ORDER
OF THE COURT
Sd/-(USHA MEHRA)
REGISTRAR
16. On the same day, the High Court passed another order under Section 194 of the Code designating Shri Mahesh Chandra, Additional Sessions Judge as the Judge to try the said case. Shri Mahesh Chandra was a Senior District and Sessions Judge at the Courts in New Delhi within the jurisdiction of which the offence was committed. The case of the appellants is that the High Court has no jurisdiction to issue the first notification directing the trial at Tihar Jail. It is argued that Section 9(6) confers power on the High Court to specify by notification a place or places at which criminal trials can be held by the Court of Session in the Union Territory of Delhi. The requirement of a notification of the High Court of the place or places where the Court of Session will function is intended to facilitate the process of public participation. Such a notification, it is submitted, has already been issued by the High Court of Delhi. The whole of the Union Territory, it is pointed out, comprises of one division or district. Originally, the trials in cases pertaining to the entire territory were conducted only at the District Court Complex in Tis Hazari. With the increase of Sessions Cases, the Court of Session was also authorised to hold its sittings at the Parliament Street Courts (now shifted to Patiala House) in New Delhi and the District Court Complex at Shahdra. It is pointed out that Shri Mahesh Chandra himself was holding Court at Patiala House in relation to certain other cases, and therefore, he can ordinarily hold his sittings only at Patiala House even for the present case. It is also submitted that Section 9(6) empowers the High Court only to specify the place or places at which all, or any class of the cases pertaining to a division can be heard and does not empower the High Court to specify the place or places of hearing for individual cases. The choice of any other place for holding the sittings, wholly or partly, in any particular case lies within the power of the trial Judge, the trial Judge may exercise that power for the general convenience of parties and witnesses when agreed to by both the parties,
17. The High Court did not accept these submissions. In substance, it was held that the actual location of a Court can be decided by the High Court either generally or with reference to a particular court or even with reference to a particular case if there is compelling reason. The High Court also said that the fact that it is done with reference to a particular case impairs nobody's fundamental right and is also not discriminatory, as no offender has a vested right to be tried at the usual seat of the Court of Session.
18. The High Court, in my judgment, is right in reaching the above conclusion.
19. Section 9(6) provides:
Section 9. Court of Session
(6) The court of session shall ordinarily hold its sitting at such place or places as the High Court may, by notification specify but, if in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sitting at any other place in the Sessions division, it may with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.
20. Sub-section (6) can be conveniently divided into two parts. The first part provides power to the High Court to notify the place or places for the Court of Session to hold its sittings for disposal of cases. The second part deals with the power of the Court of Session in any particular case to hold its sittings at a lace not notified by the High Court.
21. The real question which we have to determine is, what do the words 'place or places' mean in the context in which we find it in the first part of Sub-section (6), and in the legal landscape of other allied provisions in the Code?
22. There is a great deal of juristic writing on the subject of statutory interpretation, and I make no attempt here to summarise it all. I will do it elsewhere in this judgment hen dealing with question No. (iv). Here I do not want to spend more of my time since I need not search for the meaning of the word. The word 'place' with which we are concerned has been defined under the Code. Section 2(p) of the code defines 'place'. It is an inclusive definition.The 'Place' as defined includes a house, building, tent, vehicle, and vessel.
23. 'The words, too, are empirical signs, not copies or models of anything.... The words are slippery customers....' Says COLIN CHERRY (On Human Communication at 10). The interpretation of a word must, therefore, depend upon the text and the context. As C. Chinnappa Reddy, J., Said: 'If the text is the texture, the context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A Statute is best interpreted when we know why it was enacted.' (Reserve Bank of India v. Peerless G.F. & I. Co. AIR 1987 SC 1023.
24. The words 'place or places' used in Section 9(6) apparently indicates that there could be more than one place for the sitting of the Court of Session. The different places may be notified by different notifications. There may be a general notification as well as a special notification. The general notification may specify the place for the class of cases where Court of Session shall sit for disposal. The special notification may specify the same place or a different place in respect of a particular case.
25. Adroitly, it is said that the words and sections like men do not have their full significance when standing alone. Like men, they are better understood by the company they keep. Section 9(4) and Section 194 of the Code are the closely related sections. They may also be examined in order to understand the true meaning of the word 'place or places in the first part of Section 9(4).
26. Section 9(4) reads:
The Session Judge of the Session division, may be appointed by the High Court to be also an additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in the other division as the High Court may direct.
27. Section 9(4) empowers the High Court to appoint a Sessions Judge of one division to sit at such place or places in another division for disposal of cases. The High Court while so appointing need not direct him to sit only at the ordinary place of sittings of the Court of Session. There is no such constraint in Section 9(4). The High Court may also issue a separate notification under Section 9(6) specifying the place or places where that Session Judge should sit for disposal of cases.
28. Section 194 provides:
Additional and Assistant Sessions Judges to try cases made over to them. An Additional Sessions Judge or Assistant Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may by special order, direct him to try.
(Emphasis supplied)
29. Section 194 provides power to the High Court to make a special order directing an Additional or Assistant Sessions Judge of the same division to try certain specified cases or a particular case. If the High Court thinks that the Additional or Assistant Sessions Judge should hold the Court at a specified place, a separate notification could be issued under Section 9(6). 30. The argument that the first part of Section 9(6) should be read along with the second part thereof has, in the context, no place. The first part provides power to the High Court. It is an administrative power, intended to further the administration of justice. The second part deals with the power of the Court of Session. It is a judicial power of the Court intended to avoid hardship to the parties and witnesses in a particular case. One is independent of and unconnected with the other. So, one should not be confused with the other. The judicial power of the Court of Session is of limited operation, the exercise of which is conditioned by mutual consent of the parties in the first place. Secondly, the exercise of that power has to be narrowly tailored to the convenience of all concerned. It cannot be made use of for any other purpose. This limited judicial power of the Court of Session should not be put across to curtail the vast administrative power of the High Court.
31. Section 9(6) is similar to Section 9(2) of the Old Code (Act 5 of 1898). The only difference being that Section 9(2) conferred power on the State Government to specify the place or places where the Court of Session should sit for the purpose of disposal of cases. That power is now vested in the High Court. The change of authorities was made to keep in tune with the separation of judiciary from the executive. The scope of the sections, however, remains the same. In Lakshman v. Emperor AIR 1931 Bom 313, a Special Bench of the Bombay High Court sustained the validity of a similar notification issued under Section 9(2). Patkar, J., expressed his view (at 320):
Under Section 9, Sub-section (2), Criminal P.C. the Local Government may, by general or special order, in the official gazette, direct at what place or places the Court of Session shall hold its sittings, but until such order is made the Court of Session shall hold its sittings as heretofore.
It is contended on behalf of the accused that the Local Government has already issued a notification directing the Court of Session to be held at Alibag in certain months commencing on dates to be fixed by the Sessions Judge of Thana, and that the notification dated 5th February, 1931 does not direct any new place where the Court of Session should hold its sitting, and further that the notification does not order the Court of Session to hold its sitting at Alibag, but has directed a particular Additional Sessions Judge to hold the sitting of his Court at Alibag. Under Section 193(2) the Local Government had power to direct Mr. Gundil, the Additional Sessions Judge, to try this particular case. The previous orders of the Local Government were general orders under Section 9(2) and there is nothing in Section 9(2), to prevent a special order being passed directing at what place a Court of Session should hold its sitting. If by reason of an outbreak of plague or any other cause it becomes necessary or expedient that a Court of Session hold its sittings in respect of all the cases at a different place or should try a particular case at a particular place, the words of Section 9(2) are wide enough to cover such an order. An order passed under Section 9(2) is an administrative order passed by the Local Government, and the special order of the Local Government in the present case directing the Additional Sessions Judge to try this particular case at Alibag does not appear to contravene the provisions of Section 9(2).
32. This appears to be the correct view to be taken having regard to the scheme and object of Section 9(2) of the Old Code.
33. In Ranjit Singh v. Chief Justice and Ors. 1985 28 DLT 153 the Delhi High Court while considering the validity of a like notification proclaimed more boldly (at 157):
Section 9(6) recognises that the Court of Session if it wishes to hold its sitting at another place can only do so with the consent of prosecution and the accused. As to the specifying of places of sitting of Court of Session no such restriction is there and it is left to the best judgment of the High Court. Of course, this does not mean that such a power can be exercised arbitrarily. But then it must be noted that Courts have consistently held that where power is vested in a High Official it must ordinarily be presumed that the power is exercised in a bona fide and reasonable manner. Surely, it is a reasonable presumption to hold that when the Full Court exercised its power, like in the present case, directing that the Court of Session may hold its sitting at a place other than its ordinary place of sitting considerations of the interest of justice, expeditious hearing of the trial and the requirement of a fair and open trial are considerations which have weighed with the High Court in issuing the impugned notification. It should be borne in mind that very rarely does the High Court exercises its power to direct any particular case to be tried in jail. When it does so it is done only because of overwhelming consideration of public order, internal security and a realisation that holding of trial outside jail may be held in such a surcharged atmosphere as to completely spoil and vitiate the court atmosphere where it will not be possible to have a calm, detached and fair trial. It is these considerations which necessitated the High Court to issue the impugned notification. Decision is taken on these policy considerations and the question of giving a hearing to the accused before issuing the notification is totally out of place in such matters. These are matters which evidently have to be left to the good sense and to the impartiality to the Full Court in taking a decision in a particular case.
34. It seems to me that the High Court of Delhi is also right in observing that it is unnecessary to hear the accused or any body else before exercising the power under Section 9(6). Such a hearing, however, is required to be given by the Court of Session if it wants to change the normal place of sitting, in any particular case, for the general convenience of parties and witnesses.
35. From the foregoing discussion and the decisions, it will be clear that the impugned notification of the High Court of Delhi directing that the trial of the case shall be held at Tihar Jail is not ultra vires of Section 9(6) of the Code.
Re. Question(ii):
36. It is argued that public trial is a fundamental requirement of the Constitution and is a part of the constitutional guarantee under Article 21. A public trial in jail in the very nature of things is neither desirable norpossible. The massive walls, high gates, armed sentries at every entrance and the register maintained for noting the names of the visitors are said to be the inhibiting factors to keep away the potential visitOrs. People generally will not venture to go to jail and it is said, that jail is notionally and psychologically a forbidden place and can never be regarded as a proper place for public trial.
37. The High Court rejected these contentions. The High Court, however, proceeded on the assumption that 'a public trial is a part of the Constitutional guarantee under Article 21 of our Constitution. It is unnecessary to deal with that aspect in this case. In A. K. Roy v. Union of India : 1982CriLJ340 Chandrachud, C.J., speaking for the Constitution Bench said (at 354):
The right to public trial is not one of the guaranteed rights under our Constitution as it is under the Sixth Amendment of the American Constitution which secures to persons charged with crimes a public, as well as speedy trial. Even under the American Constitution, the right guaranteed by the Sixth Amendment is held to be personal to the accused which the public in general cannot share.
38. The right of an accused to have a public trial in our country has been expressly provided in the code, and I will have an occasion to consider that question a little later. The Sixth Amendment to the United States Constitution provides 'In all criminal prosecution, the accused shall enjoy the right to a speedy and public trial by an impartial jury...'. No such right has been guaranteed to the accused under our Constitution.
39. The argument that jail can never be regarded as proper place for a public trial appears to be too general. The jail trial is not an innovation. It has been there before we were born. The validity of jail trial with reference to Section 352 of the code of 1898 since re-enacted as Section 327(1) has been the subject matter of several decisions of different High Courts. The High Court in this case has examined almost all those decisions. I will refer to some of them with laconic details. Before that, it is better to have before us Section 352 of the Code of 1898. It reads:
352. Courts to be open - The place in which any Criminal court is held for the purpose of inquiring into or trying any offence shall be deemed an open Court, to which the public generally may have access, so far as the same can conveniently contain them.
Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial or, any particular case, that the public generally, or any particular person, shall not have access or be or remain in, the room or building used by the Court.
40. In Sahai Singh v. Empemr AIR 1917 Lahore 311, the accused were convicted and sentenced in the trial held in a jail. There conviction was challenged before the High Court at Lahore on the ground, amongst others, that the trial was vitiated because it was held in the jail. The High Court rejected the contention stating:
It is necessary that I should first mention a contention that the whole trial is vitiated because it was held in the jail. Counsel for some of the appellants has referred to Section 352, Criminal Procedure Code, but there is nothing to show that admittance was refused to any one who desired it, or that the prisoners were unable to communicate with their friends or Counsel. No doubt it is difficult to get Counsel to appear in the jail and for that reason, if for no other, such trials are usually undesirable, but in this case the Executive Authorities were of the opinion that it would be unsafe to hold the trial elsewhere.
41. In Kailash Nath v. Emperor AIR 1947 All. 436, the Allahabad High Court said that there is no inherent illegality in jail trials if the Magistrate follows the rules of Sections 352 and the place becomes something like an open Court.
42. The practice of having trials inside jails, as the High Court has rightly pointed out, seems to have persisted even after the coming into force of the Constitution. In re: M.R. Venkataraman : AIR1950Mad441 the High Court of Madras after referring to the decisions in Kailash Nath's case and Sahai's case, observed(at 442):
Again, if the conveyance of prisoners, and the accused to and from the court house or other buildings, will be attended with serious danger of attack, and the rescue of the accused or the prisoners, or with heavy cost to the Government in providing an armed escort, it may well be within the powers of the Judge or Magistrate, after due consideration of the public interests and after writing down the reasons in each case, to hold the trials even inside the jail premises, where the accused are confined.
43. In re: T.R. Ganeshan : AIR1950Mad696 , the Madras High Court was again called upon to consider the validity of a jail trial. In this case, the trial was held in recreation room which was within thejail compound. Thebuilding consisted of a hall and verandah on two sides. It was situated at some distance from the prison walls proper. It was accessible to the public. The press reporters, some members of the Bar and public also attended the trial proceedings. The High Court upheld the validity of that trial. The High Court also said that in the interest of justice and fair trial of the case itself that, in certain circumstances and in some cases, the public may be excluded.
44. The Calcutta High Court in Prasanta Kumar v. The State : AIR1952Cal9 and Madhya Pradesh High Court in Narwar Singh and Ors. v. State 193 at 195] recognised the right of the Magistrate to hold Court in jail for reasons of security for accused, for witnesses or for the Magistrate himself or for other valid reasons.
45. It may now be stated without contradiction that jail is not a prohibited place for trial of criminal cases. Nor the jail trial can be regarded as an illegitimate trial. There can be trial in jail premises for reasons of security to the parties, witnesses and for other valid reasons. The enquiry or trial, however, must be conducted in open Court. There should not be any veil of secrecy in the proceedings. There should not even be an impression that it is a secret trial. The dynamics of judicial process should be thrown open to the public at every stage. The public must have reasonable access to the place of trial. The Presiding Judge must have full control of the Court house. The accused must have all facilities to have a fair trial and all safeguards to avoid prejudice.
46. In the present case there is no reason to find fault with the decision of the High Court to have the trial in Tihar jail. The records show that the situation then was imperative. The circumstances which weighed with the High Court may be gathered from a letter dated May 8, 1985, addressed by the Home Secretary to the Registrar of the High Court. The relevant portion of the letter reads:
The case is of very special nature and of utmost importance. The assassination of the late Prime Minister had provoked violence and security of State besides the maintenance of law and order had become vital problems for Administration. There is every risk of breach of public peace and disturbance of law and order, if the trial is held in an open place. The lives of the trial Judge, prosecutor and those otherwise involved in the prosecution of the case may be jeopardised. It is on record that during committal proceeding 'the Magistrate and Prosecutor concerned were threatened with dire consequences as they were working for a successful prosecution. The circumstances in which the Hon'ble High Court was pleased to accept the prayer of the Administration for conducting remand and committal proceedings in Central Jail, Tihar continue to exist. It is only for the security of the Judge, witnesses, Police Officers and Ors. but also for the safety of the accused themselves that the trial of the case may be held in Central Jail, Tihar.
47. The letter reveals a grim picture of the then existing situation. It is said that the assassination of Smt. Indira Gandhi had provoked widespread violence threatening the security of the State and the maintenance of law and order. The remand and the committal proceedings had to be taken in Tihar Jail since the Magistrate and Prosecutor were threatened with dire consequences. It is also said that such circumstances continued to exist when the case came up for trial. The letter ends with a request to have the trial of the case in Tihar Jail for the security of the Judge, witnesses, Police Officers and also for the safety of the accused themselves. The High Court also has taken note of the events that immediately followed the assassination of Smt. Gandhi. Beant Singh one of the assassins was shot dead and Satwant Singh who is the accused herein received near fatal gun shot injury.
48. That is not all. There was unprecedented violence aftermath in the national capital and other places. Frenzied mob armed with whatever they could lay their hands were seen besieging passing sikhs and burning their vehicles, as doctors in the hospital fought their vain battle to save the life of Mrs. Indira Gandhi. Even President Zail Singh's cavalcade, making its way from the Airport to the hospital was not spared. The reaction of outrage went on unabated followed by reprisal killings and destruction of properties. The local police force was baldly shaken. They could do little even to contain the violence. The Army had to be deployed to stem the tide of deluge. The new Prime Minister, Mr. Rajiv Gandhi made an unscheduled broadcast to the Nation pleading for sanity and protection to the Sikhs. Nevertheless three days passed on with murder and loot leaving behind a horrendous toll of more than two thousand dead and countless property destroyed. It is a tragedy frightening even to think of. This has been referred to in the report (at 11 to 15) of Justice Ranganatha Misra Commission of Inquiry. These unprecedented events and circumstances, in my judgment, would amply justify the decision of the High Court to direct that the trial of the case should take place in Tihar Jail.
RE: Question (iii):
49. The question herein for consideration is whether the trial held in Tihar Jail was devoid of sufficient safeguards to constitute an open trial?
50. As a preliminary to the consideration of this question, it is necessary to understand the scope of Section 327(1) of the Code. The section provides:
Section 327. Court to be open:
(1) The place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them:
Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access, to or be or remain in, the room or building used by the Court.
51. The main part of Sub-sec(1) embodies the principle of public trial. It declares that the place of inquiry and trial of any offence shall be deemed to be an open Court. It significantly uses the words 'open Court'. It means that all justice shall be done openly and the Courts shall be open to public. It means that the accused is entitled to a public trial and the public may claim access to the trial. The Sub-section however goes on to state that 'the public generally may have access so far as the place can conveniently contain them'. What has been stated here is nothing new. It is implicit in the concept of a public trial. The public trial does not mean that every person shall be allowed to attend the court. Nor the court room shall be large enough to accommodate all persons. The court may restrict the public access for valid reasons depending upon the particular case and situation. As Judge Cooley states (Cooley's Constitutional Law, Vol. I, 8 Ed. 647):
It is also requisite that the trial be public. By this is not meant that every person who seeks fit shall in all cases be permitted to attend criminal trials; because there are may cases where, from the character of the charge and the nature of the evidence by which it is to be supported, the motives to attend the trial on the part of portions of the community would be of the worst character, and where regard for public morals and public decency would require that at least the young be excluded from hearing and witnessing the evidences of human depravity which the trial must necessarily bring to light. The requirement of a trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility into the importance of their functions and the requirement is fairly observed if, without partiality of favouritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether.
52. The proviso to Sub-section (1) of Section 327 specifically provides power to the Presiding Judge to impose necessary constraint on the public access depending upon the nature of the case. It also confers power on the Presiding Judge to remove any person from the court house. The public trial is not a disorderly trial. It is an orderly trial. The Presiding Officer may, therefore, remove any person from the Court premises if his conduct is undesirable. If exigencies of a situation require, the person desiring to attend the trial may be asked to obtain a pass from the authorised person. Such visitors may be even asked to disclose their names and sign registers. There may be also security checks. These and other like restrictions will not impair the right of the accused or that of the public. They are essential to ensure fairness of the proceedings and safety to all concerned.
53. So much as regards the scope of public trial envisaged under Section 327(1) of the code. There are yet other fundamental principles justifying the public access to criminal trials: The crime is a wrong done more to the society than to the individual. It involves a serious invasion of rights and liberties of some other person or persons. The people are, therefore, entitled to know whether the justice delivery system is adequate or inadequate. Whether it responds appropriately to the situation or it presents a pathetic picture. This is one aspect. The other aspect is still more fundamental. When the State representing the society seeks to prosecute a person, the State must do it openly. As Lord Shaw said with most outspoken words {Scoot v. Scott: 1913 A.C. 417:
It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. 'In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.' 'Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial. 'The security of securities is publicity.' But amongst historians the grave and enlightened verdict of Hal-lam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: 'Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise....
54. In open dispensation of justice, the people may see that the State is not misusing the State machinery like the Police, the Prosecutors and other public servants. The people may see that the accused is fairly dealt with and not unjustly condemned. There is yet another aspect. The courts like other institutions also belong to people. They are as much human institutions as any other. The other instruments and institutions of the State may survive by the power of the purse or might of the sword. But not the Courts. The Courts have no such means or power. The Courts could survive only by the strength of public confidence. The public confidence can be fostered by exposing Courts more and more to public gaze.
55. There are numerous benefits accruing from the public access to criminal trials. Beth Horn-buckle Fleming in his article 'First Amendment Right of Access to Pretrial Proceeding in Criminal Cases' (Emory Law Journal, V.32(1983) P.618 to 688) neatly recounts the benefits identified by the Supreme Court of the United States in some of the leading decisions. He categorizes the benefits as the 'fairness' and 'testimonial improvement' effects on the trial itself, and the 'educative' and 'sunshine' effects beyond the trial. He then proceeds to state;
Public access to a criminal trial helps to ensure the fairness of the proceeding. The presence of public and press encourages all participants to perform their duties conscientiously and discourages misconduct and abuse of power by judges, prosecutors and other participants. Decisions based on partiality and bias are discouraged, thus protecting the integrity of the trial process. Public access helps to ensure that procedural rights are respected and that justice is applied equally.
'Closely related to the fairness function is the role of public access in assuring accurate fact finding through the improvement of witness testimony. This occurs in three ways. First, witnesses are discouraged from committing perjury by the presence of members of the publicwho maybe aware of the truth. Second, witnesses like other participants, may be encouraged to perform more conscientiously by the presence of the public, thus improving the overall quality of testimony. Third, unknown witnesses may be inducted to come forward and testify if they learn of the proceedings through publicity. Public access to trials also plays a significant role in educating the public about the criminal justice process. Public awareness of the functioning of judicial proceedings is essential to informed citizen debate and decision making about issues with significant effects.beyond the outcome of the particular proceeding. Public debate about controversial topics, such as, exclusionary evidentiary rules, is enhanced by public observation of the effect of such rules on actual trials. Attendance at criminal trials is a key means by which the public can learn about the activities of police, prosecutors, attorneys and other public servants, and thus make educated decisions about how to remedy abuses within the criminal justice system.
Finally, public access to trials serves an important 'sunshine' function. Closed proceedings, especially when they are the only judicial proceedings in a particular case or when they determine the outcome of subsequent proceedings, may foster distrust of the judicial system. Open proceedings, enhance the appearance of justice and thus help to maintain public confidence in the judicial system.
56. With these observations, let us now hark back to the safeguards provided to ensure an open trial in this case. First, let us have an idea of the building in which the trial took place. The Office Block of the Jail Staff was used as the Court House. It is an independent building located at some distance from the main Jail complex. In between there is a court-yard. This court-yard has direct access from outside. A visitor after entering the court-yard can straight go to the Court House. He need not get into the Jail complex. This is evident from the sketch of the premises produced before us. It appears the person who visits the Court House does not get any idea of the Jail complex in which there are Jail Wards and Cells. From the sketch, it will be also seen that the building comprises of a Court-hall, Bar room and chamber for the Judge. The Court hall can be said to be of ordinary size. It has seating capacity for about fifty with some more space for those who could afford to stand. The accused as undertrial prisoners were lodged at Jail No. 1 inside the Jail complex. It was at a distance of about 1 km form the Court House. For trial purposes, the accused were transported by van. In the Court hall, they were provided with bullet proof enclosure.
57. This is a rough picture of the Court House where the accused had their trial. For security reasons, the public access to trial was regulated. Those who desired to witness the trial were required to intimate the Court in advance. The trial Judge used to accord permission to such persons subject to usual security checks. Before commencement of the trial of the case, the representatives of the Press and News Agencies, national and international, approached the trial Judge for permission to cover the Court proceedings. The representatives of BBC, London Times, New York Times and Associated Press were some of them. The trial Judge allowed their request by his order dated May 15, 198S in the following terms.:
I do feel that in the best traditions of the trial, the press is permitted to cover the proceedings of the trial in the case. In view thereof I think it just and proper to allow the press to cover the proceedings. Without exception the news agencies would have a right to cover the proceedings through a representative. So far as individual papers are concerned, efforts would be made to accommodate as many of them as security and space would permit. In view thereof, it is directed that a letter be addressed to the Supdt. Jail. Tihar with the request that the press representatives may be allowed to enter and have access to the Court room where the proceedings would be held in the jail. It would be open to the supdt. Jail to put such restrictions as regards security check-up or production of accredition cards or identity cards as he considers necessary.'
58. On May 20, 1985, Kehar Singh(A-3) filed an application before the trial court contending that the trial should be held in open Court at Patiala House, New Delhi and not in Central Jail, Tihar. The State filed an objection contending inter-alia:
That regulated entry has been made for the safety of the accused and for the general safety of the others concerned with the trial. Every specific request of the accused and others to attend the trial has been allowed by the Court. The entry of the Court room is merely regulated in the interest of safety. A blanket charter to permit every person known or unknown or whose antecedents are not proper can very much defeat the ends of justice. Not only it has to be ensured that a fair trial is given, but it has also to be kept in view that the prevailing peculiar situation, the security is not jeopardized at any cost. The members and the relatives of the accused have been permitted by the Court to be present at the time of hearing. It was, therefore, not a closed or a secret trial.
xxxx xxxx xxxxIn view of the prevailing situation and peculiar circumstances the Hon'ble High Court had vide its order chosen the venue of trial. The only proper venue for a trial like this is jail. Even this learned Court would have opted for the same in view of the security risk, nature of the crime, persons involved and keeping in view the other allied circumstances of the case. It was also stated, 'that the case as is and product of misguided fundamentalism and terrorism. In the prevailing atmosphere in the country, the accused as well as the witnesses are in grave danger of outside terrorists attacks and this has to be safeguarded. Transport of accused persons at set times from and to the jail is fraught with danger.
59. The application of the accused and the objections thereof were considered and disposed of by order dated June 5,1984. The relevant portion of the order reads:.There can be no dispute that public has a right to know but it is precisely for this purpose that National and International Press has been allowed to be present in the Court during the entire trial. The Press is the most powerful watch-dog of the public interest and, certainly, we in India have not only free but also a very responsible press and interest of general public are quite safe in their hands. It is not merely Indian press representatives and the news agencies which have been allowed to come to attend the trial but the International agency like BBC, London times, New York Times and Associated Press have also been allowed and admitted and are, in fact, present.
XXX xxxx XXXIt can be categorically declared and placed on record by this Court that all press representatives and news agencies whosoever have sought permission have been without exception granted necessary permission by this Court. I am sure right of public to know about the trial has been more than assured by the presence of the Press in the Court. The suggestion of learned defence counsel that presence of Press is not sufficient guarantee is not a fair comment on a free, fair and responsible Press of India. It would be proper to mention here that to ensure fair trial and judicious administration of justice the presence of defence counsel, the Press and the relations of the accused persons has been allowed....
60. With reference to the people in general, it was pertinently observed:
Nonetheless, space permitting, this Court would not be averse or disinclined to allow public men also to attend the proceedings subject to usual security check-up.
61. The learned trial Judge did not make the aforesaid observation as an empty formality. True to his words, he did permit access to the members of the public also. He permitted even the Law Students in batches to witness the trial. This we could see from the extract of the visitors' book maintained by the authorities. There is hardly any instance brought to our attention where a person who sought permission was denied access to the Court. The High Court has also considered this aspect carefully. The High Court has observed that the 'trial Judge has given access to the place of trial for all members of the Public who may be minded to attend the same save for certain reasonable restriction imposed in public interest.' This statement has not been shown to be incorrect. The fact also remains that the accused were represented by leading members of the Bar. Some of the close relatives of the accused were allowed to be present at the trial. All press representatives and news agencies whoever sought permission have been allowed to cover the day to day Court proceedings. The Trial Judge in his order dated June 5,1985 has specifically stated this. There can, therefore, be no doubt or dispute as to the adequacy of safeguards provided to constitute an open trial. Indeed, the steps taken by learned trial Judge are more than adequate to ensure fair trial as well as public trial.
62. For the accused, it is argued that the people can assert their right of access to criminal trials in the exercise of their fundamental right guaranteed under Article 19(1)(a) of the Constitution and they need not be under the mercy of the Court. It is also argued that there shall not be any discrimination in the matter of public access to judicial proceedings and first come first served should be the principle no matter whether one is a press person or an ordinary citizen. The contentions though attractive need not be considered since no member of the public or press is before us making grievance that his constitutional right of access to the trial has been denied in this case. This Court has frequently emphasized that the decision of the Court should be confined to the narrow points directly raised before it. There should not be any exposition of the law at large and outside the range of facts of the case. There should not be even obiter observations in regard to questions not directly involved in the case. These principles are more relevant particularly when we are dealing with constitutional questions. I should not transgress these limits. However, the decisions referred to us may be briefly touched upon here.
63. In Nourish Shridhar Mirajkar v. State of Maharashtra (1963 (3) SCR 744), this Court had an occasion to consider the validity of a judicial verdict of the High Court of Bombay made under the inherent powers. There the learned Judge made an oral order directing the Press not to publish the evidence of a witness given in the course of proceedings. That order was challenged by a journalist and others before this Court on the ground that their fundamental rignts guaranteed under Article 19(1)(a) and (g) have been violated. Repelling the contention, Gajendragadkar, CJ, speaking for the majority view, said (at 760-61):
The argument that the impugned order affects the fundamental rights of the petitioners under Article 19(1), is based on a complete misconception about the true nature and character of judicial process and of judicial decisions. But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can effect the fundamental rights of the citizens under Article 19(1). What the judicial decision purports to do is to decide the controversy between the parties brought before the Court and nothing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by Court in or in relation to a matter brought before it for its decisions cannot be said to affect the fundamental rights of citizens under Article 19(1).
64. There is trilogy of decisions of the Supreme Court of United States dealing with the constitutional right of the public access to criminal trials:
65. In Gannet Co. v. De Pasquale 443 U.S. 368 , the defendants were charged with murder and requested closure of the hearing of their motion to suppress allegedly involuntary confessions and physical evidence. The prosecution and the trial Judge agreed and said that closure was necessary. The public and the press were denied access to avoid adverse publicity. The closure was also to ensure that the defendants' right to a fair trial was not jeopardized. The Supreme Court addressed to the question whether the public has an independent constitutional right of access to a pretrial judicial proceedings, even though the defendant, the prosecution, and the trial Judge had agreed that closure was necessary. Explaining that the right to a public trial is personal to the defendant, the Court held that the public and press do not have an independent right of access to pretrial proceedings under the Sixth Amendment.
66. Although the Court in Gannett held that no right of public access emanated from the sixth Amendment it did not decide whether a constitutional right of public access is guaranteed by the first amendment. This issue was discussed in Richmond Newspaper Inc. v. Virginia 448 US 555 . This case involved the closure of the court-room during the fourth attempt to try the accused for murder. The United States Supreme Court considered whether the public and press have a constitutional right of access to criminal trials under the first amendment. The Court held that the first and fourteenth amendments guarantee the public and press the right to attend criminal trials. But the Richmond Newspapers case still left the question as to whether the press and public could be excluded from trial when it may be in the best interest of fairness to make such an exclusion. That question was considered in the Globe Newspapers v. Superior Court (1982) 73 L.Ed.248. There the trial Judge excluded the press and public from the court room pursuant to a Massachusetts statute making closure mandatory in cases involving minor victims of sex crimes. The Court considered the constitutionality of the Massachusetts statute and held that the statute violated the first amendment because of its mandatory nature. But it was held that i t would be open to the Court in any given case to deny public access to criminal trials on the ground of state's interest. Brennan, J., who delivered the opinion of the Court said (at 258-59):
We agree with appellee that the first interest safeguarding the physical and psychological well-being of a minor is a compelling one. But as compelling as that interest is, it does not justify a mandatory closure rule, for it is clear that the circumstances of the particular case may determine on a case by case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim's age, psychological maturity and understanding, the nature of the crime the desires of the victims, and the interests of parents and relatives.
xx xx xx xx xx...Such an approach ensures that the constitutional right of the press and public to gain access to criminal trials will not be restricted except where necessary to protect the State's interest.
67. It will be clear from these decisions that the mandatory exclusion of the press and public to criminal trials in all cases violates the First Amendment to the United States Constitution. But if such exclusion is made by the trial Judge in the best interest of fairness to make that exclusion, it would not violate that constitutional rights.
68. It is interesting to note that the view taken by the American Supreme Court in the last case, runs parallel to the principles laid down by this Court in Naresh Shridhar Mirajkar case.
Re: Question (iv):
69. There remains, however, the last question formulated earlier in this judgment, namely, whether the trial Court was justified in refusing to call for the statements of witnesses recorded by the Thakkar Commission?
70. For a proper consideration of the question, it will be necessary to have a brief outline of certain facts.
71. Soon after the assassination of Mrs. Indira Gandhi, the Government of India, by Notification dated November 20, 1984, constituted a Commission under the Commission of Inquiry Act, 1952 (the 'Act'). The Commission was presided over by Mr. Justice M.P. Thakkar, the sitting Judge of this Court. The Commission was asked to make an enquiry with respect to the matters:
(a) the sequence of events leading, and all the facts relating to, the assassination of the late Prime Minister;
(b) whether the crime could have been averted and whether there were any lapses of dereliction of duty in this regard on the part of any of the commission of the crime and other individuals responsible for the security of the late Prime Minister;
(c) the deficiencies, if any, in the security system and arrangements as prescribed or as operated in practice which might have facilitated the commission of the crime;
(d) the deficiencies, if any, in the procedures and measures as prescribed, or as operated in practice in attending to any providing medical attention to the late Prime Minister after the commission of the crime; and whether there was any lapse or dereliction of duty in this regard on the part of the individuals responsible for providing such medical attention;
(e) whether any person or persons or agencies were responsible for conceiving, preparing and planning the assassination and whether there was any conspiracy in this behalf, and if so, all its ramifications.
72. The Commission was also asked to make recommendations as to the corrective remedies and measures that need to be taken for the future with respect to the matters specified in clause (d) above.
73. On December 5, 1984, the Commission framed regulations under Section 8 of the Act in regard to the procedure for enquiry. Regulation 8 framed thereon reads: 'In view of the sensitive nature of the enquiry, the proceedings will be in camera unless the Commission directs otherwise.' Accordingly, the Commission had its sittings in camera. On November 19,1985, the Commission submitted an interim report to the Government followed by the final report on February 27,1986.
74. In the normal course, the Government ought to have placed the report of the Commission under Section 3(4) of the Act before the House of the People within six months of the submission of the report. But the Government did not do that. The steps were taken to amend the Commissions of Inquiry Act. On May 14,1986, the President of India promulgated Ordinance No. 6 of 1986 called the Commissions of Inquiry (Amendment) Ordinance 1986 by which Sub-sections (5)and(6)were introduced to Section 3 as follows:
(5) The provisions of Sub-section (4) shall not apply if the appropriate Government is satisfied that in the interests of the sovereignty and integrity of India, the security of the State friendly relations with foreign State or in the public interest, it is not expedient to lay before the House of the people or, as the case may be, the Legislative Assembly of the State, the report, or any part thereof, of the Commission on the Inquiry made by the Commission under Sub-section (1) and issues a notification to that effect in the Official Gazette.
(6) Every notification issued under Sub-section(5) shall be laid before the House of the people or, as the case may be, the Legislative Assembly of the State, if it is sitting as soon as may be after the issue of the notification, and if it is not sitting, within seven days of its reassembly and the appropriate Government shall seek the approval of the House of the People or, as the case may be, the Legislative Assembly of the State to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People or as the case may be, the Legislative Assembly of the State makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect, as the case may be.
75. On May 15, 1986, the Central Government issued a notification under Sub-section(5) of Section 3 stating:
The Central Government, being satisfied that it is not expedient in the interest of the security of the State and in the public interest to lay before the House of the People the report submitted to the Government on the 19th November 1985, and the 27th February, 1986, by Justice M.P. Thakkar, a sitting Judge of the Supreme Court of India appointed under the notification of the Government of India in the Ministry of Home affairs No. S.O. 867(B) dated the 20th November, 1984, hereby notifies that the said reports shall not be laid before the House of the People.
76. On August 20, 1986, Ordinance No. (6) was replaced by the Commission of Inquiry (Amendment) Act, 1986 (Act 36 of 1986) with retrospective effect. The said notification dated May 15, 1986 was also got approved by the House of the People as required under Sub-section (6) of Section 3.
77. We may now revert to the steps taken by the accused before the trial court. After the prosecution examined some of the witnesses, accused No. 1 moved the Court with an application dated August 5,1985 praying for summoning true copies of statements of all persons recorded by the Thakkar Commission and who happened to be the prosecution witnesses in the case. It was stated in the application that the statements should be summoned for the purpose of Section 145 of the Evidence Act. The trial court rejected that application following the decision of this Court in Ramakrishna Dalmia v. Justice Tandolkar : [1959]1SCR279 . The trial court said that the statements recorded by the Commission are inadmissible in evidence in any subsequent proceedings and cannot therefore be used for the purpose of contradicting the same witnesses under Section 145 of the Evidence Act.
78. Before the High Court, the accused made two applications under Section 391 of the Criminal procedure Code. On July 16, 1986 accused Nos. 2 and 3 made an application for additional evidence. Accused No. 1 also made a similar application dated July 17, 1986. They wanted the depositions recorded and the documentary evidence received by the Thakkar Commission as additional evidence in the case. They also wanted the High Court to summon the two reports of the Thakkar Commission.
79. The High Court rejected both the applications in the course of the judgment which is now under appeal. The High Court has stated that it is not proper to compel production of the proceedings or the report of the Commission in view of the privilege of non-disclosure provided by the Act of Parliament. The High Court also depended upon the decision of this Court in Dalmia's case. The decision therein was held to be an authoritative pronouncement on the scope of Section 6 of the Act and as to the utilisation of statement made by any person before the Commission. The High Court held that the evidence before the Commission is wholly inadmissible in any other Civil or Criminal proceedings except for prosecuting the person for perjury.
80. The principal submission before us is that the High Court has misconstrued the scope of Section 6 of the Act and misunderstood the observations in Dalmia's case. It is also contended that the observation in Dalmia's case. as a binding precedent since this Court was not called upon therein to examine the true scope of Section 6.
81. It is true that the scope of section as such did not come up for consideration in Dalmia's case. Das, CJ., while examining the challenge to the validity of the Act and a notification issued thereunder made some observations as to matters of principle (294-295):
The whole purpose of setting up of a Commission of Inquiry consisting of experts will be frustrated and the elaborate process of inquiry will be deprived of its utility if the opinion and the advice of the expert body as to the measures the situation disclosed calls for cannot be placed before the Government for consideration notwithstanding that doing so cannot be to the prejudice of anybody because it has no force of its own. In our view, the recommendations of a Commission of Inquiry are of great importance to the Government in order to enable it to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial objects it has in view. From this point of view, there can be no objection even to the Commission of Inquiry recommending the imposition of some form of punishment which will, in its opinion, be sufficiently deterrent to delinquents in future. But seeing that the Commission of Inquiry has no judicial powers and its report will purely be recommendatory and not effective proprio vigore and the statement made by any person before the Commission of Inquiry is under Section 6 of the Act wholly inadmissible in evidence in any future proceedings, civil or criminal.
(Emphasis supplied)
82. Since the argument in the above case did not traverse the scope of Section 6 of the Act, it is now necessary to call attention to the same at length. Before examining the matter, it may not be inappropriate to state that the accused in criminal trials should be given equal opportunity to lay evidence fully, freely and fairly before the Court. The Government which prosecutes an accused will lay bare the evidence in its possession. If the accused asks for summoning any specific document or thing for preparing his case, it should normally be allowed by the Court if there is no legal bar. But 'the demand', as Brennan, J., of the Supreme Court of the United States, observed, 'must be for production of... specific documents and should not propose any broad or blind fishing expedition.' (Clinton E. Jencks v. United States,353 U.S.657 : 1LEd 1103). Ameer Ali, J. In Nizam of Hyderabad v. A.M. Jacob ILR 19 Cal. 52 made similar observations:.he cannot call for anything and everything from anybody and everybody. The thing called for must have some relation to, or connection with : the subject-matter of the investigation or enquiry, or throw some light on the proceedings, or supply some link in the chain of evidence.
83. These principles are broadly incorporated for the guidance of Courts under Section 91 and 233 of the Code.
84. Let us turn to consider in detail the language of the Critical section. Section 6 provides:
No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in any civil or criminal proceedings except a prosecution for giving false evidence by such statement.... XX XX XX XX XX XX XX
85. Dissecting the section, it will be clear that the statement made by a person before the Commission, in the first place shall not be the basis to proceed against him. Secondly, it shall not be used against him' in any subsequent civil or criminal proceedings except for the purpose set out in the section itself. The single exception provided thereunder is a prosecution for giving false evidence by such statement.
86. The term 'used against' has given rise to controversy. The Bombay High Court in (i) Sohan Lal v. State : AIR1965Bom1 and (ii) State ofMaharashtrav. Ibrahim Mohd. 1978 Cri LJ 1157 has regarded the observations in Dabnia's case as an obiter. It was held:
Whether a particular statement made by a witness before the Commission is used 'against him' will depend on the prejudice or detriment caused or likely to cause to the person in civil or criminal proceedings or otherwise. It must, therefore, necessarily depend on the facts and circumstances relating to the use or intended use. Whether any particular prejudice or detriment can be said to result from the use of the statements will also depend on facts. Mere cross-examination under Section 145 can at the most expose his statement. That does not render the use of the statement 'against him' in law because law requires him to tell the truth, the whole truth and nothing but the truth before the Commission also and implies that he will be prosecuted for perjury if he tells lies.' [Maharashtra v. Ibrahim Mohd. 1978 CrI. LJ 1157.
87. This line of reasoning also found favour with the Assam High Court in State of Assam v. SuprbhatBhadra . But Madhya Pradesh High Court in Puhupram and Ors. v. State of M.P. 1968 MP LJ 629 has taken a contrary view. That High Court said that the language of Section 6 is plain enough to show that the statement made by a person before the Commission of Inquiry cannot be used against him for the purpose of cross-examination.
88. It is urged that even if the words 'used against' means preventing the use of the statement for the purpose of contradiction as required under Section 145 of the Evidence Act, there are other provisions by which the previous statement could be looked into for productive use without confronting the same to the witness. Reference is made to the first part of Section 145, Sub-section (1) and(2) of Section 146 as well as Sections 157 and 159 of the Evidence Act. It is also said that the term 'used against' in Section 6 was not intended to be an absolute bar for making use of such statement in subsequent proceedings. The learned Additional Solicitor General, on the other hand, states that Section 6 was intended to be a complete protection to persons against the use or utility of their statements in any proceedings except in case of prosecution for perjury. Such protection is necessary for persons to come and depose before the Commission without any hesitation. Any dilution of that protection, it is said, would defeat the purpose of the Act itself.
89. Before I come to consider the arguments put forward by each side, I venture to refer to some general observations by way of approach to the questions of construction of statutes. In the past, the Judges and lawyers spoke of a 'golden rule' by which statutes were to be interpreted according to grammatical and ordinary sense of the word. They took the grammatical or literal meaning unmindful of the consequences. Even if such a meaning gave rise to unjust results which legislature never intended, the grammatical meaning alone was kept to prevail. They said that it would be for the legislature to amend the Act and not for the Court to intervene by its innovation.
90. During the last several years, the 'golden rule' has been given a go bye. We now look for the 'intention' of the legislature or the 'purpose' of no statute. First, we examine the words of the statute. If the words are precise and cover the situation in hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision but of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences.
91. Let me here add a word of caution. This adventure, no doubt, enlarges our discretion as to interpretation. But it does not imply power to us to substitute our own notions of legislative intention. It implies only a power of choice where differing constructions are possible and different meanings are available.
92. For this purpose, we call in external and internal aids:
External aids are: the Statement of Objects and Reasons when the Bill was presented to Parliament, the reports of the Committee, if any, preceded the Bill, legislative history, other statutes in pari material and legislation in other States which pertain to the same subject matter, persons, things or relations.
Internal aids are: Preamble, Scheme, enacting parts of the statutes, rules of languages and other provisions in the statutes.
93. The Act may now be analysed. The Act is a short one consisting of 12 Sections. Section 3 provides power to he appropriate Government to appoint a Commission of Inquiry for the purposes of making an inquiry into any definite matter of public importance. Section in 4 confers upon a Commission of Inquiry certain powers of a Civil Court (for example, summoning and enforcing the attendance of witnesses and examining them on oath, etc.) Section 5 empowers the appropriate Government to confer some additional powers on a Commission of Inquiry. Section 5(a) authorizes the Commission to utilise the service of any officer or investigating agency for the purpose of conducting any investigation pertaining to inquiry entrusted to the Commission. Section 6 confers upon persons giving evidence before the Commission protection from prosecution except for perjury. The other section are not important for our purpose except Section 8. Section 8 provides procedure to be followed by the Commission. The Commission is given power to regulate its own procedure and also to decide whether to sit in public or in private.
94. The Statement of Objects and Reasons of the original Act reads:
It is felt that there should be a general law authorising Government to appoint an inquiring authority on any matter of public importance, whenever considered necessary, or when a demand to that effect is made by the legislature and that such law should enable to inquiring authority to exercise certain specific powers including the powers to summon witnesses, to take evidence on oath, and to compel persons to furnish information. The bill is designed to achieve this object.
95. It will be clear from these provisions that the Act was intended to cover matters of public importance. In matters of public importance it may be necessary for the Government to fix the responsibility on individuals or to kill harmful rumours. The ordinary law of the land may not fit in such cases apart from it is time consuming.
96. The Commission under our Act is given the power to regulate its own procedure and also to decide whether to sit in camera or in public. A Commission appointed under the Act does not decide any dispute. There are no parties before the Commission. There is no lis. The Commission is not a Court except for a limited purpose. The procedure of the Commission is inquisitorial rather than accusatorial. The Commission more often may have to give assurance to persons giving evidence before it that their statements will not be used in any subsequent proceedings except for perjury. Without such an assurance, the persons may not come forward to give statements. If persons have got lurking fear that their statements given before the Commission are likely to be used against them or utilised for productive use on them in any other proceeding, they may be reluctant to expose themselves before the Commission. Then the Commission would not be able to perform its task. The Commission would not be able to reach the suggests of truth from the obscure horizon. The purpose for which the Commission is constituted may be defeated.
97. The Court should avoid such construction to Section 6 which may stultify the purpose of the Act. Section 6 must on the other hand, receive liberal construction so that the person deposing before the Commission may get complete immunity except in a case of prosecution for perjury. That is possible if the word 'against' used in Section 6 is properly understood. The meaning given in Black's Law Dictionary supports such construction (at 57):
Against - Adverse to, contrary....Sometimes meaning 'Upon', which is almost, synonymous with word 'on'....
98. Apart from that, it may also be noted that Section 6 contains only one exception. That is prosecution for giving false evidence by such statement. When the Legislature has expressly provided a singular exception to the provisions, it has to be normally understood that other exceptions are ruled out.
99. The view that I have taken gets confirmation from the report of the Royal commission on Tribunals of Inquiry (1966). Before referring to the report, it will be useful to have before us, the relevant provisions of the English statutes which are not materially dissimilar to our Act. There are two English statutes which may be looked into: (i) The Special Commission Act, 1888; and (ii) The Tribunals of Inquiry (Evidence) Act, 1921. Section 9 of the Special Commission Act, 1888 provides:
9...A witness examined under this Act shall not be excused from answering any question put to him on the ground of any privilege or on the ground that the answer thereto may criminate or tend to criminate himself. Provided that no evidence taken under this Act shall be admissible against any person in any civil or criminal proceeding except in the case of a witness accused of having given false evidence in any inquiry under this Act....
(Emphasis supplied)
100. Section 1(3) of the Tribunals of Inquiry (Evidence) Act, 1921, provides:
A witness before any such tribunal shall be entitled to the same immunities and privileges as if he were a witness before the High Court or the Court of Session.
101. Section 9 of the Special Commission Act, 1888 protects the witness in every respect except in a prosecution for giving false evidence by such statement. It provides that the evidence given by him shall be inadmissible in any civil or criminal proceedings. Section 1(3) of the Tribunals of Inquiry (Evidence) Act, 1921 provides only a limited or partial immunity to a witness. It is similar to the immunity afforded to a witness before the High Court or the Court of Session.
102. In 1966, the Royal Commission on Tribunals of Inquiry was constituted under the Chairmanship of the Rt. Hon. Lord Justice Salmon. The Commission was appointed to review the working of the Tribunals of Inquiry (Evidence) Act, 1921, and to consider whether it should be retained or replaced by some other provision. The Commission was also authorised to suggest any changes in the Act as are necessary or desirable; and to make recommendations. The Royal Commission in its report at para 63 recommended:
(vii): Further Immunity:
63. 'Section 1(3) of the Act of 1921 provides that a witness before any Tribunal shall be entitled to the same immunities and privileges as if he were a witness before the High Court or the Court of Session, This means that he cannot be sued for anything he says in evidence e.g. if he says 'A is a liar. His evidence is untrue.' A cannot sue him for defamation. It does not mean however that his answer as a witness cannot be used in evidence against him in any subsequent civil or criminal proceedings. We consider the witness's immunity should be extended so that neither his evidence before the Tribunal, nor his statement to the Treasury Solicitor, nor any documents he is required to produce to the Tribunal, shall be used against him in any subsequent civil or criminal proceedings except in criminal proceedings in which he is charged with having given false evidence before the Tribunal or conspired with or procured others to do so. This extension of the witness's immunity would bring the law in this country into line in this respect with similar provision in the legislation of Canada, Australia and India and indeed with Section 9 of the Special Commission Act, 1888. It would also, in our view, be of considerable assistance in obtaining relevant evidence, for persons may be chary of coming forward for fear of exposing themselves to the risk of prosecution or an action in the civil courts. Moreover, the suggested extension of the immunity would make it difficult for a witness to refuse to answer a question on the ground that his answer might tend to incriminate him. Thus not only would the witness be afforded a further measure of protection but the Tribunal would also be helped in arriving at the truth.
103. The Royal Commission appears to have thoroughly examined the provisions as to immunity to witnesses in the legislations of Canada, Australia and India and Section 9 of the special Commission Act, 1888. The Commission has stated that the immunity provided to witnesses under Section 1(3) of the Act, 1921 is insufficient for the purpose of advancing the object of the Act. It should be extended so that the statement of a witness before the Tribunal shall not be used against him in any subsequent civil or criminal proceedings except in a prosecution for perjury by giving false evidence before the Tribunal. The extension of such immunity, according to the Royal Commission, would bring Section 1(B) of the Act, 1921 into line with the similar provisions in the legislations of Canada, Australia and India. The legislation in India is the Commission of Inquiry Act, 1952 with which we are concerned. It is apparent that the Royal Commission was of opinion that Section 6 of our Act provides complete protection to witnesses in terms of Section 9 of the Special Commission Act, 1888. It means that the statement given before a Commission shall not be admissible against the person in any subsequent civil or criminal proceeding save for perjury.
104. There is, therefore, much to be said for the observation made in Dalmia's case and indeed that is the proper construction to be attributed to the language of Section 6 of the Act. I respectfully affirm and re-emphasise that view.
105. It is needless to state that the said decisions of the High Courts of Bombay and Assam are incorrect and they stand overruled.
106. Having reached this conclusion, it is strictly unnecessary to fall back on the other contention raised by counsel for the appellants.
107. Let us now move on to the merits of the case against each of the accused. But, before proceeding to consideration of the merits, it will be appropriate to have regard to principles and precedents followed by this Court while dealing with an appeal under Article 136 of the Constitution. There is a string of decisions laying down those principles right from 1950. lnPritam Singh v. The State : 1950CriLJ1270 , Fazal Ali, J., said (at 170):
It would be opposed to all principles and precedents if we were to constitute ourselves into a third Court of fact and, after reweighing the evidence, come to a conclusion different from that arrived at by the trial Judge and the High Court.
108. InHemRaj Stateof Ajmer : 1954CriLJ1313 , M.C. Mahajan, CJ. had this to say (at 1134):
Unless it is shown that exceptional and special circumstances exist that substantial and grave injustice has been done and the casein question presents features of sufficient gravity to warrant a review of the decision appealed against, this Court does not exercise its overriding powers under Article 136(1) of the Constitution and the circumstance that because the appeal has been admitted by special leave does not entitled the appellant to open out the whole case and contest all the findings of fact and raise every point which could be raised in the High Court. Even at the final hearing only those points can be urged which are fit to be urged at the preliminary stage when the leave to appeal is asked for.
109. More recently, in Bhoginohai Hirjibhai v. State of Gujarat : 1983CriLJ1096 Thakkar, J., recounted (at 755):
A concurrent finding of fact cannot be reopened in an appeal, unless it is established: first that the finding is based on no evidence or; second, that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or thirdly, the finding is based and built on inadmissible evidence, which evidence if excluded from vision, would negate the prosecution case or substantially discredit or impair it or; fourthly, some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded or wrongly discarded.
110. Bearing in mind these principles, let me take up the case of Balbir Singh (A-2) first for consideration:
Balbir Singh:
111. He was an officer of the Delhi Police in the cadre of Sub-InspectOrs. He was posted on duty at the PM's residence. He was not on duty in the morning of October 31, 1984. His duty was to commence in the evening on that day at the in-gate of Akbar Road. When reported for duty, in the usual course, he was asked to go to the security police lines. At about 3 a.m. on November 1,1984, he was awakened from his sleep and his house was searched by SI, Mahipal Singh (PW 50), Constable Hari Chand (PW 17) and Inspector Shamshir Singh. Nothing except a printed book on Sant Bhindrawale (Ex.PW 17/A) was recovered. At about 4 a.m., he was taken to Yamuna Velodrome. He was kept there till late in the evening when he was released from, what Kochar (Pw 73) says, 'de facto custody'. On December 3, 1984, he was said to have been arrested at Najafgarh bus-stand. On December 4, 1984, he was produced before the Magistrate, who remanded him to police custody. Thereafter, he expressed his desire to make a confession. But when produced before the Magistrate, he refused to make a statement - confessional or otherwise. He was tried along with the other accused for having entered into a criminal conspiracy to commit the murder of the Prime Minister, Mrs. Indira Gandhi. He was convicted under Section 302 read with Section 120-B IPC and sentenced to death.
112. The charge-sheet contains the following accusations against Balbir Singh:
113. That Balbir Singh, like other accused, had expressed his resentment openly, holding Smt. Indira Gandhi responsible for the 'Blue Star Operation'. He was planning to commit the murder of Smt. Indira Gandhi. He discussed his plans with Beant Singh (deceased), who had similar plans to commit the murder. He also shared his intention and prompted accused Sat-want Singh to commit the murder of Smt. Indira Gandhi and finally discussed the matter with him on October 30,1984.
114. In the first week of September 1984, a falcon (Baaj) happened to sit on a tree near the main Reception of the Prime Minister's house at about 1.30 pm. Balbir Singh spotted the falcon. He called Beant Singh there. Both of them agreed that it had brought a message of the Tenth Guru of the sikhs and they should do something by way of revenge of the 'Blue Star Operation', Thereafter, they performed 'Ardas' then and there.
115. These accusations are sought to be established by the testimony of SI, MadanLal Sharma (PW 13), Constable Satish Chander Singh (PW 52), SI, Amarjit Singh (PW 44) and the confession of Satwant Singh (Ex.PW 11/C). The prosecution also strongly rely upon a document described as 'memorandum of events' (Ex.PW 26/B) said to have been recovered upon the arrest of Balbir Singh on December 3,1984. His leave applications (Ex. PW 26/E-1 to E-5) and his post crime conduct as to absconding are also relie upon.
116. The case of Balbir Singh is that the document Ex.PW 26/B was not recovered from his possession as made out by the prosecution. His arrest at Najafgarh bus-stand was a make believe arrangement. He was not arrested there and indeed he could not have been arrested, since he was all along under police custody right from the day when he was taken to Yamuna Velodrome on November 1,1984. He was not absconding and the question of absconding did not arise when he was not released at all. No question was put to him under Section 313 examination that he had absconded. It is argued that the conclusions of the High Court on all these matters are apparently unsustainable.
117. Before examining these contentions, it will be better to dispose of the point common to this accused and Kehar Singh (A-3) relating to the validity of sentence of death awarded to them.
118. It is urged that there was no charge against the accused under Section 109 of IPC and without such a charge, they are liable to be sentenced only for the offence of abetment and not for the murder. Reliance is placed on the provisions of Section 120-B IPC which provides, inter alia, that a party to a criminal conspiracy shall be punished in the same manner as if he had abetted such offence. The contention, in our opinion, is really ill-founded. It overlooks the vital difference between the two crimes; (i)abetment in any conspiracy, (ii) criminal conspiracy. The former is defined under the second clause of Section 107 and (2) xx the latter is under Section 120-A. Section 107, so far as it is relevant, provides:
107. A person abets the doing of a thing,
Firstly....
Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly...
Section 109 provides:
Whoever abets any offence, shall, if the act abetted is committed in consequence of the abetment and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
119. Criminal conspiracy is defined under Section 120-A:
120-A. When two or more person agree to do, or cause to be done -
(1) an illegal act, or
(2) an act, which is not illegal by illegal means, such agreement is designated a criminal conspiracy; xx XX XX XX XX
120. Punishment for criminal conspiracy is provided under Section 120-B:
120-B(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such conspiracy, be punished in the same manner as if he had abetted such offence. xx XX XX
121. The concept of criminal conspiracy will be dealt with in detail a little later. For the present, it may be sufficient to state that the gist of the offence of criminal conspiracy created under Section 120-A is a bare agreement to commit an offence. It has been made punishable under Section 120-B. The offence of abetment created under the second clause of Section 107 requires that there must be something more than a mere conspiracy. There must be some act or illegal omission in pursuance of that conspiracy. That would be evident by the wordings of Section 107 (Secondly): 'engages in any conspiracy... for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy....' The punishments for these two categories of crimes are also quite different. Section 109 IPC is concerned only with the punishment of abet-ments for which no express provision is made under the Indian Penal Code. A charge under Section 109 should, therefore, be along with some other substantive offence committed in consequence of abetment. The offence of criminal conspiracy is, on the other hand, an independent offence. It is made punishable under Section 120-B for which a charge under Section 109 IPC is unnecessary and indeed, inappropriate. The following observation of Das, X, in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar 1962 (Su) 2 SCR 297 also supports my view:
Put very briefly, the distinction between the offence of abetment under the second clause of Section 107 and that of criminal conspiracy under Section 120-A is this. In the former offence a mere combination of persons or agreement between them is no enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for; in the latter offence the mere agreement is enough, if the agreement is to commit an offence.
So far as abetment by conspiracy is concerned, the abettor will be liable to punishment under varying circumstances detailed in Sections 108 to 117. It is unnecessary to detail those circumstances for the present case. For the offence of criminal conspiracy it is punishable under Section 120-B.
122. This takes me back to the other contentions specifically urged on behalf of Balbir Singh. Of the evidence relied upon by the prosecution, the document Ex.PW 26/B is said to be the most important. The High Court has accepted it 'as revealing a coherent story of participation of the accused in the conspiracy.' The High Court also said: 'the document shows beyond doubt that Balbir Singh was all along in the picture and associated with Beant Singh and Satwant Singh'. Before us, the criticisms against this document are various and varied. It may be stated and indeed cannot be disputed that the genuineness of the document is inextricably connected with the arrest and search of the accused at Najafgarh Bus Stand. The document was recovered from the accused upon arrest and search made under Section 51 of the Code. If the arrest cannot carry conviction then the recovery automatically falls to the ground. Not merely that, even the allegation that the accused had absconded vanishes to thin air.
123. The police at the earliest moment suspected Balbir Singh as a person involved in the conspiracy to murder the Prime Minister. After midnight, they arrived at his residence. They knocked on the door and made him to get up from his bed. They searched his house and found nothing incriminating against him. They took him to Yamuna Velodrome doubtless upon arrest. The plain fact is that Balbir Singh was kept under custody throughout the day. At 6 PM, he was seen at the Yamuna Velodrome by Rameshwara Singh (PW 51). The case of the prosecution however, is that Balbir Singh was released thereafter and he was absconding till he was arrested on December 3,1984 at Najafgarh Bus Station. The accused challenges this version. The Courts do not interfere in the discretion of the police in matters of arrest, search and release of persons suspected in criminal cases. But the courts do insist that it should be done according to law. If the prosecution say that that the accused was released from custody and the accused denies it, it will be for the prosecution to place material on record in support of the version. Admittedly, there is no record indicating the release of Balbir Singh from Yamuna Velodrome. The explanation given is that Yamuna Velodrome being not a Police Station, registers were not maintained to account for the incoming and outgoing suspects. It is hardly an explanation where life and death questions are involved.
124. Again, the question of absconding by the accused remains unanswered. First, there is no material to lend credence to this serious allegation. Nobody has been asked to search him. No police party has been sent to track him. No procedure contemplated under law has been taken. Second, there is no evidence from which place the accused came and landed at Najafgarh Bus Stand. Kochar (PW 73) has deposed that he had secret information at 2 PM on December 3, 1984 that the accused was likely to visit Najafgarh Bus Stand. He went along with Sant Ram (PW 35), Sub-Inspector of Crime Bench. There they saw the accused at the Bus Stand. Before he was arrested, Kochar personally interrogated him at the electricity office near the Najafgarh Bus Stand. The interrogation went on for more than one hour. Yet, Kochar could not locate the place from where the accused came to Najafgarh Bus Stand. Upon arrest, it is said that the police have recovered certain articles including Ex.PW26/B under the seizure memo(Ex.Pw35/A).But there is no independent witness for the seizure memo. Third, no question as to absconding was put to the accused in the examination under Section 313 of the Code. What was put to him under question No. 52 was that he had remained absent from duty from November 4,1984 till December 3,1984. That is not the same thing to ask that the accused had absconded during that period. For that question, the accused replied that he was under police detention from November 1,1984 till December 3,1984 and there was no question of his attending the duty during that period. He has also stated that he was formally arrested on December 3, 1984 and till then he was under Police detention.
125. Realising the weakness in this part of the case, learned Additional Solicitor General relied upon the averments in the application moved by the police for remanding the accused to police custody. It was stated in the remand application dated December 4, 1984 that Balbir Singh had absconded and was not available for interrogation. It was also stated therein that Balbir Singh was arrested at Najafgarh Bus stand on December 3, 1984. Shri S.L. Khanna, Additional C.M.M., remanded the accused to police custody till December 6. The order of remand was signed by the accused. It is argued that the accused being a police officer did not object to the allegations made against him in the remand application. I do not think that this contention requires serious consideration. The averments in the remand application are only self-serving. The silence of the accused cannot be construed as his admission of those allegations.
126. There is yet another feature to which I should draw attention. The prosecution want to establish the recovery of Ex.PW 26/B from the accused by other contemporaneous document. Reference in this context is made to theMalkana Register of the Tughlak Road Police Station. Entry 986 in the Malkana Register, according to the learned Additional Solicitor General, contains verbatim copy of the seizure memo (Ex.Pw 35/A)and it is indicative of the fact that Ex. Pw 26/B was recovered from the accused upon his arrest and search. Here again there is some difficulty. There is an endorsement in the Malkana Register stating that the DTC ticket which the accused carried and the paper containing the dates in English (Ex.Pw 26/B) were not deposited. Malkana Register, therefore, is of little assistance to the prosecution.
127. In view of these infirmities, the arrest of the accused at Najafgarh Bus Stand does not inspire confidence. This by itself is sufficient to discard the document Ex.PW 26/B. Let me also examine the contents of the document which has been highlighted by the High Court. The document can be taken to be in the handwriting of Balbir Singh to avoid reference to unnecessary evidence. But that in my opinion, does not advance the case of prosecution. The document is a sheet of paper in which we find the following entries:
June 1984
- Army operation
- felt like killing
- Put on duty outside No. 1 S.J. Road
again at Dalip Singh
No. 1 SJ. Rd. - Proceeded on leave for 30 days
July 1984- Dalip & Varinder Singh visited my house,
- Dalip took me to Gurbaksh's house where Santa Singh also met.
- Dalip Singh & Gurbaksh visited my house Mavalankar Hall
- Went to Ghaziabad
- I visited Gurbaksh Singh's house - for Hemkunt
- I visited Gurbaksh Singh's house -'
- Back from leave August 1984
- Met Amarjit Singh & Beant Singh
- Dalip Singh Virender Singh etc. met at Bangla Sahib
- Mavalankar Hall/Gurupurab at Bangla Sahib 3rd Week Harpal Singh/Virender
- Beant Singh/Eagle meeting at
- Beant Singh decision to start constructive work September 1984
- Visited Gurbaksh Singh's house - Dalip & a boy Narinder Singh/ Virender
26 - 1000 Visited Gurbaksh's house & learned about the boy
- Leave for 4/5 days October 1984 - Narinder Singh
- Leave for 4/5 days 22nd - Beant Singh
leave for 4 days - Dalip Singh & Mohinder Singh visited
28 -
30 - Satwant
31 -
128. If this document is an incriminating piece of evidence, as the High Court has observed, it is rather baffling why the accused, who was suspected to be a conspirator to murder the Prime Minister of the country, should carry the document wherever he goes and that too at a place where there were reprisal killings. The accused is not a rustic person. He is a Sub-Inspector of Police with several years of service to his credit. He must have anticipated the danger investigated so many crimes. He must have anticipated the danger of carrying incriminating document when he was already suspected to be a party to the deadly conspiracy. Unable to compromise myself with any reason, I sought the assistance of learned Additional Solicitor General. He too could not give any explanation. Indeed, nobody could offer even a plausible explanation for this unusual conduct attributed to the accused. To my mind, to say that the absconding accused - Sub Inspector was found at a public place in the national capital with an incriminating document which may take him to gallows is to insult the understanding, if not the intelligence, of police force of this country.
129. That is one aspect. The other aspect relates to the assessment of inherent value of the document. A bare reading of the document, as rightly urged for the accused, shows that this is a document composed at one time with the same ink and same writing instrument. The corrections, the fixing of months and dates with the nature of entries therein apparently indicate that the document was not kept as a contemporaneous record of events relating to Balbir Singh. The fact that it was not in the possession of the accused when his house was searched in the early hours of November 1,1984 also confirms this conclusion.
130. In the document, there is no reference to killing of the Prime Minister. In fact, except for a 'felt like killing' in early June as an immediate reaction to the 'Blue Star Operation', even the manifestation of this feeling does not exist ' anywhere in subsequent part of the document. The document refer to bare meetings, visits of persons, or visiting somebody's house. It is, however, not possible to find out to whom the document was intended to be used.
131. In the document, Beant Singh is referred to at four places. At one place, there is a reference to Beant Singh wit eagle (not falcon). The cross mark of X closely followed by A long arrow mark in the document indicates the indecision of the author or somebody is straining his memory. There is no reference to a joint 'Ardas' or a message for revenge associated with the appearance of eagle. The entry does not suggest that the author had anything to do with the eagle. It is something between Beant Singh alone and the eagle. It is significant that there is no reference to Beant Singh and his plans to murder the Prime Minister. There is no reference to bombs or grenades associated with the plans to eliminate the Prime Minister before the 15th August, 1984. There is no reference to any commission of any offence. There is no reference about Beant Singh conspiring with Balbir Singh. There is no reference to Kehar Singh at all. If Balbir Singh was a party to the conspiracy with Beant Singh, the date on which Beant Singh had placed the murder of Mrs. Gandhi, that is, 25 October, 1984 as written in Ex. P.39 ought to have been noted in Ex.PW 26/ B. We do not find any reference to that date. There is a cryptic reference to Satwant Singh against 30th October and it must be with reference to the evidence of Constable Satish Chander Singh (Pw 52) whose evidence no Court of law could believe. PW 52 was a Sentry in the Prime Minister's security. According to him, Balbir Singh was on duty on October 30, 1984 at a distance of about 5-7 steps from his point of duty. He states that Satwant Singh came to meet Balbir Singh at 8 PM on that day. He further states that they talked something in Punjabi which he could not follow, as he did not know Punjabi. The only one entry which makes a reference to killing is the second entry. It refers to 'felt like killing'. But one does not know who 'felt like killing' and killing whom? It may be somebody's reaction to the 'Blue Star Operation'. If the document is read as a whole, it does not reveal anything incriminating against Balbir Singh.
132. Before considering the other matters against Balbir Singh, it will be useful to consider the concept of criminal conspiracy under Section 120-A and 120-B of IPC. These provisions have brought the Law of Conspiracy in India in line with the English law by making the overt-act unessential when the conspiracy is to commit any punishable offence. The English Law on this matter is well-settled. The following passage from Russel on Crime (12 Ed.Vol.I,202) may usefully noted:
The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough.
133. Glanville Williams in the 'Criminal Law' (Second Ed.382) explains the proposition with an illustration:
The question arose in an Iowa case, but it was discussed in terms of conspiracy rather than of accessoiyship. D, who had a grievance against P, told E that if he would whip P someone would pay his fine. E replied that he did not want anyone to pay his fine, that he had a grievance of his own against P and that he would whip him at the first opportunity. E whipped P.D. was acquitted of conspiracy because there was no agreement for 'concert of action?', no agreement to 'co-operate'.
134. Coleridge, J., while summing up the case to Jury in Regina v. Murphy 173 E R 508 pertinently states:
I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means or proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, so as to complete it, with a view to the attainment of the object which they were pursing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, 'Had they this common design, and did they pursue it by these common means- the design being unlawful?
135. It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to sees. 120-A and 120-BIPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy.
136. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same and or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter is. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand 1974 C L R 297 explains the limited nature of this proposition:
Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties 'actually came together' and agreed in terms' to pursue the unlawful object; there need ever have been an express verbal agreement, it being sufficient that there was 'a tacit understanding between conspirators as to what should be done.
137. I share this opinion, but hasten to add that the relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. We must thus be strictly on our guard.
138. It is suggested that in view of Section 10 of the Evidence Act, the relevancy of evidence in proof of conspiracy in India is wider in scope then that in English Law. Section 10 of the Evidence Act introduced the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co-conspiratOrs. Section 10 reads:
10. Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
139. From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co-conspirator. Once such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it. It is true that the observations of Subba Rao, J., in SardarSardul Singh Caveeshar v. State of Maharashtra : 1965CriLJ608a lend support to the contention that the admissibility of evidence as between co-conspirators would be liberal than in English Law. The learned Judge said (at 390):
The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them. The expression 'in reference to their common intention' is very comprehensive and it appears to have been designedly used to give it a wider scope than the words 'in furtherance of in the English Law; with the result, anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it.
140. But, with respect, the above observations that the words of Section 10 have been designedly used to give a wider scope than the concept of conspiracy in English Law, may not be accurate. This particular aspect of the law has been considered by the Privy Council in Mirza Akbar v. King Emperor AIR 1940 Pc 176 at 180, where Lord Wright said that there is no difference in principle in Indian Law in view of Section 10 of the Evidence Act.
141. The decision of the Privy Council in Mirza Akbar's case has been referred to with approval in Sardul Singh Caveeshar v. The State of Bombay : 1957CriLJ1325 where Jagannadhadas, J., said:
The limits of the admissibility of evidence in conspiracy case under Section 10 of the Evidence Act have been authoritatively laid down by the Privy Council in Mirza Akbar v. the King Emperor (supra). In that case, their Lordships of the Privy Council held that Section 10 of the Evidence Act must be construed in accordance with the principle that the thing done, written or spoken, was something done in carrying out the conspiracy and was receivable as a step in the proof of the conspiracy. They notice that evidence receivable under Section 10 of the Evidence Act of 'anything said, done or written, by any one of such persons' (i.e., conspirators) must be 'in reference to their common intention'. But their Lordships held that in the context (notwithstanding the amplitude of the above phrase) the words therein are not. capable of being widely construed having regard to the well-known principle above enunciated.
142. In the light of these principles, the other evidence against Balbir Singh may now be considered. The High Court has summarised that evidence (leaving out of account the confession of Satwant Singh and the evidence of Amarjit Singh) as follows:
Summing up, then, the evidence against Balbir Singh, leaving out of account for the time being the confession of Satwant Singh and the evidence of Amarjit Singh, the position is as follows: He was an officer on security duty at the PM's house. He knew Beant Singh and Satwant singh well. He shared the indignation of Beant Singh against Smt. Gandhi for 'Operation Blue Star' and was in a mood to avenge the same. He went on leave from 25.6.84 to 26.7.84. On his return he met Beant Singh and Amarjit Singh. He was present at the occasion of the appearance of the eagle and their association on that date is borne out by Ex.PW 26/B. He is known to have talked to Satwant Singh on 30th October, 1984....
143. I do not think that the High Court was justified in attaching importance to any one of the aforesaid circumstances in proof of the conspiracy. The High Court first said, Balbir Singh was an officer on security duty at the PM's house. But, like him, there were several Sikh officers on security duty at the PM's house. It was next stated, Balbir Singh knew Beant Singh and Satwant Singh well. Our attention has not been drawn to any evidence to show intimacy between Balbir Singh and Beant Singh or between Balbir Singh and Satwant Singh. The High Court next said that Balbir Singh shared the indignation of Beant Singh against Smt. Gandhi and was in a mood to avenge for the 'Blue Star Operation'. There is no acceptable evidence in this regard. From the testimony of SI, Madan Lal Sharma (PW 13), all that we could gather is that after the 'Blue Star Operation', Balbir Singh was in agitated mood and he used to say that the responsibility of damaging 'Akal Takhat' lies with Smt. Gandhi and it would be avenged by them. This is not to say that Balbir Singh wanted to take revenge against the Prime Minister along with Beant Singh. The High Court did not take into consideration such resentment expressed by Kehar Singh (A-3) and indeed it would be proper not to take notice of such general dissatisfaction. It is not an offence to form one's own opinion on governmental action. It is on record that some members of the sikh community felt agitated over the 'Blue Star Operation'. The resentment was also expressed by some of the Sikh employees of the Delhi Police posted for PM's security. In fact, the chargesheet against all the accused is founded on those averments. Amarjit Singh (PW 44) specifically refers to this in the course of his evidence. Resentment of the accused on 'Blue Star Operation' should, therefore, be excluded from consideration. The High Court next depended upon the earned leave taken by Balbir Singh for the period from June 25 to July 26, 1984. The High Court rightly did not give significance to casual leave applications of Balbir Singh (Ex.PW 26/E-1 to E-5). I fail to see why taking of earned leave should assume importance. There is no material that Balbir Singh took earned leave for any sinister purpose of design. There is no evidence that during the said period, he met Beant Singh or anybody else connected with the conspiracy. It is, therefore, totally an innocuous circumstance. The High Court next said that Balbir Singh, on his return from leave, met Beant Singh' and Amarjit Singh. No other specific meeting has come to light except the meeting referred to by Amarjit Singh (PW 44) which I will presently consider. The High Court lastly relied upon the act of offering 'Ardas' to falcon on its appearance at the PM's house in the first week of September, 1984. This is also from the evidence of Amarjit Singh (PW-44). Assuming that falcon did appear and sat on a tree in the PM's house and that Beant Singh and Balbir Singh did offer 'Ardas' on the occasion, there is, as the High Court has observed, 'nothing unusual or abnormal about the incident'. The sanctity of the falcon as associated with the Tenth Guru is not denied. They offered' Ardas' in the presence of so many class IV employees in the PM's house. The last act of Balbir Singh, referred to by the High Court, was his meeting with Satwant Singh on October 30, 1984. That has been referred to by Satish Chander Singh (PW 52), whose evidence as earlier seen has got only to be referred to be rejected. In my opinion, all the facts and circumstances above recited are either irrelevant or explainable. No guilty knowledge of the contemplated assassination of the Prime Minister could be attributed to Balbir Singh on those facts and circumstances.
144. It now remains to be seen whether the evidence of Amarjit Singh (PW 44) is acceptable or whether it is inherently infirm and insufficient. There are grave criticisms against this witness. I will only examine some of them. The relationship between him and Balbir Singh was anything but cordial. It was indeed casual. They were not on visiting terms. Amarjit Singh was not even invited to attend the marriage of Balbir Singh. That was the type of connection that existed between them. Yet, Amarjit Singh deposes that Balbir Singh and Beant Singh used to keep him informed regularly about their plan of action to murder the Prime Minister. He wants the court to believe that he was in a position to advise the conspirators against any such move. It is too difficult to accept this self styled advisor. As a faithful security officer, he was duty bound to alert his superiors about any danger to the Prime Minister. He knew that responsibility as he admits in his evidence, but failed to perform his duty. To place reliance on his testimony would be to put a premium on his irresponsibility.
145. The police have recorded three statements from Amarjit Singh on three different dates. The first statement (Ex.Pw 44/DA) was recorded on November 24, 1984. After 25 days, the second statement (Ex.Pw 44/DB) was recorded on December 19, 1984. Both were under Section 161 of the Code. Again on December 21,1984, the third statement (Ex.PW 44/A) under Section 164 of the Code came to be recorded. In the first statement, there is no express involvement of Balbir Singh. The second statement, according to the witness, was recorded at his own instance. He deposes before the Court:
It did not occur to me that assassination was the handywork of Balbir Singh and Kehar Singh after I had learnt about the firing and death of Smt. Indira Gandhi. I on recalling earlier talk realised on 24.11.1984 that the assassination of Mrs. Indira Gandhi was the handywork of Shri Balbir Singh and Shri Kehar Singh. Then I went to Shri R.P. Sharma who recorded my statement on 24.11.1984. A is correct that I recall things bit by bit. It is correct that there is a difference in my statement Pw 44/ DA and Pw 44/DB. It is because many questions were not put to me earlier and, therefore, I did not mention them in my first statement.
He thus admits that there is difference between the first and second statement. But the High Court said that there is no improvement or after thought so as to implicate Balbir Singh. The approach of the High Court appears to be incorrect. Amarjit Singh (P W 44) states before the Court:.In the firstweek of August, 1984, I had a talk with Beant Singh. Then he told me that he would not let Mrs. Indira Gandhi unfurl the flag on 15th August. Shri Balbir Singh also used to tell me that if he could get remote control bomb and his children are sent outside India, then he also could finish Mrs. Indira Gandhi. I used to think that he was angry and I used to tell him that he should not think in these terms.... xx XX XX XX XX
In the third week of October, 1984, Balbir Singh told me that Beant Singh and his family have been to Golden Temple along with Kehar Singh, her Phoopha. He further told that SI Beant Singh and Constable Satwant Singh had taken Amrit in Sector VI, R.K. Puram, New Delhi at the instance of Shri Kehar Singh.'
146. In the first statement (Ex.PW44/DA), there is no reference to Balbir Singh telling the witness that if he could get remote control bomb and his children are sent outside India, he could also finish Mrs. Indira Gandhi. There he has stated:
In the end of September, 1984, SI Balbir Singh met me once in the Prime Minister's house and told me that Beant singh wanted to kill the Prime Minister before 15th of August. He (Beant Singh) had agreed to kill her (Prime Minister) with a grenade and remote control but this task was to be put off because the same could not be arranged, actual words being 'IN DONO CHEEZON KAINTEZAM NAHIN HO SAKA IS LIYE BATT TAL GAVE1.
147. Again in the first statement (Ex.PW 44/DA) what he stated was:
In the third week of October, 1984,Beant Singh, SI met me and told me that he had procured one constable, actual words being 'October, 1984 FETEESRA HAFTEMAIN BEANT SINGH MUJHE MILA AUR USNE BATAYAKE USNEEK SIPAHIPATAYA HAT and that now both of them would put an end to Smt. Indira Gandhi's life very soon.
148. The discrepancies between the first version and the evidence in Court are not immaterial. They are substantial and on material points. The witness is putting the words of Beant Singh into the mouth of Balbir Singh and thereby creating circumstances against the latter.
149. Lastly, the reference is made to the confession of Satwant Singh (Ex.PWH//C) to support the prosecution version. But it is as much a bad step as others in this case. The confession of a co-accused could be used only to lend assurance to the conclusion on the acceptable evidence against the accused. When by all the testimony in the case, Balbir Singh's involvement in the conspiracy is not established, the confession of Satwant Singh cannot advance the prosecution case. Even otherwise, the reference in the confession as to the conspiracy between Balbir Singh and Beant singh was not within the personal knowledge of Satwant Singh. He refers to Beant Singh consulting Balbir Singh and 'advising' to kill PM. It is not clear who told him and when? Such a vague statement is of little use even to lend assurance to any acceptable case against Balbir Singh.
150. In my judgment, the evidence produced by the prosecution against Balbir Singh is defective as well as deficient. It is safer,, therefore, to err in acquitting than in convicting him.
KEHAR SINGH(A-3):
151. Kehar Singh was an Assistant in the Directorate General of Supply and Disposal, New Delhi. The case against him is: That he was a religious fanatic. He had intense hate against Mrs. Indira Gandhi for causing damage to the Akal Takhat by the 'Blue Star Operation'. He was in a position to influence Beant Singh, since he was the uncle of Beant Singh's wife called as 'Poopha'. He converted Beant Singh and through him Satwant Singh to religious bigotry. He made them to undergo 'Amrit Chakhan Ceremony' on October 14, 1984 and October 24, 1984 respectively at Gurudwara, R.K. Puram, New Delhi. He also took Beant Singh to Golden Temple, Amritsaron October 20,1984.
152. The prosecution, in support of the case that he was a party to the conspiracy to murder Mrs. Indira Gandhi, relied on the following:
(1) Ujagar Sandhu incident; (2) Darshan Singh incident
(3) Amrit Chakhan ceremony; and (4) Amritsar trip.
153. Besides, the prosecution relied upon his reaction to 'Blue Star Operation', attendance in office, post crime conduct, and a pamphlet in 'Gurumukhi' captioned 'Indira De Sikh'. The recoveryofgold'kara' and gold ring belonging to Beant Singh from the residence of this accused was also depended upon.
154. Both the courts have generally accepted the prosecution version and held that the conspiracy to asassinate Mrs. Indira Gandhi was hatched out by all the three persons, that is, Kehar Singh, beant Singh and Satwant Singh.
155. I will first try to eliminate the irrelevant evidence against this accused. The prosecution examined three witnesses to prove the reaction of the accused to 'Blue Star Operation': O.P. Sharma (PW 31), Darshan Singh Jaggi (Pw 32), and Krishan Lal Uppal (PW 33). These witnesses have testified that Kehar Singh was very unhappy at the consequences of 'Blue Star Operation' and he considered that Smt. Gandhi was responsible for the same. In fairness to the accused, it shall be kept out of account for the reasons given by me while discussing the case of Balbir Singh. I shall also exclude from consideration the pamphlet captioned 'Indira De Sikh' (Ex.P.53) and the connected evidence of Raj Bir Singh (PW 54), Bal Kishan Tanwar, ACP (PW 63) and Daya Nand (PW 66). That pamphlet in 'Gurumukhi' no doubt, contains vitriolic attack on Mrs. Indira Gandhi. But it was recovered from an open drawer of the office table of Kehar Singh when he was not in office. It is a printed matter. It does not show that Kehar Singh was the author of it. Nor there is any evidence to indicate that Kehar Singh has anything to do with it.
156. I shall not take notice of 'Darshan Singh incident' either. It was alleged to have occurred in the Gurudwara, Moti Bagh, New Delhi, a couple of days before Raksha Bandhan day (August 18, 1984). It appears that there was a kirtan of Prof. Darshan Singh, who spoke very movingly about the consequences of 'Blue Star Operation'. Kehar Singh and Beant Singh were said to be present on the occasion. After nearing the speech of Prof. Darshan Singh, Beant Singh was found to be sobbing. Thereupon, Kehar Singh told him that he should not weep, but take revenge. This has been spoken to by Inder Bir Singh (PW 68). This incident has a story behind. In the newspaper 'Tribune' dated November 25, 1984, there was an article (Ex. D.62/X) written by certain Prabhojot Singh. The article goes by the headline 'Profile of an Assassin'. It was written therein:
There was a sudden transformation in the thinking of Beant Singh after the Army action. He started accompanying his uncle Kehar Singh, an Assistant in the officer of the Director General Supplies and Disposal to Gurudwara Moti Bagh. In July, a noted Ragi from Punjab performed 'viragkatha' at the Gurudwara. Beant Singh was moved and reportedly starting crying. It was at this stage, Kehar Singh told him not to cry, but to take 'revenge'.
157. The investigating agency has admittedly secured that Newspaper well in time. It was preserved in their office file. K.P. Sharma (PW 70) has deposed to this. But he examined PW 68 only on July 3,1985, that is, after the accused were committed to take their trial. It is said that the news item in Tribune is very vague and despite the best efforts, none except PW 68 could be secured till July 3. This is unacceptable. The said article furnishes sufficient leads; like 'Virag Katha' noted Ragi, Moti Bagh Gurudwara, the month of July, Kehar Singh and Beant Singh together attending the function, etc. The author of the article is Prabhojot Singh. The investigating officer could have got some more particulars if Prabhojot Singh had been approached. But nobody approached him. Nor anybody from the said Gurudwara has been examined. The function in which the noted Prof. Darshan Singh Ragi participated could not have been an insignificant function. A large number of local people, if not from far off places would have attended the function. No attempt appears to have been made in these directions to ascertain the truth of the version given in the 'Tribune'. PW 68 is a solitary witness to speak about the matter. He claims to know Kehar Singh but not Beant Singh. It is not safe to accept his version without corroboration.
158. Let me now descend to the relevant material against the accused. 'Ujagar Sandhu' incident is relevant and may be taken note of. The incident is in connection with celebration of the birthday of a child in Sandhu's house to which Kehar Singh alone was invited but not Beant Singh. Kehar Singh, however, persuaded Beant Singh and Mrs. Bimla Khalsa (PW 65) to accompany him. They went together and participated in the function. Bimla Khalsa swears to this. It is common ground that there were inciting and provocating Bhajans in that function. The provocating Bhajans were in the context of destruction of Akal Takhat by the 'Blue Star Operation'. But it is argued that there is no evidence that Beant Singh and his wife were deliberately taken by Kehar Singh tc expose them to provocative Bhajans. There may not be any such evidence, but it may not be non sequitur when one takes an uninvited guest to such function in the circumstances of this case.
159. The incident on October 17, 1984 in the house of Bear t singh, to which Bimla Khalsa testifies, is more positive. It plainly indicates that Kehar Singh and Beant Singh were combined and conspiring together. She has deposed that Kehar Singh came to her house and was closeted with Beant Singh on the roof for about 18/15 minutes. There was hush hush talk between them which could not be over-heard by Bimla Khalsa, as she was in the kitchen. That evoked suspicion in her mind. She did consider if I mayuse her own words 'theirtalk as something secret'.There, then, she enquired from Kehar Singh replied that the talks were 'with regard to making somebody to take Amrit'. Bimla Khalsa remarked; 'that taking Amrit was not such a thing as to talk secretly.' She was perfectly right in her remark. There cannot be a secret talk about Amrit taking ceremony. It is religious function. Kehar Singh might have realised that it would be difficult to explain his conduct without exposing himself. He came with cryptic reply: 'There was nothing particular'.
160. Bimla Khalsa further deposed that in the same evening Kehar Singh took meals in her house alongwith her husband and Satwant Singh who later joined them.
161. Apparently, Beant Singh did not like his wife enquiring about the exchange of secret information between him and Kehar Singh. On October 20,1984, when they were in Amritsar, Beant Singh had asked his wife why she had questioned Kehar Singh as to what they were talking on the roof on October 17, 1984.
162. It may be pertinently asked: Why did Kehar Singh and Beant Singh suppress the conversation? Why did Kehar Singh give such reply to Bimla Khalsa? If the conversation related to taking of Amrit by Beant Singh or his wife, there was no necessity to have a secret talk, since Beant Singh and Bimla Khalsa had already taken Amrit by then. Kehar Singh knew it and in fact he had accompanied Bimla Khalsa for that ceremony. The said conversation, as the High Court has observed could be only to further the prosecution of the conspiracy. Satwant Singh later joining them for meals lends credence to this conclusion.
163. An endeavour is made to impeach Bimla Khalsa, first, on the ground that she turned hostile, and second, that she was examined belatedly. I must state that merely because she turned hostile, her evidence cannot be discarded. That is a well accepted proposition. She has no axe to grind against any person. She gains nothing by telling falsehood or incorrect thingsagainst Kehar Singh. She has revealed what she was told and whatshe had witnessed on October 17,1984 in her own house. There is, therefore, no reason to discard that part of her testimony. As to the second complaint, it is true that the police did not record her statement immediately after the incident. That is understandable. She has lost her husband. She was in immeasurable grief. She ought to be allowed time to compose herself. Both the objections raised against her testimony are, therefore, not sound.
164. Beant Singh appears to have planned to murder Mrs. Gandhi on October 25,1984. It has been indicated by his own writing on the text of the 'Vak' recovered on search of his house at 3 AM on November 1,1984. Balraj Nanda (PW 16) who searched his house along with others recovered a book under the title 'Bhindranwale Sant' (Ex.P.36). Inside the book, a copy of 'Hukamnama' (Vak) dated October 13, 1984 written in saffrroink was found (Ex.P.39). On the reverse of Ex.P.39, the following two dates are written: '25.10.1984 -I Yes. 26.10.1984 - Yes 8 AM to 10 AM.'
165. This writing has been proved to be that of Beant singh. It has been established by the evidence of Bimla Khalsa and the testimony of other witnesses. Bimla Khalsa has stated that Ex.P.39 is in the handwriting of Beant Singh on both sides thereof. The evidence of P.C. Maiti (PW 24), Additional Director, Institute of Criminology and Forensic Science, New Delhi and S.K. Sharma (PW 25), Assistant Director (Document) in the same Institute also confirms that fact.
166. Against this background, the visit to Amritsar assumes importance. On October 20, 1984, Kehar Singh and Beant Singh along with their family members went to Amritsar. There they stayed in the house of one Mr. M.R. Singh (PW 53). Bimla Khalsa states that they reached Amritsar at 2-3 PM and went to Darbar Sahib Gurudwara in the same evening. While ladies and children were listening to kirtan, Beant Singh and Kehar Singh went to see the Akal Takht. Bimla Khalsa wanted to accompany them to see the Akal Takht, but she was told to see the same on the next morning. What happened on the next day is still more curious. In the early house, PW 53 was woken up by Kehar Singh and told that he would attend 'Asa Ki War-Kirtan' in Darbar Sahib. So stating, he went along with Beant Singh. The ladies and children were left behind. They went to Darbar Sahib at 8 AM along with PW 53. They returned home at 11 AM and had lunch with PW 53. Beant Singh and Kehar Singh did not join them for lunch, nor they returned to the house of PW 53. PW 53 took the ladies and children to Railway Station to catch the train for the return journey.
Beant Singh and Kehar Singh appeared there and all of them left by the same train. What is significant to note herein is about the relative character of Kehar Singh and Beant Singh. Even at the most sacred place they remained isolated from their wives and children. No wonder, birds of the same feather fly together.
167. It is suggested that Kehar Singh being an elderly person and a devout religious Sikh was keeping company with Beant Singh to dissuade the latter from taking any drastic action against Mrs. Gandhi. I wish that Kehar Singh had done that an given good advice to Beant Singh. He had the opportunity to bring Beant Singh back to the royal path, but unfortunately, he did nothing of that kind. If he had not approved the assassination of the Prime Minister, Beant Singh would not have grafted Satwant Singh to the conspiracy. Secondly, if Kehar Singh was really interested in redeeming Beant Singh, he would have taken the assistance of Bimla Khalsa. He did not do that even. She was deliberately not taken into confidence. She was in fact kept in darkness even though she was inquisitive to know their secret talk.
168. It is true that there is no substantive evidence from the testimony of Bimla Khalsa that Beant Singh took Amrit on October 14, 1984 at the instance of Kehar Singh. Bimla Khalsa has only stated 'I cannot say if on the 14th October, 1984, Beant Singh had taken Amrit at the instance of Kehar Singh in Sector VI, Gurudwara, R.K. Puram, but on the 13th October he was telling me that he was going to take Amrit.' The fact, however, remains that Beant Singh took Amrit on October 14, 1984. Kehar Singh was undisputedly present at the ceremony in which Bimla Khalsa took Amrit. It may not be, therefore, unreasonable to state that he must have been present when Beant Singh also took Amrit. The recovery made from his house supports this inference. It is said that while taking Amrit or thereafter, the person is not expected to wear gold ornaments. Beant Singh had gold 'kara' (Ex.P.27) and ring (Ex.P.28). These two articles were recovered by the investigating agency from the house of Kehar Singh. That is not disputed before us. Beast Singh must have entrusted the articles to Kehar Singh at the time of his taking Amrit. It also shows the significant part played by Kehar Singh in taking Amrit by Beant Singh.
169. It is true that taking Amrit by itself may not have any sinister significance. It is a religious ceremony and 'Amrit' is taken only to 'lead a life of spartan purity giving up all worldly pleasures and evil habits'. But, unfortunately, the assassins have misused that sacred religious ceremony for ulterior purpose.
170. The post crime conduct of Kehr Singh is conclusive of his guilt. He was cognizant of all the details of the coming tragedy and waiting to receive the news on that fateful day. That would be clear from the testimony of Nand Lal Mehta (PW 59) who was an office colleague of Kehar Singh. He has deposed that Kehar Singh had met him in the third floor corridor of the office at about 10.45 AM on October 31, 1984. By that time, the news of the murderous attack on the Nation's Prime Minister came like a thunderbolt from a clear sky. The messenger had told that 'somebody had shot at Mrs. Gandhi. PW 59 then enquired from Kehar Singh as to what had happened. Kehar Singh replied that 'whosoever would take confrontation with the Panth, he would meet the same fate.' So stating, he went away. It may be noted that at that time, there was no specific information to the outside world whether any Sikh had shot the Prime Minister or anybody else. Unless Kehar Singh had prior knowledge, he could not have reacted with those words.
171. To sum up: His close and continued association with Beant Singh; his deliberate attempt to exclude Mrs. Bimla Khalsa from their company and conversation; his secret talk with Beant Singh followed by taking meals together with Satwant Singh; his keeping the gold 'Kara' and 'ring' of Beant Singh; and his post crime conduct taken together along with other material on record are stronger as evidence of guilt than even direct testimony. I agree with the conclusion of the High Court that Kehar Singh was one of the conspirators to murder Mrs. Gandhi, though not for all the reasons stated.
SATWANT SINGH (A-1):
172. He was a constable in the Delhi Police recruited on January 12, 1982. After training, he was posted in the Fifth Battalion of the Delhi Armed Police (DAP). After further commando training, he was posted in the Second Battalion of the DAP. Thereafter, he was posted in the 'C' company of the Battalion at the lines on Teen Murti Lane where he reported for security duty at the Prime Minister's house on July 2,1983.
173. There are three charges against Satwant Singh:
(i) Section 302 read with 120-B and 34 IPC for murdering the Prime Minister Mrs. Indira Gandhi; (ii) Section 307 IPC for the attempted murder of Rameshwar Dayal (PW10); and (iii) Section 27 of the Arms Act.
174. In proof of these charges, the prosecution have examined three eye witnesses to the occurrence. Narain Singh (PW 9), Rameshwar Dayal (PW 10) and Nathu Ram (PW 64). Besides, Sukhvir Singh (PW 3), Raj Singh (PW 15), Desh-pal Singh (PW 43) and Ganga Singh (PW 49) have also been examined.
175. On October 31, 1984, in the usual course, Satwant Singh was put on security at Beat No. 4 in the Akbar Road House (not at the TMC Gate). This has been confirmed by the daily dairy maintained at Teen Murti (Ex.PW 14/C) -(Entry No. 85). Raj Singh (PW 15) has testified to this entry. Satwant Singh was given arm and ammunition. He was issued SAF Carbine (Sten-gun) having Butt No. 80 along with 5 magazines and 100 live rounds of 9 mm ammunition. In acknowledgment thereof, he has signed the register (Ex.PW 3/A). Sukhvir Singh (PW 3) has deposed to this. With the said arm and ammunition, Satwant Singh left Teen Murti Lines at about 6.45 AM to take up his duty at Beat No. 4. But he did not go to that spot. The case of the prosecution is that Satwant Singh had got exchanged his place of duty to carry out the conspiracy he had with Beant Singh to murder Mrs. Gandhi. But, on the other hand, the accused states that he had been 'decoyed' to the TMC Gate by certain persons; that he was injured by the cross firing; that he fell down and was not in a position to shoot the Prime Minister or anybody. The fact, however, remains that Satwant Singh got exchanged his place of duty with that of Deshpal Singh (PW 43). It appears that one Head Constable Kishan Lal No. 1109 allowed the sentries to exchange their places since Satwant Singh was suffering from loose motions and TMC Gate being nearer to a latrine. So, Deshpal Singh took up position at Beat No. 4 while Satwant Singh at TMC Gate.
176. Three eye witnesses to the occurrence: (i) Narain Singh; (ii) Rameshwar Dayal; and (iii) Nathu Ram corroborate with each other on all material particulars. They had accompanied the Prime Minister on the fateful day. They were able to see vividly, describe correctly and identify properly the persons who gunned down Mrs. Gandhi. Both the Courts below have accepted them as natural and trustworthy witnesses. Such a conclusion based on appreciation of evidence is binding on this Court in the appeals under Article 136. I may, however, briefly refer to their evidence.
177. Narain Singh (PW 9) is a Head Constable. He was on duty from 7.30 AM on October 31, 1984. He has deposed that at 8.45 AM, he came to know that the Prime Minister had to go to No. 1 Akbar Road, to meet certain foreign T.V. representatives. He took up an umbrella and remained ready to follow the Prime Minister. According to him, at 9.10 AM, Smt. Gandhi emerged out of the house followed by Mr. R.K. Dhawan Private Secretary and Nathu Ram (PW 64). He has stated that he moved over to the right side of Mrs. Gandhi holding the umbrella to protect her against the Sun. They proceeded towards the TMC Gate. The TMC Gate was kept open, where Beant Singh was on the left side and Satwant Singh on the right side. When they were about 10 or 11 feet from the TMC Gate, Beant singh took out his revolver from his right dub and fired at Mrs. Gandhi Immediately, Satwant Singh also started firing at Mrs. Gandhi with his Sten-gun. Mrs.Gandhi fell down. He threw away the umbrella, took out his revolver and dashed towards Beant Singh to secure him. He saw Mr. Bhatt, the personal guard of Mrs. Gandhi and ITBP personnel arriving there and securing Satwant Singh and Beant Singh. He noticed that Rameshwar Dayal (PW 10) was also hit by bullets. He has further stated that the Doctor came running. Mrs. Sonia Gandhi too. They lifted Mrs. Gandhi and placed in the rear seat of the escort car that was brought there. Mrs. Gandhi was taken to the AIIMS accompanied by the Doctor and Mrs. Sonia Gandhi on the back seat and Mr. Bhatt, Mr. Dhawan and Mr. Fotedar on the front seat of the car. He also went to the hospital where Kochar (PW 73) came and took his statement. That statement formed the basis of the F.I.R. in this case.
178. There can be little doubt as to the presence of Narain Singh at the spot. His evidence receives full corroboration from the other two eye witnesses. The umbrella (Ex.P. 19) which he was holding has been recovered from the place under the seizure memo (Ex.PW 5/H).
179. Rameshwar Dayal (PW 10) is an A.S.I. of Police. He was on security duty at the PM's residence. He was also the water attendant in the pilot car of the Prime Minister. From his evidence, it will be seen that he had gone to the pantry in the PM's house and got thermos flasks with water, napkins and glass. He was informed that the Prime Minister had an engagement with a T.V. Team at the Akbar Road premises. He went there and saw the T.V. Team. He met the gardner and asked for a 'guldasta', but the gard-ner said that he would prepare and get it. In the meantime, he saw the Prime Minister coming out of the house and proceeding towards Akbar Road premises followed oy Mr. R.K. Dhawan and others. He also joined the entourage. Rest of his evidence is identical in terms with that of Narain Singh (PW 9). According to him, he ran to shield Mrs.Gandhi, but was hit by bullets. Undisputedly, he had suffered bullet injuries. He was admitted to the AIIMS for treatment. The Medico-legal Certificate (MLC) issued by the AIIMS (Ex.10/ DA) supports his version. No further corroboration is necessary to accept his evidence.
180. Nathu Ram (PW 64) is also an eye witness.
He was a dedicated servant of Mrs. Gandhi. He was always with Mrs. Gandhi not only when she was in power but also when she was out of power. His duty was to clean and dust the library-cum-bed room of the Prime Minister and then stand by in attendance. He has deposed that he was informed by Mrs. Gandhi about the change of programme in the morning of October 31 and was asked to ring up to the make-up persons to come. Accordingly, he called to make-up persons at 7.35 AM. After Mrs. Gandhi was ready and left the room at about 9.05 AM, he followed her. He has testified that Mrs. Gandhi was accompanied by Mr. R.K. Dhawan and followed by Narain Singh and Rameshwar Dayal. His evidence as to the relative acts of the two assassins is consistent with the version of PW 9 and PW 10. As a faithful servant, he has helped to lift and carry Mrs. Gandhi to the car. His presence at the spot was most natural. His evidence is simple and straightforward.
181. Ganga Singh (PW 49) has spoken to events that immediately followed the assassination of the Prime Minister. He is a lance-naik in the ITBP commando force placed on duty at the PM's residence. When he heard the sound of fire arms from the TMC Gate, he ran to the spot as duty bound. He found Mrs. Gandhi on the ground lying injured. He saw two Sardars out of whom one was in uniform whom he identified in the Court as Satwant Singh. He has deposed that his Inspector Tarsem Singh who also came there made the Sardars hands up. He and other ITBP personnel secured the Sardars and took them to guard room. At the spot, he took possession of ruck-sack (Ex.P. 21) from Satwant Singh. The ruck-sack contained four magazines of 9 mm carbine, two of which were full (one with 20 bullets and the other with 30 bullets) and two empty.
182. The presence of Satwant Singh at TMC Gate is also not in dispute and indeed it was admitted by him while answering question No. 51(A) in the examination under Section 313 of the Code. What is important to notice from the testimony of Ganga Singh is that Satwant Singh when apprehended by him was not injured. He was taken safely to guard room. He did not receive any bullet injury in the incident with which we are concerned. He must have been shot evidently inside the guard room where he was taken for safe custody by the ITBP personnel. The defence put forward by Satwant Singh that he was decoyed to the TMC gate where he received bullet injury is therefore, patently false.
183. The eye witnesses are not strangers to the assassins. They were familiar faces in the security ring of the Prime Minister. Their presence with Mrs. Gandhi at the spot was not accidental, but consistent with their duties. There was no scope for mistaken identity since everything happened in the broad day light. Therefore, the evidence thus far discussed itself is sufficient to bring home the guilt to Satwant Singh on all the charges levelled against him.
184. If necessary, the records contain evidence as 'to the identification of arms and ammunition entrusted to the assassins. I have already referred to the evidence relating to the sten-gun(Ex.P.4) and ammunition delivered to Satwant singh. The sten-gun along with 25 empties of the sten-gun was recovered from the place of incident under the seizure memo (Ex.PW 5/H). The revolver (Ex. P. 1) delivered to Beant Singh and 5 empties of the revolver were also collected at the spot. Dr. T.D. Dogra (PW 5) while conducting limited postmortem examination has taken two bullets from the body of Mrs. Gandhi one from injury No. 1 and the other from injury No. 2. These bullets along with the arms recovered from the spot were.sent for the opinion of G.R. Prasad (Pw 12), Principal Scientific Officer, Ballistic Division, GFSL, New Delhi. P.W. 12 has testified that the bullets recovered from the body of Mrs. Gandhi are traceable to the sten-gun and the revolver. Similar is the evidence with regard to the other bullets recovered from the place of incident. The record also contains evidence about the total tally of the bullets fired and the empties collected. It is needless to discuss that evidence here.
185. It is, however, argued for the accused that the finger prints found on the sten-gun were not tested for comparison and the two bullets recovered from the body of Mrs. Gandhi were not examined for the traces of blood or tissues. It is further said that the post-mortem examination conducted by Dr. Dogra ought to have been full and complete to clinch the issues. There is no substance in these contentions. It is not necessary to confirm the finger prints on the sten-gun, as that of the accused when it is proved that that sten-gun was delivered to him. The examination of the bullets recovered from the body of Mrs. Gandhi for the traces of blood or tissues is also unnecessary, since one of the bullets taken by the Doctor tallied with the sten-gun (Ex.P.4). Equally, limited post-mortem examination conducted by Dr. Dogra would not affect the merits of the case. It is not always necessary to have a complete post-mortem in every case. Section 174 of the Code confers discretion to the Police Officer not to send the body for postmortem examination if there is no doubt as to the cause of death. If the cause of death is absolutely certain and beyond the pale of doubt or controversy, it is unnecessary to have the post-mortem done by Medical Officer. In the instant case, there was no controversy about the cause of death of Mrs. Gandhi. A complete post-mortem of the body was therefore uncalled for.
186. From the aforesaid direct testimony coupled with the other clinching circumstances available on record, there is not even an iota of doubt about the crime committed by Satwant Singh. I agree with the High Court that he is guilty of al the charges. In this view of the matter, it is unnecessary to burden this case by reference to confession of Satwant Singh.
187. This takes me to the question of sentence. Section 354(3) of the Code, 1973 marks a significant shift in the legislative policy of awarding death sentence. Now the normal sentence for murder is imprisonment for life and not sentence of death. The Court is required to give special reasons for awarding death sentence. Special reasons means specific facts and circumstances obtained in the case justifying the extreme penalty. This Court in Bachan Singh v. State of Punjab : 1980CriLJ636 has indicated certain guidelines to be applied to the facts of each individual case where the question of imposing death sentence arises. It was observed that in cases where there is no proof of extramie culpability the extreme penalty need not be given. It may be given only in rarest of rare cases where there is no extenuating circumstance. In Machhi Singh v. State of Punjab : 1983CriLJ1457 , this Court again indicated some principles as to what constitute 'The rarest of rare cases' which warrant the imposition of death sentence. The High Court has carefully examined these principles and given reasons why in this case, the death sentence alone should be awarded.
188. In my opinion, the punishment measured is deserved. There cannot be two opinions on this issue. The 'Blue Star Operation' was not directed to cause damage to AkalTakht. Nor it was intended to hurt the religious feelings of Sikhs. The decision was taken by the responsible and responsive Government in the national interest. The Prime Minister (late) Mrs. Indira Gandhi was, however, made the target for the conse-quenpes of the decision. The security guards who were duty bound to protect the Prime Minister at the cost of their lives, themselves became the assassins. Incredible but true. All values and all ideals in life; all norms and obligations are thrown to the winds. It is a betrayal of the worst order. It is the most foul and senseless assassination. The preparations for an the execution of this egregious crime do deserve the dread sentence of the law.
189. Having regard to the views which I have expressed, I too would dismiss the appeals of Kehar Singh and Satwant Singh, but allow the appeal of Balbir Singh by setting aside his conviction and sentence, and acquitting him of all the charges.
190. Before parting with the case, I would like to express my gratitude to counsel amicus curiae for their willingness to assist, on behalf of the accused. With their profound learning and experience, they have argued the case remarkably well. I must also place it on record my appreciation about the deep learning and assiduity with. which Mr. G. Ramaswami, Additional Solicitor General assisted on behalf of the State. He was extremely fair to the Court as well as to accused.