Judgment:
S. Chatterji, J.
1. OJC No. 8659 of 1994 and OJC No. 68 of 1995 are at the instance of S. S. Bhanja Deo as petitioner challenging the order dated 22-11-1994 and order dated 8-12-1994 and 9-12 1994 made by the Commission constituted under the Commission of Inquiry Act.
2. It is observed frequently that past is history, present is tension and future is speculation. Truely consistent with this dictum these two cases have its own history-history no doubt tragic indeed as observed by an earlier Division Bench of this Court in the case reported in AIR 1993 Orissa 157 : Jana Mohan Das v. State of Orissa where the Division Bench found necessity for a judicial' enquiry as to the liquor disaster that happened. In the said decision, history indeed was recorded in details what was the tragedy, what is public interest, what is public concern, what is the duty of the State and what the Court can do. Consistent with this, admittedly the Commission was constituted as envisaged in the Commission of Inquiry Act. With this history behind, the matter is pending for disposal. In course of hearing before the Commission the impugned orders have been made and the same are challenged. The impugned order dated 22-11-1994 indicates,inter alia, that the Commission has recorded in paragraph 18 thererof that after careful consideration of the application made in this regard and referring to the submissions made orally before the Commission by different counsel, the Commission decided to summon four persons, namely, Sarbashree Bijoy Mohapatra, Syed Mustafiz Ahmed (then Ministers of Cabinet rank) and Pravat Kumar Tripathy and Debi Prasad Roy, political leaders. Oral examination of other persons, namely, Sarbashree Nalini Kanta Mohanty,' Surendranath Nayak (then Cabinet Ministers) and Aswini Kumar Samal was not found to be necessary by the Commission. Commission recorded further that while deciding this question at that relevant stage, he has not considered the question of reliability and acceptability of the evidence against the above named four Cabinet Ministers and three political leaders. The Commission further observed that it may not be under-stood that by issuing summons to four of them it has prima. facie accepted the allegations made against them or that the Commission has prima facie rejected the allegations made against the other three persons to whom summons are not being issued. The Commission noted that in the ultimate analysis while making the report the Commission will decide as to whether and if so, against whom there is acceptable evidence relating to nexus or patronage. The Commission has not, however, found any necessity to examine any other person, in respect of whom allegations and submissions have been made. Non-examination of the aforesaid three persons is the subject-matter in OJC No. 68 of 1995. It appears that subsequent to the said order, there are two other orders, namely, order dated 8-12-1994 and 9-12-1994. This is the subject-matter in OJC No. 8659 of 1894. By order dated 8-12-1994 the question as to the scope of cross-examination before the Commission has been decided and it was recorded by the Commission that none of these persons who raised the question have aright for cross-examination and it can be done only with the permission of the Commission. Power of the Commission to allow or with hold cross-examination certainly includes the power to control and limit the cross-examination to some aspects. Their request for cross-examination of the witnesses on all aspects was accordingly not acceded to by the Commission. The matter was, however, deferred to consider the submissions on the next day as to recall Shri Pravat Ku. Tripathy for further cross-examination. By the order dated 9-12-1994 the matter was again considered and by giving detailed reasons the Commission did not see any justification to allow the application to recall Shri Pravat Kumar Tripathy for cross-examination. The application in this behalf was rejected. Now all these three orders are challenged before this Court and lengthy argument has been made by Sri Sarangi on behalf of the petitioner, Shri Gangadhar Rath for opp. party No. 3 in OJC No. 68 of 1995, Shri B. M. Patnaik for opp. party Nos. 3 and 4 in OJC No. 8659 of 1994 and Shri B. B. Mohanty for Opp. Party No. 5 in OJC No. 8659 of 1994 and the learned Advocate-General.
3. Considering the submissions made on behalf of the respective parties, we find the scheme in Section 8B of the Commission of Inquiry Act, 1952 (for short, 'the Act') indicates, inter alia, that if at any stage of the enquiry the Commission (a) considers it necessary to enquire into the conduct of any person; or (b) is of the opinion that the reputation of any person is likely to be prejudicially affected by the enquiry, the Commission shall give to that person a reasonable opportunity of being heard in the enquiry and to produce evidence in his defence; provided that nothing in the section shall apply where the credit of a witness is being impeached.
Section 8C, however. provides for the right of cross-examination and representation by legal practitioner. It clearly lays down that the appropriate Government, evey person referred to in Section 8B and. with the ' permission of the Commission, any other person whose evidence is recorded by the Commission may cross-examine a witness other than a witness produced by it or him; (b) may address the Commission; and (c) may be represented before the Commission by a legal practitioner or, with the permission of the Commission, by any other person.
4. In the case reported in AIR 1967 SC 122 (The State of Jammu and Kashmir and Ors. v. Bakshi Gulam Mohammad and Anr.), the Supreme Court considered the scope of Sections. 3. 4(c), 9 and 10 of the Jammu and Kashmir Commission of Inquiry Act and also Rules 6, 7, 8 and 10 made thereunder as to the right of cross-examination of witnesses giving evidence by affidavit before the Commission of Inquiry set up under Section 3. In construing Section 4 (c) of the Jammu and Kashmir Commission of Inquiry Act, the Court held that no right is conferred by the said provision on a person appearing before the Commission of Inquiry set up under Section 3 to cross-examine witnesses giving evidence by affidavits before the Commission. The apex Court considered that rules of natural justice required that a party against whom an allegation is being enquired into should be given a hearing. The right of hearing does' not include a right to cross-examine. The right to cross-examine must depend upon the circumstances of each case and also on the statute under which allegations are being enquired into. The Commission of Inquiry under the Act is for fact-finding purposes. The report of the Commission has no force proprio vigore. This aspect is important in deciding rules of natural justice reasonably applicable to persons before the Commission under the Act. Further Section 10 gives a right to be heard but only a restricted right of cross-examination confined only to witnesses called to give viva voce evidence against the persons demanding the right. The Act does not contemplate the right of hearing to include a right of cross-examination. This proposition was further considered in a subsequent decision in AIR 1978 SC 68: State of Karnataka v. Union of India. In paragraph 181, it was observed that it is clear from the provisions and the general scheme of the Act that a Commission of Inquiry appointed under the Act is purely a fact-finding body which has no power to pronounce a binding or definitive, judgment. It has to collect facts through the evidence led before it and on a consideration thereof it is required to submit its report which the appointing authority may or may not accept. Our attention has been drawn to a decision reported in AIR 1983 AP 69 : Md. Ibrahim Khan v. Susheel Kumar and Anr.. By considering the scope of Sections 8B, 8C and 8 of the Commission of Inquiry Act, it has been found after discussing a catena of decisions of different High Courts as well as of the apex Court that only when a witness is examined viva voce before the Commission, right to cross-examine that witness accrues under Sec 8C to the person likely to be prejudicially affected. No such right arises when the evidence is given on affidavits. In para 47 of the said decision the concept has been made clear that in an enquiry before a Commission the procedure is governed by Sections. 8B and 8C of the Act and the rules made by the State Government under Section 12 of the Act. Only when a witness is examined viva voce before the Commission, right to cross-examine that witness accrues under Section 8C to the person likely to be prejudicially affected. No such right arises when evidence is given on affidavits.
In paragraph 53, the Division Bench has summed up their conclusions as follows :
(i) The use of the, accolade judicial or quasi-'judicial to inquiries under the Commissions of Inquiry Act, strictly speaking is inappropriate.
(ii) A quasi-judicial inquiry equally presupposes like a judicial inquiry the existence of a dispute between two or more parties and investigates and declares the liabilities,
(iii) Before a Commission of Inquiry appointed under the Act, there is no lis between the parties and no decision preju-dicially affecting the right of parties by the Commission, is given, the function of the Commission is purely to investigate, assess the ascertained facts and report. That is the purpose and the end. The report of the Commission is not binding on the Government.
(iv) The procedure to be followed by the Commission has been laid down in the Sections. 8B and 8C of the Act; The. basic rules of natural justice have been incorporated In Sections. 8B and 8C of the Act and the Commission is invested with the power to regulate its own procedure subject to the provisions of the Act and the rules made thereunder.
(v) The provisions of Sections.8B and 8C of the Act do not confer the right to summon parties who have been given evidence on affidavit for cross-examination. The general right to cross-examine a witness will accrue only when the evidence is recorded viva voce.
(vi) Rules of natural justice do not supplant but only supplement the law.
We have looked at the decision in the case of Dr. Baliram Waman Hi ray v. Mr. Justice B. Lentin and Ors., AIR 1988 SC 2267 and in particular in paragraph 33 at page 2284 by quoting a passage from the judgment of the House of Lords in Shell Co. of Australia v. Federal Commissioner of Taxation, 1931 AC 275. The Court explained the legal connotation of the term 'Court' in these words:
'What distinguishes a Court from a quasi judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare that rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court.'
5. Considering the provisions of law, the Scheme of Commission of Inquiry Act and the scope of Sections. 8B and 8C of the said Act and considering the question of right of cross-examination, and the stage and the relevance as to the further scope of cross-examination, we have been taken through the impugned orders in between the lines. By order dated 8-12-1994 and 9-12-1994 the Commission had refused to allow the parties aggrieved before us to cross-examine the persons who have been examined on viva voce on the points beyond the question put to the said person/ persons by the Commission itself. It has to be borne in mind that in the aforesaid reported decisions. the point has been discussed elaborately and in depth as to the light to cross-examine while it accrues and what should be the nature of cross-examination. It cannot be an open blank charter enabling any party to cross-examine on the point which he thinks relevant and purposeful for the holding of the enquiry by the Commission. The scope of the enquiry is limited. The scope of adducing evidence by affidavit and viva voce and thereafter the nature of cross-examination, the right of cross-examination and the mode of cross-examination have been elaborated. Considering these aspects we find that the impugned-orders of the Commission challenged before us are neither contrary to law nor inconsistent with the provisions of law. All that we can observe is that it is open to the Commission to allow the questions in cross-examination which would be germane and pertinent to the relevance of the examination in viva voce and relevant for the purpose of holding the enquiry by the Commission, Any question beyond the scope can be over-ruled by the Commission and in order to avoid any complication, the party on whose behalf cross-examination is being held may file such relevant question in writing and the same may be kept on record for future reference, if any.
6. We have considered the order dated 22-11-1994 in the proper perspective. The question of summoning any witness who has not been examined viva voce cannot be insisted upon. We have already held that since there is no (is between the parties nor is it an adversarial way of affecting administration, nor any dispute is decided affecting the rights of the parties as is being done by the Court, the-question of summoning is not compulsorily available to any party aggrieved. The Commission in paragraph 19 of its order dated 22-11-1994, inter alia, observed as follows :
'... It may not be understood that the Commission, by issuing summons to four of them, has prima facie accepted the allegations made against them or that the Commission has prima facie rejected the allegations made, against the other three persons to whom summons are not being issued. In the ultimate analysis and while making the report, the Commission will decide as to whether and if so, against whom there is acceptable evidence relating to nexus or patronage.'
We make it clear that Commission should also proceed according to law and in terms of the provisions of Sections. 8B and 8C, as discussed above, and the matter should not be Indulged in a manner which would not be appreciated in any quarter. There are many reservations in many quarters. We do not like to dilate on this point but we indicate very much that the Commission should act independently, and impassionately, as is expected. With such observation, we have not interfered with the impugned orders. We have given sufficient indications which the Commission may appreciate and dispose of the matters as expeditiously as possible. The writ petitions stand disposed of accordingly. No order as to costs. All orders of stay by this Court stand vacated. It is open to all the parties appearing before this Court to report immediately before the Commission and ask the Commission to fix an early date as far as practicable and convenient to the Commission.
R.K. Patra, J.
7. I agree.