon any person to appear as a wit- ness under s. 4 of the Act, which in terms is very wide and is not circumscribed by fetters of stage, would be available to the <ORG> and it would be entitled to call such person as a witness even at that stage. [46A-C] 4.1 In view of the provisions contained in ss. 4 to 6 of the Act, and the rules framed thereunder a person could not, on the belief that he was covered by s. 8-B , avoid the consequence of ss. 178 and 179 , by claiming absolute immuni- ty from binding himself by an oath or affirmation for an- swering questions put to them. [51H; 52A] Mc Grain v. <NAME>, 71 L. ed. 580; <NAME> v. <NAME>, 3 L.ed. 2d 1090; <NAME> v. United States, 73 L.ed. 692; <NAME> v. United States, 32 L. Ed. 2d 212 and <NAME> v. Walker40 L.ed. 819, referred to. However, a valid justification put forth by the witness was sufficient ground to make him immune from prosecution. [52F] <NAME> v. United States, 1 L.ed. 2d 1273; <NAME> v. United States, 3 L.ed. 2d 183 and <NAME> v. Waterfront <ORG> of New York, 12 L.ed. 2d 678 referred to. In the instant case, the petitioners are not asserting that they could not be required at all to appear as a wit- ness before the <ORG> and make statement on oath. It was submitted on their behalf that they did not either wish to delay the proceedings or to show disrespect to <ORG>, but only wanted to protect their own interest by making the submission which they made before the <ORG>, as per legal advice given to them, namely that they being covered by s. 8-B of the Act their defence would be put to serious jeopardy and will be prejudicially affected if they were required to appear in the witness box for crossexamination at the very inception of the inquiry even before statements of witnesses proving the accusations against the petitioners had been recorded which they were entitled to defend. [52B- E] 4.2 On the view of the <ORG> that persons covered by 8-B were to be examined at the end of the enquiry, the fact that an affidavit of the petitioner was on record could hardly justify the petitioner being 26 called upon to enter the witness box at the very inception. [55C] Smt. Indira Gandhi and another v. Mr. <NAME> Commis- sion of Inquiry, ILR 1980(1) Delhi 552 referred to. 4.3 Had the <ORG> not been labouring under the misapprehension that the petitioners were not covered by s. 8-B , because no notices under that section had been issued to them, notwithstanding the fact that their conduct was to be examined on its own declared, intention, it would obvi- ously not have required the petitioners to take oath for being cross-examined at the stage at which it did so. The subsequent orders of the <ORG> directing complaints to be filed against the petitioners for an offence punishable under s. 178  and the act of filing such complaints were the consequences of the said misapprehension. [55F-G] Since the petitioners were covered by s. 8-B , the action of the <ORG> in compelling the petitioners to enter the witness box for being cross-examined, when even according to it persons similarly situated were to do so at the end of the inquiry, was in itself discriminatory. There was, there- fore, valid justification for the refusal by the petitioners to take oath for cross-examination at the stage when they were required to do so. [55H; 56A-B] Therefore, the <ORG> should not have, in the instant case, directed the filing of a complaint against either of the petitioners for an offence punishable under s. 178 . [56C] 5. Since the action of the <ORG> in holding that the petitioners were not covered by s. 8-B of the Act and com- pelling them to enter the witness box on the dates in ques- tion was discriminatory and the orders directing complaint being filed against the petitioners were illegal, it is a case involving infringement of Articles 14 and 21 of the Constitution. In such a situation, the power of this <ORG> to pass an appropriate order in exercise of its jurisdiction under Articles 32 and 142 of the Constitution cannot be seriously doubted, particularly having regard to the special facts and circumstances of this case. [56D-El The orders directing filing of complaints being invalid, the consequential complaints and the proceedings thereon including the orders of the Magistrate issuing summons cannot survive. [56E-F] 6. If the petitioners are compelled to face prosecution. in spite of 27 the finding that the orders directing complaint to be filed against them were illegal, it would cause prejudice to them. Therefore, this <ORG> can interfere in the matter. [56G] 7. Apart from the directions contained in this <ORG>'s order dated 18th August, 1988, it is not expedient to lay down any particular rigid procedure to be followed by the <ORG> with regard to sequence in which witnesses were to be examined by it. [41G-H] JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition (Civil) No. 626 of 1988 etc. etc. (Under Article 32 of the Constitution of India) <NAME>, Additional Solicitor General, <NAME>, <NAME>, <NAME> and <NAME> for the Petitioners.

<NAME>, Additional Solicitor General, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, Miss <NAME>, <NAME> and <NAME>, for the Respondents.

The Judgment of the Court was delivered by <ORG>, J. In the writ petition and the special leave petitions filed by Smt. <NAME>, the orders dated 17th, 20th and 23rd May 1988 passed by <ORG> consisting of Mr. Justice <NAME> and Mr. Justice <NAME> of <ORG> (hereinafter referred to as the <ORG>) are sought to be quashed whereas in the writ petition and the S.L.P. filed by <NAME>, the order dated 26th May, 1988 passed by the said <ORG> is sought to be quashed.

In order to appreciate the respective submissions made by learned counsel for the parties, it would be useful to give in brief the circumstances leading to the appointment of the <ORG> and also to quote the terms of reference. What ultimately assumed the shape of confrontation between lawyers and police sparked off from an alleged unfortunate incident on 15th January, 1988 of a lawyer being apprehended by the students of <ORG> and being handed over to the police on the accusation of committing an offence within the campus of the said College. According to the statement of case filed before <ORG> on behalf of <ORG>, the said lawyer was brought by the police in handcuffs for production before a Metropolitan Magistrate on 16th January, 1988. The lawyers present pro- tested against the handcuffing but their protest was ignored by the police officials. The Metropolitan Magistrate ulti- mately discharged the lawyer on the same date and also directed <NAME> to take action against the guilty police officials. In support of their demand for action against the police officials, the lawyers went on strike from 18th January 1988. In the said statement of case it was further stated that on 20th January, 1988, Smt. <NAME>, Deputy Commissioner of <ORG>, North District, Delhi, made a statement in a Press conference justifying the action of police and criticising the order of the Magistrate in discharging a "thief" and that in order to express their deep concern and anguish a group of lawyers went to meet Smt. <NAME> on 21st January, 1988 in her office which at that time was situated in the Tis Hazari Court Complex itself. Smt. <NAME>, however, refused to come out and meet the lawyers whereupon they preferred to wait upon her till such time as she agreed to meet them. They assert that while they had waited for 15-20 minutes the police took recourse to lathi charge on the lawyers at the orders of Smt. <NAME>. In the said statement of case it has further been asserted that while the indefinite strike and the agitation of the lawyers demanding a judicial inquiry into the incident of lathi charge and suspension of Smt. <NAME> was continuing, a mob which eventually swelled to about 3000 persons came to Tis Hazari Court Complex on 17th February 1988 raising slogans in support of Smt. <NAME> and against the striking lawyers. The mob used brickbats and stones causing injury to some lawyers and damage to property. According to them this mob attack was engineered by Smt. <NAME>. A statement of case was also filed by <NAME>, the then Commis- sioner of <ORG>, attaching thereto affidavits of 25 police officers including an affidavit of Smt. <NAME>. There is a denial on their part of the assertions and insinuations made against them by <ORG> referred to above. With regard to the incident on 21st January 1988 the case of Smt. <NAME> as is apparent from her affidavit filed along with the aforesaid statement of case is that she along with some other officers reached her <ORG> at about 11.15 A.M. and while a meeting was in progress in connection with the arrangements for the Republic Day some time around 22.00 noon, slogans were heard "being raised outside by an apparently large crowd approaching in our direction. Before we realised what was happening. all of sudden a group of lawyers stormed into my office pushing aside the female constable on duty at my door. They rushed towards me making violent gestures and uttering obsceneties at me. They made physical gesture and threats to the effect ....... The <ORG> Officers who were sitting around my table jumped to their feet. They held back one of hysterical persons who had actually advanced in my direction and formed a ring around the lawyers and man- aged to move them out of my office while bolting me inside along with my female constable and a female visitor who had come to see me for her own work". We have thought it proper not to quote the actual words of threat stated in the said affidavit. According to Smt. <NAME> the situation there- after outside her office was handled by the other officers present while she remained inside the office. We are not concerned with the correctness or otherwise of either of the two versions stated above and as already pointed out we have referred to them only to indicate the background in which the <ORG> was constituted. Having referred in brief to the circumstances which led to the appointment of the <ORG> we now quote the order of reference:

"F.No. 10/9/88-NP-II DELHI ADMINISTRATION: DELHI (HOME POLICE-II DELHI) Dated the 23rd Feb. 1988.

ORDER Whereas the Administrator of the Union Territory. of Delhi is of the opinion that a judicial inquiry is neces- sary into matters of public importance mentioned below; Now therefore, the Administrator is pleased to constitute a Committee, in consultation with the Chief Justice of Delhi High Court consisting of Mr. Justice <NAME> and Mr. Justice <NAME> Hon'ble Judges of <ORG> to inquire into and record their findings on the following:

(i) The incident of the 15th January, 1988 in <ORG>, <ORG> regarding apprehension of a lawyer by the police.

(ii) The incident and reported lathi- charge on the 21st January, 1988 outside the office of <ORG>, Delhi.

(iii) Circumstances leading to presence of a mob in Tis Hazari premises on 17th Febru- ary, 1988 and the resultant violence.

(iv) Any other incidental development connected with the above.

The <ORG> is requested to ascertain the facts leading to the aforesaid incidents with a view to identifying those responsible for the incidents so that stringent action could be taken against all those responsible. The <ORG> may, if it deems appro- priate, submit an interim report within seven days of its first sitting suggesting action if any, against police officials or any other involved persons pending submission of the final report within a period of 3 months."

Subsequently in pursuance of a direction issued by this Court the aforesaid notification was modified by the Admin- istrator vide Notification dated 15th March, 1988 by direct- ing that the provisions of Sections 4 , 5 , 5-A , 6 , 8 , 8-A , 8-B . 8-C, 9, 10 and 10- A of the Commissions of Inquiry Act , 1952 and the rules made under Section 12 thereof shall apply to the said Committee.

The <ORG> submitted an interim report on 9th April, 1988 and during the course of proceedings before it thereaf- ter passed the aforesaid orders which are the subject matter of these writ petitions and special leave petitions. After having heard learned counsel for the parties at length we passed an order on 18th August, 1988 which we consider it appropriate to reproduce here with a view to avoiding the repetition of the reasons already given therein in support of the said order:

"It is unfortunate that this case has arisen between lawyers and police who are both guardians of law and who constitute two important segments of society on whom the stability of the country depends. It is hoped that cordiality between the two sections will be restored soon.

In order to avoid any further delay in the proceed- ings before the Committee consisting of <NAME> and <NAME>, JJ, constituted by Order dated 23rd February, 1988 to enquire into certain incidents which took place on the 15th January, 1988. 2 1st January, 1988 and 17th February, 1988, we pass the following order now but we shall give detailed reasons in support of this order in due course.

The order is as under:

1. This order is passed on the basis of the material available on record, the various steps already taken before the <ORG> and other peculiar features to the case.

2. <ORG> has to examine first all its witnesses as required by Rule 5(5)(a) of the Commissions of Inquiry (Central) Rules, 1972 (hereinafter referred to as the Rules) framed under the Commissions of Inquiry Act , 1952 (hereinafter referred to as the Act). Even those witnesses who may have filed affidavits already may first be examined-in-chief before they are cross-examined, since it is stated that when the affidavits were filed the deponents did not know what the other parties who have also filed affidavits had stated in their affidavits. The question whether a party has the right of crossexamination or not shall be decided by the <ORG> in accordance with Section 8-C of the Act. In the facts and circumstances of the case to which reference will be made hereafter this direction issued to <ORG> to examine its witnesses first as provided by rule 5(5)(a) of the Rules referred to above does not apply to those witnesses falling under sec- tion 8-B of the Act, who have to be examined at the end of the inquiry as opined by the <ORG> itself.

3. We have gone through the several affidavits and other material placed before the <ORG> and also the Interim Report dated April 9, 1988 passed by the <ORG>. In para 13 of the Interim Report the <ORG> has observed thus:

During the course of the inquiry, we have to examine the conduct of various police officers and others and particu- larly, as the record shows, of the DCP (North), <ORG> (North), SHO, PS <NAME> (Badli) and SI Incharge Police Post, <NAME> and SI. <NAME> (Badli).

In para 14 of the Interim Report it is observed.

Lawyers have seriously urged that this Committee should send a report recommending suspension of the DCP (North) Ms <NAME>.

Ultimately the <ORG> recommended the transfer of the petitioners in these cases, namely, Ms <NAME>, DCP (North) and <NAME> SI, <ORG>, Tis Hazari.

Section 8-B of the Act reads:

"8-B. If, at any stage of the inquiry, the <ORG>,

(a) considers it necessary to inquire into the conduct of any person; or

(b) is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, the Commission shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his de-

fence:

Provided that nothing in this section shall apply where the credit of a witness is being impeached."

In its Interim Report the Committee has unequivocally observed that it had to examine the conduct of various police officers, and in particular among others Ms <NAME>, DCP (North) and <NAME>, SI, <ORG>, Tis Hazari.

Having given our anxious consideration to all the as- pects of the case we hold that the petitioners Ms <NAME> and <NAME> are persons who fall under Section 8-B of the Act and have to be dealt with accordingly.

4. According to the <ORG>'s own opinion formed in the light of the facts and circumstances of the case, all these persons to whom notices under Section 8-B of the Act are issued have to be examined at the end of the inquiry. This is obvious from the order of the <ORG> passed on June 29, 1988 after it was asked by this Court by its order dated June 2, 1988 to reconsider the whole question relating to the order in which the witnesses had to be examined in the case. In its order dated June 29, 1988 the <ORG> has observed thus:

"Without going into the controversy if Rule 5(5) is an independent rule or is governed by Sections 8-B and 8-C of the Act, we would direct that in the circumstances of the case three persons namely, the Additional Commis- sioner of Police (Special Branch), DCP (Traf- fic) and Mr. <NAME>, SI to whom notices under Section 8-B of the Act have been issued be examined at the end of the inquiry."

If three persons referred to above to whom notices under Section 8-B have been issued are to be examined even accord- ing to the <ORG> at the end of the inquiry there is no justifiable reason to deny the same treatment to the peti- tioners Ms <NAME> and <NAME> who are in the same position as those three persons. The action of the <ORG> in asking them to be cross-examined at the beginning of the inquiry appears to us to be discriminatory. Mere non-issue of notices to them under Section 8-B ought not to make any difference if they otherwise satisfy the conditions men- tioned in Section 8-B . The issue of such a notice is not contemplated under Section 8-B of the Act. It is enough if at any stage the <ORG> considers it necessary to in- quire into the conduct of any person. Such person would thereafter be governed by Section 8-B of the Act. The Com- mittee should have considered whether the petitioners were entitled to be treated as persons governed by Section 8-B of the Act before asking them to get into the witness box for being cross-examined. If the <ORG> had found that the petitioners were covered under Section 8-B , then perhaps they would not have been asked to get into the witness box for being cross-examined till the end of the inquiry. The <ORG> would have then asked them to give evidence along with others who were similarly placed at the end of the inquiry.

On behalf of both the petitioners it is submitted that they did not either wish to delay the proceedings or to show disrespect to the <ORG> but only wanted to protect their own interest by making the submission which they made before the <ORG> as per legal advice given to them. This is not a case where the circumstances in which the several incidents that had taken place were not known to anybody else. The affidavits and other material before the <ORG> show that there were a large number of persons who were eye-witnesses to the incidents and who could give evidence before the <ORG>.

Taking into consideration all the aspects of the case we feel that the <ORG> should not have in the circumstances of the case directed the filing of a complaint against either of the petitioners for an offence punishable under Section 178 .

In view of the foregoing we feel that the orders of the <ORG> directing the filing of the complaints and the criminal proceedings initiated against the petitioners before the Metropolitan Magistrate pursuant to the com- plaints filed on behalf of the <ORG> should be quashed and we accordingly quash the said orders of the <ORG> and also the criminal proceedings.

A judgment containing the reasons for this order will fol- low.

Before concluding this order we record the statement made by <NAME>, learned Additional Solicitor General appearing for <ORG> that <ORG> and its police officers will fully cooperate with the <ORG> so that the <ORG> may complete its work as early as possible. We also record the statement made by <NAME>, learned Additional Solicitor General that he and his clients, the petitioners in this case hold the <ORG> in great respect and that they never intended to show any kind of discourtesy to the <ORG>. He also expresses apology for using one or two strong words against the <ORG> in the course of the arguments in this Court.

We now proceed to give our detailed reasons in support of the aforesaid order:

We find it necessary to refer to some of the regulations framed by the <ORG> to regulate its procedure. We also find it necessary to indicate the nature of the orders which have been challenged in these writ petitions and special leave petitions. It also seems appropriate at this very place to refer to the order of this <ORG> passed in these proceedings on 2nd June 1988 and the order of the <ORG> passed on 29th June, 1988 in pursuance of the order of this <ORG> dated 2nd June 1988. As is apparent from a copy of the regulations filed in these proceedings, the <ORG> framed "Regulations of procedure under Section 8 of the Commissions of Enquiry Act, 1952 to be followed by the <ORG> of Inquiry". Regulations 8, 11, 14, 18, and 21 which in our opinion appear to be relevant for purposes of these cases are reproduced as hereunder:

"8. To avoid its proceedings being unduly prolonged and protracted, the Committee may divide and group together the various persons, Associations and departments before it in such manner as it thinks just and proper for the purposes of producing oral evidence, cross-examination of witnesses examined before it, and for address- ing arguments.

Provided, however, any person who is likely to be prejudicially affected as provid- ed in Sec. 8-B of the Act shall be entitled to appear personally or through an authorised agent, and to produce evidence in his or her defence.

11. The witness whose evidence is recorded by the <ORG> orally on oath will be allowed to be cross-examined by the concerned parties in accordance with the provisions of the Act.

14. The affidavit or statement of case filed by any deponent can be treated as his examina- tion-in-chief.

18. Technical rules of the Evidence Act , as such, shall not govern the recording and admissibility of evidence before the Commit- tee. However, the principles of natural jus- tice and fair play shall be followed.

21. The <ORG> reserves the right to alter, modify, delete or add to any of these regula- tions of procedure at any time during the inquiry, as and when it considers necessary." In pursuance of a notice issued by the <ORG> under Rule 5(2)(a) of the Rules, statements of case inter alia on behalf of <ORG> and <ORG> which were accompanied by affidavits in support of the facts set out in the respective statements of case were filed before the <ORG>. On 8th April, 1988, the parties and their counsel stated that they would need two weeks' time to file counter affidavit and list of wit- nesses to be examined by them. The time prayed for was granted. The proceedings on that date were adjourned to 22nd April, 1988. On that date an application was made on behalf of the Commissioner of Police and other police officers for extension of time to file counter affidavit which was ex- tended till 13th May, 1988. The following order, how-

ever, was simultaneously passed on that date. "Mr. <NAME> has been told to keep. his witnesses ready for being examined from 16th May, 1988. The Committee proposes to hold the sitting from day-today w.e.f. 16th May, 1988. For further proceedings and recording of evidence to come up on 16th May, 1988." Here it may be pointed out that Mr. <NAME> was the counsel appearing for <ORG> and the effect of the order aforesaid was that <ORG> was required to keep its witnesses ready for being examined from 16th May, 1988. On 16th May time till 5.00 P.M. to all concerned to file their counter affidavits along with the list of witnesses was granted and further proceedings were adjourned for the next day. On 17th May, 1988, two applications were made on behalf of the Commis- sioner of Police; one for postponement of heating and the other for calling upon <ORG> to start their evidence and to call upon the Commissioner of Police to adduce his evidence thereafter. The counter affidavit and the list of witnesses on behalf of the Commissioner of Police had not been filed even till 17th May, 1988. The Committee dismissed both the applications referred to above and passed an order saying that since the Commissioner of Police has failed to file the counter affidavit or the list of witnesses, Mr. <NAME>, S.I., and Mrs. <NAME>, the then D.C.P. (North) be present in <ORG> on 19.5.88 at 10.30 A.M. for being cross-examined. On 19th May, 1988, counsel for <ORG> was directed to produce Mr. <NAME>, S.I., in the witness box for being cross-examined. On being informed by counsel for <ORG> that Mr. <NAME> was not available, bailable warrant was ordered by the Committee to be issued for production of Mr. <NAME> at 10.30 A.M. on 23rd May, 1988. Thereafter Smt. <NAME> who was present in <ORG> was directed to come in the witness box for cross-examination. The relevant portion of the order passed thereafter on 19th May, 1988 reads as hereunder:

"Mrs. <NAME> has been asked to take oath, but she has refused to do so. At this stage, we called upon Mr. <NAME>, Counsel appear- ing for Delhi <ORG> as also Mr. <NAME>, Counsel appearing for Mrs. Kiran <NAME> to justify the action of the witness in not taking the .oath. We call upon the counsel to address because according to us prima facie offence is made out under Section 178 I.P.C. Mr. <NAME> relies on the judgment of this <ORG> in Smt. <NAME> and Anr. v. Mr. <NAME>, Commission of Inquiry, ILR 1980(1) Delhi 5522. We have been taken through certain passages of judgment and we find that the facts of case are entirely different inasmuch as no affidavit had been filed by Smt. <NAME> in that case and she had been summoned merely under Section 8-B of the Commission of Enquiry Act. In the present case, an affidavit of Mrs. Kiran <NAME> is on record. She had to be given further opportunity to make any further statement and her affidavit already filed has to be justified by cross-examination. Let notice issue to Mrs. Kiran <NAME> to show cause why she should not be prosecuted under section 178 I.P.C. Since she is present, she is accepting this notice. The notice is returnable for tomorrow, the 20th May, 1988. Ordinarily directions have to be issued to her to be present in court, but Mr. <NAME> undertakes that she will be present in <ORG> tomorrow and as such no further directions are necessary."

On 20th May, 1988 as the order sheet of that date indi-

cates counter affidavit along with list of witnesses was filed on behalf of the Commissioner of Police and both were taken on record. With regard to the notice issued to Smt. <NAME> on 19th May, 1988, the following order was passed:

"By our order dated 19.5.88, we had issued a notice to Mrs. <NAME> to show cause as to why she should not be prosecuted under Section 178 of the I.P.C. for refusing to take oath in the witness box. Notice was made returnable for today.

Mr. <NAME> who appears for Mrs. <NAME> has refused to show any cause on the ground that notice was too short. We have heard the arguments of Mr. <NAME> on behalf of <ORG>.

For orders to come up on 23rd May, 1988. Mrs. <NAME> who is present today is directed to be present in the Court on 23.5.88 at 10.30 A.M."

On 23rd May, 1988, the <ORG> held that refusal of Smt. <NAME> in not testifying on oath before <ORG> was wholly unjustified and proceeded to file a complaint for an offence under section 178 of the Indian Penal Code. As regards Mr. <NAME>, it seems that he could not be required to appear in the witness box on 23rd, 24th or 25th May, 1988. On 26th May, 1988 the following order was passed: "Mr. <NAME> was directed to come into the witness box. When asked by us to bind himself on oath or affirmation to state the truth, the witness refused to do so. Earlier we had authorised the court master to administer him the oath. But, as we have already said, the witness refused to take the oath. The witness states that he is willing to make a statement without oath and would be prepared to answer all the questions in cross-examination. When asked if he is aware of the fact that his action in not taking the oath is punishable under Section 178 of the Indian Penal Code, he says he has nothing further to state. On consideration the <ORG> is of the opinion that since this witness has already filed an affidavit which is a statement on oath, it is not possible to record any further statement or crossex- amine without oath. Mr. <NAME>, however, states that he is not prepared to take the oath because he is in the nature of an accused and he cannot be asked to start the evidence and would be prepared to come in the witness box after the evidence of other party is recorded.

Mr. <NAME> at present S.I. at Police Post, Railway Station, Subzi Mandi, Delhi, who was S.I. in charge <ORG>, Delhi during January and February, 1988, was summoned as a witness and was asked to step into the witness box. His statement was to be recorded on oath for the purpose of cross-examination. He, however, refused to bind himself by an oath or affirmation to state the truth when required so to bind himself by the <ORG>. The <ORG> con- siders that Mr. <NAME> who was at the relevant time S.I. in charge at <ORG>, Delhi, where the incidents took place is a very material witness and his case is identical to the case of Ms. <NAME>. For the reasons recorded in our order dated 23rd May, 1988 regarding Ms. <NAME>, we proceed to file a complaint for an offence under section 178 of the Indian Penal Code."

In pursuance of the orders dated 23rd May and 26th May, 1988 complaints were filed by <ORG>, Delhi, for an offence under section 178 of the Indian Penal Code and as is appar- ent from a copy of one of the complaints produced before us these complaints have been filed under sub- section 4 of section 5 of the Commissions of Inquiry Act, 1952 read with section 346 of the Code of Criminal Procedure, 1973. As already indicated, it is the aforesaid orders dated 17th, 20th, 23rd and 26th May, 1988 which have been challenged in these writ petitions and special leave petitions. These writ petitions and special leave petitions first came up for consideration' before <NAME> who was functioning as the Vacation Judge. After hearing the parties he passed an order on 2nd June, 1988. The relevant portion of the order which was passed by this Court on 2nd June, 1988 in these proceedings, reads as hereunder:

"Learned counsel for the parties agree that the respondent <ORG> should be directed to re-examine the order and sequence in which parties witnesses as well as the witnesses summoned by the <ORG> should be examined with reference to the incidents mentioned in the Notification dated 23rd February, 1988. The <ORG> is accordingly directed to consider afresh the order in which the parties witnesses as well as witnesses summoned by the <ORG> on its own are to be examined with reference to the incidents mentioned in the Notification appointing the <ORG> after hearing counsel for the parties. The <ORG> is further directed to consider the question as to the stage when main witnesses on behalf of the respective parties should be examined. The <ORG> will pass a reasoned order after hearing the parties. Parties agree that these questions should be considered by the Commit- tee on 20th June, 1988 or any subsequent date subject to its convenience."

In pursuance of the aforesaid order, the <ORG> after hearing learned counsel for the parties passed an order on 29th June, 1988. It inter alia took the view that the con- cept of burden of proof did not appear to be quite relevant in the proceedings before a Commission under the Act which had been given free hand to lay down its own procedure subject, of course, to the provisions of the Act and the rules made thereunder. It also held that it would be diffi- cult for the committee to lay down the manner in which the witnesses are to be examined foregoing its right to examine any witness at any stage if his statement appeared to be relevant. One of the submissions made by learned counsel for the Commissioner of Police was that since serious accusations have been made by the lawyers against Smt. <NAME> and the police with regard to the incidents dated 21st January and 17th February, 1988, the lawyers should be first called upon to lead evidence to substantiate their allegations and the police personnel may be required to lead evidence only in rebuttal. This submission, however, did not find favour with the <ORG>. It took the view that the whole stress of learned counsel seemed to be on burden of proof and was based on certain misconceptions. Likewise, the argument that Smt. <NAME> and <NAME> also fell within the pur- view of Section 8-B of the Act did not find favour with the <ORG>. In this connection, it was pointed out that except for the three officers namely, the Addl. Commissioner of Police (Special Branch), New Delhi, D.C.P. (Traffic) and Mr. <NAME>, S.I., Police Station, Samepur (Badli), to no other officer notice under section 8-B of the Act had been issued and that merely because there were allegations against a particular person he could not be said to be covered under Section 8-B which required a positive order from the <ORG>. It was also pointed out that a person has to be put on guard by the <ORG> if it considers it necessary to inquire into his conduct or the <ORG> is of the opinion that the reputation of that person is likely to be prejudicially affected by the inquiry. When its attention was invited to the interim report where the <ORG> had mentioned that conduct of various police officers particu- larly of the D.C.P. (North), Addl. D.C.P. (North) S.H.O., <ORG>Badli) and S.I. Incharge Police Post, Tis Hazari and S.I., Samaypur (Badli), was to be examined and it was submitted that consequently they were covered under section 8-B , the <ORG> took the view that the submission was misplaced inasmuch as when the <ORG> mentioned that it was to examine the conduct of various police officers and others, it did not have in view section 8-B of the Act. According to the <ORG> the plea that Section 8-B was attracted appeared to be an afterthought. With regard to the three persons mentioned above to whom notices under section 8-B of the Act had been issued, the <ORG> specifically held that those persons would be examined at the end of the inquiry. The <ORG> emphasised on the circumstance that in the inquiry before it there was no "Lis" as is commonly understood while trying a criminal or civil case and that principle of burden of proof had no relevance.

These cases were then posted before this Bench for hearing. On the respective submissions made by learned counsel for the parties, the following points, in our opin- ion, arise for consideration:

(i) whether the procedure adopted by the Committee with regard to the sequence in which witnesses were to be examined was legal?

(ii) Whether Smt. <NAME> and <NAME>, the two petitioners, fell within the category of persons contemplated by Section 8-B of the Act and were consequently entitled to the same treatment as was accorded by the <ORG> to the persons to whom notice had been issued by it under the said Section?

(iii) whether the <ORG> was justified in calling upon the two petitioners to stand in the witness box for crossexamination almost at the very initial stage of the inquiry?

(iv) whether the orders of the <ORG> directing prosecution of the two petitioners under Section 178  are legal?

(v) whether an appeal is maintainable against filing of complaint, the same being an administrative Act?

(vi) whether a challenge to the filing of the complaint is infructuous inasmuch as the order issuing summons to the petitioners passed by the Magistrate upon the complaints filed against them had not been challenged?

(vii) whether it is a fit case for inter- ference by this <ORG> at this stage with the filing of complaint, it being open to the petitioners to prove themselves to be innocent before the magistrate?

With regard to point No. (i), we are of the opinion that apart from the directions contained in paragraph 4 of our order dated 18th August, 1988 regarding the stage at which persons failing under Section 8B of the Act were to be examined and also what has been observed in paragraph 2 of the said order, we do not find it expedient to lay down any particular rigid procedure to be followed by the <ORG> with regard to sequence in which witnesses were to be exam- ined by it.

Consequently, we find it unnecessary to consider in any further detail, the submissions made by counsel for the parties on this point. In so far as point No. (ii) is con- cerned, it would be seen that the use of the word 'or' between clauses (a) and (b) of Section 8B of the Act makes it clear that Section 8B would be attracted if requirement of either clause (a) or clause (b) is fulfilled. Clause (a) of Section 8B applies when the conduct of any person is to be enquired into whereas Clause (b) applies to a case where reputation of a person is likely to be prejudicially affect- ed. As regards the enquiry about the conduct of Smt. <NAME> and <NAME>, even the <ORG> in its interim report specifically stated that the conduct of these two petitioners among others was to be examined. Having once so stated in unequivocal terms, it was not open to the Commit- tee to still take the stand that Section 8B was not attract- ed in so far as they were concerned. Recourse to procedure under Section 8-B is not confined to any particular stage and if not earlier, at any rate, as soon as the <ORG> made the aforesaid unequivocal declaration of its intention in its interim report, it should have issued notice under section 8-B to the two petitioners, if it was of the view as it seems to be, for which view there is apparently no justi- fication, that issue of a formal notice under section 8-B was the sine-qua-non for attracting that Section. At all events, the <ORG> could not deny the petitioners the statutory protection of Section 8-B by merely refraining from issuing a formal notice even though on its own declared intention the section was clearly attracted. <CITATION> ,  Suppl. S.C.R. page 401, while dealing with Section 10 of the Jammu and Kashmir <ORG> of Enquiry Act, 1962, which seems to be an amalgam of Section 8-B and 8-C of the <ORG>s of Enquiry Act, 1952 and repelling the argument that section 10 applied only when the conduct of a person came to be enquired into incidentally and not when the <ORG> had been set up to enquire directly into the conduct of a person, it was held:

"If a <ORG> is set up to inquire directly into the conduct of a person, the <ORG> must find it necessary to inquire into that conduct and such a person would, therefore, be one covered by s. 10 . It would be strange indeed if the Act provided for fights of a person whose conduct incidentally came to be enquired into but did not do so in the case of persons whose conduct has directly to be in quired into under the order setting up the <ORG>. It would be equally strange if the Act contemplated the conduct of a person being inquired into inci- dentally and not directly. What can be done indirectly should obviously have been consid- ered capable of being done directly."

<CITATION> , , 2 S.C.R., page 1, with reference to Section 8-B of the Act, it was held at page 108 of the report that it was undeniable that the person whose conduct was being enquired into was exposed to the fierce light of publicity. Keeping in view the nature of the allegations made in the statements of case and the supporting affidavits filed on behalf of the various <ORG> including the <ORG> requirement of even Clause

(b) of Section 8-B was filfilled inasmuch as if those alle- gations were proved they were likely to prejudicially affect the reputation of the two petitioners. Indeed, in view of the term of reference which contemplated taking of "strin- gent action" against all those responsible, even the career of the petitioners as Police officers was likely to be affected in case an adverse finding was recorded against them. In view of the aforesaid specific term of reference, the principle that the report of <ORG> has no force proprio vigore does not on a pragmatic approach to the consequences seem to constitute sufficient safeguard so far as the petitioners are concerned.

The reason for the importance attached with regard to the matter of safeguarding the reputation of a person being prejudicially affected in Clause (b) of Section 8-B of the Act is not far to seek.

The following words of caution uttered by the Lord to Arjun in Bhagwad Gita with regard to dishonour or loss of reputation may usefully be quoted:

"Akirtinchapi Bhutani Kathaishyanti te-a-vyayam, Sambhavitasya Chakirtir mara- nadatirichyate." (234) (Men will recount thy perpetual dishonour, and to one highly es- teemed, dishonour exceedeth death. ) In <NAME>'s commentary of the laws of England, Vol- I, IVth Edition, it has been stated at page 101 that the right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation.

In Corpus Juris Secundum, Vol. 77 at page 268 is to be found the statement of law in the following terms:

"It is stated in the definition Person, 70 C.J.S.p. 688 note 66 that legally the term "person" includes not only the physical body and members, but also every bodily sense and personal attribute, among which is the reputa- tion a man has acquired. <NAME> in his Commentaries classifies and distinguishes those fights which are annexed to the person, jura personarum, and acquired fights in exter- nal objects, jura rerum; and in the former he includes personal security, which consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. And he makes the corre- sponding classification of remedies. The idea expressed is that a man's reputation is a part of himself, as his body and limbs are, and reputation is a sort of fight to enjoy the goods opinion of others, and it is capable of growth and real existence, as an arm or leg. Reputation is, therefore, a personal fight, and the right to reputation is put among those absolute personal fights equal in dignity and importance to security from violence. Accord- ing to Chancellor <NAME>, "as a part of the rights of personal security, the preservation of every person's good name from the vile arts of detraction is justly included. The laws of the ancients, no less than those of modern nations, made private reputation one of the objects of their protection.

The fight to the enjoyment of a good reputation is a valuable privilege, of ancient origin, and necessary to human society, as stated in Libel and Slander S. 4 , and this fight is within the constitutional guaranty of personal security as stated in Constitutional La S. 205 , and a person may not be deprived of this fight through falsehood and violence without liability for the injury as stated in Libel and Slander S. 4 .

Detraction from a man's reputation is an injury to his personality, and thus an injury to reputation is a personal injury, that is, an injury to an absolute personal right."

In D.F. Marion v. Davis, 55 American Law Reports, page 171, it was held:

"The right to the enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty, and property."

In view of the foregoing discussion and the reasons already stated in our order dated 18th August 1988, we are of the view that the two petitioners namely, Smt. <NAME> and <NAME> clearly fell within the category of persons contemplated by section 8-B of the Act and were consequently entitled to the same treatment as has been accorded by the <ORG> to the persons to whom notice has been issued by it under the said section. As a consequence, we are further of the opinion that our answer to point No. (iii) has to be that the <ORG> was not justified in calling upon the two petitioners to stand in the witness box for cross-examina- tion at the very initial stage of the enquiry. In this connection, it has to be borne in mind that Section 8-B inter alia contemplates an opportunity being given to the person governed by the said section to produce evidence in his defence whereas Section 8-C inter alia gives him the right to cross-examine the witnesses who depose against him. Not only that calling upon a person governed by Section 8-B to produce evidence in his defence at the very inception of the inquiry is a contradiction in terms inasmuch as in this situation such a person would really be required to disprove statements prejudicial to him of such witnesses who are yet to be examined, it would also reduce the right of cross- examination by such person to a mere formality for the obvious reason that by the time the witnesses who are to be cross-examined are produced, the defence of such person which would normally constitute the basis for the line and object of crossexamination would already be known to such witnesses and they are likely to refashion their statements accordingly.

Perhaps in a case where there is no other witness to give information about the alleged incident about which the inquiry is being held and the only person or persons who would give such information is or are the person or persons who are likely to be adversely affected by the inquiry, it may be necessary to depart from the above view as a matter of necessity. But this is not one such case. There are admittedly any number of other persons who can give evidence about what happened on the relevant dates. Learned counsel for the various <ORG> who shall hereinafter be referred to as learned counsel for the re- spondent expressed an apprehension that in case a person governed by Section 8-B was to be examined at the end and at that stage such person even at the risk of not producing his defence, for some reason, chooses not to appear as a wit- ness, the Committee would be deprived of knowing the facts in the knowledge of such person and such a course would obviously hamper the enquiry. To us this apprehension seems to be more imaginary than real inasmuch as the power of the <ORG> to call upon any person to appear as a witness under Section 4 of the Act which in terms is very wide and is not circumscribed by fetters of stage, will be available to the <ORG> and the <ORG> would be entitled to call such person as a witness even at that stage. Before parting with these points we may point out that learned counsel for the respondent cited several authorities in support of the principle that the report of a <ORG> of Inquiry which was only a fact finding body did not have force proprio vigore and was only recommendatory in nature. Since the principle is well-settled we have not considered it necessary to deal with those authorities. Likewise some cases were cited with regard to claim of privilege by a witness. Since the petitioners are not claiming any privi- lege but are only claiming to be treated in a reasonable way as persons governed by Section 8-B of the Act and to be meted out the same treatment which has been given to persons falling in that category, those cases also are not necessary to be dealt with.

Now we come to the fourth point namely whether the orders of the <ORG> directing prosecution of the peti- tioners under Section 178 I.P.C are legal. In order to appreciate the respective submissions of the learned counsel for the parties on this point it will be useful to reproduce here Sections 178 and 179 I.P.C They read:

"178. Refusing oath or affirmation when duly required by public servant to make it.--Whoev- er refuses to bind himself by an oath or affirmation to state the truth, when required so to bind himself by a public servant legally competent to require that he shall so bind himself, shall be punished with simple impris- onment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

179. Refusing to answer public serv- ant authorised to question. Whoever, being legally bound to state the truth on any subject to any public servant, refuses to answer any question demanded of him touch- ing that subject by such public servant in the exercise of the legal powers of such public servant, shall be punished with simple impris- onment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

The <ORG> had in the instant case directed a com-

plaint to be filed against each of the petitioners for an offence punishable under Section 178 I.P.C. and subsequently filed complaints accordingly. The charge against the peti- tioners, therefore, was of refusal to bind themselves by an oath or affirmation to state the truth on being called upon to do so. Section 179 I.P.C. in the context becomes relevant in so far as it deals with the consequences of refusal by the person concerned to answer questions demanded of him touching that subject with regard to which such person had bound himself to state the truth under Section 178 . The context in which the two petitioners were required to bind themselves by an oath or affirmation to state the truth was to face cross-examination. The petitioners were obviously placed on the horns of a dilemma. If they refused to bind themselves by an oath or affirmation to state the truth they became liable to be punished with simple imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both. If on the other hand they had to bound themselves and thereafter refused to answer any question as contemplated by Section 179 they would have again become vulnerable to identical punishment. The problem in the aforesaid background presents two propositions: (1) whether on the belief that they were persons covered by Section 8-B of the Act the petitioners could avoid the consequences of Sections 178 and 179 I.P.C by claiming absolute immunity from binding themselves by an oath or affirmation for answering questions put to them and (2) whether they could avoid those consequences if they had valid justification for refusing to take oath or affirmation without claiming an absolute immunity from binding them- selves by an oath or affirmation. The answer to the first proposition, in our opinion, has to be in the negative whereas of the second in the affirmative. Our reasons for this conclusion are these:

In <NAME> v. <NAME>, 71 L.ed. 580 one of the ques- tions which arose for consideration was whether the <ORG>--or <ORG>, both being on the same plane in this regard--has power, through its own process, to compel a private individ- ual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution. It was held that the power of inquiry--with process to enforce it--is an essential and appropriate auxiliary to the legislative function and that the provisions in this behalf are not of doubtful meaning, but "are intended to be effec- tively exercised, and therefore to carry with them such auxiliary powers as are necessary and appropriate to that end. While the power to exact information in aid of the legislative function was not involved in those cases, the rule of interpretation applied there is applicable here. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information--which not infrequently is true--recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavail- ing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry--with enforcing process--was regarded and employed as a necessary and appropriate at- tribute of the power to legislate--indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised."

On these findings, with regard to refusal by the witness to appear and testify before the <ORG> and being at- tached as a consequence thereof, it was held:

"We conclude that the investigation was or- dered for a legitimate object; that the wit- ness wrongfully refused to appear and testify before the <ORG> and was lawfully at- tached; that the <ORG> is entitled to have him give testimony pertinent to the inquiry, either at its bar or before the committee; and that the district court erred in discharging him from custody under the attachment."

In <NAME> v. <NAME> (3 L.ed 2d 1090) a witness at an investigation by the Attorney General of the <ORG> of New Hampshire, conducted pursuant to a resolution of the <ORG> legislature authorizing the Attorney General to determine whether there were subversives within the state, refused to obey a subpoena calling for the production of a list of persons who were guests at a camp operated within New Hampshire by a voluntary corporation of which the witness was executive director. On petition of the Attorney General, <ORG> called the witness before it and the witness again refused to produce the information, asserting, first, that, by the Smith Act (18 USC s. 2385 ), <ORG> had so completely occupied the field of subversive activities that the states were without power to investigate in that area, and, second, that the due process clause precluded enforcement of the subpoena. The court rejected the witness' argument, and, upon his contin- ued refusal to produce the list, adjudged him in contempt and committed him to jail until he should comply. <ORG> of New Hampshire affirmed, and even after remand by <ORG> it reaffirmed its former decision. On appeal, while affirming the decision of <ORG> <ORG> held that since the Attorney General sought to learn if subversive persons were in the <ORG> because of the legislative determination that such persons, statutorily defined with a view toward <ORG>, posed a serious threat to the security of the <ORG>, the investiga- tion was undertaken in the interest of self-preservation and this governmental interest outweighed individual rights in an associational privacy which, however, real in other circumstances were here tenuous at best. It was further held that "the governmental interest in self-preservation is sufficiently compelling to subordinate the interest in associational privacy of persons who, at least to the extent of the guest registration statute, made public at the incep- tion the association they now wish to keep private. In the light of such a record we conclude that the <ORG>'s interest has not been "pressed, in this instance, to a point where it has come into fatal collision with the overriding" constitu- tionally protected rights of appellant and those he may represent."

In <NAME> v. United States, (73 L.ed. 692 it was held:

"Neither <ORG> Joint Resolution 54 nor the action taken under it operated to divest the <ORG> or the committee of power further to investigate the actual administration of the land laws. It may be conceded that <ORG> is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits; but the authority of that body, directly or through its committees, to require pertinent disclosures in aid of its own con- stitutional power, is not abridged because the information sought to be elicited may also be of use in such suits."

In <NAME> v. United States, (32 LEd 2d 2 12) <ORG>' ordered the petitioners to appear before a grand jury and to answer its questions under a grant of immunity. The immunity was based upon a provision of the Organized Crime Control Act of 1970 stating that neither the compelled testimony nor any information directly or indirectly derived from such testimony could be used against the witness. Notwithstanding the grant of immunity, the petitioners refused to answer the grand jury's questions and were found in contempt. <ORG> for <ORG> affirmed (440 F2d 954), rejecting the peti- tioners' contention that it violated their constitutional privilege against self-incrimination to compel them to testify without granting them transactional immunity from prosecution for any offence to which the compelled testimony might relate.

On certiorari, <ORG> affirmed. It held that the power of government to compel persons to testify in court or before grand juries and other governmen- tal agencies was firmly established but was not absolute, being subject to a number of exemptions, the most important of which was the Fifth Amendment privilege against self- incrimination. With reference to Federal Statute (18 USCS s. 6002 ) it was held:

"That a federal statute permitting the govern- ment to compel a witness to give testimony, but granting the witness immunity from the use in any criminal case of the compelled testimo- ny or any evidence derived therefrom, does not violate the Fifth Amendment privilege against self-incrimination."

In <NAME> v. <NAME>, (40 L.ed. 819) the question involved was with regard to an alleged incompatibility between that clause of the 5th Amendment to the Constitution, which declares that no person "shall be compelled in any criminal case to be a witness against himself" and the act of Con- gress of February 11, 1983 (27 Stat. at L. 443), which enacts that" no person shall be excused from attending and testifying or from producing books, papers, tariffs, con- tracts, agreements and documents before <ORG>, or in obedience to the subpoena of the <ORG>, ...... on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concern- ing which he may testify, or produce evidence, documentary or otherwise, before said <ORG>, or in obedience to its subpoena, or either of them, or in any such case or proceed- ing." It was held:

"it is entirely true that the statute does not purport, nor is it possible for any statute, to shield the witness from the personal dis- grace or opprobrium attaching to the exposure of his crime; but, as we have already ob- served, the authorities are numerous and very nearly uniform to the effect that, if the proposed testimony is material to the issue on trial, the fact that the testimony may tend to degrade the witness in public estimation does not exempt him from the duty of disclosure. A person who commits a criminal act is found to contemplate the consequences of exposure to his good name and reputation, and ought not to call upon the courts to protect that which he has himself esteemed to be of such little value. The safety and welfare of an entire community should not be put into the scale against the reputation of a self-confessed criminal, who ought not, either in justice or in good morals, to refuse to disclose that which may be of great public utility, in order that his neighbors may think well of him. The design of the constitutional privilege is not to aid the witness in vindicating his charac- ter, but to protect him against being com- pelled to furnish evidence to convict him of a criminal charge. If he secure legal immunity from prosecution, the possible impairment of his good name is a penalty which it is reason- able he should be compelled to pay for the common good. If it be once conceded that the fact that his testimony may tend to bring the witness into disrepute, though not to incrimi- nate. him, does not entitle him to the privi- lege of silence, it necessarily follows that if it also tends to incriminate, but at the same time operates as a pardon for the of- fence, the fact that the disgrace remains no more entitles him to immunity in this case than in the other."

It is in this view of the matter and in view of the provisions contained in Sections 4 to 6 of the Act and the rules framed thereunder that we are of the opinion that the petitioners on the belief that they were persons covered by Section 8B could not avoid the consequences of Sections 178 and 179 by claiming absolute immunity from binding themselves by an oath or affirmation for answering questions put to them.

Indeed in the instant case the petitioners are not asserting that they could not be required at all to appear as a witness before the <ORG> and make statement on oath. As is apparent from our order dated 18th August, 1988 on behalf of both the petitioners it was submitted that they did not either wish to delay the proceedings or to show disrespect to the <ORG> but only wanted to protect their own interest by making the submission which they made before the <ORG> as per legal advice given to them. According to learned counsel for the petitioners the legal advice given to the petitioners was that since they were persons covered by Section 8B of the Act they were entitled to produce evidence in defence and could as such be called upon to enter the witness box at the end of the inquiry and could not be required to enter the witness box for cross-examina- tion almost as the first two witnesses before the <ORG>. According to him the stand taken by the petitioners was that they being covered by Section 8B of the Act their defence would be put to serious jeopardy and will be prejudicially affected if they were required to appear in the witness box for cross-examination at the very inception of the inquiry even before statements of witnesses proving the accusations against the petitioners had been recorded which they were entitled to defend. That this was really the case of the petitioners will be apparent from our discussion a little later. In this background we pass on to the second proposi- tion referred to above namely whether the petitioners could avoid the consequences contemplated by Sections 178 and 179 I.P.C by putting forth valid justification for refusing to bind themselves by oath or affirmation even without claiming an absolute immunity from binding themselves by an oath or affirmation.

In <NAME> v. United States, 1 L.ed. 2d 1273 a union officer, appearing as a witness before a subcommittee of <ORG>, refused to answer questions as to past <ORG> membership of certain persons, objecting to the questions on the ground of lack of pertinency to the subject under inquiry by the subcommittee. In a prosecution in <ORG> for the District of Columbia, he was convicted of violating the statute providing for criminal punishment of witnesses before congressional committees who refuse to answer any question pertinent to the question under inquiry, and the conviction was affirmed by <ORG> for <ORG> On certiorari, <ORG> reversed the conviction. <NAME>, Chief Justice, speaking for the five members of the <ORG>, ruled that to support a conviction under a statute a congressional investigating committee must, upon objection of a witness on the grounds of pertinency, state for the record the subject under in- quiry at that time and the manner in which the propounded questions are pertinent thereto. Consequently refusal to answer a question on the ground that it was not pertinent, was found to be a valid justification.

In <NAME> v. United States, 3 L.ed. 2d 183 relying on the decision in <NAME> (Supra) that the courts must accord to the defendants every right which is guaranteed to defend- ants in all other criminal cases it was held that one of these guarantees is proof beyond a reasonable doubt that the refusal of the witness was deliberate and intentional. This decision is. therefore~ an authority for the proposition that if the refusal of the witness was not deliberate and intentional but was for a valid cause such refusal could not be made the basis for prosecuting the witness. In <NAME> v. <ORG> of New York, 12 L.ed. 2d 678 notwithstanding the grant of immunity under the laws of New Jersey and New York, petitioners, as witnesses before the <ORG> of New York Harbor, refused to answer questions on the ground that the answers might tend to incriminate them under federal law, to which the grant of immunity did not purport to extend. Petitioners were there- upon held in civil and criminal contempt of court. <ORG> affirmed the civil contempt judgments, holding that a state may constitutionally compel a witness to give testimony which might be used in a federal prosecu- tion against him. On certiorari, <ORG> vacated the judgment of contempt and remanded the cause to <ORG>. It was held:

"... We hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testi- mony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We con- clude, moreover, that in order to implement this constitutional rule and accommodate the interests of the <ORG> and Federal Governments in investigating and prosecuting crime, <ORG> must be prohibited from making any such use of compelled testimony and its fruits. This exclusionary rule, while permitting the <ORG>s to secure information necessary for effective law enforcement, leaves the witness and <ORG> in substantially the same position as if the witness had claimed his privilege in the ab sence of a state grant of immunity. It follows that petitioners here may now be compelled to answer the questions propounded to them. At the time they refused to answer, however, petitioners had a reasonable fear, based on this <ORG>'s decision in <NAME> v. United <ORG>s, supra, that the federal authorities might use the answers against them in connec- tion with a federal prosecution. We have now overruled <NAME> and held that <ORG> may make no such use of the an- swers. Fairness dictates that petitioners should now be afforded an opportunity, in light of this development, to answer the questions. Accordingly, the judgment of the New Jersey courts ordering petitioners to answer the questions may remain undisturbed. But the judgment of contempt is vacated and the cause remanded to the New Jersey Supreme <ORG> for proceedings not inconsistent with this opinion."

In this case also it is, therefore, clear that a valid justification put forth by the witness was considered to constitute sufficient ground to make him immune from prose- cution.

We have already pointed out in our order dated 18th August, 1988 that if the <ORG> had found that the peti- tioners were covered by Section 8B of the Act it would most probably itself not have required them to get into the witness box for being cross-examined till the end of the inquiry. We have reached this conclusion from the circum- stances that it is the <ORG>'s own view as expressed in its order dated 29th June, 1988 that persons covered by Section 8B have to be examined at the end of the inquiry. That the case of the petitioners in not taking oath for being cross-examined at the very initial stage was based on Section 8B seems to be apparent. The plea taken in the application made on behalf of the Commissioner of Police on 17th May, 1988 for first calling upon <ORG> to start their evidence and to call upon the Commissioner of Police to adduce his evidence thereafter was the first indication in this behalf. This plea was, at all events, relevant qua those police officers whose conduct was to be examined. Secondly, when on 19th May, 1988 the learned counsel for Smt. <NAME> was required to justify her stand of not taking oath, Section 8B was specifically plead- ed and reliance was placed on the decision in the case of Smt. <NAME> and another v. Mr. <NAME> Commission of Inquiry, ILR 1980 1 Delhi 552 as is borne out by the order of the <ORG> of that date. The justification so pleaded was repelled by the <ORG> on two grounds, namely that Smt. <NAME> in that inquiry had not filed any affidavit and that she had been summoned under Section 8B . On the view of the <ORG> expressed in its order dated 29th June, 1988, which will, in the absence of any material to the contrary, be deemed to be its view even on 19th May, 1988, that persons covered by Section 8B were to be examined at the end of the inquiry, the fact that an affidavit of Smt. <NAME> was on record could hardly justify her being called upon to enter the witness box at the very inception. As regards the second ground we have already held that the fact that no formal notice had been issued under Section 8B would constitute no justification for not treating a person to be covered by that section, if otherwise the ingredients of the said section were made out.

As regards <NAME> the order of the <ORG> dated 26th May, 1988 quoted earlier indicates that <NAME> had clearly stated that he is not prepared to take the oath because he is in the nature of an accused and he cannot be asked to start the evidence and would be prepared to come in the witness box after the evidence of other party is record- ed. <NAME> did not state that he was an accused before the <ORG>. In saying that he was "in the nature of" an accused be obviously meant that since his conduct was to be examined as contemplated by Section 8B he was entitled to appear as a witness in his defence after the witnesses on behalf of <ORG> which was accusing him had been examined. Had the <ORG> not been labouring under the misapprehension that the petitioners were not covered by Section 8B , because no notices under that section had been issued to them, notwithstanding the fact that their conduct was to be examined on its own declared intention, it would obviously not have required the petitioners to take oath for being cross-examined at the stage at which it did so. The subsequent orders of the <ORG> directing complaints to be filed against the petitioners for an offence punishable under Section 178 I.P.C. and the act of filing such com- plaints apparently were the consequences of the aforesaid misapprehension. We have already held that the petitioners were covered by Section 8B of the Act. The action of the <ORG> in compelling the petitioners to enter the witness box on the dates in question for being cross-examined, when even according to it as is apparent from its order dated 29th June, 1988, persons similarly situated were to do so at the end of the inquiry, was in itself discriminatory. There was, therefore, valid justifi- cation for the refusal by the petitioners to take oath for cross-examination at the stage when they were required to do so. The <ORG> could have on its own reconsidered the question whether the prosecutions should be pressed further when the case was referred back to it by the learned Vaca- tion Judge of this Court by his order dated 2nd June, 1988. For these reasons and the reasons already given in our order dated 18th August, 1988 we are of the opinion that the <ORG> should not have in the instant case directed the filing of a complaint against either of the petitioners for an offence punishable under Section 178 I.P.C. We decide point (iv) accordingly.

As regards points (v), (vi) and (vii) suffice it to point out that the petitioners have apart from filing spe- cial leave petitions also filed writ petitions challenging the very same orders and since we have held that the action of the <ORG> in holding that the petitioners were not covered by Section 8B of the Act and compelling them to enter the witness box on the dates in question was discrimi- natory and the orders directing complaint being filed against the petitioners were illegal, it is apparently a case involving infringement of Articles 14 and 21 of the Constitution. In such a situation the power of this Court to pass an appropriate order in exercise of its jurisdiction under Articles 32 and 142 of the Constitution cannot be seriously doubted particularly having regard to the special facts and circumstances of this case. On the orders direct- ing filing of complaints being held to be invalid the conse- quential complaints and the proceedings thereon including the orders of the Magistrate issuing summons cannot survive and it is in this view of the matter that by our order dated 18th August, 1988 we have quashed them. As regards the submission that it was not a fit case for interference either under Article 32 or Article 136 of the Constitution inasmuch as it was still open to the petitioners to prove their innocence before the Magistrate, suffice it to say that in the instant case if the petitioners are compelled to face prosecution in spite of the finding that the orders directing complaint to be filed against them were illegal it would obviously cause prejudice to them.. Points (v), (vi) and (vii) are decided accordingly.

These, apart from those stated in our order dated 18th August, 1988 are our reasons for the said order. N.P.V.