B.N. Kirpal, J.
(1) In this petition under Article 226 of the Constitution the petitioner is seeking an appropriate Writ for quashing the Notification No. F. 1/PS/HS/ 87-1227-1244 to 1433dated 2/02/1987 by virtue of which the Lt. Governor,Delhi, appointed Mr. Justice M. L. Jain (retd.) (respondent No. 4) and Mr. A. K. Baneqee (Respondent No. 5) as a Committee, inter alia, to monitor the investigation of criminal cases relating to criminal offences which had been committed during the riots which had' taken place after 31/10/1984.
(2) Briefly stated, the facts are that Smt. Indira Gandhi wasassassinated' on the morning of 31/10/1984 at her residence at New Delhi. The news of her death was released in the evening and it is alleged by the petitioner that, in consequence of the assassination, riots took place in Delhi between 31/10/1984 and 3/11/1984. During the said riots there was loss to life and property.
(3) In an effort to bring to an end the disturbances in Punjab, and for the sake of solution in Punjab on 24/07/1985an accord' was signed between the Prime Minister of India and 'late Shri Harcharan Singh Longowal. This accord was preceded by several meetings between the leaders and in pursuance to the negotiations the Central Government on 26/04/1985appointed an one man Commission of Mr. Justice RanganathMisra of the Supreme Court under Section 3 of the Commissions of Inquiry Act The terms of reference of the Commission were as follows:
(I)to inquire into the allegations in regard to the incidents of organized violence which took place in Delhi following the assassination of the late PrimeMinister, Smt. Indira Gandhi.
(II)to recommend' measures which may be adopted for prevention of recurrence of such incidents.
(4) As a result of the accord the Commission's sphere was extended to the riots which had taken place in Kanpur and Bokaro as well. As a result thereof a revised notification dated 3/11/1985 was issued, and the first term of reference of the Commission of Inquiry now reads as follows :
TO inquire into the allegations in regard to the incidents Of organized violence which took place in Delhi and the disturbances which took place in the BokaroTehsil, in Chas Tehsil and at Kanpur following the assassination of the late Prime Minister, Shrimati Indira Gandhi.
VARIOUS parties appeared before the Commission and it submitted its report in November, 19S6.
(5) In January, 1987 the aforesaid report was tabled on the floor of the Lok Sabha. The said report dealt with the incidents which had taken place at Delhi and it was found that the number of persons killed was not below 2370 and not more than3874. No definite figure was, however, determined by theCommission. It was also observed by the Commission that 'These incidents of 31/10/1984, appear to have been byway of involuntary reaction of a deep sence of grief, anguish and hatred for the assassins. There can be no scope to contend,and much less to accept, that at the initial stage on 31/10/1984, the violence that took place was organized'.
(6) After referring to the incidents which took place subsequent to 31/10/1984 the Commission came to the conclusion which is given below:
FOR reasons indicated elsewhere, the Commission has come to the conclusion that violence was not organized by the Congress (1) party or any official who matters in the party.
IT further observed that 'the riots after spontaneous origin got into channelised methods in the bands of gangsters. It would not be wrong to say that there was organized violence at.Delhi and that was done by the anti-social elements and in theriots, thousands of people who do not really belong to the classification of anti-officials did participate. Many of these participants were people from the lower ranks of the Congress (I)patry and sympathisers'.
(7) From the aforesaid conclusions it appears that the; Commission absolved the Congress party and senior local leaders of the said party of any responsibility, but it came to the conclusion that it was anti social elements who took command of the situation and organized the riots. At the same time some persons, who could not be classified as anti socials, did participate in the riots, which included persons from the lower ranks of the Congress (1) party and sympathisers.
(8) The Commission also observed that unless the wrongdoers were punished appropriately in accordance with law, they would feel encouraged and would get emboldened to look forward to fish in troubled waters. The Commission was of the opinion that every wrong doer should be punished in accordance with law. The Commission also recorded a finding that some First Information Reports were not received, especially wherethe police were implicated, and on several occasions the oral reports which were recorded were not taken verbatim. In manycases, it was held, proper investigation had not taken place? cases had ended in a final report though and a few persons had been chargesheeted. Finally the Commission observed asfollows:
THE criminal activity in Delhi apart from being widespread and in greater intensity exhibited a varied spectrum of human conduct. This requires police investigation and careful handling. The same police who remained ineffective during riots and against whom several allegations were advanced, whether recorded or not, were the investigating agency in respect of the FIRs. The Commission finds it not difficult at all to appreciate and accept the contention of the victims that in such circumstances pro-per investigation could not be expected. Since the number of deaths is considerably great and there have been number of other grave offences committed, it is necessary that the allegations should be properly looked into and investigations suitablymonitored. This will mean fresh or further investigation and review of all actions subsequent thereof.For this purpose since the volume of work is quiteheavy, a Committee of at least two officers-one judicial and one administrative, preferably a high ranking police officer from outside Delhi-should be appointed immediately with full authority to look into the papers and give such directions to the prosecuting agency as the facts of each case wouldwarrant. Since there has been a lot of delay in attending to these prosecutions and as further delay would prejudice proper trial and also the prospect of justice being done. it is necessary that expeditious steps should be taken to implement there aspects.
(9) In response to the recommendations' of Justice Rangnath Misra Commission the impugned notification was issued by the orders of the Administrator of the Union Territory of Delhi constituting a Committee consisting of respondent Nos. 4 .and 5(hereinafter referred to as the said Committee). The said notification reads as follows:
'WHEREAS a number of deaths occurred and a number of grave offences were committed in various incidentsof rioting following the assassination of the late Prime Minister, Mrs. Indira Gandhi on 31-10-84.
2.ANDwhereas allegations have been made that cases relating to criminal offences were either not registered or were not properly investigated and followed up by the police and government agencies concerned;
3.Now, thereforee, in order to have such cases properlyregistered, investigated and followed up, the Administrator hereby appoints a Committee consisting of Justice M. L. Jain, a former Judge of Delhi High Court and Shri E. N. Renison, a retired Ips Officer, with the following terms of reference:-
(A)To examine whether there were cases of omission to register or properly investigate offences committed in Delhi during the period of riots from 31-10-84to 7-11-1984;
(B)To recommend the registration of cases, where necessary, and to monitor the investigation thereof.
(C)To monitor the conduct of the investigation and the follow up of cases already registered by the police and to suggest steps for effective action including fresh and further investigation, where necessary.
(D)To perform any other function in addition to theabove.
4.the Administrator hereby authorises the Committee to look into any paper related thereto and to give such instructions or advice as it deems necessary to the police and the prosecution agency relating to registration, investigation and prosecution of such cases.
5.The Administrator i further pleased to direct that the Committee will give a monthly report of the progress of its work to the Administrator. The Committee will function for a period of six months.'
(10) We may here note that whereas in the Writ Petition the date of the aforesaid notification is stated to be 2/02/1987 we were, at the time of arguments, informed by Shri Anand that the correct date was '23-2-19 87. Furthermore,after the issuance of the notification Shri A. K. Banerjee, respondent No. 5, was' appointed as one of the members in place of Shri Renison.
(11) According to the petitioner a public notice was issued by the said Committee enabling persons to file affidavits relating to the said riots. The grievance of the petitioner is that on the basis of the affidavits so collected the Committee had started giving directions to the police to register cases. One such direction was contained in the letter dated 14/10/1987written on behalf of the Committee to the Additional Commissioner of Police, New Delhi. Preference in this letter was made to One of the affidavits filed before the Committee and it was observed that the said affidavit along with a statement of the deponent discloses commission of cognizable offences by somepersons including the petitioner. According to this letter this offence had not been registered and investigated. The police was asked that the Fir be registered and the case investigated. The Addl.Commissioner wrote a reply dated 16/10/1987, which has been placed before us by the counsel for the Delhi Administration, in which letter it was staled that the letter dated 1 4/10/1987 of the Committee. should be routed to the police through the Delhi Administration. To this letter a reply dated 19/10/1987 was sent by the Secretary of the Committee.It was stated therein that by virtue of the aforesaid notification appointing the Committee, the Administrator had authorised the Committee to give instructions or advice to to the police and the prosecuting agencies relating to the registration, investigation and prosecution of such cases It was further stated that in view thereof there was no need to route the said letter through the Delhi Administration, and action was required to be taken by the police immediately. After the aforesaid communication had been sent by the Committee, the present writ petition wasfiled. By order dated 24/11/1987 Rule Nisi was issued and by an interim injunction respondents No. 4 and 5were restrained from making recommendations for registration of fresh cases and it was further directed that no further case should be registered on the directions orders of the respondentsNo. 4 and 5. These interim orders have been continued tilldate.
(12) During the pendency of this petition two applications were filed being C.M. No. 5023 87 p.nd C.M. No. 83 88 inC.M. No. 5023187 the prayer on behalf of Shri GobindaMukhoty, Senior Advocate, Supreme Court and the Secretary,Citizens Justice Committee was that the applicants be allowed to intervene in the case and file reply to the writ, petition and make submissions at the time of hearing of the case. C.M. No. 83 88 was filed on behalf of the Peoples Union for Civil Liberties and the prayer was that the applicant should be allowed to intervene in the case and address arguments at the time ofhearing. By order dated 7/09/1988 the two applicants, without being imp leaded as parties, were allowed to address arguments at the time of hearing of the writ petition. We may here note that at the. time of final arguments Shri S. C.Malik addressed arguments on behalf of the said applicants.
(13) On behalf of the petitioner it was first contended that theimpugned' notification constituting the Committee was founded on the basis of the recommendation of Justice Misra Commission. It was submitted that the said Commission had recommended the constitution of a Committee, like the present, beyond the term of its reference. According to Shri Gupta, Justice Misra Commission could only give a report with regard to the definite matters of public importance which had been referred to it and the recommendation of the said Commission for a Committee,like the present, being set up, inter alia, for monitoring the progress of the criminal cases was without jurisdiction and ultravires, in either words, the recommendation of RanganathMisra Commission were a nullity and the impugned notification based on those recommendations was also a nullity.
(14) In our opinion, there is no merit in this contention.. lit is now well settled that the report of a Commission set up under the Commissions of Inquiry Act is recommendatory in nature,and it has no power to enforce its recommendations. (See R. K.Dalmia vs . Justice Tendolkar : [1959]1SCR279 ) (1) This being so, it is open to the Government to accept all or any of the recommendations given by the Commission. Assuming that the Commission has travelled beyond the scope of the reference made to it, it is, in our opinion, for the Government to decide and consider whether to accept or act on such a recommendation or not. The. Government may choose to ignore any advice or recommendation which is given which is not sought for. But if an unsought for advice is tendered and the Government chooses to accept the same, then we fail to see as to how the acceptance of such an advice can be impugned. In exercise of its executive powers, the Government is free to seek advice from any quarter. The advice so given helps the Governmant. incoming to an administrative decision. Dehors any statute a suggestion can be mooted to the Government to act. administratively, in a particular manner and we fall to see any legal impediment in the Government accepting such an advice. If,therefore, the Commission exceeded the terms of its reference and gave some recommendation or advice which was not covered by the provisions of the Commissions of Inquiry Act, the Government, in our opinion, was not constrained' by the provisions of any law in accepting such a recommendation
(15) It was then contended that no enquiry committee, like the present, could be appointed for the purpose of making an enquiry investigation into any matter of public importance by an executive order in exercise of the executive powers by the State. Elaborating this contention Shri Gupta submitted that in view of the existence of the Commissions of Inquiry Act, 1952.no committee could be formed by an administrative order to go into matters which fall within the purview of the Commissions of Inquiry Act. In other words' the Government could, _at best.have appointed another commission under the Commissions of inquiry Act, but it could not have issued the impugned on exercise oF its executive powers.
(16) We see no force Hi this contention. The executive power of the Government is co-extensive with the legislativepower. The executive power cannot be exercise in contravention of the provisions of any law. In the present case, the Commissions of Inquiry Act itself shows that the Government can setup an authority, other than a commission under the said Act,in respect of any definite matter of public importance. This is evident from the plain reading of the provisions of Section 11 of the Commissions of Inquiry Act. 1952. which is asfollows:-
11. Act to apply to other inquiring authorities in certain cases.-Where any authority (by whatever name called), other than a commission appointed under Section 3, has been or is set up under any resolution or order of. the appropriate Government for the purpose of making an inquiry into any definite matter of public importance and that Government is of opinion that all or any of the provision of this Act should be made applicable to that authority. that Government may. subject to the prohibition contained in the proviso to sub-sec of Section 3. by notification in the Official Gazette,direct that the said provision of this Act shall apply to that authority, and on the issue of such anotification, that authority shall be deemed to be aCommission appointed under Section 3 for the purposes of this Act.'The aforesaid provision clearly provides that the appropriate Government may have set tip an authority (by whatever namecalled) by a resolution or an order for the purpose of making an inquiry into any definite matter of public importance. Section 11 enables the Government to extend the provisions of the. Act to such an authority by an appropriate notification. this question was considered by a Division Bench of this Court in the case of P. R. Nayak vs. Union of India and Others 2nd (1973)I Delhi 747(2). In that case by a resolution a commission was appointed to enquire into some irregularities it was sought to be contended that the Commission not having been appointed under Section 3 of the Commissions of Inquiry Act by a proper notification was not validly constituted. Repelling this Argument it was observed by this Court ai page 757 that 'It cannot be disputed that a commission of inquiry can be constituted dehors the Act in which case it will be an authority appointed in exercise of the executive powers of the Government and if such an authority has been or is set up under a resolution or order of the appropriate government for the purpose of making inquiry into any definite matter of public importance,then upon the issue of a notification under section 11 of' the Act this authority is deemed to be a commission appointed under section 3 for the purposes of the Act.' It is clear, thereforee that a commission or a committee can be constituted by the Government dehors the provisions of the Commissions of Inquiry Act.
(17) It was next contended that the impugned notification is vocative of the mandatory provisions of the Cods of Criminal Procedure. Learned counsel for the petitioner submitted that all offences falling under the Indian Penal Code can be investigated, inquired into, tried and otherwise dealt with only according to the Criminal Procedure Code. and not by any other procedure, method,order or manner. To make investigation or monitor control of', supervise investigation is a statutory power of the police only.No authority, it was submitted, however august or high, has the power or competence to make investigation, to control or supervise it or to require or instruct the police to make it or conduct it in any particular manner. Referring to Section 4 of the Delhi Police Act, Mr Gupta submitted that the power of superintendence which vested with the LT. Governor did not include the power to give any instructions to the police officers regarding the manner in which they were to discharges theirduties. In the alternative it was submitted that this. power could only be exercised by the Lt. Governor and could not have been delegated by him. According to the learned counsel the impugned notification had the effect of authorising the Committee to exercise the power of superintendence over the police and, further, the committee was authorised to issue instructions to the police and to the prosecuting agency with regard to the manner in which the work was required to be performed by them. According to the petitioner the committee had no authority in law to exercise any such powers.
(18) The submission on of the petitioner was controverter byMr. Anand and Mr. Malik. It was submitted by Mr. Anand that in exercise of his executive powers, the Lt. Governor could delegate his authority to anyone else. The Lt. Governor, it wassubmitted, had the power of superintendence and this power could be exercised by him personally or through his delegatee.Mr. Malik submitted that under section 4 of the Police Act the Lt. Governor had the power of superintendence over the Police Officers. By virtue of the provisions of Article 239 of the Constitution the Administrator could act through his subordinate officers. Just as the President under Article 53 and the Governor under Article 154 exercise their powers through their subordinate officers, similarly, the Administrator could delegate his powers. The powers under Article 239 were stated to he analogous to the powers under Articles 53 and 154 of the Constitution. It was also contended that by the Delhi Administration Act law & order was vested in the Lt. Governor. By issuing the impugned notification the Lt.Governor had exercised his power under Article 239 of the Constitution and had delegated his powers of superintendence to the Committee. It was also submitted that the effect of the issuance! of the impugned notification was that respondents No. 4 and 5became subordinate officers of the Delhi Administrator and were subject to the control of the Lt. Governor.
(19) Before examining the rival contentions it will be appropriate, at this stage, to analyze the impugned order, in order to find out and determine as to what is the extent of delegation if any, by the Lt. Governor in favor of the committee.
(20) Clause I of the notification merely refers to the assassination of the late Prime Minister. Clause 2 refers to three types of allegations which had been made relating to criminal offences.These allegations Were that either the criminal offences were not registered or not properly investigated or not properly followed up by the police and the Government agencies concerned.
(21) Clause 3 of the notification contains the terms of reference. It is stipulated therein that the committee is appointed in order to have such cases 'properly registered, investigated and followed up'. This being the object the terms of reference spelt out the duties of the Committee; Clause 3(a)provided that the committee had to examine (i) whether there were cases of omission to register offences or (ii) omission to properly investigate offences. This clause has to be read with clause 3(b) which required the committee (i) to recommend the registration of cases ad (ii) to monitor the investigation thereof. In other words, the reading of clause 3(a) and (b) shows that the committee wan to see as to in which cases there was omission to register the offences and to recommend the registration thereof. Secondly, it had to see whether the cases were'being properly investigated, and thirdly, it had to monitor the investigation of cases which had not been registered or whichwere being improperly investigated. Clause 3(c) pertained to cases which had already been registered. this sub-clause required the monitoring of the conduct of such cases and also entitled the committee to suggest steps for taking effective action including fresh and further investigation where necessary. Clause3(d) is general in nature and it enabled the Committee to perform any other function, in addition to the above.
(22) Clause 4 authorised the Committee to look into any papers relating to what has been referred to in clause 3. the Committee was also empowered to give such instructions or advice as it deemed necessary to the police and to the prosecuting agency in relation to the registration, investigation and prosecution of such cases. A question will arise as to which are the papers which the Committee was entitled to looK into. The said clause, however, clearly empowers the Committee to deal directly with the police and the prosecuting agency when it provide; for giving of instructions or advice by the Committee to them. Clause 4 does not provide for any communication being exchanged between the Committee and the Administrator. What the Committee is required to convey to the Administrator is provided by clause 5. This clause requires the Committee to furnish a monthly report of progress of ill- work to the Administrator.
(23) In our opinion, the aforesaid notification has to be read as a whole. These clauses are inter-related and interwoven and cannot be read in isolation, rather they are dependant upon each other. Reading clauses 3. 4 and 5 together itappears, quite clearly, that the Lt. Governor had delegated certain functions to the Committee. The functions which arc delegated are contained in clause 3 of the. notification. The manner in which the power was to be exercised by the Committee specifically contained in clause 4. The Committee was an agency which was being constituted to directly deal with and monitor cases pertaining to the offences which had been committed during the riots, the notification does not envisage any interference by the Administrator in the work. of the Committee. Furthermore, the notification also does not provide or stipulate any action being required to be taken by- theLt, Governor at the behest or suggestion or recommendation of the Committee. All that the notification prescribes is that the.Administrator, by monthly reports, should be kept informed tithe work which was being done by the Committee. These powers were given because in the report of Justice Mishra it was slated that the Committee which is appointed should have 'Full authority to look into the papers and give such directions to the prosecuting agency as the facts of each case would warrant'. It is because Justice Misra Commission report envisaged a direct link and communication, between the Committee and the prosecuting agency that, by the impugned notification, power was given to the Committee to oversee the work of the police and the prosecuting agency. In other words,the police and the prosecuting agency by virtue of the impugned notification, were made directly subordinate to the Committee.The Committee had the power to issue directions to them, with monthly information to the Administrator. Although in Clause3 expressions 'recommend' and 'suggest' are used, the said clause does not itself provide to whom the recommendation or.suggestion is to be made. The power of recommendation andsuggestion, contained in clause 3, as contemplated, by the notification, has to be exercised in the manner indicated in clause4, and that manner is by issuing instructions and advising the prosecuting agency or the police. It is for this reason that the Committee in the aforesaid letter dated 19/10/1987informed the Commissioner of Police that it was not necessary for the Committee to route the instructions through the DelhiAdministration. The Committee has understood the impugned notification to mean that it has direct control over the aforesaid cases and, by virtue thereof, it could give directions to the police and the prosecuting agency directly. We are informed by the learned counsel at the Bar that the Administrator was furnished with the monthly reports of the progress of the work of the Committee.
(24) It was contended by Shri Malik that Clause 5 clearly envisaged the retention of the power of superintendence or supervision by the Administrator himself. According to the learned counsel Clause 5 enabled the Administrator to control the work of the Committee. We are unable to agree with thiscontention. Clause 5 only stipulates information being furnished to the Administrator, by way of monthly reports, of the progress of the work done by the Committee. By the impugned notification no power of superintendence has been retained by the Administrator. Even assuming that the issuances of the notification would not, in law, divest the Administrator of his power of superintendence over police, whatever power it be, the fact remains that by the impugned notification the Committee has also been given power of superintendence over the police and the prosecuting agency in relation to the riot cases. The question which arises is whether this can be done.
(25) Section (1) of the Criminal Procedure Code. provides for investigation,inquiry or trial for every offence under the Penal Code according to the provisions of the Code. It has been held by the Supreme Court in the case of A. R. Antulay Vs . R. S. Nayak : 1984CriLJ647 that 'In the absence of a specific provision made in the statute indicating that offence will have to be investigated, inquired into, tried or otherwise dealt with according to that statute, the same will have to beinvestigated, inquired into, tried and otherwise dealt with according to the Criminal Procedure Code .' In other words, Criminal Procedure Code is the parent statute which provides for investigation, inquiring into and trial of the cases by the Criminal Courts of various designations.
(26) In H. N. Rishbud and another vs. State of Delhi 1955 Sc 196 the Supreme Court had occasion to consider the various provisions pertaining to investigation of a case. The observations of the Court with regard to the scheme of theCode, which ars relevant to the instant case are as follows
'THE scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in Section 168 that when a subordinate officer makes, an investigation he should report the result to the officer in charge of the police station.It is also clear that the final step in the investigation, viz., the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station. There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under Section 551.
(27) The aforesaid observations, thereforee, leave no manner of doubt that the power of investigation is exercisable by the police officers under the Code and it cannot be delegated and,further, it is only the superior officers who can supervise or participate in the exercise of such powers. The aforesaid decision in Rishbud's case was followed by the Supreme Court in the case of Abhinandan Jha and Others vs . Dinesh Mishra : 1968CriLJ97. It was held that it was for the police to form an opinion as to whether a charge-sheet should be filed ornot. In that case a question arose whether the Magistrate could call upon the police to submit a charge-sheet. It was held in Abhinandan Jha's case that the Magistrate may or may not accept a report which is filed by the police, but he cannot direct the police to change its opinion so as to accord with his view.The Supreme Court observed that 'We have already pointed out that the investigation, under the Code, take sin several aspects.and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or.a final report is dependent on the nature of the opinion, soformed. The formation of the said opinion, by the police,aspointed out earlier, is the final step in the investigation, andthat final step is to be taken only by the police and by no otherauthority'.
(28) From the aforesaid decisions it is clear that the power of investigation vests, exclusively, with the police. This power cannot be delegated by the police to anyone else. This gives rise to two questions, namely, is this power subject to the superintendence and control by any superior authority andsecondly, whether, the power of superintendence could be exercised through subordinate officers.
(29) As already noted,, it had been contended by Shri malik.that maintaining law & order is a duty which is cast on the Administrator of the Union Territory. The police is under his executive 'and administrative control and Section 4 of the Delhi Police Act specifically .enables the Lt. Governor to exercise power of ' .superintendence. Further contention is that by investing of the powers vide the impugned notification on the Committee the question of delegation does not arise because these are the powers of the Lt. Governor, and they can be exercised by himself or through his subordinate officers, Infact, it was. contended, such powers could be conferred by,theLt. Governor on any person and need not be conferred on' the existing officers. Reliance was also placed by Shri Malik on Income Tax Officer, Cannanore vs. M. K. Mohammed Kunhi AIR 1969 SC 430(6) and it was contended that it is a firmly established rule that an express grant of statutory power contains with it by necessary implication the authority to use all reasonable means to make such grant effective.
(30) We find it difficult to agree with Shri L. R. Gupta that the power of investigation conferred on the police under the provisions of Criminal Procedure Code. is not subject to any superintendence.The power of superintendence is, in our opinion, expressly contained in Section 4 of the Delhi Police Act. which reads as follows :
4.The superintendence of the Delhi Police throughout Delhi shall vest in, and be exercisable by the Administrator and any control, direction or supervision exercisable by any officer over any member of the police force shall be exercisable subject to such superintendence.
THIS section stipulates, that the superintendence of the Delhi Police shall vest in the Administrator, and secondly, if any officer has over any member of the police any power of control. direction or supervision, then the said power shall be exercisable by that superior officer subject to the superintendence of the Administrator. Section 64 of the Delhi Police Act stipulates that superior police officer may himself perform duties which are imposed on a subordinate officer.. A superior officer, if exercises any duties of a junior officer, would be subject to superintendence of the Administrator
(31) In order to understand the full meaning and import of the expression 'superintendence', it will be helpful to refer to two decisions of the Supreme Court, the interpretation of asection, similar to Section 4 of the Delhi Police Act, came up for consideration before the Supreme Court in the case of State of Bihar vs . J. A. C. 5a!danna : 1980CriLJ98. One of the questions which arose in that case was whether the State Government was competent to direct further investigation in a criminal case in which a report was submitted by the investigating agency under Section 173(2) of Criminal Procedure Code. to the Magistrate having jurisdiction to try the case. In that case the State of Bihar had entrusted to another officer, superior in rank to the officer in charge of a,' police .station. the power to investigate 'the case. Reliance was placed by the Supreme Court on the provisions of Section 3 of the .Indian Police Act. which read as follows :
3. Superintendence in the State Government. The superintendence of the police throughout a general police-district shall vest in and shall be exercised by the State Government to which such district issubordinate; and except as authorized under the provision' of this Act, no person, officer, or Court shall be empowered by the State Government tosupersede, or control any police functionary.''
It was observed by the Supreme Court that the word 'superintendence' in Section 3 Would imply administrative control implying the authority enjoying such power to give directions to the subordinate to discharge its. administrative duties and functions in the manner indicated in the order. The power of superintendence would comprehend the authority to give .directions to perform the duty in a certain manner, to refrain from per-forming one or the other duty, to direct someone else to perform the duty and no inhibition or limitation can be read in this power unless the section conferring such power prescribesone. While exercising such power under Section 3, which enabled the State Government to direct further investigation into the case, it was observed by the Supreme Court as follows :
UNDOUBTEDLY, such direction; will be given to a person competent to investigate the offence and as has been pointed out, the police officer in rank superior to the police officer in charge of the policestation, to- wit Inspector General, Vigilance, has been directed to carry on further investigation.An officer superior in rank to an officer in charge ofa police station could as well exercise the power of further investigation under Section 173(8) in view of the provisions embodied in Section 36 of theCode. If that be so, such superior officer could as well undertake farther investigation on his own and it is immaterial and irrelevant that he does it at the instance or the direction of the State Government.Such a direction in no way curbs his powers to further investigate on his own.
The aforesaid observations are important in two respects. firstly.it clearly show that the power of superintendence means that the authority in which such power is, vested can issue directions regarding the manner in which investigation is to be carried out,and can also entrust the investigation to another officer. Secondly,and this is important, the person to whom the power to investigate is entrusted has necessarily to be a person who is competent to investigate the offence. In other words. the power of investigation must always be exercised by a police officer. This is precisely what was done in Saldanna's case (supra) The stateGovernment, in exercise of its power of superintendence, directed another police officer to investigate into the offence.Power was not given by the State Government to a stranger to investigate. Power was given to superior officer to investigate and the Supreme Court clarified that the superior officer had the power to investigate by virtue of Section 36 of the Criminal Procedure Code.
(32) Applying the analogy of Saldanna's case it is clear that the Lt. Governor has the power of superintendence under Section 4 of the Delhi Police Act, but he can only ask another police officer to discharge the duties as an investigator, if he is otherwise competent to investigate. Under Section 64 of the Delhi Police Act any officer superior in rank can discharge the functions of a junior officer. The decision whether to register an Fir, to proceed with the investigation, are different steps in the course of investigation. The power of monitoring which has been conferred on the Committee by the impugned notification is, infact, a power of investigating and this power cannot be vested anyone who is not otherwise, in law, entitled to investigate.The Lt. Governor, thereforee, could have conferred the power contained in the notification on any superior police officer, but this power could not be conferred 'On an authority or a body,which is otherwise not entitled either under the Criminal Procedure Code. or under the Delhi Police Act to carry out investigation. Savanna's case,-which was followed, with approval in State of West Bengal vs.Sampat Lal : 1985CriLJ516. does not envisage the delegation by the State Government of the power of superintendence on someone else. The power of superintendence under the India Police Act was exercisable by the State Government itself. It was in the exercise of 'that power that investigation was entrusted to a particular police officer.
(33) The power to investigate under the Code is with the police. Any power exercisable by a police officer is subject to the superintendence of the Administrator, by virtue of of Section 4 of the Delhi Police Act. Can the Administrator delegate his power of superintendence to someone else In our opinion, the answer to this query must bein the negative. The power which is contained in Section 4 isa 'tatutory power. The statute has conferred the power on a designated person, namely, the Administrator, this has been advisedly done because the Administrator is the senior-most in the hierarchy of all the officers in the Union Territory of Delhi Whereas under the Indian Police Act the power of superintendence is conferred on the State Government, under the Delhi Police Act this power is conferred on the Administrator. the Administrator is a person designate and unless he is Specifically authorised by the Act he cannot delegate his powers on anyoneelse. It win be useful, in this context, to refer to the decision of the Supreme Court in the case of Marathwada University vs.Seshrao Balwant Rao Chavan : (1989)IILLJ161SC. In that case the power to appoint officers was, conferred on the Executive Council of the University and a question arose whether the Vice Chancellor could take disciplinary action. In this regard the Supreme Court observed at page 140 as follows :__
'20. Counsel for the appellant argued that the express power of the Vice-chancellor' to regulate the work and conduct of officers of the University implies a.swell, the power to take disciplinary action againstofficers. We are unable to agree with this contention. Firstly, the power to regulate the work and conduct of officers cannot include the power to take disciplinary action for their removal. Secondly.the Act confers power to appoint officers on' the Executive Council and it generally includes the power to remove. The power is located under Section 24(l)(xxix) of the Act. It is, thereforee,futile to contend that the Vice Chancellor can exercise that power which is conferred on the Executive Council. It is a settled principle that when the.Act prescribes a particular body to exercise apower, it must be exercised only by that body. It cannot be exercised by others unless it is delegated.The law must also provide for such delegationHalsbury's Laws of England (Vol. 1. 4th odn.,para 32) summarises these principles as follows :
32.Sub-delegation of powers.-In accordance with the maxim delegatus non potest delegate, a statutory power must be exercised only by the body or officer in whom It. it has been confided unless sub-delegation of the power is authorised by express words or necessary implication. There isa strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub-delegation.and the-same may be said of any power to the exercise of which the designated body should address its own mind.'
(34) The aforesaid' quotation by the Supreme Court fromHalsbury's Laws of England also finds support from Prof.H. W. R. Wade. who in his 'Administrative law' (fifth Edltion.pape 319) ha' observed as follows--
AN element which is essential to the lawful .exercise oi power.is that it should be execrate by the authority upon whom it is conferred, and by no one else The principle is strictly applied, even where recluses administrative inconvenience except incases where it may reasonably be inferred that the power was intended to be delegable. Normally the courts are rigorous in requiring the power to be exercised by the precise person' or body stated in the statute, and in condemning as ultra variation taken by agents, sub-committees or delegates,however expressly authorised by the authority endowed with the power.
(35) The decision in M. G. Mohammad Kunhi's case also does not assist Mr. Malik. In that case the question arosewhether, in exercise of its appellate power?, the Income Tax Tribunal had inherent right to grant stay of realisation of tax.In the present case the Lt. Governor is not exercising any appellate powers. In any case, the Lt. Governor can effectively exercise his statutory powers. under Section 4 of the Police Act, either himself or through another police officer, but no one else.
(36) It was also submitted by Shri Malik that the effect of issuing the impugned notification was that respondents No. 4and 5 became the officers of the Delhi Administration to whom power had been delegated by the Lt. Governor. It was contended that once the Committee members become subordinate'officers of the Lt. Governor and they function under the control of the Lt. Governor, then the power which in vested in the Committee is in fact exercised as if it is the power of theLt. Governor, and vesting of such power does not amount to abdication of the power by the Lt. Governor.
(37) L( is no doubt tn.]c the Lt. Governor is the executive head of the Delhi Administration. He is the Chief Administrator of Delhi. By virtue of Article 239 of the Constitution he has executive powers. In order to enable him to exercise executivpowers, he can act assistance of officers subordinate to him.Subject to provisions of any law. he can also delegate his executive powers. In the present case, however, the powers of superintendence are vested in the Administrator under Section 4 of the Delhi Police Act and they are not executive powers. The powers under Section 4 .are statutory and are to be exercised by him in accordance with law. Under Section 4 of the Delhi police Act it is the Administrator who har the power of superintendence and no one else. It may be that. as the Executive head. the Administrator is to see to the law & order in Delhi said it is also true that in order to maintain law ℴ in Delhi, the Lt. Governor may be able to delegate his powers, but it is only the executive powers which can be delegated. Statutory powers can only be exercised by the person authorised to exercise them by the statute. Statutory powers can be delegated only if the statute permits such delegation.The statutory authority cannot abdicate its functions or 'authority in favor of anyone else unless, it is authorised to do so.In the present case the Delhi Police Act, which confers powers of superintendence on the Lt. Governor, does not authorise or enable him to delegate his powers of superintendence in favor of any one else. General powers of delegation have not been conferred on the Lt. Governor by the said Act.
(38) To put it differently, the Lt. Governor cannot exercise his powers under Article 239 of the Constitution in a manner which may be in conflict with any statutory provision. The Delhi Police Act being a complete code by itself, the Lt. Governor cannot exercise his executive powers in such a way asto violate the provisions of any law. When the Delhi Police Act enables only the Police officers to investigate. subject to The superintendence of the Lt. Governor, then no executive order or notification can be issued which would have the effect of conferring powers of investigation on a non notice officer.Executive powers under Article 239 cannot be exercised in a.wav so as to circumvent the provisions of the Delhi Police Act.
(39) Our attention was drawn to the provisions of Avocation of Business Rules framed by the President of India with regard to allocation of business in Delhi. The schedule to diseased rules indicated the different departments. particulary the Home Department, which dealt with law & order and police.It was sought to be contended that in vcw of the aforesaid provisions, the Home Secretary or any other officer of the Home Department could issue direction- tothe Police. We are unable to agree with this. As held by the Supreme Court in the. disc of State of Uttar Pradesh & Others vs . Babu Ram Upadhyay : 1961CriLJ773. 'The Police Act and the Rules made there under constitute a self-contained code providing for the appointment of the Police Officers and prescribing the procedure for their removal'.The Delhi Police Act is, (similarly,) a complete code by itself which also deals with the powers which are to be exercised by the police officers. These powers cana.ot be exercised by the members of the Home Department. The Allocation of Business Rules do not and cannot confer any such power on the Home Secretary or other officers of the Home Department. By allocating law and order' or 'police' to the Home Department under the provisions of the Allocation to Business Rules no statutory power is conferred on them. All that it means is that if any question arose before the administration pertaining to the PoliceDepartment, then it is the Home Department which will deal with it. For example, if the administration is to consider as low ether the police force should be increased or not, then in order to enable the Lt. Governor to take a decision in this regard, it will be the Home Department which will deal with the matter and advise the Administrator. The Allocation of Business Rules cannot and do not override or be in conflict with.the provisions of the Delhi Police Act or the Code of Criminal Procedure.
(40) We are also unable to agree with the contention of Shri Malik that respondents No. 4 and 5 were appointed as officers of the Home Department subordinate to the Lt. 'Governor. in order that a person is appointed as an officer, there must be a post which exists to which an appointment can be made. The impugned notification purported to set up an independent Committee to whom certain powers had been entrusted. The notification docs not show that the said Committee was required to work under the control or superintendence of the Administrator.Furthermore we have already held that the Lt. Governor could not have delegated his powers on officers of the Home Department.
(41) From the aforesaid discussion the conclusion which follows is that the Lt. Governor has power of superintendence overthe police by virtue of Section 4 of the Delhi Police Act, the power of Lt. Governor under Section 4 could not b& delegated to any one but in exercise of the power he could have appointed another Police Officer or a team of Police Officers who wouldotherwise, by virtue of Section 64 of the Delhi Police Act, have the power to investigate a case or to monitor or supervise the investigation of a cast; under the Code of Criminal Procedure it is only the Police officers who have the power to investigate case, the Lt. Governor could not have appointed a Committee, like the present, to whom powers of investigation or direct control over investigation and registration of cases have been conferred; by the impugned notification the Committee has been vested with powers of investigation and of superintendence over the police and the prosecuting agency and the vesting of such powers by the notification on non-police officers, namely, the Committee is contrary to the provisions of the Delhi Police Acts well as the Code of Criminal Procedure.
(42) In this connection it was lastly contended by Shri Malik that Section 29(2) of the Delhi Administration Act contains the power of delegation by the Administrator. Section 29(2) read as follows :
(2)Save as otherwise provided in this Act, all executiveaction of the Administrator, whether taken in his discretion or otherwise, shall be expressed to betaken in the name of the Administrator.
We are unable to agree with the contention of Shri Malik that Section 29(2) contains any power of delegation. All that the said provision provides is that executive action of the Administrator shall be expressed to be taken in his name. Even it be assumed that Section 29(2) does envisage the delegation of power by the Administrator, it is clear that the said provision.relates only to 'executive action of the Administrator', In the present case the Code of Criminal Procedure does not envisage any interference or action being taken by any authority not expressly provided for in the said Code. The power of investigation vests only with the Police officers. This is a statutory duty which is cast on them by the statute. It is only by virtue of Section 4 of the Delhi Police Act that the power of superintendence has been given to the Administrator. This power is statutory and not executive. Whereas Section 29(2) refers to executive action taken by the Administrator, the power which is exercisable under Section 4 of the Delhi Police Act is; not executive power, but it is statutory power. As such, the question of Section 29(2) applying to the case of exercise of statutory power by the Lt. Governor cannot arise.
(43) It was also contended by Shri Gupta that by appointing a Committee without giving it powers under .'he Commissions of inquiry Act the provisions of Articles 14 and 21 of the Constitution have been violated. The submission is that what has,been referred to the Committee are definite matters of public importance and in respect thereof, a Commission of Inquiry could have been appointed. It is further submitted that if a Commission had been appointed under the Commissioner of Inquiry Act, the petitioner's rights could have been safeguarded because nothing adverse to the petitioner could have been held by the Commission without giving the petitioner an opportunity of being heard, because the Commission would have been obliged to issue notice under Section 8-B of the said Act.It is further contended that in an ordinary case it is the police which is required to monitor the progress of investigation, but in the present case it is the Committee to which this power had been granted. There is no reasonable basis for carving out cases pertaining to riots and giving the power of monitoring the same to the Committee.
(44) In our opinion there is no merit in this contention. It is well settled that a Commission appointed under the Commissions of Inquiry Act can only make recommendations to the Government. The findings or recommendations of the Commission cannot be enforced. In the present case, what the Administrator leas sought to do is not to give recommendatory powers to the Committee. The Committee has been empowered to gave directions to the police and to the prosecuting agency. such powers could not have been conferred on the Committee if it had been constituted under the Commissions of Inquiry Act.
(45) It has been further contended by Shri Gupta that the Committee was not empowered to receive any affidavits. Learned counsel for the petitioner submitted that on the correct interpretation of the impugned notification the Committee was supposed to apply its mind only on the basis of the documents which were already on record. The Committee it was contended, was not a Court and as statement of persons, whether recorded orally or in the form of affidavits, is evidence, the Committee, thereforee, did not have any Jurisdiction to receive the said form of evidence. Prima facie, we find it difficult to .accept the contention of Shri Gupta. It is true that the Committee was nota Court and it is also correct that evidence is presented before Coart, 'we, however, are unable to subscribe to the view that recording statement or taking an affidavit amounts to recording of evidence, which the Committee was prohibited to do.The Committee was seeking information with regard to the various incidents which had taken place during the riots. A public notice has been issued asking for the information to besupplied, inter alias by affidavits. The statement was sought in the form of an affidavit so that the deponent was made aware of the seriousness of the situation and it was expected that a person will not state falsehood when he swears an affidavit onoath. We 5nd no provision of law which, in any way, prohibits Committee or any other person requiring information to be given by way of an affidavit.
(46) The impugned notification does not expressly give the power to the Committee to receive any fresh or information or allegations with regard to the incidents of rioting.The Committee was. nevertheless, required to examine whether there were cases of omission to register or properly investigateoffences. We fail to understand as to how the Committee could have been made a wars of cases where there were such omissions or improper investigation without some one informing the Committee in respect thereto. Clause 3(d) expressly enables the Committee to perform any other function in addition to what has been enumerated in Clause 3(a) to (c). It was necessary in order to perform functions enumerated in Clause 3, for the Committee to seek information as to whether there have been instances of omission to register cases or instances of improperinvestigation. This information could be supplied either by the persons who had sought to register the cases or by some one else who knew about such instances. To restrict the Committee to the documents which already existed would have hampered the Committee in carrying out it duties. We are, however, in agreement with Mr. Gupta that the Committee was not authorised to accept or act on any fresh allegations against individuals pertaining to the said incidents of rioting. In other words, whereas it was open to the Committee to get information where there has been omission to register or properly investigate offences,the Committee had no jurisdiction to accept any affidavits in which fresh allegations were leveled for the first time, which allegations were not sought to be leveled at the time of or soon after the riots had taken place.
(47) It was contended by Shri Malik that the petitioner is guilty of suppressing material facts and, in any case his conducts such that no relief could be granted to him. The submission of Shri Malik was that the petitioner has not disclosed in the writ petition that he was already being tr'ed in two other murder cases. It was also contended that in Misra Commission Report there is reference to the allegation that the petitioner was responsible for an abduction. In the written arguments which were filed before the Misra Commission names were indicated of those persons who had been identified in taking part in the carnage and the petitioner's name was off of them. Lastly, It was submitted that if these facts had been narrated, then under no circumstances any interim relief could have been granted in this petition.
(48) It is submitted by Shri L. S. Gupta that it is not open to Shri Malik to raise the contention that the petitioner is guilty of suppression of material facts. According to Shri Gupta the clients of Shri Malik have not been imp leaded as parties to the writ petition and they have only been permitted to address arguments. The submission is that it is only a party in a writ petition who could raise the contention like what is sought to be raised by Shri Malik and a mere intervenor cannot be permitted to raise such a contention. .On merits Shri Gupta submitted that the petitioner has not been guilty of suppression of anymaterial.
(49) In our opinion, it is not necessary to go into the question as to whether such a contention can be urged by Shri Malik. It is no doubt true that Shri Malik's clients are not parties to the writ petition, but as this contention has been' raised we propose to deal with it. It is true that, as is evident from Justice Misra Commission .Report, the petitioner is involved in two other murder cases and allegations of the type mentioned above have been noticed in the said report against the petitioner. That, in our opinion is not sufficient to disentitle the petitioner to approach the Court for redress. The petitioner has referred to the report of Misra Commission in his writ petition.It is in the report that reference is made to inc petitioner being involved in two other murder cases, and also with regard to the charge of abduction against him. It was not necessary, for the purpose of this writ petition, for the petitioner to have highlighted or to have specifically mentioned other cases in which he was involved. The petitioner was specifically concerned with the powers which had been conferred on the Committee in exercise of which powers the committee had directed the police to register a case against him. If such a case had been registered, that would have been a third murder case against the petitioner. This was an independent grievance which the petitioner had and merely because he was involved in other cases can be no ground for refusing to grant relief to the petitioner. if he is otherwise entitled to it. The non mentioning of the aforesaid allegations is not fatal to the present writ petition,.It is also difficult to accept that if these allegations had been specifically mentioned then the interim orders would not have been passed.
(50) Before concluding we may observe that the report submitted by Ranganath Misra Commission was tailed on the floor of the House in Jannuary, 1987 and the recommendation on of the Commission for appointment of a Committee was accepted by the Government, The Government acted promptly and constituted a Committee by virtue of the impugned notification dated23-2-1987, as suggested by the Commission, in order to take steps for punishing the wrong doers. The purpose for which the Committee Was constituted is commendable and laudable andwe do appreciate the prompt action taken by the Government in this regard, but we are constrained to observe that howsoever commendable and laudable the purpose may be, it has to be implemented by the methods circumscribed by the laws. In otherwords, the methods sought to be employed for implementation should conform to the laws. Under our Constitution, the rule of law leas been made our way of life. The impugned notification could not withstand the rigour of the laws on the subject. Wedo hope that in order to redress the grievances of the victims and to remedy the social injustices, the Government shall take necessary steps, permissible under the law. for bringing the guilty and wrongdoers to book. We do feel that such steps would betaken expeditiously and without any delay. Otherwise, it will amount to negation of rule of law. As observed by the Supreme Court in Mahendra Singh vs . State of West Bengal : 1973CriLJ1450 Undue delay in the final disposal of criminal cases tends, to some extent, to defeat the very purpose of criminal justice. Speedy disposal of criminal cases for commission of offences promote confidence of the society in the administration of criminal justice which is essential for sustaining the faith of the law abiding members of the society in the effectiveness of the rule of law''.
(51) For the foregoing reasons, the writ petition is allowed and the impugned notification dated 23/02/1987 isquashed. There will be no orders as to costs.