# KEHAR SINGH & ORS v. STATE (DELHI t\DMN.)

- **Citation:** [1988] Supp. 2 S.C.R. 24
- **Court:** Supreme Court of India
- **Decided:** 1988-08-03
- **Case number:** Criminal Appeal Nos. 180 to 182 of 1987
- **Bench:** G.L. Oza, B.C. Ray, K.J. Shetty
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kehar-singh-ors-v-state-delhi-t-dmn-10009
- **Pages:** 180

## Headnote

Constitution of India, 1950: Articles 19, 21 and 136--Criminal
trials-Right of access to-Open public trial-Right of an accusedSessions trial held in Tihar Jail-Whether a valid trial.
Trial Court and appellate Court conclusion based on appreciation
of evidence binding on the Supreme Court.
Commission of Inquiry Act, 1952: Sections 3, 4-6 and 8-Sessions
Case-Whether trial Court entitled to call for statements of witnesses
recorded by a Commission of Inquiry.
Criminal Procedure Code, 1973: Sections 9(6), 164, 194, 327,
354(3)-'Place of trial'-High Court-Whether has power to direct trial
of case at place other than normal seat of the Sessions Court.
Confessions and Statements-Recording of-Omission to record
E
in propet form-Does not render it inadmissible~Effect can be cured.
F
G
H
Public trial-Open Court-Restrictions on access-How far
valid.
Death sentence-Awarding of-' Special reasons' to be given.
Indian Evidence Act, 1872: Sections 10, 145, 155, 157-Conspiracy-Proof of-Relevancy of evidence-Things said or done by
conspirator with reference to common design-Generally conspiracy
hatched in secrecy-Evidence as to transmission of thoughts sharing the
unlawful design sufficient-Credit of witness-Impeachment of.
Indian Penal Code, 1860 Sections 34, 120B, 302 and 307Assassination of Prime Minister Smt. Indira Gandhi-Conviction and
sentence of death on Satwant Singh and Kehar Singh confirmed and
IJPheld-Balbir Singh acquitted.
Pracrice and Procedure Criminal trial-Access to-Whether
people can assert their right.
24
•
KEHAR SINGH v. STATE
25
Statutory Interpretation: 'Golden rule'-How far applicab/e-
'lntention' of legislature or 'purpose' of statute-Duty of Court to look
for.
In June, 1984 the Indian Army mounted an operation known as
'Operation Blue Star' by which Armed Force personnel entered the
Golden Temple Complex at Amritsar to flush out the armed terrorists.
That operation resulted in loss of life and property as well as damage to
the Akal Takht in the Golden Temple Complex, which greatly offended
the religious feelings of some members of the Sikh community. Bean!
Singh (deceased) and Balbir Singh, Sub-Inspectors and Satwant Singh, a
constable of Delhi Police posted for security duty in the office of the
deceased Prime Minister Smt. Indira Gandhi and Kehar Singh, an
Assistant in the Directorate General of Supply and Disposal, New Delhi,
who were sikhs by faith, had been expressing their resentment openly,
holding Smt. Indira Gandhi responsible for the action taken at
Amritsar. They met at various places and at various times to discuss
and to listen to inflammatory speeches and recordings calculated to
excite listeners and provoke them to retaliatary action against the decision of the Government to take army action in Golden Temple Complex. They thus became parties to a criminal conspiracy to commit the
murder of Smt. Indira Gandhi.
On October 31, 1984 Smt. Indira Gandhi had an engagement with
well-known actor and writer Peter Ustinov. His crew was to record her
interview for Irish Television. They were waiting at Bungalow No.I,
Akbar Road, the home office of the Prime Minister. Bungalow No. I.
Safdarjung Road was the official residence of the Prime Minister. The
two buildings are connected by a narrow cemented pathway. They are
located practically in one campus, but seperated by a sentry gate which
A
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c
D
E
is known as the "TMC Gate." Smt. Indira Gandhi at about 9.10 a.m.
F
emerged from her house. Immediately behind her was Head Constable
Narayan Singh (PW9) holding an umbrella to protect her against the
sun. Rameshwar Dayal (PW 10) an Assistant Sub-Inspector, Nathu
Ram (PW 64), her personal attendant and R.K. Dhawan, Special
Assistant, were closely following Smt. Gandhi.
In pursuance of the aforesaid conspiracy Beaut Singh and
Satwant Singh, who had prior knowledge that Smt. Gandhi was
scheduled to pass through the TMC Gate on the date and at the time
G
~
afore-mentioned, manipulated their duties in such a manner that the
f

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KEHAR SINGH & ORS.
v.
STATE (DELHI t\DMN.)
AUGUST 3, 1988
[G.L. OZA, B.C. RAY AND K.J. SHETTY, JJ.]
Constitution of India, 1950: Articles 19, 21 and 136--Criminal
trials-Right of access to-Open public trial-Right of an accusedSessions trial held in Tihar Jail-Whether a valid trial.
Trial Court and appellate Court conclusion based on appreciation
of evidence binding on the Supreme Court.
Commission of Inquiry Act, 1952: Sections 3, 4-6 and 8-Sessions
Case-Whether trial Court entitled to call for statements of witnesses
recorded by a Commission of Inquiry.
Criminal Procedure Code, 1973: Sections 9(6), 164, 194, 327,
354(3)-'Place of trial'-High Court-Whether has power to direct trial
of case at place other than normal seat of the Sessions Court.
Confessions and Statements-Recording of-Omission to record
E
in propet form-Does not render it inadmissible~Effect can be cured.
F
G
H
Public trial-Open Court-Restrictions on access-How far
valid.
Death sentence-Awarding of-' Special reasons' to be given.
Indian Evidence Act, 1872: Sections 10, 145, 155, 157-Conspiracy-Proof of-Relevancy of evidence-Things said or done by
conspirator with reference to common design-Generally conspiracy
hatched in secrecy-Evidence as to transmission of thoughts sharing the
unlawful design sufficient-Credit of witness-Impeachment of.
Indian Penal Code, 1860 Sections 34, 120B, 302 and 307Assassination of Prime Minister Smt. Indira Gandhi-Conviction and
sentence of death on Satwant Singh and Kehar Singh confirmed and
IJPheld-Balbir Singh acquitted.
Pracrice and Procedure Criminal trial-Access to-Whether
people can assert their right.
24
•
KEHAR SINGH v. STATE
25
Statutory Interpretation: 'Golden rule'-How far applicab/e-
'lntention' of legislature or 'purpose' of statute-Duty of Court to look
for.
In June, 1984 the Indian Army mounted an operation known as
'Operation Blue Star' by which Armed Force personnel entered the
Golden Temple Complex at Amritsar to flush out the armed terrorists.
That operation resulted in loss of life and property as well as damage to
the Akal Takht in the Golden Temple Complex, which greatly offended
the religious feelings of some members of the Sikh community. Bean!
Singh (deceased) and Balbir Singh, Sub-Inspectors and Satwant Singh, a
constable of Delhi Police posted for security duty in the office of the
deceased Prime Minister Smt. Indira Gandhi and Kehar Singh, an
Assistant in the Directorate General of Supply and Disposal, New Delhi,
who were sikhs by faith, had been expressing their resentment openly,
holding Smt. Indira Gandhi responsible for the action taken at
Amritsar. They met at various places and at various times to discuss
and to listen to inflammatory speeches and recordings calculated to
excite listeners and provoke them to retaliatary action against the decision of the Government to take army action in Golden Temple Complex. They thus became parties to a criminal conspiracy to commit the
murder of Smt. Indira Gandhi.
On October 31, 1984 Smt. Indira Gandhi had an engagement with
well-known actor and writer Peter Ustinov. His crew was to record her
interview for Irish Television. They were waiting at Bungalow No.I,
Akbar Road, the home office of the Prime Minister. Bungalow No. I.
Safdarjung Road was the official residence of the Prime Minister. The
two buildings are connected by a narrow cemented pathway. They are
located practically in one campus, but seperated by a sentry gate which
A
B
c
D
E
is known as the "TMC Gate." Smt. Indira Gandhi at about 9.10 a.m.
F
emerged from her house. Immediately behind her was Head Constable
Narayan Singh (PW9) holding an umbrella to protect her against the
sun. Rameshwar Dayal (PW 10) an Assistant Sub-Inspector, Nathu
Ram (PW 64), her personal attendant and R.K. Dhawan, Special
Assistant, were closely following Smt. Gandhi.
In pursuance of the aforesaid conspiracy Beaut Singh and
Satwant Singh, who had prior knowledge that Smt. Gandhi was
scheduled to pass through the TMC Gate on the date and at the time
G
~
afore-mentioned, manipulated their duties in such a manner that the
former would be present at the TMC Gate and the latter at the TMC
sentry booth on October 31, 1984 between 7.00 and 10.00 A.M. Bean!
H
26
SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
I"
A Singh got exchanged his duty with S.I. Jai Narain (PW7). Satwant
Singh, who ought to be at Beat No. 4, managed to get TMC sentry
booth by misrepresenting that he was suffering from dysentry. He was
given that place since it was near the latrine. Thus they had managed to
station themselves together near the TMC gate.
B
Smt. Indira Gandhi was at the head of the entourage on the
cemented pathway followed by the afore-mentioned persons approaching the TMC Gate where Bean! Singh, S.I. was on the left side while
...
Satwant Singh, Constable was on the right side. At that time Bean! Singh
was armed with his service revolver while Satwant Singh had SAF
carbine. When Smt. Gandhi reached near the TMC Gate, Bean! Singh
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fire~ five rounds and Stawant Singh 25 shots at her from their respective weapons, as a result of which Smt. Indira Gandhi sustained injuries .
and fell down. She was immediately removed to the All India Institute
of Medical Sciences (AIIMS) where she succumbed to her injuries the
same day. The cause of death was certified upon a post-mortem which
took place on October 31, 1984 as haemorrhage and shock due to multiD pie fire arm bullet injuries which were sufficient to cause death in the
ordinary course of nature. The post-mortem report also opined that
injuries Nos. I and 2 specified in the report were sufficient to cause
death in the ordinary course of nature, as well.
At the spot of the incident both Bean! Singh and Satwant Singh
E are alleged to have thrown their arms which had been recovered. Five
empties of Bean! Singh's revolver and 25 empties of SAF Carbine of
Satwant Singh and 6 lead pieces were recovered from the spot. l3 live
cartridges. 38 bore from the ·person of Bean! Singh and 75 live cartridges
of • 99 SAF carbine from the person of Satwant Singh were also
recovered. Two lead pieces were recovered from the body of Smt.
•
F Indira Gandhi during the post-mortem and two from her clothes and
that the experts opined that the bullets recovered from the body and
found from the spot were fired through the weapons possessed by these
two accused persons.
Rameshwar Dayal ASI (PW 10), who was following Smt. Indira
G Gandhi, also received injuries on his left thigh as a result of shots fired
by the accused which were grieveous and dangerous to life.
Both the assassins were secured by the Indo Tibetan Border Police
Personnel, and taken to the guard room, where they sustained gun shot
..
injuries as a result of which Bean! Singh died and Satwant Singh
H suffered grievous injuries but recovered later on.
KEHAR SINGH v. STATE
27
The prosecution case against Kehar Singh was that he was a reliA
gious fanatic. He had intense hate against Smt. Indira Gandhi for
causing damage to the Akal Takhat in Golden Temple, Amritsar by
"Operation Blue Star." He was in a position to influence Beani Singh,
being the uncle of Beant Singh's wife called as 'Poopha'. He converted
Beaut Singh and through him Satwant Singh to religious bigotry. He
made. them to undergo "Amrit Chakhan Ceremony" on October 14
B
and 24, 1984 respectively at Gurdwara, R.K. Puram, New Delhi. He
also took Beaut Singh to Golden Temple, Amritsar on October 20,
1.984. Gold 'Kara' and 'ring' of Beaut Singh were later recovered from
him.
It is alleged that Balbir Singh, like other accused had expressed
his resentment openly, holding Smt. Indira Gandhi responsible for the
"Operation Blue Star". He was planning to commit her murder and
c
had discussed his plans with Beant Singh (deceased), who had similar
plans to commit the murder. He also shared his intention and prompted
accused Satwant Singh to commit the murder of Smt. Indira Gandhi
and. finally discussed the matter with him on October 30, 1984. In the
D
first week of September 1984, when a falcon (Bazz) happen to sit on a
tree near the main Reception of the Prime Minister's House at about
1.30 P.M. Balbir Singh spoted the falcon, called Beant Singh there and
pointed out the falcon. Both of them agreed that it had brought a
message of the Tenth Guru of the Sikhs and that they should do something by way of revenge of the "Operation Blue Star". Thereafter both
E
of them performed 'Ardas' then and there.
Balbir Singh was posted on duty at the Prime Minister's residence. On October 31, 1984' his duty was to commence in the evening.
,>
When reported for duty, in the usual course, he was asked to go to
security lines. At about 3.00 a.m. on November 1, 1984 his house was
F
searched arid a book on Sant Bindrawala was recovered. At about 4.00
a.m. he was taken to Yamuna Velodrome and kept there till late in the
evening when he was reported to have been released. This custody i.n
Yamuna Velodrome was described as 'de facto custody'. Thereafter on
December, 1984 he was said to have been arrested at Najafgarh Bus
Stand when his personal search was taken and certain articles were
G
recovered from his possession including a· piece of paper containing
certain entries described as "Memorandum of events" allegedly
written by him.
After the investigation the charge-sheet was filed against appellants Satwant Singh, Balbir Singh and Kehar Singh. They were accused H
28
SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
r
A of offences under ss. 120-B, 109 and 34 read withs. 302 of the IPC and
also of substantive offences under ss. 302 and 307 of the IPC and ss. 27,
54 and 59 of the Arms Act.
The accused were committed to take their trial in the Court of
Session. In the meanwhile the High Court of Delhi issued two notificaB lions. By one notification, the High Court directed that the trial of the
case shall be held in the Central Jail, Tihar according to law. By
another notification the High Court directed that "the case be tried by
...
Shri Mahesh Chandra, Additional Sessions Judge, New Delhi." In
pursuance of the said notifications, the accused were tried in Central
Jail, Tihar. The trial Judge found the accused guilty of all the charges
c framed against them and convicted Satwant Singh, Bean! Singh and
Kehar Singh of murder under s. 302 read with s. 120-B and 34 IPC as
well as under s. 307 IPC and s. 27 of the Arms Act. The tri~I Judge
awarded the sentence of death on all the three accused. The trial Judge
also awarded other terms of imprisonment on Satwant Singh.
•
D
Two appeals were filed in the High Court-One by Satwant Singh
and the other by Balbir Singh and Kehar Singh jointly, challenging
their conviction and sentence. These appeals were heard along with the
Murder Reference No. 2 of 1986. The High Court accepted the Murder
Reference and dismissed the appeals preferred by the accused and confirmed the conviction and the sentence of death on all the accused. The
E High Court also confirmed the other sentences on Satwant Singh.
In the appeal to this Court, on behalf of the appellants it was
contended; (1) that under Art. 21 of the Constitution speedy, .open and
public trial is one of the constitutional guarantees of a fair and just trial
and by holding the trial in Tihar Jail in the instant case this guarantee
·-
F
has been affected and the accused have been deprived of a fair and open
trial as contemplated under s. 327 of the Code of Criminal Procedure;
(2) that in cases where the ends of justice would be defeated if the case is
not heard in camera, only the trial Court, for special reasons to be
recorded, could hold the trial or a part of the trial in camera. Section
327 of the Code does not confer any such authority or jurisdiction on
G the High Court; (3) that the High Court has no power to direct that trial
of a criminal case at a place other than the normal seat of the Court of
Sessions. Section 9(6) of the Code empowers the High Court only to
specify the place or places at which all or any class of the cases pertaining to a division can be heard and does not empower the High Court to
"
specify the place or places of hearing for individual cases; ( 4) that in the
H instant case, the High Court while exercising jurisdiction under s. 9(6)
)
KEHAR SINGH '· STATE
29
of the Code notified the place of trial as Tihar Jail. It indirectly did
what the trial Court could have done in respect of particular part of the
proceedings. By shifting the trial to Tihar Jail it could not be said to be
open and public trial as the trial inside the Jail premises is the very
antithesis of an open trial; (5) that the orders passed by the trial Court
providing that representatives of the Press may be permitted to attent
and for security, etc. the Jail authorities will regulate entry to the Court
indicate that the trial was not public and open and therefoe on this
ground alone the trial vitiates; (6) that the fundamental right
guaranteed under Art. 19(l)(a) of the Constitution need not be under
the mercy of the Court and that there should not be any discrimination
in the matter of public access to judicial proceedings and first come first
serve should be the principle no matter whether one is a press person or
an ordinary citizen; (7) that under s. 194 of the Code it was not necessary for the High Court to have allotted the instant case to a particular
Judge; (8) that inspite of the prayer made by the accused during the
trial and also in the High Court about the copies of the statements of the
witnesses who have been examined by the prosecution and were also
examined before the Thakkar Commission the same were not supplied.
Even the copy of the Thakkar Commission Report was not made available. Not only were the accused entitled to the previous statements of
'witnesses who were examined by the prosecution, but they were also
entitled to relevant material on the basis of which they could build their
defence and raise appropriate issues at the trial; (9) that the High
Court has misconstrued the scope of s. 6 of the Commission of Inquiry
Act, 1952 and misunderstood the observations in Dalmia's case [1959]
SCR 279; (IO) that even if the words "used against" ins. 6 of the said
Act mean preventing the use of statement for the purposes of contradictions as required under s. 145 of the Evidence Act, there are other
provisions by which the previous statement could be looked into for
productive uses without confronting the witnesses such as first part of
145, sub-s. (I) & (2) of s. 146, s. 157 ands. 159 of the Evidence Act. The
term "used against" in s. 6 was not intended to be an absolute bar for
making use of such statements in subsequent proceedings; (11) that the
confession of Satwant Singh being not recorded in the manner prescribed in s. 164 of the Code is inadmissible in evidence and cannot be
used for convicting the accused; (12) that there is no· evidence that
Beant Singh and his wife were deliberately taken by Kehar Singh to
expose them to provocative Bhajans in the house of Ujagar Sandhu at·
the time of celeberation of the birthday of a child; (13) that Kehar
Singh being an elderly person and a devout religious Sikh was keeping
company with Beant Singh to dissuade the latter from taking any
drastic action against Smt. Gandhi; (14) that there is no substantive
A
B
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D
E
F
G
H
30
SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
A evidence from the testimony of Bimla Khalsa that Beant Singh took
Amrit on October 14, 1984 at the instance ofKehar Singh; (15) that the
finger prints fonnd on the sten-gun of accused Satwant Singh were not
tested for comparison and the two bullets recovered from the body of
Smt. Gandhi were not examined for traces of blood or tissues; (16) that
the post-mortem examination ought to have been full and complete.
B
It was further contended on behalf of Balbir Singh: (i) that the
document Ex. PW 26/B was not recovered from his possession; (ii) that
.,
his arrest at Najafgarh bus-stand was a
0make believe arrangment. He
was not arrested there and indeed he could not have been arrested,
since he was all along under police custody right from the day when he
c
was taken to Yamuna Velodrome on November 1, 1984. He was not
absconding and the question of absconding did not arise when he was
not released at all. No question was put to him under Section 313
examination that he had absconded; (iii) that the conclusions of the
High Court on all these matters were apparently unsustainable; and
(iv) that there being no- charge against the accused under s. 109 IPC
D they are liable to be sentenced only for the offence of abetment and not
~
for murder.
On behalf of the Respondent-State it was contended; (l) that this
I
Court in an appeal under Art. 136 of the Constitution of India is not
expected to interfere with the concurrent findings of facts arrived at by
E the two Courts below; (2) that there is no question·of any constitutional
right under Art. 21. Article 21 only talks of procedure established by
law and if today on the statute book there is s. 327 Cr. P.C. tomorrow
s. 327, may be so amended that it may not be necessary for a criminal
trial to be open and it does not becomes a consitutional right ~t all; (3)
•
that the premises where the trial was held was not that part of the Jail
F
where the prisoners are kept but was the Office block where there was
an approach, people were permitted to reach, and the trail was held as
if it was held in an Ordinary place; ( 4) that there is nothing to show that
the friends and relations of the accused or any other member of the
public was prevented from having access to the place where the trial
was held. On t)te other hand, permission was granted to the friends and
G relations of the accused as well as to outsiders who wanted to have
access to the Court or to see the proceedings subject, of course, to Jail
Regulations. Section 2 (p) Criminal Procedure Code defines 'place' as
including a house, building, tent, vehicle and vessel. So Court can be
'
"
~
held in a tent, vehicle, a vessel qther than in Court. Furthermore, the
proviso to s. 327, Cr. P.C. provides that the presiding Judge or MagisH tr ate may also at any stage of trial by Order restrict access of the public
'
•
''· ' ' I '
KEHAR SINGH v. STATE'
31
in general, or any particular person in particular in the, Court room or
building where the trial is held; (5) that if the confession is not recorded
in proper form as prescribed by s. 164 read with s. 281 which corresponds to earlier s. 364, it is a mere irregularity, and it can be cured
by s. 463 on taking evidence that the statement was recorded duly and
that it has not injured the accused in his defence on merits; (6) that if
the High Court had the authority to issue notification under s. 9(6) Cr.
P.C. fixing the place of sitting it was open to the High Court also to fix
the place of sitting for a particular case; (7) that the language of s. 6 of
the Commission of Inquiry Act is clear that a witness who is examined
before a Commission, is protected and that protection is that the statement made before the Commission could not be used against him for
A
B
any other purpose in any .other proceedings either Civil or Criminal.
C
The only exception carved out in s. 6 pertains to his prosecution for
perjury. The Commission by its regulation aild notification clearly
made the enquiry a confidential affair and in addition to that there was
an amendment of the Act which even provided that if Government by
notification decided not to place the Report of the Commission before
the House of Parliament or Legislature then it was not necessary that it D
Should be so placed before the House and thus the report not only was
confidential but even the Parliament had no right to see the report and,
therefore, neither the report nor the statements made before the
Commission could be asked for by the accused for the purposes of trial;
(8) that in the remand application dated December 4, 1984, it was stated
that Balbir Singh had absconded and was not available for. interrogation and that he was arrested at Najafgarh Bus stand on December 3,
1984. The Magistrate therefore, remanded the accused to police
custody till December 6 and the order of remand was signed by the
accused; The accused being a police officer did not object to the allegations made against him in the remand application; and (9) that as
regards recovery of documents Ex. PW 26/B from the accused Balbir
Singh, entry No. 986 in the Malkana Register of Police Station, Tughlak
Road, which contaiiis verbatim copy of the seizure memo (Ex. PW
35/A), is indicative of the fact that Ex. PW 26/B was recovered from the
accused upon his arrest and.search.
E
F
The Court unanimously dismissing the Appeals of Kehar Singh
G
and Satwant Singh and allowing the Appeal of Balbir Singh,
HELD: Per Oza, J.)
I. The act of the accused not only took away the life of a popular
le-ader of the country but also undermines the democratic system
H
32
SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
A
which has been working in the country so well for the last forty years.
There is yet another serious consideration. Beant Singh (deceased)
and accused Satwant Singh were posted on the security duty of the
Prime Minister to protect her from any intruder or from any attack
from outside and, therefore, if they themselves resort to this kind of
offence, there appears to be no reason or no mitigating circumstance
B for consideration on the question of sentence. Additionally, an unarmed
lady was attacked by these two persons with a series of bullets and it has
been found that a number of bullets entered her body. The manner in
which mercilessly she was attacked by these two persons on whom
confidence was reposed to give her protection repels any consideration
of reduction of sentence. In this view of the matter, even the conspirator
who inspired the persons who actually acted does not deserve any
C leniency in the matter of sentence. The death sentence awarded by the
trial Court and maintained by the High Court appears to be just and
proper. [115F-116B]
2. The first part of s. 194 Cr. P.C. clearly provides that the
D Sessions Judge of the Division by general or special order is supposed to
allot cases arising in a particular area or jurisdiction to be tried by
Additional or Assistant Sessions Judges appointed in the Division, but
the last part of this section also authorises the High Court to allot the
case to a particular Judge keeping in view the fact that in certain cases
the Sessions Judge may not .like to allot and may report to the High
E court or either ofthe parties may move an application for transfer and
under these circumstances it may become necessary for the High Court
to allot a particular case to a particular Judge. [78G-HJ
3. F.rom the language of s. 9(6) Cr.P.C. one thing is clear that so
far as the High Court is concerned it has the jurisdiction to specify the
F
place or places where ordinarily a Court of Sessions may sit within the ·
division. So far as any particular case is concerned trial at a place other
than the normal place of sitting is only permissible under the second
part of the sub-clause with the consent of parties and that decision has
to be taken by the trial Court itself. Whatever be the terms of the
notification, it is a notification issued by the Delhi High Court under s. 9
G sub-clause (6) of Cr.P.C. and thereunder the High Court could do
nothing more or less than what it has the authority to do. Therefore, the
High Court could be taken to have notified that Tihar Jail is also one of
the places of sitting of the Sessions Court in the Sessions division ordinarily. That means apart from the two places Tis Hazari and New
Delhi, the High Court by notification also notified Tihar Jail as one of
H the places where ordinarily a Sessions Court could hold its sittings.
f
I .
KEHAR SINGH v. STATE
33
There is, therefore, no error if the Sessions trial is held in Tihar Jail
after such a notification has been issued by the High Court. [79G-80E]
4. In fact, the High Court was right when it referred to the
concept of administration of justice ·under the old Hindu Law. ·But
apart from it even the Criminal Procedure Code as it stood before the
amendment had a provision similar to s. 327 which was s. 352 of the Old
Code and in fact it is because of this that the criminal trial is expected to
be open and public. In our Constitution phraseology difference from
the United States Constitution has been there. Art. 21 provides that no
person shall be deprived of his life or personal liberty except according
to procedure established by law. So far as this aspect of open trial is
concerned the procedure established by law even before our Constitution was enacted was as is provided ins. 327 Cr.P.C. The language of
s. 327 shows that any place where a criminal Conrt holds its sitting for
enquiry or trial shall be deemed to be an open Court to which the public .
generally may have access provided the same can conveniently contain
them. The language itself indicates that even if a trial is held in a private
house or is held inside Jail or anywhere no sooner it becomes a venue
of trial of a criminal case it is deemed to be in law an open place and
everyone who wants to go and attend the trial has a right to go
and attend the trial except the only restriction contemplated is number
of persons which could be contained in the premises where the Court
sits. [81C-E, 82D-E]
5. The only thing that is necessary for the appellant is to point out
that, in fact, it was not an open tiral. There is no material at all to
suggest that any one who wanted to attend the trail was prevented from
so doing or one who wanted to go into the Court room was not allowed
to do so. [82G]
6. It is very clear that Art. 21 contemplates procedure established
by law and the procedure established by law was as on the day on which
the Constitution was adopted and, therefore, it is not so easy to contend
A
B
c
D
E
F
that by amending the Criminal Procedure Code the effect of the procedure established by law indicated in Art. 21 could be taken away. The
trend of decisions of this Court has clearly indicated that the procedure
G
must be fair and just. Even expeditious trial has been considered to be a
part of the guarantee under Art. 21. Undisputedly the procedure
established by law as indicated in Art. 21 is as provided in s. 327 and
unless on facts it is established that what is provided in s. 327 was
prevented or was not permitted, it could not be said that merely because
trial was held at a particular place it could be said to be a trial which
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[1988] Supp. 2 S.C.R.
was not open to public, Merely suggesting the difficulties in reaching
the Jail will not be enough, to ·say that it ceased to be a public trial. It
was not that part of the Jail where the prisoners are kept but was the
Office block where there was an approach, people were permitted to
reach and the trial was held as if it was held in an ordinary place and in
fact what the High Court did by issuing a notification under s. 9(6) was
not to fix place of trial of this particular case in Tihar Jail, but the High
Court by the said notification made Tihar Jail also as one of the places
where a Sessions Court could ordinarily sit and in this case, therefore,
the trial was held at this place. As soon as a trial is held whatever the
place may be the provisions of s. 327 are attracted and it will be an open
Court and every citizen has a right to go and unless there is evidence or
material on record to suggest that on the facts in this particular case
public at large was not permitted to go or some one was prevented from
attending the trial or that the trial was in camera. In fact, without an
appropriate order it could not be said that what is contemplated under
s. 327 or under Art. 21 was not made available to the accused in this
case and, therefore, it could not be contended that there is any preD judice at the trial. [83B-84C]
7. On analysis of the provision of s. 6 of the Commission of
Inquiry Act, 1952, it will be found that there are two restrictions on the
use of a statement made by a witness before the Commission. A statement given in a Commission cannot be used to subject the witness to any
E civil or criminal proceedings nor it can be used against him in any civil
or criminal proceedings. and it is in the context of these restrictions the
provisions of s. 145 read with s. 155(3) and s. 157 of the Evidence Act
which permit the use of a previous statement of a witness and for what
purpose will have to be examined. These sections clearly indicate that
there are two purposes for which a previous statement can be used. One
F
is for cross-examination and contradiction and the other is for corroboration. The first purpose is to discredit the witness by putting him the
earlier statement and contradicting him on that basis. So far as corroboration is concerned, it could not be disputed that it is none of the
purposes of the defence to corroborate the evidence on the basis of the
previous statement. Section 145, therefore, is the main section under
G
which relief was sought by the accused. The use for which the previous
statement was asked for was to contradict him if necessary and if it was
a contradiction then the earlier •tatement was necessary so that contradiction be put to the witness and that part of the statement can be
proved. [89E-G; 9ID-E]
H
8. Contradiction could be used either to impeach the credit of a
(
. \
•
KEHAR SINGH v. STATE
35
witness or discredit him or to pull down or bring down the reliability of
A
the witness. These purposes for which the previous statements are required could not be said to be purposes which were not against the
witness. The two aspects of the restrictions which s. 6 contemplates are
the only two aspects which could be the result of the use of these statements. There is no other use of such previous statements in criminal
proceedings. It is, therefore, clear that s. 6 prohibits the use of the
B
previous statements at the trial either for the purpose of crossexamination to contradict the witness or to impeach his credit. Therefore, the Courts below were right in not granting the relief to the
accused. [91F-92A]
9. The report of a Commission is a recommendation of the
Commission for the consideration of the Government. It is the opinion
of the Commission based on the statements of witnesses and other
material. It has no evidentiary value in the trial of a criminal case. In
the instant case, the Courts below were also justified in not summoning
c
the reports of the Thakkar Commission. Moreover, the Commission
framed regulations under s. 8 of the Act in regard to the procedure for
D
enquiry and Regulation 8 provided that in view of the sensitive nature
of enquiry the proceedings will be in. camera unless the Commission
directs otherwise. So far as recording of evidence and the proceedings
of the Commission are concerned they were held in camera throughout
and even the reports, interim and final were stated by the Commission
itself to be confidential. Normally, the Government was supposed to
E
place the report of the Commission before the House of the People, but ·
the Government did not do that, amended the Commisson of Inquiry
Act, 1952 and notified that the reports of the Thakkar Commission
shall not be laid before the Hol!!le of the People in the interest of the
Ii>
security of the State and in public interest and the said notification was
also got approved by the. House of people. [86B-87G]
F
10. Undisputedly Smt. Indira Gandhi died as a result of the gun
shot injuries inflicted by Bean! Singh and Satwant Singh with their
service revolver and carbine respectively. In view of such clear evidence
about the cause of the death, the post-mortem or a fuller postmortem
examination loses all its significance. It becomes important only in cases
G
. where the cause of death is to be established and is a matter of
controversy. [92D-F]
1 I. Where the High Court has reached conclusions based on
-1
partly inadmissible evidence and partly on circumstances which are not
justified on the basis of evidence, or partly on facts which are not borne
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SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
out from the evidence on record it cannot be contended that in an
appeal under Art. I36 of the Constitution the Supreme Court will not
go into the facts of the case· and come to its own conclusions. The ca>e
in hand is one of such cases and some of the findings of fact reached
by the High Court could not be said to be such which are concurrent
or conclusive. This Court was, therefore, put t.o the necessity of
examining the eVidence wherever it was necessary. l\Iorrover, it was a case
where the very popular elected leader of the people, the Prime Minister
of India; was assassinated, but still this Court has all through
maintained the cardinal principle of the Constitution-Equality before
law and the concept of rule of law in the system of administration of
Justice. [93G, 77H-78A]
Pritam Singh v. The State, [1950] AIR SC I69; Ram Raj v. State of
Ajmer, [I954] SCR II33 and AIR I983 SC 753, referred to.
I2. Section I20-A I.P .C. provides that when two or more persons
agree to do or cause lo be done an act which is an illegal act it is criminal
O conspiracy. Section I20-B provides for the punishment for a criminal
conspiracy. To prove a conspiracy it was not easy to get direct evidence.
Therefore, s. IO of The Indian Evidence Act was enacted. First part of
s. IO talks of where there is reasonable ground to believe that two or
more persons have conspired to commit an offence or an actionable
wrong, and it is only when this condition precedent is satisfied that the
E subsequent part of the Section comes into operation and ii talks of
reasonable grounds to believe that two or more persons have conspired
together and this evidently has reference to s. I20-A of the I.P.C. where
it is provided "when two or more persons agree to do, or cause to he
done." This further has been safeguarded by providing a proviso that
no agreement except an agreement to commit an offence shall amount lo
F criminal conspiracy. Therefore, a prima fade case of conspiracy has
necessarily to be established for application of s. IO. The second part of
s. IO talks of anything 'said, done or written by any one of such persons
in reference to the common intention after the time when such intention
was first entertained by any one of them is"relevant fact against each of
the persons believed to be so conspiring as well for the purpose for
G proving the existence of the conspiracy as for the purpose of showing
that any such person was a party to it. The second part of s. I 0 permits
the use of evidence which othernise could not be used against the
accused person. Act or 'action of one of the accused cannot be used as
., 1
evidence against the other. But an exception has been carved out ins. IO
in cases of conspiracy. The second part of s. IO operates only when the
H first part of the section is clearly established i.e. there must be reason-
.)
KEHAR SINGH v. STATE
37
able ground to believe that two or more persons have conspired
A
together in the light of the languague of s. 120-A. It is only then the
evidence of action or statements made by one of the accused could be
used as evidence against the other. [94E-95E]
Sardar Sardul Singh Caveeshar v. State of Maharashtra, [1964] 2
SCR 378 relied on.
B
13. At about 3 A.M. on November l, 1984 Balbir Singh, appelIan! was awakened from his sleep and his house was searched, but
nothing except a printed book on Sant Bhindrawala was recovered. At
about 4 P.M. allegedly he was taken to Yamuna Velodrome, a place
where police has reserved a portion of this building to be used for c
interrogation and investigation. He was kept there till late in the evening when he is reported to had been released. The custody in Yamuna
Velodrome is described as 'de facto custody'. But there;. no evidence
or no police officer examined to say that he allowed this appellant to go
in the evening on November l, 1984. The appellant is said to have been
absconding since then and thereafter he is alleged to have been arrested
D
on December 3~ 1984 at Najafgarh Bus stand. When his personal search
was taken certain articles including a piece of paper Ex. PW 26/B were
recovered from his possession. The appellant denied his release from
Y amuna Velodrome and challenged his arrest at Najafgarh Bus-stand
and recoi'ery of any document from his possession as alleged by the
prosecution. [97B-D]
E
14. The prosecution evidence itself indicates that on November l,
1984 late at night Balbir Singh's house was searched and a printed
I•
Book-Sant Bindrawala was seized from his house, he was brought to
Yamuna Velodrome and upto the evening of the next day he was seen
there. Normally when .a person or a witness is brought for interrogation
F
or investigation at a Police station, some record has to be made as there
is a general diary, although diaries may or may not be tilled in, but a
duty is cast.on the Station House Officer of a Police Station to maintain
the movements of the Police Officers and also to note down the activities, especially when it is connected with the investigation of an important case. But it appears that all about the preliminary investigation of
G
this case was going on at Yamuna Velodrome, witnesses and persons
were brought here, detained or kept, and interrogated but there is no
further evidence in regard to this place. [98D-G]
-4
15. This part of the prosecution story that this accused was at
Y amuna Vel.odrome upto the evening of that day and thereafter be was
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SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
A allowed to go and then he absconded becomes very important in view of
the further facts alleged by the prosecution that the investigating officer
got some information through some one that this accused who was
wanted would appear at the time and place indicated. But there is no
·evidence as to who asked this accused to go. He was a suspect in the
criminal conspiracy. He could not have gone away of his own accord.
B Some responsible officer must have taken the decision but it is unfortunate that no officer has been examined to state that "I thought that his
presence was not necessary and therefore I allowed him to go." There is
no evidence on this aspect of the matter at all and the only evidence is
that this person was arrested at midnight in the late hours on November
l, 1984, carried to Yamuna Velodrome and was seen there by some
C prosecution witnesses till the ~vening of the next day. [98H-99C]
16. As regards the prosecution allegation that this appellant was
absconding from !st or 2nd November till 3rd Dec. 1984, it is significant
that no witness has been examined to indicate that he went to find him
out either at his residence or at any other place in search of him and
D that he was not available. There is also no evidence produced to indicate
that inspite of the fact that during investigation police wanted to arrest
him again but he was not available at his known address. It is perhaps
of absence of evidence as to absconding the trial Court when examined
this accused under s. 313 Cr.P.C. did not put him any question about
his abscondence. It is, therefore, clear that the abscondence as a
E circumstance could not be used against him. [99D-E]
17. As regards the arrest of this appellant at Najafgarh Bus
stand, it was alleged that the Investigating Officer got some information
that this accused was expecied to appear at that place on December 3,
1984. It was not immediately after the assassination. It was after a
F
month. The people could come forward to become witness. But no
independent witness has been examined in support of the arrest or
seizure from the accused.