# DR. BALIRAM WAMAN HIRAY v. JUSTICE B. LENTIN AND OTHERS

- **Citation:** [1988] Supp. 2 S.C.R. 942
- **Court:** Supreme Court of India
- **Decided:** 1988-09-12
- **Case number:** Criminal Writ Petition No. 733 of 1987
- **Bench:** A.P. Sen, L.M. Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-baliram-waman-hiray-v-justice-b-lentin-and-others-10065
- **Pages:** 36

## Headnote

Commission
of Inquiry Act, 1952: Section 3-Commission of
Inquiry-Constituted under Act-Whether 'Court' for purposes of Section 195(1)(b) Cr. P.C. 1973.
Criminal Procedure Code, 1973-Section 195(1)(b)-Commission of Inquiry' constituted under Commission of Inquiry Act, 1952Whether a 'Court'.
Words and Phrases: 'Court'-Meaningof.
D
On February 21, 1986 the State Government of Maharashtra
appointed Shri Justice B. Lentin as a one-man Commission of Inquiry
to probe into the death of 14 patients in the government run J.J.B.
Hospital between 22.1.1986 and 7 .2.1986 after they were administered
contaminated glycerol, and to fix responsibility. The inquiry revealed
the existence of a corrupt and venal nexus between the drug firms, the
E
delinquent Food & Drugs Administration and hospital staff on the one
hand, and the appellant, some other persons and certain Government
officials on the other. The Commission's report was an indictment of
the State's public health system.
The Commission having found the evidence given by the appellant
F
self-contradictory, issued a show-cause notice to him as to why he
should not be prosecuted for the offence of giving false evidence on oath
under s. 193 of the Indian Penal Code, 1860 read withs. 340 of the Code
of Criminal Procedure, 1973. After considering the appellant's objections, the Commission directed filing of a complaint under ss. 193 and
228 of l.P.C. The appellant filed a petition in the High Court assailing
G
the legality and propriety of the order of the Commission directing
filing of the complaint, and the same was dismissed by the High Court.
Before this Court, it was contended on behalf of the appellant that
(1) the Commission could not be deemed to be a Con rt for the purposes
of s. 195(l)(b) of the Code of Criminal Procedure unless declared by the
fi Commission of Inquiries Act itself, as stipulated in sub-s. (3) of s. 195,
942
B.W. HIRAY v. JUSTICE B. LANTIN
943
which provides that in cl. (b) of sub-s. (1), the term 'Court' means a
Civil, Revenue or Criminal Court, and includes a tribunal constituted
by or under a Central, Provincial or State Act if declared by that Act to
be a Court for the purposes of this Section; (2) the Commission of
Inquiry appointed by the State Government was merely a fact-finding
body appointed by the Government for the 'information of its mind',
and the mere fact that the procedure adopted was of a legal character
and it had the power to administer an oath would not impart to it the
status of the Court and therefore was not a 'Court' for the purposes of
A
B
s. 195(l)(b) of the Code; (3) the question was not whether the appellant
could be prosecuted for perjury for giving false evidence which was an
offence punishable under section 195(l)(b), but whether the Commission was a 'Court''for the purposes ofs. 195(l)(b); (4) that sub-s. (3) of
s. 195 of the Code had brought a change in the law to put an end to the C
controversy, and this was.nothing but 'legislative declaration of the law'
contrary t1J the law declared by this Court in Lalji Haridas' case, and a
number of statutes contain such a provision in accordance with the
existing legislative practice.
The Advocate-General appearing on behalf of the. State contended
that (1) the inclusive part of the definition of 'Court' ins. 195(3) of the
Code was ex abundanti cautela and was merely declaratory of the· law,
and (2) the first part of sub-s. (4) of s. S of the Act satisfied the requirements of the inclusive part of the definition of 'Court' as contained in
D
sub-s. (3) ofs. 195 ofthe Code.
E
Allowing the appeal, it was,
HELD: (1) It could not be doubted that sub-s. (3) of S. 195 of the
Code had been enacted by Parliament to implement the recommendations of the 4 lst Report of the Law Commission to remedy the uncertain p
state of law due to conflict of opinion between different High Courts as to.
the meaning of the word 'Court' in s. 19S(l)(b) and to that extent the
introduction of the inclusive clause in th

## Text

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A
B
G
DR. BALIRAM WAMAN HIRAY
v.
JUSTICE B. LENTIN AND OTHERS
SEPTEMBER 12, 1988
[A.P. SEN AND L.M. SHARMA, JJ.]
Commission
of Inquiry Act, 1952: Section 3-Commission of
Inquiry-Constituted under Act-Whether 'Court' for purposes of Section 195(1)(b) Cr. P.C. 1973.
Criminal Procedure Code, 1973-Section 195(1)(b)-Commission of Inquiry' constituted under Commission of Inquiry Act, 1952Whether a 'Court'.
Words and Phrases: 'Court'-Meaningof.
D
On February 21, 1986 the State Government of Maharashtra
appointed Shri Justice B. Lentin as a one-man Commission of Inquiry
to probe into the death of 14 patients in the government run J.J.B.
Hospital between 22.1.1986 and 7 .2.1986 after they were administered
contaminated glycerol, and to fix responsibility. The inquiry revealed
the existence of a corrupt and venal nexus between the drug firms, the
E
delinquent Food & Drugs Administration and hospital staff on the one
hand, and the appellant, some other persons and certain Government
officials on the other. The Commission's report was an indictment of
the State's public health system.
The Commission having found the evidence given by the appellant
F
self-contradictory, issued a show-cause notice to him as to why he
should not be prosecuted for the offence of giving false evidence on oath
under s. 193 of the Indian Penal Code, 1860 read withs. 340 of the Code
of Criminal Procedure, 1973. After considering the appellant's objections, the Commission directed filing of a complaint under ss. 193 and
228 of l.P.C. The appellant filed a petition in the High Court assailing
G
the legality and propriety of the order of the Commission directing
filing of the complaint, and the same was dismissed by the High Court.
Before this Court, it was contended on behalf of the appellant that
(1) the Commission could not be deemed to be a Con rt for the purposes
of s. 195(l)(b) of the Code of Criminal Procedure unless declared by the
fi Commission of Inquiries Act itself, as stipulated in sub-s. (3) of s. 195,
942
B.W. HIRAY v. JUSTICE B. LANTIN
943
which provides that in cl. (b) of sub-s. (1), the term 'Court' means a
Civil, Revenue or Criminal Court, and includes a tribunal constituted
by or under a Central, Provincial or State Act if declared by that Act to
be a Court for the purposes of this Section; (2) the Commission of
Inquiry appointed by the State Government was merely a fact-finding
body appointed by the Government for the 'information of its mind',
and the mere fact that the procedure adopted was of a legal character
and it had the power to administer an oath would not impart to it the
status of the Court and therefore was not a 'Court' for the purposes of
A
B
s. 195(l)(b) of the Code; (3) the question was not whether the appellant
could be prosecuted for perjury for giving false evidence which was an
offence punishable under section 195(l)(b), but whether the Commission was a 'Court''for the purposes ofs. 195(l)(b); (4) that sub-s. (3) of
s. 195 of the Code had brought a change in the law to put an end to the C
controversy, and this was.nothing but 'legislative declaration of the law'
contrary t1J the law declared by this Court in Lalji Haridas' case, and a
number of statutes contain such a provision in accordance with the
existing legislative practice.
The Advocate-General appearing on behalf of the. State contended
that (1) the inclusive part of the definition of 'Court' ins. 195(3) of the
Code was ex abundanti cautela and was merely declaratory of the· law,
and (2) the first part of sub-s. (4) of s. S of the Act satisfied the requirements of the inclusive part of the definition of 'Court' as contained in
D
sub-s. (3) ofs. 195 ofthe Code.
E
Allowing the appeal, it was,
HELD: (1) It could not be doubted that sub-s. (3) of S. 195 of the
Code had been enacted by Parliament to implement the recommendations of the 4 lst Report of the Law Commission to remedy the uncertain p
state of law due to conflict of opinion between different High Courts as to.
the meaning of the word 'Court' in s. 19S(l)(b) and to that extent the
introduction of the inclusive clause in the definition of 'Court' in sub-s.
(3) ofs. 195 bad brought about a change in the law .. l966Dl
(2) Law must be definite, and certain. If any of th"e features of the G
law could usefully be regarded as normative, it was such basic postulates as to the requirement of consistency in judicial decision-making. It
was this requirement of consistency that gave to the law much of its
rigour. At the same time, there was need for flexibility. [968F-G)
(3) A Commission of Inquiry was fictionally a Civil Court for the
H
944
SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
A
li1nited ·purpose of proceeding under s. 482 of ~he old t<ide ors. 345 of
the present Code. A fortiori the legal fiction contained in sub-'S. (5) oh.
5 of the Act which related to the proceedings before the Commission
was necessarily confined to offences that were punishable nuder ss. 193
and 228 of the Indian Penal Code and did not extend beyond that. [970F ·G J
iB
(4) A Commission of Inquiry was not a Court properly so called.
A Commission is obviously appointed by the appropriate Government
'for the infor1nation of its mind' in order for it to decide as to the course
of action to be followed. It was therefore a fact-finding body and was
not required to adjudicate upon the rights of the parties and has no
-adjudicatory function. The GoYernment was not bound to accept its
(;
recommendation or act upon its findings. The mere fact that the procedure adopted by it was of a legal character and it had the power to
administer an oath would not impart to it the ,status of a Court. [972D-E]
(5) Parliament in its wisdom whenever thought it fit had inserted
a special provision for deeming a tribunal to be a Court for the purposes
]}
Of s. l95(l)(b)' but bad left the other enactments like the Commission of
lnquiry Act untouched although sub-s. (3) of s. 195 had been on the
Statute Book for the last over 14 years. [965D-EJ
( 6) The judgment will not however prevent the State Government
from launching a prosecution against the appellant for commission of
E the alleged offences under ss. 193 and 228 I.P.C. if otherwise permissible in law. [977E-F]
Lalji Haridas v. The State of Maharashtra, [1964] 6 SCR 700;
M. V. najwade v. Dr. S.M. Hasan, ILR (1954) Nagpur I; Brajnanandan Sinha v. Jyoti Narain, [1955] 2 SCR 955; Puhupram & Ors. v. State
F
of Madhya Pradesh, [1968] MPLJ 629; Balakrishnan v. Income-Tax
Officer, Emakulam, [1976] KLT 561; Jagannath Prasad v. State of
Uttar Pradesh, [1963] 2 SCR 650; Virinder Kumar Satyawadi v. The
State of Punjab, [1955] 2 SCR 1013; Ba/want Singh & Anr. v. L. C.
Bharupal, I. T.O., New Delhi, [1968] 70 ITR 89; Chandrapal Singh v.
Maharaj Singh, [1982] 1 SCC 466; Bengal Immunity Co. Ltd. v. The
(j State of Bihar, [1955] 2 SCR 608; R.M.D. Chamarbaugwalla v. Union
of India, [1957] SCR 930; Commissioner of Income-tax, Madhya
Pradesh & Bhopal v. Sodra Devi, [1958] SCR I; St. Aubyn v. Attorney
General, LR (1952) AC 15; Shell Co. of Australia v. Federal Commissioner of Taxation, LR (1931) AC 275; Smt. Ujjam Bai v. State of Uttar
'Pradesh, [1961] I SCR 778; M.M. Khan v. Emperor, ILR (l931) il2
H
!Lah. 391 and In re. Maharaja Madhava Singh, LR (1905) 31IA239.
l
B.W. HIRAY v. JUSTICE B. LANTlN [SEN, J.J
945
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal A
No. 114ofl988.
·
From the Judgment and Order dated 11.8.1987 of the Bombay
High Court in Criminal Writ Petition No. 733 of 1987.
Dr. Y.S. Chitale, Shambhu Prasad Singh, Mrs. Jayshree Wad, B
.Mrs. Aruna Mathur, Manoj Wad and Vi jay Tulpule for the Appellant.
A.S. Bobde, Advocate General for the State of Maharashtra,
A.M. Khanwilkar and A.S. Bhasme for the Respondents .
.
The Judgment of the Court was delivered by ,
c
SEN, J. This appeal by special leave directed against the judgment and order of a Division Bench of the Bombay High Court dated
August 11, 1987 raises a question of far-reaching importance. The
question is whether a Commission of Inquiry constituted under s. 3 of
the Comissions of Inquiry Act, 1952 (hereinafter referred to as the D
'Act') is a "Court" for purposes of s. 195( l)(b) of the Code of Criminal
Procedure, 1973.
We had the benefit of hearing Dr. Y.S. Chitale, learned couns~I
appearing on behalf of the appellant Dr. Baliram Waman Hiray, who
at one time was the Health Minister of Maharashtra, and Shri A.S. E
Bobde, learned counsel appearing on behalf of the State Government,
as to the purport and effect of the inclusive clause of sub-s. (3) of s. 195
of the Code which provides that in cl. '(b) of sub-s. (1), the term.
"Court" means a Civil, Revenue or Criminal Court, and includes a
. tribunal constituted by or under a Central, Provincial or State Act if
declared by that Act to be a Court for the purposes of this section. ·
F
In Lalji Haridas v. The State of Maharashtra & Anr., ·(1964) 6
SCR 700, a Constitution Bench of this Court by a majority of 3:2 held
that the proceedings before an Income-tax Officer under s. 37(4) of
the Indian Incoine-tax Act, 1922 were judicial proceedings under s.
193 of the Indian Penal Code and such proceedings must be treated as G
proceedings in any Court fqr the purposes of s. 195(1)(b) of the Code .
.. We thought that the controversy had been set at rest by the decision of
the Constitution Bench in Lalji Haridas' case. Dr. Chitale, learned
counsel however contends that there is a change in the law because of
the introduction of sub-s. (3) of s. 195 of the Code and points out that
Parliament has brought about the change to implement the 4 lst H
946
SUPREME COURT REPORTS
(1988] Supp. 2 S.C.R.
A
Report of the Law Commission and relies on paras 15.90, 15.93, 15.94
and 15.99. In the course of his submissions, he has brought to our
notice the words in parenthesis added by the Finance Act, 1985 introducing the following change in s. 136 of the Income-tax Act, 1961
w.e.f. 'April 1, 1974 from which the Code of Criminal Procedure, 1973
came into force. S. 28 of the Finance Act amended s. 136 of the
B
Income-tax Act, and it was provided that the words "and every
income'tax authority shall be deemed to be a Civil Court for the
purposes of s. 195 but not for the purposes of Chapter XXVI of the
Code of Criminal Procedure, 1973", shall be inserted and shall be
deemed to have been inserted at the end w .e.f. 1st day of April, 1974.
. .
Dr. Chitale's contention is that unless there was a similar change
C .. brought about in the Commissions of Inqullies Act, the Commission
cannot be deemed to be a Court for the purposes of s. 195 (1)(b) of the
Code. We find great difficulty in dealing with the question involved in
this appeal because many diverse problems will have to be considered.
In order to appreciate the point involved, it is necessary to state a
D
few facts. The State Government of Maharashtra by a notification
dated February 21, 1986, issued under s. 3 read with s. 5(1) of the
Commissions of Inquiry Act, 1952 appointed Shri Justice B. Lentin,
Judge of the High Court of Bombay as a one-man Commission of
Inquiry to probe into the deaths of 14 patients in the government-run
Jamsetjee Jee Bhoi Hospital, Bombay between January 22, 1986 and
E
February 7, 1986 after they were administered contaminated glycerol.
The aforesaid notification of the State Government was to the effect:
F .. ,
G
H
. "MEDICAL EDUCATION.AND DRUGS
DEPAR1MENT
, Mantralaya, Bombay 400 032. dated 21st February, 1986 ..
. COMMISSIONSOFINQUIRY ACT, 1952.
No. JJH. 20ssnl2/MED-4-Whereas certain deaths of
'
.
patients alleged to be due to drug reaction, occurred in
Neuro Surgery, Neurology, Opthalmology and Nephrology
Departments of J.J. Hospital; Bombay, during JanuaryF~bruary 1986:
/
· · And whereas the Government of Maharashtra is of
the opinion that it is necessary to appoint a Commission of
· Inquiry under the Commissions of Inquiry Act, 1952 (60 of
B.W. HIRAY v. JUSTICE B. LANTIN [SEN, J.]
947
1952) for the purpose of making an inquiry into the causes
and the circumstances leading to the aforesaid incidents of
death at J.J. Hospital, Bombay, being definite matters of
publidmportance and for making a report thereon to the
State Government:
Now, therefore, in exercise of the powers conferred
by section 3 and sub-section ( 1) of section 5 of the said Act
and of all other powers enabling it in this behalf, the
Government of Maharashtra hereby appoints a Commission of Inquiry consisting of Shri Justice B. Lentin, Judge
of the High Court of Judicature at Bombay, to inquire into
and report on the causes and circumstances leading to the
occurrence of the said deaths in Neuro Surgery, Neurology, Opthalmology and Nephrology Departments of J .J.
Hospital, Bombay, during January-February 1986; and
particularly-
***
***
***
xxx
xxx
xxx
The Government of Maharashtra hereby directs that having regard to the nature of inquiry to be made by the Commission and other sub-section ( 4) and sub-section (5) of
section 5 of the said Act shall apply to the said
Commission. ·
The· Commission shall submit its report to State
Government within a period of 3 months from the date of
publication of this Notification in the Official Gazette.
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By order and in the name of the Governor of
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Maharashtra.
J.P.BUDHAVANT
Deputy Secretary to Government"
By the terms of reference, the Commission was required inter
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alia to enquire into and report on the causes and circumstances leading
to the occurrence of the unfortunate deaths and to fix the responsibility of the persons and officers responsible for the purchase and supply
of sub-standard drugs on the basis of the mounting evidence gathered
by Lentin Commission. There emerged a corrupt and venal nexus
between the drug firms engaged in manufacturing and supply of subH
948
SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
standard and adulterated drugs and the delinquent Food & Drugs
~ Administration and Hospital staff on the one hand and the appellant
and Bhai Sawant, two former Health Ministers and certain Government officials on the other. In the course of its investigation, it
discovered that there were as many as 582 grossly defaulting drug
13
c
companies whose products, including the crucial life-saving drugs,
were sub-standard. The Commission's report was an indictment of the
State's public health system and constant ministerial interference. It
was particularly severe on the machinations of Bhai Sawant, the then
Health Minister who, the Commission observed, had a hairbreadth
escape from being served with a notice to show cause why he should
not be prosecuted for perjury under ss. 193 and 228 of the Indian Penal
Code, 1860. The Court issued show cause notices on four persons
including the appellant Dr. Baliram Waman Hiray for giving false
evidence in an attempt to cover up the charges of rampant corruption
brought against them.
The State Government placed the report of the Lentin CommisD
sion before .the State Legislature on March 30, 1988 and accepted its
recommendations. One of the recommendations was that a separate
enquiry be held by a retired High Court Judge into the charges of
corruption against the appellant Dr. Baliram Waman Hiray and Bhai
Sawant, the two former Health Ministers and in particular of the misfeasance and malfeasance on the part of one Dr. S.M. Dolas who was
!E
the Food & Drugs Controller of the State who had an unprecedented
long time for as many as 15 years and other delinquent officers of the
concerned departments holding them responsible for the deaths. The
report indicted both the Health Ministers in no uncertain terms. But
we are not concerned with the follow up action that the Government
has :taken in bringing the guilt to book. The controversy before us is
lF
limited to the question whether the Commission was a "Court" for the
purposes of s. 195(1)(b) of the Code of Criminal Procedure, 1973.
On June 23, 1987 the Commission by its order directed its Secretary to issue a show cause notice to the appellant as to why he should
not be prosecuted for the offence of giving false evidence on oath
G
under s. 193 of the Indian Penal Code, 1860 read with s. 340 of the
Code of Criminal Procedure, 1973, the relevant portion whereof
reads:
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"AND WHEREAS you are summoned by the Commission
under Section 4 of the Commissions of Inquiry Act, 1952,
to give evidence before it and you did give evidence before
B.W. HIRAY v. JUSTICE B. LANTIN [SEN, J.]
949
it on 22nd April 1987, 23rd April 1987, 24th April 1987,
27th April 1987, 28th April 1987, 29th April 1987, 4th May
1987, 5th May 1987, 8th June 1987 and 9th Jime 1987;
******
******
*****"'
AND WHEREAS the Commission is prima facie of
the opinion that it is expedient in the interests of justice
that an inquiry should be mad,e into the offence under Section 193 of the Indian Penal Code referred to in clause (b)
of sub-section (1) of Section 195 of the Criminal Procedure
Code which appears to have been committed by you in or
in relation to the proceedings before this Commission;
*****
******
A
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NOW THEREFORE TAKE NOTICE that the
Hon'ble Mr. Justice B. Lentin, Commission of Inquiry, has
fixed this Notice for hearing on Friday, the 26th June 1987 . D
at 2.45 p.m., in Court Rooin No. 37, First Floor, Main
High ·court Building, Bombay 400 032, when you are
required to appear either in person or by an Advocate to
show cause, if any, why proceedings should not be initiated
against you as hitbettofore stated for the offence of giving
false evidence before the Commission."
E
It was stated in the notice that the appellant gave self-contradictory
answers specified in columns 'A' and 'B' in Schedule I, one of which
had necessarily to be false. The relevant excerpts of ss. 191 and 193 of
the Indian Penal Code, s. 340 of the Code of Criminal Procedure and
ss. 4(a), 5(5) and 6 of the Commissions of Inquiry Act were set out in
f'
Schedule IL In response to the notice, the appellant appeared through
counsel and showed cause. Amongst other grounds, the appellant contended, firstly, that in law the appellant's evidence would not technically constitute perjury and even if it were so, this was not a fit case
where in the interests of justice it was expedient that an inquiry should
be made against the appellant into the alleged offence under s. 193 of
(;
the Indian Penal Code, referred to in cl. (b) of sub-s. (1) of s. 195 of
the Code of Criminal Procedure which appeared to have been commit·
ted in ot in relation to the proceedings before it. Secondly, the Commission of Inquiry was not a Court for the purposes of s. 195(1)(b) and
s. 340 of the Code. It was stated that while perjtity before the Commis·
sion was no doubt punisable, it was not for the Commission to give a
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SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
finding in terms of s. 340, or to file a complaint, but for 'the Government or a public spirited person' to do so. The Commission by its
well-considered order dated July 7,. 1987 repelled each of these contentions and held that the case was a fit one where in the interests of
justice it was expedient to prosecute the appellant. Any other course
would, in its words, 'bring the sanctity of oath and administration of
justice into ridicule and contempt'. The Commission observed that the
appellant was not illiterate or semi-literate person who could plead
confusion of mind in the witness-box, as indeed he does not. By-profession he was a medical practitioner but he played a prominent part in
public life; for several years he held various portfolios as Cabinet
Minister in the Government of Maharashtra, including Health.
According to the Commission, he was by far the most intelligent and
shrewdest witness who had given evidence before it. Unlike the other
witnesses he never recanted, in an attempt to deliberately distort the
truth. It went on to observe that normally, witnesses are not allowed to
be represented by counsel. However in a departure from normal
practice, the Commission allowed this latitude to the appellant, so that
justice should not only be done but should be seen to be done to him
and he had a counsel of his choice. Accordingly, the Commission
directed its Secretary to take necessary steps for expeditious filing of
the complaint in the proper forum and directed that the appellant
should, in the meanwhile, furnish a personal bond in the sum of Rs.500
for his appearance before the Metropolitan Magistrate.
The Secretary to the Commission accordingly filed a complaint
on July 17, 1987 against the appellant under ss. 193 and 228 of the
Indian Penal Code being Criminal Case No. 112l((w) of 1987 in the
Court of the Additional Chief Metropolitan Magistrate at Esplanade,
Bombay. On the same day, the appellant filed a petition in the High
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Court under Art. 226 of the Constitution assailing the legality and
propriety of the impugned order passed by the Commission and the
consequent direction to its Secretary to lodge a complaint against the
appellant for giving of false evidence. On July 20, 1987 the learned
Metropolitan Magistrate issued process under s. 193 of the Indian
Penal Code against the appellant and further issued a bailable warrant
G
in the sum of Rs.500 with one surety in the like amount. A Division
Bench of the High Court by its judgment dated August 11, 1987 repelled the contentions advanced by the appellant and accordingly dismissed the writ petition.
We may first reproduce the statutory provisions bearing on the
H controversy. The relevant provision of s. 191 of the Indian Pena(
Code, insofar as material, reads:
B.W. HIRAY v. JUSTICE B. LANTIN [SEN, J.]
951
"191. Giving false evidence-Whoever being legally bound A
by an oath or by an express provision of law. to state the
truth, or being bound by law to make a declaration upon
any subject, makes any statement which is false, and which
he either knows or believes to be false or does not believe
to be true, is said to give false evidence,"
B
Section 195( l)(b) of the Code of Criminal Procedure provides:
"195(1) No Court shall take cognizance-
(b )(i) of any offence ...... ·., or in relation to, any proceeding in any Court, or
C
* * * * *
except on the complaint in writing of that Court, or of some
other Court to which that Court is subordinate."
Sub-s. (3) of s. 195 of the Code provides that in cl. (b) of sub-s. ( 1), the
term 'Court' means a Civil, Revenue or Criminal Court, and includes a
tribunal constituted by or under a Central, Provincial or State Act if
declared by that Act to be a Court for the purposes of this section.
D
We may then set out the relevant provisions of the Commissions E
of Inquiry Act, 1952. The relevant provision contained in sub-s. (1) of'
s. 3 provides a~ follows:
"3. Appointment of Co,,,mission-(1) The appropriate
Government may, if it is of opinion that it is necessary so to
do, and shall, if a resolution in this behalf is passed by the
House of the People or, as the case may be, the Legislative
Assembly of the State, by notification in the Official
Gazette, appoint a Commission of Inquiry for the purpose
F
of making an inquiry into any definite matter of public
importance and performing such functions and within such
time as may be specified in the notification, and the ComG
mission so appointed shall make the Inquiry and perform
the functions accordingly."
Section 4 vests in the Commission the powers of a Civil Court while
trying a suit under the Code of Civil Procedure and reads as follows:
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952
SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
· "4. Powers of Commission- The Commission shall have
the powers of a civil court, while trying a suit under the
Code of Civil Procedure, 1908 in respect of the following
matters, namely:
(a) summoning and enforcing the attendance of any person
from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any'public record or copy thereof fro~
any court or office;
( e) issuing commissions for the examination of witnesses
or documents;
(f) any other matter which may be prescribed."
Section 5 empowers the appropriate Government, by a notification in
the Official Gazette, to confer on the Commisson additional powers as
provided in all or any of the sub-ss. (2), (3), (4) and (5) of that section.
Sub-ss. (4) and (5) of s. 5 of the Act, which are relevant for our
purposes, provide as follows:
"( 4). The Commission shall be deemed to be a civil court
and when any offence as is described in seciion 175, section
178, section 179, section 180 or section 228 of the Indian
Penal Code ( 45 of 1860) is committed in the view of presence of the Commission, the Commision may, after
recording the facts constituting the offence and statement
of the accused as provided for in the Code of Criminal
Procedure, 1898 (5 of 1898), forward the case to a magistrate having jurisdiction to try the same and the magistrate
to whom any such case is forwarded shall proceed to hear
the complaint against the accused as if the case had been
forwarded to him under section 482 of the Code of the
Criminal Procedure, 1898."
"(5) Any proceeding before the Commission shall be
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B.W. HIRAY v. JUSTICE B. LANTIN (SEN, J.]
953
deemed to be a judicial proceeding within the meaning of
sections 193 and 228 of the Indian Penal Code ( 45 of
1860)."
Section 6 provides: .
''6c .Statements made by persons to the Commission-No
statement made by ·a person in the course of giving
evidence before the Commission shall subject'him to, or be
us.ed against him in, any civil or criminal proceeding except
. a prosecution for giving false evidence by such statement:
Provided that the statement-
(a) is made in reply to a question which he is
required by the Commission to answer, or
(b) is relevant to the subject matterof the inquiry."
By s. 8 the Commission is empowered to regulate its .own procedure
including the time and place of its sittings etc.
fo support of the appeal Dr. Y.S. Chitale, learned counsel for
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the appellant submits that the Commission of Inquiry appointed by the
State Government under sub-s. (1) of s. 3 of the Act read withs. 5 is
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merely a fact finding body appointed by the Government for the 'information of its mind', and the mere fact that the procedure adopted is of
a legal character and that it has the power to administer an oath will
not impart to it the status of the Court and therefore is not a 'Court'
for the purposes of s. 195(1)(b) of the Code. He submJts that it is well
settled that a Commission of Inquiry has not the attributes of a Court
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inasmuch there is no !is before it and it has no powers of adjudication
of rights. He further points out that the language of s. 6 of the Act is
plain enough to show that no statement by a person before a Commisson of Inquiry 'can subject him to, or be used against him' in any civil
or criminal proceedings, except in a prosecution for giving false
evidence before the Commission. The question before the Court, the
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learned counsel contends, is not whether the appellant can be
prosecuted for perjury for giving false evidence which is an offence
punishable under s. 195{l)(b) or for the offence of intentional insult of
the Commission punishable under s. 228 of the Indian Penal Code, but
whether the Commission was a 'Court' for the purposes of s.
125( l){b ). A ·commission by reason of s. 4 has the same powers of a
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SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R. (
A Civil Court while trying a suit under the Code of Civil Procedure, 1908
but such investiture of power is for a limited purpose i.e. in respect of
the matters specified therein, namely, summoning of witnesses,·
requiring the discovery and production of the relevant documents,
receiving evidence on affidavits, requisitioning any public record or
copy thereof from any court or office, issuing commissions for examiB nation of witnesses or documents etc. etc. Still in the very nature of
things, it has not the trappings of a Court. The learned counsel relies
upon the decision of the Nagpur High Court in M. V. Rajwade v. Dr.
S.M. Hassan & Ors., ILR (1954) Nagpur 1 where the question arose
whether the Commission of Inquiry was a 'court' within the meaning of
the Contempt of Courts Act, 1952 and which was referred to by this
c Court in Brajnandan Sinha v. Jyoti Narain, [1955] 2 SCR 955 while
holding that the public under the Public Servants (Inquiries) Act, 1850
is not a 'Court' within the meaning of the Contempt of Courts Act. He
also relied upon the later decision of a Division Bench of the Madhya
Pradesh High Court in Puhupram & Ors. v. State of Madhya Pradesh
& Ors., [1968] MPLJ 629 and to a judgment of a learned Single Judge
D of the Kerala High Court in Balakrishnan v. Income Tax Officer,
Ernakulam & Anr., [1976] KLT 561.
Dr. Chitale submits that sub-s. (3) of s. 195 of the present Code
has brought about a change in the law. He traced the legislative history
behind the enactment of sub-s. (3) of s. 195 and pointed out that in
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Jagannath Prasad v. State of Uttar Pradesh, [1963] 2 SCR 850 this
Court held that a Sales Tax Officer acting under the Uttar Pradesh
Sales Tax Act, 1948 was merely an instrumentality of the State for
purposes of assessment and collection of tax and even if he was
required to perform certain quasi-judicial functions, he was not a
'Court' for the purposes of s. 195(1)(b) of the Code. Nor could he be
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treated to be a Revenue Court within the meaning of s. 195(2) of the
Code. He. then referred to the decision in Lalji Haridas v. State of
Maharashtra & Anr. (supra) where a Constitution Bench by a majority
of 3:2 took a view to the contrary and held that proceedings before an
Income Tax Officer under s. 37 of the Indian Income Tax Act, 1922
while exercising his powers under sub-ss. (1), (2) and (3) thereof were
G judicial proceedings for the purposes of ss. 193, 196 and 228 of the
Indian Penal Code and therefore must be treated as proceedings in any
Court for the purposes of s. 195( l)(b) of the Code although the Act did
not expressly said so. The learned counsel points out that the definition of 'Court' ins. 195(2) as originally enacted, used the word 'means'
instead of the word 'includes', which later was substituted by the CriH minal Procedure Code (Amendment) Act, 1973. This gave rise to a
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B.W. HIRAY v. JUSTICE B. LANTIN [SEN, J.]
955
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~-<ontroversy whether tribunals or officers acting in judicial capacity or
exercising quasi-judicial functions should be regarded as Courts for the
purposes of s. 195(l)(b ). The substitution of the word 'includes' for the
word 'means' in the definition, if anything, added to the difficulties of
this complex issue. It necessarily gave rise to the question what else
besides Civil, Revenue and Criminal Courts was covered by the
generic term 'Court.·'.
The learned counsel drew our attention to the decision of this
Court in Shri Virindar Kumar Satyawadiv. The State of Punjab, [1955}
2 SCR 1013, a three-Judges Bench speaking through Venkatarama
Ayyar, J. observed at p. 1018:
"It is a familiar feature of modern legislation to set up
bodies and tribunals, and entrust to them work of a judicial
character, but they are not Courts in the accepted sense of
that term, though they may possess, as observed by Lord
Sankey L.C. in Shell Company of Australia v. Federal
Commissioner of Taxation, [1931} AC 275, some of the
trappings of a Court."
It was then observed:
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"It may be stated broadly that what distinguishes a Court
from a quasi-judicial tribunal is that it is charged with a
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duty to decide disputes in a judicial manner and declare the
rights of parties in a definitive judgment. To decide in a
judiciaf manner involves that the parties are entitled as a
matter of right to be heard in support of their claim and to
adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a
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consideration of .the evidence adduced and in accordance
with law. When a question therefore arises as to whether an
authority created by an Act is a Court as distinguished from
a quasi-judicial tribunal, what has to be decided is whether
having regard to the provisions of the Act is possesses all
the attributes of a Court."
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Jn. ;upport of his submissions, Dr. Chitale relied upon the 4lst
Report of the Law Commission, paragraphs 15.93 to 15.101 and in
particular refem/d to the following passage in para 15. 99 where it was
observed that 'in any concrete case this question is bound to create
problem of interpretation' and accordingly suggested a change in law
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forthepurposesofs. 195(1)(b):
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SUPREME COURT REPORTS
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"We consider that for the ;mrpose of clauses (b) and (c),
"court" should mean a civil court or a revenue court or a
. criminal court properly so called, but where a tribunal
. created by an Act has all or practically all the attributes of a
: ' · , court, it might be regarded as a court only if it is declared
by that Act to be a court for the purposes of this section.".
The learned counsel contends that Parliament accordingly enacted
sub-s. (3) of s. 195 to put an end to the controversy. In view of the
change in law brought about by s. 195(3), it is urged that a tribunal
constituted by or under a Central, Provincial or State Act can be
deemed to be a 'Court' only if it is declared to be so by that Act for the
purposes of s. 195. According to the learned counsel, it is now a
familiar feature of recents Act to insert a specific provision deeming a.
tribunal to be a Court and wherever such a provision is not there, the
Court cannot deem a tribunal to be a Court. According to him, it is no
more a question of interpretation but one of express enactment. He
accordingly contends that the majority decision in Lalji Haridas' case
no longer holds the field. There appears to be considerable force in the
argument.
Pursuing the same line of thought i.e. there is a change of law
brought about by sub-s. (3) of s .. 195 of the Code, the learned counsel
contends that Parliament had to step in and expressly amend s. 136 of
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the Income-tax Act; 1961 to put the matter beyond controversy. Sec.
136 of Income-tax Act, 1961 as originally enacted provided by legal
fiction that "any proceeding under this Act. before an income-tax
authority shall be deemed to be a judicial proceedingwithin the meaning of ss. 193 and 228 and for the purposes of s. 196 of the Indian Penal
· · . ,Code, 1860". Interpreting s. 136 before its amendment, the Court has,
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as· already stated, in Lalji Haridas' case held that the proceedings
before the Income-tax Officer being deemed to be judicial proceedings
under s. 193, Indian Penal Code, must be treated as proceedings in any
Court for the purpose of s. 195(1)(b), Criminal Procedure Code. It .
also added that under the provisions of/the Indian Income-tax Act of
1922, it could not be held that the Income-tax Officer is a Revenue
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Court, contrary to the rule laid down in Jagannath Prasad's case. In
the course of his arguments, the learned counsel has brought to our
"notice the words in parenthesis added by s. 28 of the Finance Bill;
1985. The Finance Bill bys. 28 brought about a change in the law and
added the words:
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"28. Amendment of section 136-In section 136 of the
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B,W, HIRAY v, JUSTICE R LANTIN [SEN, J,]
'957
Income-tax Act, t,he words and figures "and every incometax authority shall be deemed to be a Civil Court for the
purposes of section 195 and Chapter XXVI of the Code of
Criminal Procedure, 1973 (2 of 1974)", shall be inserted
and shall be deemed to have been inserted at the end with
effect from the 1st day of April, 1974,''
The reason for the change is given in the Notes on Clauses in the
Finance Bill, 1985 and it reads:
"Clause 28 seeks to amend section 136 'of the Income-tax
Act relating to proceedings before income-tax authorities
to be judicial proceedings.
This amendment seeks to secure retrospectively that
an income-tax authority shall be deemed to be a Civil Court
for the purposes of s, 195 and Chapter XXVI of the Code
of Criminal Procedure, 1973, from the date of its commencement, that is, 1st April, 1974."
This is also evident from paragraph 119 of the Memorandum explaining provisions ill Finance Bill, 1985 and it reads:
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"119. Under the existing provisions, proceedings before
income-tax authorities are deemed to be judicial proceedE
ings within the meaning of sections 193 and 228 and for the
purposes of section 196 of the Indian Penal Code. It is
proposed to provide that an income-tax authority shall be
deemed to be a Civil Court for the purposes of section 195
and Chapter XXVI of the Code of Criminal Procedure,
1973. This amendment is intended to secure that prosecuF
tion proceedings for offences under the relevant provisions
of the Indian Penal Code may be launched on the complaint of the concerned income-tax authority. The proposed amendment will take effect from 1st April, 1974,
that is, 'the date from which the Code of Criminal Procedure, 1973, came into force,''
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According to Dr, Chitille this was nothing but "legislative decla-
~ation of the law.", contrary to the law declared by this Court in Lalji
Haridas' case, which is permissible under Art, 141 of the Constitution,
While the learned counsel accepts that under Art. 141 the law declared
by the Supreme Court is binding on all Courts in India, in other words,
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SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
the law declared by the Supreme Court is made the law of the land,
there is nothing to prevent the legislature to bring about a change in
the law. Finally, the learned counsel also drew attention to the existing
legislative practice where certain enactments constituting a Tri!>· .• , ... ,
contain a provision that the Tribunal shall be deemed to be a Cm·· ,_;
the purposes of s. 195(2) of the Code. The learned counsel referred us
to s. 40 of the _Indian Railways Act, 1890, s. 23 of the Workmen's
Compensation Act, 1923 ands. 18 of the Payment of Wages Act, 1936.
These provisions which are almost similar provide that the Tribunal
under the In<lian Railways Act, the Commissioner under the Workmen's Compensation Act and the authority appointed under the Payment of Wages Act shall be deemed to be a Civil Court for the
purposes of s. 195 and Chapter XXXV of the Code of Criminal Proce-_
dure, 1898. Likewise, s. 18 of the Payment of Wages Act provides that
the authority appointed under the Act shall be so deemed to be a
Court for the purposes of s. 195 of the Code. We shall consider all
these aspects in their proper context.
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In his reply Shri Arvind Bbbde, learned Advocate-General
appearing on behalf of the State Government argued with great clarity
and precision and repelled the contentions advanced on behalf of the
appellant. According to the learned Advocate-General, there was no
need to amend the Act merely because of the enactment of sub-s. (3)
of s. 195 of the Code and the majority view in Lalji Haridas' case is
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binding on us and is still good law. His submissions were on these
lines. While under s. 4 of the Act a Commission of Inquiry has the
power of a Civil Court while trying a suit under the Code of Civil
Procedure, 1908 in respect of the matters enumerated therein, the
legislature has not rested at that. Parliament has made express provision, by the use of a legal fiction in sub-s. (4) of s. 5 of the Act, that a
F . Commission of Inquiry shall be deemed to be a Civil Court and has
further, by the use of another legal fiction in sub-s. (5) thereof,
enjoined that any proceedings before a Commission oflnquiry shall be
deemed to be judicial proceedings. On a combined reading of sub-ss.
(4fand (5) of s. 5, the learned Advocate-General contends that the
conclusion is irresistible that a Commiss(on of Inquiry is a_ Court for
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the purposes of s. 195(l)(b) as laid down in Lalji Haridas'- case.