PETITIONER:
V. C. SHUKLA
Vs.
RESPONDENT:
STATE (DELHI ADMINISTRATION)
DATE OF JUDGMENT11/04/1980
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
KAILASAM, P.S.
KOSHAL, A.D.
CITATION:
1980 AIR 1382 1980 SCR (3) 500
1980 SCC (2) 665
CITATOR INFO :
RF 1981 SC 873 (52)
R 1982 SC 839 (25)
RF 1986 SC 791 (5)
R 1988 SC1531 (163)
ACT:
Criminal Conspiracy, ingredients of-Section 120B of the
Indian Penal Code, evidence required to prove criminal
conspiracy explained-Approver's evidence, value of.
Words and Phrases-"High Public or political Offices"-
Meaning of.
Special Court's Act 1979, ss. 5, 7, 9 & 11-
Constitutional validity of.
HEADNOTE:
Sri Amrit Nahata PW 1 was a member of Parliament and
had produced a film titled "Kissa Kursi Ka" under the banner
of Dhwani Prakash. The film according to the prosecution was
a grotesque satire containing a scathing criticism of the
functioning of the Central Government and was open to
serious objections which were taken even by the Central
Board of Film Censors. After the film was ready for release,
PW 1, Amrit Nahata, applied for certification of the film on
the 19th of April 1975 before the Board. The film was viewed
on April 24, 1975 by an Examining Committee of the Board and
while three members were of the opinion that certificate for
exhibition, with drastic cuts, should be given, another
member and Mr. N. S. Thapa, Chairman, disagreed with the
opinion of their colleagues and accordingly referred the
matter to the Revising Committee. The Revising Committee
after viewing the film agreed by a majority of 6 :1 for
certification of the film, the dissent having been voiced by
Mr. Thapa, the Chairman and accordingly under Rule 25(ii) of
the Cinematograph (Censorship) Rules, 1958, a reference was
made to the Central Government on 8-5-1975. In this
connection, a letter was addressed to PW 6, Mr. S. M.
Murshed, who was at the relevant period Director in the
Ministry of Information & Broadcasting, Incharge of film and
T.V. Projects and was appointed, Joint Secretary on 1st of
May 1975. Before making his comments PW 6 saw the film some
time in the middle of May, 1975. Meanwhile, PW 1, Amrit
Nahata, was directed to deposit the positive print of the
film comprising 14 reels of 35 mm with the Film Division
Auditorium, situate at 1, Mahadev Road, New Delhi. In
pursuance of these directions PW 1 deposited the positive
print and an entry thereof (Ext. 17A) was made by the
Librarian-cum-Projectionist of the Auditorium. PW 17, K. P.
Sreedharam, who was a Technical Officer incharge also
inspected the reels and found them in order.
Although Murshed, PW 6, after seeing the film agreed
with the opinion of the Chairman of the Board that the film
may be open to objection on the ground that it was full of
sarcasm and contained criticism of the political functioning
of the Governmental machinery yet he was personally of the
opinion that certification for exhibition should not be
refused. PW 6 accordingly recorded a note and submitted it
to Mr. A. J. Kidwai, the then Secretary, Ministry of
Information and Broadcasting. The matter was then examined
by Mr. I. K. Gujral, the then Minister of Information and
Broadcasting but
501
no final decision was taken. Meanwhile PW 1, Amrit Nahata,
filed a writ petition (Ex. PW 1/D) in the Supreme Court. On
the 23rd of the June 1975, a notice was issued by the
Ministry of Information and Broadcasting to PW 1, Amrit
Nahata, to show cause why certification to the film be not
refused. The notice was made returnable by 9-7-75. Thus the
Ministry of Information and Broadcasting had taken a
tentative decision to refuse certification to the film
because of its objectionable and offensive nature.
Emergency was proclaimed on the night of between 25th
and 26th of June, 1975 and soon thereafter A 1 took charge
as the Union Minister of Information and Broadcasting and he
was of the opinion that the film should be banned. On July
5, 1975, in pursuance of the decision taken by the Central
Government, the Coordination Committee directed seizure of
the film and that its negatives, positives and all other
materials relating to it be taken in the custody of the
Central Government vide Ex. PW 6/D. On July 10, 1975 A 1
directed that the film be banned for screening under the
Defence of India Rules, vide Ext. PW 6/E-4. Finally, on the
11th of July 1975 PW 6 Murshed, passed an order that no
certification was to be given to the film for public
exhibition which was followed by a letter dated July 14,
1975, forfeiting the film to the Government. In pursuance of
the decision taken by the Central Government PW 39, S. Ghosh
Deputy Secretary, incharge of the films and T. V. Division
wrote a letter to the Chief Secretary Government of
Maharashtra for seizure of all the positives and negatives
of the film as also other related materials. In pursuance of
this order, the Bombay police seized the entire film on 1-8-
1975 and deposited in the godown of the Board. As, however,
a final order had been passed by the Government banning the
film. PW, 1, Amrit Nahata filed a petition for special leave
in the Supreme Court on 6-9-1975. This petition was heard on
29-10-75 and the Court directed the Government to screen the
film on 17-11-75 in the Auditorium for being shown to the
Judges constituting the Bench. In pursuance of the order of
the Court, intimation was sent to the Ministry concerned and
PW 62, Mr. S. M. H. Burney who was then Secretary Ministry
of Information and Broadcasting directed that immediate
action be taken to implement the orders of the Supreme Court
and that arrangements should be made to book the Auditorium
for 17-11-75. By a letter dated 5-11-75 (Ext. PW 2/A2) the
Supreme Court was also informed regarding the steps taken.
Sometime thereafter PW 2, L. Dayal took over as Joint
Secretary (Films Division) in place of Mr. Murshed. The
film, however, was not shown to the Judges of the Supreme
Court on the ground that the films were not traceable.
After the general elections of March 1977, the new
Government directed the Central Bureau of Investigation to
investigate into the matter of disappearance of the films.
The C.B.I. accordingly investigated the matter and found
that A 1, V. C. Shukla and A 2 Sanjay Gandhi conspired
together and ultimately burnt them in Maruti Complex.
Therefore C.B.I. filed charge sheets against V. C. Shukla A
1 and Sanjay Gandhi A 2 under several provisions of Penal
Code. The prosecution examined several witnesses to prove
criminal conspiracy of A 1 and A 2 more particularly under
three stages, namely, (i) the deposit of the positive print
in the Auditorium and its alleged transfer to the personal
custody of A 1; (ii) the arrival of thirteen trunks
containing negatives and other material related to the film
at New Delhi from Bombay in pursuance of the orders of A 1
and their transfer to 1, Safdarjung Road, then to the Maruti
Complex; and (iii) the actual orders alleged to have been
given
502
by A 2 for burning the film in the premises of Maruti
Complex which operation according to the prosecution was
carried out by the approver PW 3, Khedkar and other
witnesses between the 10th and 24th of November 1975.
The Sessions Judge, Delhi convicted V. C. Shukla (A-1)
appellant in Criminal Appeal No. 494/79 under section 120B
read with Ss. 409, 435, 411, 414 and 201 Indian Penal Code
and also under section 409 Indian Penal Code in respect of
the positive print and negative and other material of the
film "Kissa Kursi Ka' under section 411 read with S. 109
I.P.C.; under section 414 read with section 109 I.P.C.; and
under section 201 read with section 109 I.P.C. The
appellant, Sanjay Gandhi (A 1) in Criminal Appeal No. 493/79
was convicted by the Sessions Judge, Delhi under section
120B read with Ss. 409, 435, 411, 414 and 201, Penal Code
and further convicted under Ss. 435, 411, 414 and 201 Penal
Code in regard to the negative and other materials of the
film, as also under section 409 read with section 109 of the
Penal Code.
Accused No. 1 was sentenced under s. 120B read with Ss.
409, 435, 411, 414 and 201 to two years rigorous
imprisonment; under s. 409 regarding the negative and other
materials to two years rigorous imprisonment and a fine of
Rs. 20,000 and in default further 6 months rigorous
imprisonment, under s. 409 regarding the positive print of
the film to two years rigorous imprisonment and a fine of Rs
5000 and in case of default further rigorous imprisonment
for three months; under s. 411 read with s. 109 to rigorous
imprisonment for one year; under s. 414 read with s. 109 to
rigorous imprisonment for one year; under s. 201 read with
s. 109 to rigorous imprisonment for one year; under s. 435
read with s. 109 to rigorous imprisonment for one year and
six months. Accused No. 2 was sentenced under s. 120 B read
with ss. 409, 435, 411, 414 and 201 to rigorous imprisonment
for two years; under s. 435 to rigorous imprisonment for one
year and six months and a fine of Rs. 10,000 and in case of
default further rigorous imprisonment for four months; under
s. 411 to rigorous imprisonment for one year; under s. 414
to rigorous imprisonment for one year; under s. 201 in
regard to the negative, etc., to rigorous imprisonment for
one year; under s. 201 in regard to 13 trunks, etc., to
rigorous imprisonment for one year and under s. 409 read
with s. 109 to rigorous imprisonment for two years. The
aforesaid sentences of imprisonment were ordered to run
concurrently in the case of both the accused.
On being convicted by the Sessions Judge, Delhi, both
the accused filed appeals before the Delhi High Court
against their convictions and sentences, and were released
on bail pending the hearing of the appeals. Meanwhile, the
Special Courts Act of 1979 came into force and by virtue of
a declaration made under section 7 of the said Act, the
appeals stood transferred to the Supreme Court.
The appellants raised the following preliminary
objections as to the constitutional validity of Sections 5,
7, 9 and 11 of the Act, apart from the plea that their
conviction and sentence were not based on any evidence,
legal or otherwise.
A. Even having regard to the principles laid down the
Supreme Court in the Reference case, the Act fails to pass
the tests laid down for a valid classifica-
503
tion under Art. 14. The decision given in the Reference case
upheld the Bill and rejected the challenge that the Bill
violated Art. 14 mainly on the ground that the Bill sought
to put a certain class of persons, namely, persons holding
high public or political offices who had committed offences
only during the period of Emergency. In other words, the
constitutionality of the Bill was upheld on the ground that
the legislation was confined to select offences committed by
a particular class of persons during the Emergency period.
The impugned Act transgressed the limits imposed by the
judgment in the Reference case by bringing within its fold
offences committed prior and subsequent to the Emergency and
thus was in direct conflict with the opinion of this Court
rendered in the Reference case. In other words this Court
struck down that part of the Bill which related to the
period between February and June 1975 on the ground that
persons having committed offences during that period could
not be clubbed with those who had committed offences during
the period of Emergency. Thus the Act, by clubbing together
persons accused of offences committed during the Emergency
with those alleged to be guilty of crimes pertaining to
periods before and after the Emergency (i.e. by dealing with
offences committed at any point of time whatsoever), has
violated the guarantee under Art. 14 and the classification
made by the Act is in direct contravention of the opinion
given by this Court in the Reference Case.
B. Even if the classification was valid, as the
procedure prescribed by the Act is extremely harsh and
prejudicial to the accused, Articles 14 and 21 are clearly
violated.
(a) Section 7 deprives a valuable right of
appeal;
(b) Section 11(1) takes away the valuable right
of revision against interlocutory orders;
(c) Section 9(3) of the Act prescribes the
procedure for the trial of Warrant cases
before the Magistrate in Sections 238 to 243
and 248 Crl. P.C., while treating the special
Court as Court of Sessions.
C. Assuming the classification of persons holding high
public or political offices to be justified, it suffers from
a serious infirmity in that neither the terms "high public
or political office" has been defined nor have the offences
been delivered or defined so as to make the prosecution of
such offenders a practical reality.
D. Even the nature and character of the offences have
not been defined in the Act which introduces an element of
vagueness in the classification.
E. Parliament was not competent to pass a special Act
and create Special Courts for a particular set of offenders.
F. The Act seeks to change the situs of the Court and
virtually abrogates section 181 of the Code of Criminal
Procedure.
G. The Act creates an invidious distinction in as much
as persons holding high public or political offices would
have the benefit of trial by such an experienced officer as
a sitting judge of a High Court, while the appellants have
been deprived of that right and were tried by a Special
Judge who was only a Sessions Judge.
504
H. Section 5 of the Act suffers from several
constitutional and legal infirmities, namely, (a) Section 5
(1) suffers from the vice of excessive delegation of powers
so as to violate Article 14 in as much as the discretion
conferred on the Central Government is absolute, naked and
arbitrary and is clearly discriminatory as it is open to the
Central Government to pick and choose persons to make
declarations in respect of them while excluding others.
(b) The issuance of a declaration under section 5(1) of
the Act depends purely on the subjective satisfaction of the
Central Government and under sub-section (2) of section 5
such a declaration cannot be called into question by any
court so that there would be an element of inherent bias or
malice in an order which the Central Government may pass,
for prosecuting persons who are political opponents and that
the section is therefore invalid.
(c) As the Central Government in a democracy consists
of the political party which has the majority in Parliament,
declarations under section 5(1) of the Act could be used as
an engine of oppression against members of parties who are
opposed to the ideologies of the ruling party.
(d) the provisions about declaration contained in
Section 5(1) are violative of the principle of natural
justice in as much as they do not provide for any bearing
being given to the accused before a declaration is made.
(e) in an instant case, the declaration dated June 22,
1979 made under section 5(1) of the Act per se shows that it
had not resulted from any real application of the mind by
the Central Government. Once the prosecution of the
appellants had culminated in a conviction and an appeal
therefrom there was no question of the existence of any
"prima facie case" and that the use of such an expression
could be intelligible only if the accused were facing
criminal proceedings which had not culminated in a
conviction; and
(f) the declaration made under section 5 of the Act is
non est because it has not been laid before each House of
Parliament as required by section 13 of the Act.
J. The appellant not having held any high public or
political office has been drawn into this case by virtue of
a declaration and has therefore been singled out for a
discriminatory treatment.
K. Section 5(1) of the Act has no application to the
facts of the present case because under section 5(1) a
declaration has to be made on the basis of the source
indicated in the section, namely, inquiries conducted under
the Commissions of Inquiry Act or investigations which
become otiose and would have relevance only if the appellant
had not been convicted.
L. Conviction being a finding of guilt cannot be said
to fall within the situation contemplated by section 5(1) of
the Act. Section 6 is an extension of the scheme contained
in section 5, the former does not overrule the entire code
of Criminal Procedure but in fact takes in only those cases
which are pending at the trial stage when the declaration is
made. Once the case ends in a conviction, section 5 spends
itself out and there is no room for the application of
section 5.
M. Section 7 would not apply to this case because its
language embraces only those appeals which arise out of a
prosecution which itself is pending at the time when a
declaration is made.
505
N. By providing in section 7 for an automatic transfer
of appeals from the High Court to the Supreme Court, the
Legislature has exercised a judicial power which is vested
in the Supreme Court alone under section 406 of the Code of
Criminal Procedure and that the section is invalid as it
conflicts with section 406 Crl. P.C.
Allowing the appeals, the Court
^
HELD: (Regarding Constitutional validity of the Act)
1. In a diverse society and a large democracy such as
ours where the expanding needs of the nation change with the
temper of the times, it is extremely difficult for any
legislature to make laws applicable to all persons alike.
Some amount of classification is, therefore, necessary to
administer various spheres of the activities of the State.
[522 D-E]
2. It is well settled that in applying Art. 14
mathematical precision or nicety or perfect equanimity are
not required. Similarity rather than identity of treatment
is enough. The courts should not make a doctrinaire approach
in construing Art. 14 so as to destroy or frustrate any
beneficial legislation. What Art. 14 prohibits is hostile
discrimination and not reasonable classification for the
purpose of legislation. Furthermore, the Legislature which
is in the best position to understand the needs and
requirements of the people must be given sufficient latitude
for making selection or differentiation and so long as such
a selection is not arbitrary and has a rational basis having
regard to the object of the Act, Art. 14 would not be
attracted. That is why this Court has laid down that
presumption is always in favour of the constitutionality of
an enactment and the onus lies upon the person who attacks
the statute to show that there has been an infraction of the
constitutional concept of equality. It has also been held
that in order to sustain the presumption of
constitutionality, the Court is entitled to take into
consideration matters of common knowledge, common report,
the history of the times and all other facts which may be
existing at the time of the legislation. Similarly, it
cannot be presumed that the administration of a particular
law would be done with an "evil eye and an unequal hand".
Finally, any person invoking Art. 14 of the Constitution
must show that there has been discrimination against a
person who is similarly situate or equally circumstanced.
[522 E-H, 523 A]
State of U.P. v. Deoman Upadhyaya, [1961] 1 SCR 14,
followed.
3. The classical tests laid down for the application of
Art. 14 are the following:
1. The classification must be founded on an
intelligible differentia which distinguishes
persons who are placed in a group from others
who are left out of the group.
2. Such differentiation must have a rational
relation to the object sought to be achieved
by the Act.
3. There must be a nexus between the
differentiation which is the basis of the
classification and the object of the Act.
[523 D-F]
4. It cannot be gainsaid that this Court while dealing
with the Reference case was not at all concerned with the
provisions of the Act which is of much
506
wider application than the Bill considered by the Court in
the Reference. It is no doubt true that the Bill contained
provisions for punishing only those offenders who were
accused of offences committed during a particular period,
namely, the period of Emergency. It is also true that the
period of Emergency was an extraordinary one in the history
of our country and its features have been spelt out in the
preamble of the Bill as also in the judgment given by this
Court in the aforesaid case. But that by itself does not
debar Parliament from passing a permanent Act to deal with a
specified class of persons who occupy high public or
political offices (which are offices of trust) and misuse or
abuse them. It cannot be doubted that for the establishment
and continuance of a Parliamentary democracy and to secure
efficiency and purity of administration it is necessary that
when such persons commit serious abuse of power and are
guilty of a breach of the trust reposed in them, they would
form a special class of offenders. [525 F-H, 526 A]
5. That Purity of life is a desired goal at all times
itself is a sufficient justification for the classification
made by the Act which widens its scope to include offenders
of a particular type, whether before, during or after the
Emergency. In fact, such persons would undoubtedly form a
special class of offenders which would justify the
legislative measure singling them out for an expeditious
trial. To hold otherwise would be to say that persons
bearing the aforesaid attributes would be immune from
prosecution under any Special Act. Passing of such a Special
Act is within the Legislative competence of Parliament.
[526 D-E, 527 G-H, 528 B]
6. The Act does not suffer from any infirmity and the
circumstance that it applies to offences committed at any
time by a particular set of persons possessing special
characteristics does not render it unconstitutional; for,
when it puts into a class a particular set of persons having
special characteristics which distinguish them from others
who are left out of that class and who are to be tried under
the ordinary law, the classification is eminently
reasonable. The classification made has a reasonable nexus
with the object sought to be achieved. Separate grouping of
holders of high offices for purposes of expeditious criminal
action to be taken by superior courts is a reasonable and
valid classification because it enhances confidence in the
rule of law, strengthens the democratic system and ensures
purity of public life and political conduct.
[528 E-G, 529 G-H, 530 A]
7. The opinion of the Supreme Court in Re. Special Act,
in no way amounted to disapproval or condemnation of a
permanent law in future bringing within its scope all
holders of high public or political office. [530 G-H]
The Bill was challenged before the Supreme Court on the
touch stone of Art. 14 on several groups. In the first
place, it was argued that no rational basis for separately
classifying Emergency offenders existed. The second ground
of challenge was that assuming that there was a valid
classification, the same was bad because it suffered from
the vice of under-inclusion inasmuch as holders of high
public or political offices were left out. This Court,
however, repelled the argument of rational basis on the
ground that the Emergency period, because of its special
characteristics, afforded adequate basis for separate
classification of Emergency offences. The Court was not at
all at that time concerned expressly with the question as to
whether classification of high public or political
dignitaries without reference to any period during which
they were alleged to have committed offences would be
violative of Art. 14 of the Constitution. On
507
the other hand, this Court made clear observations that an
Act providing for such a classification would be not only
valid but also highly welcome. It is true that the provision
regarding a particular period before the Emergency was then
struck down but that was so because the Bill was confined to
offences committed only during the period of Emergency and
the inclusion of another period meant bad classification for
the reason that the period last mentioned could not be
distinguished from either pre-or post-Emergency periods on
any reasonable basis. This view of the Court could not be
interpreted as laying down a law of universal application
that no Special Act on a permanent basis classifying
offenders possessing particular characteristics or
attributes and providing for their prosecution under a
special procedure would be invalid or violative of Art. 14.
[530 A-G]
8. The expression "high public or political offices" is
of well known significance and bears a clear connotation
which admits of no vagueness or ambiguity. Persons holding
high public or political offices mean persons holding top
positions wielding large powers. [531 C-D, F]
Political office is an office which forms part of a
Political Department of the Government or the Political
Executive. This, therefore, clearly includes Cabinet
Ministers, Ministers, Deputy Ministers and Parliamentary
Secretaries who are running the Department formulating
policies and are responsible to the Parliament. The word
'high' is indication of a top position and enabling the
holders thereof to take major policy decisions. Thus, the
term 'high public or political office' used in the Act
contemplates only a special class of officers or politicians
who may be categorised as follows:-
1. Officials wielding extraordinary powers
entitling them to take major policy decisions
and holding positions of trust and answerable
and accountable for their wrongs.
2. Persons responsible for giving to the State a
clean, stable and honest administration;
3. Persons occupying a very elevated status in
whose hands lies the destiny of the nation.
[534 C-E]
The rationale behind the classification of persons
possessing the aforesaid characteristics is that they wield
wide powers which, if exercised improperly by reason of
corruption, nepotism or breach of trust, may mar or
adversely mould the future of the country and tarnish its
image. It cannot be said, therefore, with any conviction
that persons who possess special attributes could be equated
with ordinary criminals who have neither the power nor the
resources to commit offences of the type described above.
The term 'persons holding high public or political offices'
is self-explanatory and admits of no difficulty and that
mere absence of definition of the expression would not
vitiate the classification made by the Act. Such persons are
in a position to take major decisions regarding social,
economic, financial aspects of the life of the community and
other far-reaching decisions on the home front as also
regarding external affairs and if their actions are tainted
by breach of trust, corruption or other extraneous
consideration, they would damage the interests of the
country. It is, therefore, not only proper but essential to
bring such offenders to book at the earliest possible
opportunity. [534 F-H, 535 A]
508
9. Clause 4 of the preamble to the Special Courts Act
clearly indicates the nature of the offences that would be
tried under the Act. [535 B]
The words 'power being a Trust' clearly indicate that
any act which amounts to a breach of the trust or of the
powers conferred on the person concerned would be an offence
triable under the Act. Clause (4) is wide enough to include
any offence committed by holders of high public or political
offices which amounts to breach of trust or for which they
are accountable in law and does not leave any room for
doubt. Section 5 which confers powers on the Central
Government to make a declaration clearly refers to the
guidelines laid down in the preamble and no Central
Government would ever think of prosecuting holders of high
public or political offices for petty offences. [535 D-G]
10. Sections 7 and 11 of the Special Courts Act are
within the legislative competence of the Parliament. That is
to say Parliament has the competence to provide for the
creation of Special Courts and to confer jurisdiction on the
Supreme Court by providing that an appeal shall lie as of
right from any judgment or order of Special Court to the
Supreme Court both on fact and on law.
[536 A-D]
In re. Special Courts Bill [1979] 2 SCR 476; applied.
11. The Act neither seeks to change the situs of the
Court nor virtually abrogates Section 181 of the Code of
Criminal Procedure. [536 E]
In re. Special Court Bill, [1979] 3 SCR; followed.
12. The question of the appellants being tried by the
Special Judge appointed under the Special Courts Act could
not arise because the said Special Court did not exist at
all even when the trial of the appellant was concluded. The
First Information report against the appellants was lodged
on 13th April 1977 and the chargesheet was submitted before
the Special Judge who convicted the appellants by his order
dated February 27, 1979. The Act, however, came into force
on May 16, 1979, that is to say, three months after the
conviction and about two months after the appellants had
filed their appeals before the High Court. The existence of
such fortuitous circumstances cannot attract Article 14.
[536 G-H, 537 A-B]
Khandige Sham Bhatt and Ors. v. The Agricultural Income
Tax Officer, [1963] 3 SCR 809; Dantuluri Ram Raju and Ors.
v. State of Andhra Pradesh and Anr., [1972] 1 SCR 421;
applied.
13. Section 5(1) does not suffer from the vice of
excessive delegation of powers so as to violate Article 14.
No unguided or uncanalised power has been conferred on the
Central Government. A basic condition imposed on the Central
Government is that there must be a proper application of
mind regarding the existence of prima facie evidence of the
commission of an offence. Secondly, the discretion has to be
exercised in accordance with the guidelines contained in the
preamble. The various clauses of the preamble lay down clear
guidelines and provide sufficient safe-guards against any
abuse of power. Thirdly, clause (4) of the preamble clearly
lays down that the power under s. 5 is exercisable only
after the Commission of an offence by the holder of a high
public or political office has been disclosed as a result of
an inquiry conducted under the Commissions of Inquiry Act or
of an investigation conducted by the Government through its
agencies. It is well settled that discretionary power is not
the same thing as power to discriminate nor
509
can the constitutional validity of a law be tested on the
assumption that where a discretionary power is conferred on
a high authority, the same may or would be exercised in a
discriminatory manner. [538 E-H, 539 A]
The power conferred on the Central Government is
controlled by the guidelines contained in the preamble which
by virtue of the provisions of s. 5(1) becomes a part of
that section. As the power has been conferred on the Central
Government which is to make a declaration in accordance with
the conditions laid down in s. 5(1) and, therefore, in
conformity with the guidelines mentioned in the preamble,
the attack based on discrimination is unfounded. [541 B-C]
Dr. N. B. Khare v. The State of Delhi, [1950] SCR 519,
Kathi Raning Rawat v. The State of Saurashtra, [1952] SCR
435; Matajog Dubey v. H. C. Bhari, [1955] 2 SCR 925 In Re.
The Kerala Education Bill, 1957, [1959] SCR 995 Jyoti
Parshad v. The Administrator for the Union Territory of
Delhi, [1968] 2 SCR 125; Moti Ram Dekha etc. v. General
Manager, N.E.F., Railways, Maligaon, Pandu etc. [1964] 5 SCR
683; V. C. Shukla v. The State through C.B.I., [1980] 1 SCR
380; followed.
14. The power of the Central Government to issue a
declaration is a statutory power circumscribed by certain
conditions. Furthermore, as the power is vested in a very
high authority, it cannot be assumed that it is likely to be
abused. On the other hand, where the power is conferred on
such a high authority as the Central Government, the
presumption will be that the power will be exercised in a
bona fide manner and according to law. [541 D-F]
Chinta Lingam and Ors. v. Government of India and Ors.,
[1971] 2 SCR 871; Budhan Chaudhary and Ors. v. The State of
Bihar, [1955] 1 SCR 1045; referred to.
15. The contention that declarations under s. 5(1) of
the Act could be used as an engine of oppression against
members of parties who are opposed to the ideologies of the
ruling party is one arising out of fear and mistrust which,
if accepted would invalidate practically all laws of the
land; for, then even a prosecution under the ordinary law
may be considered as politically motivated, which is absurd.
Furthermore, prejudice, malice or taint is not a matter for
presumption in the absence of evidence supporting it. It is
well settled that burden lies on the parties alleging bias
or malice to prove its existence, and if malice or bias is
proved in a particular case, the courts would strike down
the act vitiated by it, in exercise of its powers under
Articles 226, 227 or 136. [542 A-D]
In Re. Special Courts Bill, [1979] 2 SCR 476 referred
to.
16. At the stage when the declaration is sought to be
made there is no list pending nor has any prosecution been
launched against the accused. Section 5 deals only with the
decision taken by the Central Government to prosecute and
until that decision is notified, the prosecution does not
start, and the question of an accused being heard at that
stage, therefore, does not arise at all.
[542 F-G]
Cozons v. North Devon Hospital Management Committee and
Anr., [1966] 2 Q.B. 330: quoted with approval.
17. Under section 5(1) of the Act the Government has to
be satisfied on two counts before it could issue a
declaration. It must be satisfied in the first
510
instance that there is prima facie evidence of the
commission of an offence. Secondly, it must form the opinion
in accordance with the guidelines contained in the preamble
that such offence ought to be dealt with under the Act. The
condition of the existence of prima facie evidence is
fulfilled in the case of the present declaration though the
trial in the first Court had ended in a conviction and an
appeal therefrom, the reason being that if conviction is
construed as evidence of the existence of something more
than a mere prima facie case, that would not mean that a
prima facie case cease to exist. That a prima facie case
must be found to exist is only the minimum requirement for
the satisfaction of the Central Government and it would be
doubly made out if the evidence available is stronger than
is needed to make out only a prima facie case. A conviction
of an accused person cannot mean that there is no prima
facie evidence against him. All that it spells out is that
not only a prima facie case is made out against him but that
the evidence available is even stronger and is sufficient
for a conviction. However, as the Government, while acting
under the section, is to satisfy itself only with the
existence of prima facie evidence, the assertion by it in
the declaration that such evidence was available to its
satisfaction cannot, by any stretch of imagination, be held
to be inapplicable to a case in which a conviction has been
recorded. In this view of the matter the use of the
expression 'prima facie' evidence in the declaration is
fully justified even though the trial had ended in a
conviction which was under appeal on the date of the
declaration. [544 A-G]
A perusal of the declaration reveals that it gives the
history of the case from beginning to end which demonstrates
that the Central Government was fully aware of the various
stages through which the trial of the appellants passed.
Thus, the formation of the opinion by the Government of the
existence of a prima facie case cannot be held to be
perfunctory or illusory. It has not been shown that the
declaration was in any way irrational or mala fide or based
on extraneous considerations. [546 F-G]
18. The provisions of Section 13 of the Special Courts
Act are purely directory and not mandatory so that if the
conditions mentioned in it are not fulfilled the declaration
would not be vitiated. It is to be noted that the section
does not say that until a declaration is placed before the
two Houses of Parliament it shall not be deemed to be
effective, nor does the section intend that any consequences
would result from its non-compliance. On a true
interpretation of section 13 of the Act, it is clear that it
is a case of a simple laying of the declaration before each
House of Parliament. [547 A-B, 548 B]
M/s Atlas Cycle Industries Ltd. and Ors. v. State of
Haryana, [1979] 2 SCC 196; applied.
19. The doctrine of the violation of basic structure of
the Constitution or its fundamental features applies not to
the provisions of a law made by a State legislature or
Parliament but comes into operation where an amendment made
in the Constitution itself is said to affect its basic
features like fundamental rights enshrined under Articles
14, 19, 31 or the power of amendment of the Constitution
under Art. 368 and so on. The doctrine has no application to
the provisions of a Central or State law because if the
statute is violative of any provision of the Constitution it
can be struck down on that ground and it is not necessary to
enter into the question of basic structure of the
Constitution at all.
[548 C-E]
511
20. It is true that section 6 of the Act does not
contemplate a prosecution which is relatable to the
declaration under section 5 but that does not debar the
application of section 5 to other stages of a criminal case,
especially those specifically dealt with under section 7 of
the Act which fully covers the situation in hand. The
limited field in which section 6 operates does not therefore
exhaust the consequences flowing from the issuance of a
declaration under section 5 of the Act. [549 A-B]
21. The words "whether pending or disposed of" are
significant and qualify the immediately preceding clause "a
prosecution in respect of such offences". The legislature
has thus taken care to expressly provide that an appeal or
revision would be covered by section 7 and transferable to
the Supreme Court for disposal if it is directed against a
judgment or order made in prosecution which is either
pending or has been disposed of, the only other requirement
of the section being that such appeal or revision must
itself be pending at the date of the declaration. Therefore
to interpret section 7 in such a way as its applicability is
limited to appeals or revisions arising from prosecutions
pending at the trial stage at the date of the relevant
declarations is possible only if the words "or disposed of"
are treated as absent from section-a course which is not
open to this Court in view of the express language used.
[549 E-G]
22. There is no question of the exercise of any
judicial power by the legislature in enacting section 7 of
the Act which covers a well known legislative process. By
enacting section 7, Parliament has merely provided a new
forum for the appeals which were pending in the High Court
and in respect of which a valid declaration, fully
consistent with the provisions of the Act, was made-a course
which involved no interference with the judicial functions
of the court and was fully open to the legislature. [550 A,
E-F]
Indira Nehru Gandhi v. Sri Raj Narain, [1976] 2 SCR
347; distinguished.
23. Since the classification made by the Act complies
with the dual test laid down by the Supreme Court and
therefore held to be a reasonable classifications, Article
14 would not be attracted even if the procedure is held to
be harsher than that available under the ordinary law. Apart
from that, the procedure prescribed by the Act is not harsh
or onerous but is more liberal and advantageous to the
accused who is assured of an expeditious and fair trial
thereunder.
[550 G-H, 551 A]
24. An appeal being a creature of statute, an accused
has no inherent right to appeal to a particular tribunal.
The legislature may choose any tribunal for the purpose of
giving a right of appeal. Moreover, an appeal to the High
Court is less advantageous than an appeal to the Supreme
Court for the following reason:
"The right of appeal given to an accused from the
order of a Session Judge or Special Judge to the High
Court is not totally unrestricted. Section 384 of the
Code of Criminal Procedure empowers an Appellate Court
to dismiss an appeal summarily if it is satisfied that
there is no sufficient ground for interference."
While an appeal to the High Court under the Code of Criminal
Procedure is attended with the risk of being summarily
dismissed under section 384, an appeal under section 11(1)
of the Act which runs thus:
512
"11. (1) Notwithstanding anything in the Code an
appeal shall lie as of right from any judgment sentence
or order, not being interlocutory order, of a Special
Court to the Supreme Court both on facts and on law."
is not so.
An appeal under s. 11(1) lies as of right and both on
facts and on law. Thus, the right conferred on a convict by
s. 11(1) is wider and less restricted than the right of
appeal given by the Code of Criminal Procedure.
(2) If the appeal is filed before the Supreme
Court or is transferred thereto, the accused
becomes entitled to a hearing of his case by
the highest court in the country both on
facts and on law and thus gets a far greater
advantage than a right to move the Court for
grant of special leave which may or may not
be granted, it being a matter of discretion
to be exercised by the Supreme Court.
Therefore the procedure regarding the appeals under the
Act is not harsher than that prescribed by the Code of
Criminal Procedure.
[552 D-H, 553 E-H, 554 C]
Syed Quasim Razvi v. The State of Hyderabad and Ors.
[1953] SCR 589; applied.
25. Even the Code of Criminal Procedure does not
provide for any revision against an interlocutory order.
Section 397(2) of the Criminal Procedure Code expressly bars
revision against interlocutory orders. Inasmuch as there is
no right of revision either under the Code of Criminal
Procedure or under the Act, it cannot be said that section
11(1) of the Act creates a definite procedural disadvantage
to the accused. In fact under the Act, the Special Court is
presided over by no less a person who is a sitting judge of
a High Court and the possibility of miscarriage of justice
is reduced to the barest minimum. [555 C-D]
V. C. Shukla v. The State, through C.B.I., [1980] 1 SCR
380; Jagannath Sonu Parker v. State of Maharashtra, [1963]
Suppl. 1 SCR 573; followed.
26. The procedure for trial of warrant cases gives a
full opportunity to the accused to participate in the trial
at all its stages and to rebut the case for the prosecution
in every possible manner and it has not been pointed out how
the adoption thereof for trials under the Act would be to
the disadvantage of the accused. Therefore the provisions of
sections 9(1) and (3) of the Act cannot be said to be harsh.
[556 E-G]
State of West Bengal v. Anwal Ali Sarkar, [1952] SCR
284 explained and distinguished.
27. None of the sections of the Act are violative of
Article 14 or Article 21 or any other provision of the
Constitution. The classification made in the Act is valid
and reasonable and has a rational nexus with the object of
the Act and that the procedure prescribed is fair and
advantageous to the accused. [561 E-F]
28. The appellant in Crl. Appeal 493/79 has not been
singled out for a discriminatory treatment. It is true that
he has never been the holder of any high public or political
office but the first clause of the preamble
513
clearly includes within its ambit not only persons holding
high public or political offices but also others. Section 8
thus incorporates the well known concept of joint trial of
accused persons in respect of offences forming part of the
same transaction. [551 C-E]
Further Held (on merits):
29. In order to prove a criminal conspiracy which is
punishable under section 120B of the Indian Penal Code,
there must be direct or circumstantial evidence to show that
there was an agreement between two or more persons to commit
an offence. This clearly envisages that there must be a
meeting of the minds resulting in an ultimate decision taken
by the conspirators regarding the ommission of an offence.
[565 H, 566 A]
30. It is true that in most cases, it will be difficult
to get direct evidence of an agreement to conspire but a
conspiracy can be inferred even from circumstances giving
rise to a conclusive or irresistible inference of an
agreement two or more persons to commit an offence. [566 A-
B]
In the instant case, there is no acceptable evidence
connecting either of the appellants with the existence of
any conspiracy. Even taking the main part of the prosecution
case at their face value, no connection has been proved with
the destruction of the film 'Kissa Kursi Ka' and the two
appellants. The evidence produced by the prosecution falls
short of the standard of proof required in a criminal case.
The prosecution failed to prove either there was any
existence of any conspiracy between A 1 and A 2 to destroy
the film 'Kissa Kursi Ka' by burning it or to commit any
other offence in respect of the film. There is evidence to
show that there was any meeting of minds between A 1 and A
2. Even on the first two parts of the prosecution case, the
allegation of the prosecution that the positive prints were
removed at the instance or to the knowledge of A 1 or that
the negatives and other materials of the film were sent for
by A 1 and kept in his personal custody has not been proved.
The mere fact that A 1 decided to show the film and refused
certification for public exhibition and passed orders for
seizure of the film and its transfer to the custody of the
Ministry of Information does not disclose any offence. The
decision to ban the film was not taken by A 1 secretly or
clandestinely but after a full fledged discussion in the
coordination Committee meeting attended by senior officers
of various ministries as deposed by Prasad PW 63. Further
that part of the case which relates to the burning of film
material rests solely on the uncorroborated testimony of the
approver and is negatived insofar as the role therein of A 1
is concerned. [566 C-D, 583 F-H, 584 A-B]
(i) Till 9-7-75 i.e. the date by which the notice to
show cause why certification of the film 'Kissa Kursi Ka'
was made returnable, neither A 1 nor A 2 was anywhere in the
picture. The facts disclosed by the prosecution ex facie
show that objection to certification of the film had been
taken at the very initial stage and the ultimate order was
passed during the time when A 1, Mr. Shukla had taken over
as Minister, which was merely the final scene of a drama
long in process; [564 C-E]
(ii) Even at the stage of proposed exhibition of the
film to the Judges of the Supreme Court who constituted the
Bench and heard the Special Leave Petition i.e. 17-11-75
there was absolutely no evidence to show that there
514
was any meeting of minds of A 1 and A 2 nor is there any
material to indicate that A 2 played any role in the burning
of the film. The decision to ban the film was taken by the
Ministry headed by A 1, on the merits of the case. No motive
is attributable to A 1 at this stage because even the
Chairman of the Board, PW 8 Mr. Thapa who was an independent
witness was of the view that the film should not be
certificated for public exhibition. Similarly, the steps
taken by the officers of the Ministry in persuance of the
film at Bombay and its transfer to Delhi was in the nature
of routine to see that the decision taken by the Government
was implemented. As soon as the Ministry received the orders
of the Supreme Court for screening the film on 17-11-1975,
immediate steps were taken to comply with the orders of the
Court. Admittedly between 17th November 1975 to 23rd
November 1975, A 2 was either away to Hyderabad or Sikkim as
proved by DW 3. This negatives the story of the approver
connecting A 2 with the burning of the film. [565 E-H, 581
C-D, 582 A]
A lot of evidence has been produced by the prosecution
to show:
(a) that the positive print of the film found its
way into the luggage compartment of the car
in which A 1 then travelled to the Prime
Minister's house where the print was unloaded
by someone in the absence of A 1; and
(b) that the negatives and other material
relating to the film were taken in a tempo or
two to the Prime Minister's residence and
from there to the Maruti Complex where they
were stored before their destruction. [584 B-
D]
But the connection of A 1 or A 2 therewith remains unproved.
Had these factors provided circumstantial evidence on the
basis of which alone the charge against either A 1 or A 2
could be held established it would have been necessary for
the Court to sift the evidence produced in support thereof.
But that is definitely not the case, for, if either or both
of the factors are proved, the inference of guilt of either
A 1 or A 2 does not necessarily follow. For circumstantial
evidence to furnish evidence of guilt it has to be such as
it cannot be explained on any other reasonable hypothesis
except the guilt of the accused which is not the case here
because appellants A 1 and A 2 could not be said to be the
only persons interested in the destruction of the film if it
was as obnoxious to the then Prime Minister or as critical
of the functioning of the then Union Government as the
prosecution would have the Court believe. The film and all
the material relating to it no doubt appear to have vanished
into thin air but then neither A 1 nor A 2 can be held
responsible therefor, in the absence of proof in that behalf
proof which would exclude all reasonable doubt. [594 D-G]
(iii) A mere identification by a witness of a person in
the Court for the first time who was not known to the
witness and who had only caught a glimpse of the person,
long time before is valueless, in the absence of the
operative witness being tested by a previously held Test
Identification does not exclude possibility of mistakes in
identification. [576 B-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
492, 493 and 494 of 1979.
Appeals under section 7 of the Special Courts Act, 1979
on transfer from the Delhi High Court at New Delhi from the
Judgment and
515
Order dated 27-2-1979 of the Sessions Court at Delhi in
Sessions Case No. 340/1978.
J. S. Wasu, M. L. Nanda and M. N. Shroff for the
Appellant in Crl. A. 492/79.
K. L. Arora, K. G. Bhagat, Harish Gulati, Madan Bhatia
and D. Goburdhan for the Appellant in Crl. A. 493/79.
P. R. Mridul, Rajinder Singh, O. P. Sharma, R. C.
Bhatia and Vivek Tankha for the Appellant in Crl. A. 494/79.
K. L. Arora, K. G. Bhatat, Harish Gulati and D.
Goburdhan for the Respondent No. 1 in Crl. A. 492/79.
Rajinder Singh B. R. Handa and O. P. Sharma for the
Respondent No. 2 in Crl. A. 492/79.
Soli J. Sorabjee, Sol. Genl. Ram Jethmalani, Grish
Chandra, S. Markandeya and S. B. Jaisinghani for the
Respondent in Crl. As. 493-494/79.
The following Judgments were delivered
FAZAL ALI, J. These two criminal appeals are directed
against a judgment dated 27th February 1979 of the Sessions
Judge, Delhi by which the accused (hereinafter referred to
as the appellants) have been convicted under various
sections of the Penal Code and awarded sentences of various
terms of imprisonment not exceeding two years (which have
been ordered to run concurrently) in addition to fines.
Both the appeals were originally filed before the Delhi
High Court and were admitted by it on the 21st March 1979
when the sentences of the appellants were suspended and they
were released on bail. On the 17th May. 1979, the State also
filed an appeal to the Delhi High Court for enhancement of
the sentences. The Special Courts Act (No. 22 of 1979 and
hereinafter to be referred to as the ‘Act’) was passed by
Parliament and received the assent of the President on 16th
May 1979. On the 27th June 1979, the Central Government made
a declaration under s.5 (1) of the Act as a consequence of
which the appeals stood transferred to this Court.
The appellants have raised a number of preliminary
objections relating to the constitutional validity of the
Act and various provisions thereof on several grounds
including the contravention of Articles 14 and 21 of the
Constitution of India. Alternatively, it was argued that
some of the provisions of the Act did not at all apply to
the appellants and the transfer of the appeals from the High
Court to
516
this Court was not legal. The State has appeared through
Shri Soli J. Sorabjee who has countered all the objections
raised by the appellants and has submitted that the Act is a
valid piece of legislation and that there is no illegality
in the transfer of the appeals from the High Court to this
Court. In view of the nature of the preliminary objections
raised by the appellants we decided to dispose them of
before entering into the merits of the appeals. After
hearing the parties at great length, by an order dated
December 5, 1979 we overruled all the said objections and
proceeded to hear the appeals on merits. We now proceed to
set out the reasons given for the order rejecting those
objections.
In order to understand the arguments advanced by
learned counsel for the parties it will be necessary to
state certain undisputed facts. The Act was preceded by a
Bill (introduced by a Member of the Lok Sabha) which was
adopted by the Government but in view of certain
Constitutional objections the President made a reference to
this Court for its opinion regarding the validity of the
Bill and its provisions. The matter was heard by a Bench of
seven Judges and in its report dated December 1, 1978, this
Court upheld the validity of the Bill generally by a
majority of six to one. Certain clauses of the Bill,
however, were held to be violative of Art. 21 of the
Constitution. This Court further held that Parliament had
legislative competence to create Special Courts and to
provide for appeals against judgments and orders of such
Courts to the Supreme Court. This Court also upheld the
Classification provided in clause 4(1) of the Bill which
conferred power on the Central Government to make a
declaration in respect of an offence alleged to have been
committed during the operation of the Proclamation of
Emergency dated 25th June 1975 by a person who held high
public or political office in India. To the extent that the
clause brought within the purview of the Act persons who had
committed offences between February 27, 1975 and June 25,
1975 it was, however, held to be invalid. Similarly, the
provisions of clause 7 of the Bill laying down that a
retired Judge of a High Court could be appointed as a Judge
of the Special Court and that this could be done by the
Central Government in consultation with but without the
concurrence of the Chief Justice of India were held to be
bad. Furthermore, the Court observed that the absence of a
provision for the transfer of a case from one Special Court
to another affected the fairness of the trial and,
therefore, was violative of Art. 21 of the Constitution.
Barring these infirmities, the constitutional validity of
the Bill was upheld by this Court. It may be mentioned here
that during the course of arguments learned counsel for the
Union gave an express undertaking that the defects
517
pointed out in the Bill would be suitably removed so as to
bring the Bill in accord with the opinion expressed by the
Court. Consequently, a fresh Bill was prepared and was
introduced in the Lok Sabha on the 21st February 1979. This
Bill incorporated the suggestions of this Court, deleted
reference to the period prior to the 25th June 1975 in the
preamble, made a provision for transfer of a case from one
Special Judge to another by the Supreme Court and provided
that a Special Court would consist of a sitting Judge of a
High Court nominated by the Central Government with the
concurrence of the Chief Justice of India. After some debate
the Bill was passed by the Lok Sabha on the 9th March 1979.
It was then sent to the Rajya Sabha where its various
provisions were fully debated and certain important
suggestions were made by the Members of the Rajya Sabha as a
result of which the Bill was returned by the Rajya Sabha
with certain amendments on 21st March 1979. Thereafter the
Government accepted the amendments suggested by the Rajya
Sabha and incorporated the same in the Bill which was then
passed and ultimately received the assent of the President
on 16th May, 1979.
Some of the substantial changes which have been
incorporated in the Act may be summarised thus:
The Act is now a permanent Act and does not deal only
with offences committed during the period of Emergency.
Secondly, in the preamble an additional clause has been
added to indicate the nature of the offences committed by
persons holding high public or political office. Thirdly, it
has been provided that a Special Court would consist of a
sitting Judge of a High Court nominated by the Chief Justice
of the High Court concerned with the concurrence of the
Chief Justice of India. Thus, the Government has absolutely
no hand either in the appointment of or any control over the
Special Judge. This provision appears to ensure complete
independence of the Special Judge who is to be appointed to
decide cases of highly placed public or political officers,
so that they may have complete confidence in the Judge who
tries their case.
Another special feature of the Act is that the preamble
and its various clauses are not merely intended to spell out
the object of the Act but contain important guidelines and
essential safeguards and by virtue of s. 5(1) of the Act the
clauses of the preamble become a part of the Act itself.
As the Act has thus assumed a new complexion, it is
necessary to analyse briefly its scheme before we deal with
the contentions raised by learned counsel for the parties.
The heading of the Act
518
shows that its main object is to provide for the speedy
trial of a certain class of offences (emphasis ours). There
are as many as nine clauses of the preamble which run thus:
“AN ACT
to provide for the speedy trial of a certain class
of offences.
(1) WHEREAS Commissions of Inquiry appointed under
the Commissions of Inquiry Act, 1952 have rendered
reports disclosing the existence of prima facie
evidence of offences committed by persons who held high
public or political offices in the country and others
connected with the commission of such offences during
the operation of the proclamation of Emergency dated
the 25th June, 1975, issued under clause (1) of article
352 of the Constitution;
(2) AND WHEREAS investigations conducted by the
Government through its agencies have also disclosed
similar offences committed during the period aforesaid;
(3) AND WHEREAS the offences referred to in the
recitals aforesaid were committed during the operation
of the said Proclamation of Emergency, during which a
grave emergency was clamped on the whole country, civil
liberties were curtailed to a great extent, important
fundamental rights of the people were suspended, strict
censorship was imposed on the press, judicial powers
were severely crippled and the parliamentary democratic
system was emasculated;
(4) AND WHEREAS all powers being a trust, and
holders of high public or political offices are
accountable for the exercise of their powers in all
cases where Commissions of Inquiry appointed under the
Commissions of Inquiry Act, 1952 or investigations
conducted by Government through its agencies disclose
offences committed by such holders;
(5) AND WHEREAS it is the constitutional, legal
and moral obligation of the State to prosecute persons
involved in the said offences;
(6) AND WHEREAS the ordinary criminal courts due
to congestion of work and other reasons cannot
reasonably be expected to bring those prosecutions to a
speedy termination;
519
(7) AND WHEREAS it is imperative for the efficient
functioning of parliamentary democracy and the
institutions created by or under the Constitution of
India that the commission of offences referred to in
the recitals aforesaid should be judicially determined
with the utmost dispatch;
(8) AND WHEREAS it is necessary for the said
purpose to establish additional courts presided over by
sitting Judges of High Courts;
(9) AND WHEREAS it is expedient to make some
procedural changes whereby avoidable delay in the final
determination of the innocence or guilt of the persons
to be tried is eliminated without interfering with the
right to a fair trial.”
(Numbering of the clauses by us to facilitate
discussion)
So far as clause (1) is concerned it refers to
Commissions of Inquiry and the reports given by them
disclosing the existence of prima facie evidence of offences
committed by persons holding high public or political
offices in the country and others connected with the
commission of such offences during the operation of the
Proclamation of Emergency dated June 25, 1975. Clauses (2)
and (3) give the history of the special features of the
Emergency and the result of the investigation conducted by
the Government regarding offences committed during the
Emergency. Clause (4) makes the Act a permanent one.
According to this clause, persons holding high public or
political offices are actually trustees in regard to the
powers vested in them and offences committed by them in
breach of the trust or confidence reposed in them would also
fall within the ambit of the Act, if either by the
Commissions of Inquiry or investigations conducted by the
Government such offences are disclosed. Clause (5) makes it
clear that it is the constitutional, legal and moral
obligation of the State to prosecute persons involved in the
offences mentioned in the foregoing clauses. Clauses (6) and
(7) deal with the main object of the Act which is to bring
the prosecution of the offenders falling within the ambit of
the Act to a speedy termination and to bring about a
judicial determination of the offences said to have been
committed by them with the utmost dispatch. Clause (3)
provides for the establishment of additional courts presided
over by sitting Judges of High Courts. Clause (9) refers to
certain procedural changes brought about by the Act in the
provisions of the Code of Criminal Procedure and intended to
avoid delay in the final determination of the innocence or
guilt of the persons to be tried. To sum
520
up from the object of the various clauses of the preamble it
is manifest that particular type of persons, namely, those
who are holding high public or political offices by way of a
trust have been put in a separate class along with those who
have committed offences during the Emergency and who also
bear the same characteristics as those indicated in clause
(4). Section 2 of the Act defines “Code”, “declaration” and
“Special Court” and the residuary clause (d) thereof says
that words and expressions not defined in the Act would have
the same meaning as in the Code of Criminal Procedure.
Section 3(1) gives power to the Central Government to
establish an adequate number of Special Courts by
notification in the Official Gazette. Section 3(1) enacts
that a Special Court shall consist of a sitting Judge of a
High Court nominated by the Chief Justice thereof with the
concurrence of the Chief Justice of India. Section 4
empowers the Special Court to take cognizance and try such
cases as are instituted before it or transferred to it in
accordance with the manner provided by the Act. Section 5(1)
is the pivotal provision which lays down the conditions
under which the Central Government is empowered to make a
declaration which is the starting point of the prosecution
of the offenders falling within the ambit of the Act. It may
be noticed that s.5(1) clearly states that the guidelines
contained in the preamble are to be followed by the Central
Government in determining whether an offence is to be dealt
with under the Act. Section 5(2) provides that a declaration
made by the Central Government shall not be called in
question in any court. Section 6 provides that on a
declaration made under section 5(1) in respect of any
offence, any prosecution in respect of such offence shall be
instituted only in a special Court designated by the Central
Government and that where a prosecution is pending in any
other court, the same shall stand transferred to the special
Court. This would be in derogation of anything contained in
the code of Criminal Procedure. Section 7 deals with the
automatic transfer to the Supreme Court of appeals or
revisions pending in any court of appeal or revision at the
date of the declaration. Section 8 embodies the well-known
provisions of the Code of Criminal Procedure relating to a
joint trial of a number of accused persons who are charged
with the offence of abetment or conspiracy. Section 9(1)
provides that the Special Court would follow the procedure
prescribed by the Code for the trial of warrant cases before
a Magistrate, that is to say it makes applicable the
provisions of ss. 238 to 243 and 248 of the Code to trials
by a Special Court. Sub-section (3) of s.9 lays down that
the provisions of the Code of Criminal Procedure shall
apply, in so far as they are not inconsistent with those of
the Act, no proceedings before a Special Court which shall
be deemed to be a
521
Court of Session and would have all the powers thereof, and
that a person conducting a prosecution before a special
Court shall be deemed to be a public prosecutor. Sub-section
(4) of s. 9 empowers a Special Court to pass upon any person
convicted by it any sentence authorised by law for the
punishment of the offence of which such person is convicted.
Section 10(1) contains a provision for the transfer by the
Supreme Court of a case from one Special Court to another
where such an order is expedient in the ends of justice. In
fact, in the opinion given by this Court on the Presidential
Reference this aspect of the matter was particularly
highlighted. Sub-section (2) of s. 10, however, lays down
the norms under which an application for transfer could be
made. Sub-section (3) of s.10 empowers the Supreme Court to
grant compensation to any person who has opposed the
application for the transfer of a case if the Court finds
that such an application was frivolous or vexatious. Section
11(1) prescribes the forum of an appeal to the Supreme Court
against a judgment, order or sentence passed by a Special
Court but excludes interlocutory order, from its ambit. It
may be noted that interlocutory orders have been excluded
from the purview of s. 11(1) so as to eliminate unnecessary
delays in the trial of a case by a Special Court. Even the
code of Criminal Procedure has barred any revision against
an interlocutory order by virtue of the provisions of s.
397(2) of the code of Criminal Procedure, 1973. Sub-section
(2) of s. 11 provides that no appeal or revision shall lie
to any court from any judgment, sentence or order of a
Special Court except as provided for under section 11(1).
Sub-section (3) provides the period of limitation for filing
an appeal before the Supreme Court and the proviso thereto
confers power on the Supreme Court to condone any delay if
sufficient cause is shown, it may be noticed here that under
s. 11 an appeal to the Supreme Court from an order of the
Special Judge lies as a matter of right. Section 12 empowers
the Supreme Court to frame rules for carrying out the
purposes of the Act. Section 13 provides that every
notification made under sub-section (1) of s. 3 and every
declaration made under sub-section (1) of s. 5 shall be
laid, as soon as may be after it is made, before each House
of Parliament.
Thus, by and large, the Act contains almost the same
provisions as were contained in the Bill which was sent to
this Court for its opinion by the President. Clause (1) of
the Bill is now s.1 (1) of the Act. Clause (2) is now s.3 of
the Act. Clause (3) of the Bill is now s.4 of the Act.
Clause (4) of the Bill is now section 5 of the Act. Clause
(5) of the Bill is now s.6 of the Act. Clause 6 of the Bill
is now s.7 of the Act. Clause (7) of the Bill is now s.3(2)
of the Act, with an explanation added to it. Clause 8 of the
Bill is now
522
s.8 of the Act. Clause (9) of the Bill is now s.9(1) of the
Act with sub-sections (2)(3) and (4) added to it. Clause
(10) of the Bill is now s.11(1) of the Act. Thus, in so far
as the arguments advanced before this Court in the Reference
case are concerned, they are concluded by the decision given
thereon and we do not propose to go behind the opinion given
by this Court in that case or the reasons thereof with which
we are in respectful agreement. Learned counsel for the
appellants having realised the force of this position,
confined their arguments to certain points which either did
not arise at the Reference stage or were not argued before
the Court and on which no decision was given, and in fact,
relied on some of the findings given and the propositions of
law adumbrated by this Court in the Reference case.
The main ground of attack regarding the constitutional
validity of the Act is based on Articles 14 and 21 of the
Constitution. Before dealing with the arguments we might
mention certain important principles laid down by this Court
in the Reference case.
In a diverse society and a large democracy such as ours
where the expanding needs of the nation change with the
temper of the times, it is extremely difficult for any
legislature to make laws applicable to all persons alike.
Some amount of classification is, therefore, necessary to
administer various spheres of the activities of the State.
It is well settled that in applying Art. 14 mathematical
precision or nicety or perfect equanimity are not required.
Similarity rather than identify of treatment is enough. The
courts should not make a doctrinaire approach in construing
Art. 14 so as to destroy or frustrate any beneficial
legislation. What Art. 14 prohibits is hostile
discrimination and not reasonable classification for the
purpose of legislation. Furthermore, the Legislature which
is in the best position to understand the needs and
requirements of the people must be given sufficient latitude
for making selection or differentiation and so long as such
a selection is not arbitrary and has a rational basis having
regard to the object of the Act, Art. 14 would not be
attracted. That is why this Court has laid down that
presumption is always in favour of the constitutionality of
an enactment and the onus lies upon the person who attacks
the statute to show that there has been an infraction of the
constitutional concept of equality. It has also been held
that in order to sustain the presumption of
constitutionality, the Court is entitled to take into
consideration matters of common knowledge, common report,
the history of the times and all other facts which may be
existing at the time of the legislation. Similarly, it
cannot be presumed that the administration of a particular
law would be done with an
523
“evil eye and an unequal hand”. Finally, any person invoking
Art. 14 of the Constitution must show that there has been
discrimination against a person who is similarly situate or
equally circumstanced. In the case of State of U.P. v.
Deoman Upadhyaya, Subba Rao, J., observed as follows:-
“No discrimination can be made either in the
privileges conferred or in the liabilities imposed. But
these propositions conceived in the interests of the
public, if logically stretched too far, may not achieve
the high purpose behind them. In a society of unequal
basic structure, it is well nigh impossible to make
laws suitable in their application to all the persons
alike. So, reasonable classification is not only
permitted but is necessary if society should progress.”
With this brief introduction, we now proceed to deal
with the arguments of learned counsel for the appellants. In
the first place, Mr. Bhatia, appearing for appellant Sanjay
Gandhi submitted that even having regard to the principles
laid down by this Court in the Reference case, the Act fails
to pass the test laid down for a valid classification under
Art. 14. Therefore, we might mention here that the classical
tests laid down for the application of Art. 14 are the
following:-
(1) The classification must be founded on an
intelligible differentia which distinguishes
persons who are placed in a group from others
who are left out of the group.
(2) Such differentiation must have a rational
relation to the object sought to be achieved
by the Act.
(3) There must be a nexus between the
differentiation which is the basis of the
classification and the object of the Act.
In applying the aforesaid tests, Mr. Bhatia contended
that the decision given in the Reference Case upheld the
Bill and rejected the challenge that the Bill violated Art.
14 mainly on the ground that the Bill sought to put a
certain class of persons, namely, persons holding high
public or political offices who had committed offences only
during the period of Emergency. In other words, he argued
that the constitutionality of the Bill was upheld on the
ground that it was legislation confined to selected offences
committed by a particular class of persons during the
Emergency period. It was contended that the impugned Act
transgressed the limits imposed by the judgment in the
Reference case by bringing within its fold offences
committed prior
524
and subsequent to the Emergency and thus was in direct
conflict with the opinion of this Court rendered in the
Reference case. In amplification of this argument it was
contended that this Court struck down that part of the Bill
which related to the period between February and June 1975
on the ground that persons having committed offences during
that period could not be clubbed with those who had
committed offences during the period of Emergency. In other
words, the argument was that the Act, by clubbing together
persons accused of offences committed during the Emergency
with those alleged to be guilty of crimes pertaining to
periods before and after the Emergency (i.e., by dealing
with offences committed at any point of time whatsoever),
has violated the guarantee under Art. 14 and the
classification made by the Act is n direct contravention of
the opinion given by this Court in the Reference case. In
support of his contention Mr. Bhatia relied on the following
observations of this Court in the Reference case:-
“The classification which section 4(1) thus makes
is both of offences and offenders, the former in
relation to the period mentioned in the preamble, that
is to say, from February 27, 1975 until the expiry of
the proclamation of emergency dated June 25, 1975 and
in relation to the objective mentioned in the sixth
paragraph of the preamble that it is imperative for the
functioning of parliamentary democracy and the
institutions created by or under the Constitution of
India that the commission of such offences should be
judicially determined with the utmost dispatch, and the
latter in relation to their status, that is to say, in
relation to the high public or political office held by
them in India. It is only if both of these factors co-
exist that the prosecution in respect of the offences
committed by the particular offenders can be instituted
in the Special Court…………..
We are not concerned with the truth or otherwise
of the allegations, the narrow question before us being
whether, in the first instance, the classification is
based on some qualities or characteristics which are to
be found in all the persons grouped together and not in
others who are left out. The answer to that question
can be one and one only, namely, that offences alleged
to have been committed during the emergency by persons
holding high public or political offices in India stand
in a class apart. The cover of emergency, so it is
alleged, provided a unique opportunity to the holders
525
of such offices to subvert the rule of law and
perpetrate political crimes on the society. Others left
out of that group had neither the means nor the
opportunity to do so, since they lacked the authority
which comes from official position. Thus, persons who
are singled out by the Bill for trial before Special
Courts possess common characteristics and those who
fall outside that group do not possess them……….
The suppression of people’s liberties facilitates
easy commission of crimes. Public criticism is a potent
deterrent to misbehaviour and when that is suppressed,
there is no fear of detection. Secondly, crimes which
are alleged to have been committed during extraordinary
periods like the period of emergency are oblique in
their design and selective in their object …. But
those crimes are not woven out of the warp and woof of
political motivations. Equal laws have to be applied to
all in the same situation and legislature is free to
recognise the degree of harm or evil.”
(Emphasis ours)
Special stress was laid on the observations of this
Court that the offences alleged to have been committed
during the Emergency by persons holding high public or
political offices were a class apart because such offences
were committed under the cover of Emergency which provided a
unique opportunity to the holders of the said offices to
subvert the rule of law. It was urged that this cannot be
said of the period either before or after the emergency when
no such cover or opportunity was available to the offenders
concerned to misuse or abuse their powers and commit
offences. We find this argument to be without any substance.
To begin with, it cannot be gainsaid that this Court while
dealing with the Reference case was not at all concerned
with the provisions of the Act which is of much wider
application than the Bill considered by the Court in the
Reference. It is no doubt true that the Bill contained
provisions for punishing only those offenders who were
accused of offences committed during a particular period
namely the period of Emergency. It is also true that the
period of Emergency was an extraordinary one in the history
of our country and its features have been spelt out in the
preamble of the Bill as also in the judgment given by this
Court in the aforesaid case. But that by itself does not
debar Parliament from passing a permanent Act to deal with a
specified class of persons who occupy high public or
political offices (which are offices of trust) and misuse or
abuse them. It cannot be doubted that for the establishment
and continuance of a Parliamentary democracy and to secure
efficiency and purity of administration it is necessary that
when such persons
526
commit serious abuse of power and are guilty of a breach of
the trust reposed in them, they would form a special class
of offenders. The simple answer to the argument of Mr.
Bhatia is that this Court was not at all concerned with the
broader aspect of the matter as envisaged by the Act at the
time when the Bill was being considered. That this is so, is
clear from the observations made by Chandrachud, C.J., and
Krishna Iyer, J. The former observed:-
“Parliamentary democracy will see its halycon days
in India when law will provide for a speedy trial of
all offenders who misuse the public offices held by
them. Purity in public is a desired goal at all times
and in all situations, emergency or no emergency. But,
we cannot sit as a super legislature and strike down
the instant classification on the ground of under-
inclusion on the score that those others are left
untouched, so long as there is no violation of
constitutional restraints.”
(Emphasis ours)
The observation that purity in public life is a desired goal
at all times is a sufficient justification for the
classification made by the Act which widens its scope to
include offenders of a particular type to be punished for
offences committed at any time, whether before, during or
after the Emergency.
Similar observations were made by Krishna Iyer J. in
his concurring Judgment:-
The pathology of our public law, with its class
slant, is that an unmincing ombudsman or sentinel on
the qui vive with power to act against those in power,
now or before, and offering legal access to the
informed citizen to complain with immunity does not
exist……….. And so, to track down and give short
shrift to ………………
x x x x
Where the proposed law excludes the pre-and post-
emergency crime-doers in the higher brackets and picks
out only ’emergency’ offenders, its benign purpose
perhaps be comes a crypto cover-up of like criminals
before and after. An ‘ephemeral’ measure to meet a
perennial menace is neither a logical step nor national
fulfillment. The classification, if I may anticipate my
conclusion, is on the brink of constitutional break-
down at that point and becomes almost vulnerable to the
attack of Art. 14.
x x x
527
The crucial test is ‘All power is a trust’, its
holders are ‘accountable for its exercise’, for ‘from
the people and for the people, all springs, and all
must exist’. By this high and only standard the Bill
must fail morally if it exempts non-Emergency criminals
about whom prior Commission Reports, now asleep in
official pigeon holes, bear witness and future
Commission Reports (who knows ?) may, in time,
testify………..
Nothing about Emergency period is adverted to
there as a distinguishing mark. If at all, the clear
clue is that all abuse of public authority by exalted
public men, whatever the time of Commission, shall be
punished without the tedious delay which ordinarily
defeats justice in the case of top echelons whose
crimes affect the credentials of democratic regimes.
Assuming civil liberty was a casualty during the
emergency, as it was, how did it obstruct trials of
super-political criminals? if faith in democratic
institutions is the victim in case there is undue delay
in punishing high public and political offenders, that
holds good, regardless Emergency………….The
question, then, is whether there is constitutional
rationale for keeping out of the reach of speedy
justice non-emergency criminals in high public or
Political Offices. Such a Bill, were it a permanent
addition to the corpus juris and available as a
jurisdiction for the public to compel government, if a
prima facie case were made out even against a minister
in office, to launch a prosecution before a sitting
High Court Judge, would be a whole some corrective to
the spreading evil of corruption in power pyramids.”
(Emphasis ours)
It would thus appear from the observations quoted above
that the majority judgment never meant to indicate that the
passing of an Act covering all persons holding high public
or political offices without reference to any period during
which they are alleged to have committee the offences sought
to be made the subject matter of their indictment, would be
beyond the legislative competence of Parliament. In fact,
such persons would undoubtedly form a special class of
offenders which would justify the legislative measure
singling them out for an expeditious trial. To hold
otherwise would be to say that persons bearing the aforesaid
attributes would be immune from prosecution under any
Special Act. Reading the opinion rendered in the
528
Reference case carefully we are unable to agree with Mr.
Bhatia that this Court held that only Emergency offenders
could be punished under a special Act and that any Act
seeking to punish offenders of a special type unrelated to
the Emergency would be hit by Art. 14. It is true that some
of the observations made by the learned Chief Justice, if
read out of context, may apparently lend some support to the
arguments of Mr. Bhatia but taken as a whole (as they must
be) they clearly indicate that the passing of a permanent
legislation classifying the type of offenders mentioned in
the Act, namely, persons holding high public or political
offices would be valid and, in fact, would be an ideal
achievement.
We may mention here that the various observations made
by Chandrachud, C.J., and Krishna Iyer, J. in the Reference
case were highlighted during the debates which followed the
introduction of the bill in the Lok Sabha and the Rajya
Sabha after the opinion of this Court was given. The Bill
was returned to the Lok Sabha on March 21, 1979 with
suggestions for its amendment so as to make it embrace
offences without reference to a particular period, namely,
the period of Emergency. The Lok Sabha accepted the
suggestions and passed the Bill in the form of the Act which
received the assent of the President on the 16th May 1979.
Thus, the Act incorporates not only the above-extracted
observations made by Chandrachud, C.J., and Krishna Iyer, J.
but also the views expressed by the Hon’ble Members of the
two Houses of Parliament.
In view of the factors mentioned above, we are fully
satisfied that the Act does not suffer from the infirmities
pointed out by Mr. Bhatia and the circumstance that it
applies to offences committed at any time by a particular
set of persons possessing special characteristics does not
render it unconstitutional, for, when it puts into a class a
particular set of persons having special characteristics
which distinguish them from others who are left out of that
class and who are to be tried under the ordinary law, the
classification is eminently reasonable. It may also be
stated here that the classification made has a reasonable
nexus with the object sought to be achieved, namely, quick
despatch and speedy trials. In this connection, some
observations of Chandrachud, C.J., in the Reference case may
be adverted to:
“If prosecutions which the Bill envisages are
allowed to have their normal, leisurely span of
anything between 5 to 10 years, no fruitful purpose
will be served by launching them. Speedy termination of
prosecutions under the Bill is the heart and soul of
the Bill…………
529
Thus, both the tests are fulfilled in the instant case
namely, that (1) the classification is founded on an
intelligible differentia which distinguishes those
which are grouped together from others who are left out
and (2) the said differentia has a rational relation
with the object sought to be achieved by the Bill,
namely, speedy termination of prosecutions initiated in
pursuance of the declaration made under clause 4(1) of
the Bill.”
The same, we hold, is true of the Act.
It was then submitted by Mr. Bhatia that even if the
classification was valid, as the procedure prescribed by the
Act is extremely harsh and prejudicial to the accused,
Articles 14 and 21 are clearly violated. This aspect of the
matter also has been expressly dealt with by Chandrachud,
C.J., in the Reference case where he has pointed out that
once the classification is held to be valid even if the
procedure is harsher or disadvantageous that will not
attract Art. 14. In this connection, he observed:-
If the classification is valid and its basis bears a
reasonable relationship with the object of the Bill, no
grievance can be entertained under article 14 that the
procedure prescribed by the Bill for the trial of
offences which fall within its terms is harsher or more
onerous as compared with the procedure which governs
ordinary trials. Classification necessarily entails the
subjection of those who fall within it to a different
set of rules and procedure, which may conceivably be
more disadvantageous than the procedure which generally
applies to ordinary trials….But once a classification
is upheld by the application of the dual test,
subjection to harsher treatment or disadvantageous
procedure loses its relevance, the reason being that
for the purposes of article 14, unequals cannot
complain of unequal treatment.”
We shall, however, deal with the question whether or
not the procedure is disadvantageous when we examine the
argument of the learned counsel regarding sections 5, 6, 7
and 11 of the Act.
Thus, to sum up, the position so far as this part of
the argument is concerned is as follows:-
(1) Separate grouping of holders of high offices
for purposes of expeditious criminal action
to be taken by superior courts is a
reasonable and valid classification because
it enhances confidence on the rule of law,
530
strengthens the democratic system and
ensures purity of public life and political
conduct.
(2) The Bill was challenged before the Supreme
Court on the touchstone of Art. 14 on several
grounds. In the first place, it was argued
that no rational basis for separately
classifying Emergency offenders existed. The
second ground of challenge was that assuming
that there was a valid classification, the
same was bad because it suffered from the
vice of under-inclusion inasmuch as holders
of high public or political offices were left
out. This Court, however, repelled the
argument of rational basis on the ground that
the Emergency period, because of its special
characteristics, afforded adequate basis for
separate classification of Emergency
offences. The Court was not at all at that
time concerned expressly with the question as
to whether classification of high public or
political dignitaries without reference to
any period during which they were alleged to
have committed offences would be violative of
Art. 14 of the Constitution. On the other
hand, this Court made clear observations that
an Act providing for such a classification
would be not only valid but also highly
welcome. It is true that the provision
regarding a particular period before the
Emergency was then struck down but that was
so because the Bill was confined to offences
committed only during the period of Emergency
and the inclusion of that period meant bad
classification for the reason that the period
last mentioned could not be distinguished
from other pre-or post-Emergency periods on
any reasonable basis. This view of the Court
could not be interpreted as laying down a law
of universal application that no Special Act
on a permanent basis classifying offenders
possessing particular characteristics or
attributes and providing for their
prosecution under a special procedure would
be invalid or violative of Art. 14. Thus, we
do not think that the opinion of the Supreme
Court in any way amounted to disapproval or
condemnation of a permanent law in future
bringing within its scope all holders of high
public or political office.
It was then argued by Mr. Bhatia that assuming the
classification of persons holding high public or political
offices to be justified, it suff-
531
ers from a serions infirmity in that neither the term ‘high
public or political office’ has been defined nor have the
offences been delineated or defined so as to make the
prosecution of such offenders a practical reality. Dealing
with this argument, the learned Solicitor General pointed
out that it was specifically raised when the Court was
hearing the Reference and written submissions were filed by
the parties but that, unfortunately, the opinion did not
give any finding on it and urged that even in absence of any
finding, the argument must be deemed to have been rejected.
We find sufficient force in what the learned Solicitor
General says but as we are hearing the appeals of persons
who have been convicted and sentenced to various terms of
imprisonment so that their liberty is involved, we feel that
we should go into Mr. Bhatia’s argument.
As regards the definition of ‘high public or political
offices’ the expression is of well-known significance and
bears a clear connotation which admits of no vagueness or
ambiguity. Even during the debate in Parliament, it was not
suggested that the expression suffered from any vagueness.
Apart from that even in the Reference case, Krishna Iyer,
J., referred to holders of such offices thus:-
“heavy-weight criminaloids who often mislead the
people by public moral weight-lifting and multipoint
manifestoes……..
……such super-offenders in top positions…..
…….No erudite pedantry can stand in the way of
pragmatic grouping of high-placed office holders
separately, for purposes of high-speed criminal action
invested with early conclusiveness and inquired into by
high-level courts.”
(Emphasis ours)
It is manifest from the observations of Krishna Iyer,
J. that persons holding high public or political offices
mean persons holding top positions wielding large powers.
In American Jurisprudence 2d (Vol. 63, PP, 626, 627 &
637) the author describes persons holding public or
political offices thus:
“Public offices are cheated for the purpose of
effecting the end for which government has been
instituted, which is the common good, and not for the
profit, honour, or private interest of any one man,
family, or class of men….The powers and functions
attached to a position manifest its character, and
there is implied in every public office an authority to
exercise some portion of the sovereign power of the 14-
289 SCI/80
532
state in making, executing, or administering the
law…….Various positions, on the other hand, have
been held not to be public offices, as, for examine,
auditor of accounts appointed by railroad
Commissioners….”
Similarly, Ferris in his thesis on ‘Extraordinary Legal
Remedies defines public or political offices thus:
“A public office is the right, authority and duty
created and conferred by law, by which an individual is
vested with some portion of the sovereign functions of
the Government to be exercised by him for the benefit
of the public, for the term and by the tenure
prescribed by law. It implies a delegation of a
portion of the sovereign power. It is trust conferred
by public authority for a public purpose, embracing the
ideas of tenure, duration, emoluments and
duties……The determining factor, the test, is
whether the office involves a delegation of some of the
solemn functions of Government, either executive,
legislative or judicial, to be exercised by the holder
for the public benefit.”
(72 Calcutta Weekly Notes, P.64, Vol.72)
Similarly, Wade and Phillips in ‘Constitutional Law’
defines political offices thus:-
The Cabinet is the body of principal Ministers
with whom rests the real direction of policy. We speak
of the Ministry or the Administration of a particular
Prime Minister with reference to the full body of
political office holders who from time to time hold the
reins of Government, i.e., the Ministers of the Crown
and their Parliamentary Secretaries.”
O. Hood Phillips in ‘Constitutional and Administrative
Law’ (4th Edition, p. 312 & 314) defines the hierarchy of
Government Departments thus:
“Ministers-At the head of each Department-except
the “non-political” Departments, which are not
important for present purposes-is the Minister, whether
he is called Minister or Secretary of State or
President of the Board. He is a member of the
Government and changes with the Ministry of the day;
and he may also be a member of the Cabinet.
Parliamentary Secretaries-Under the Minister will
be one or more Parliamentary Secretaries, or
Parliamentary
533
Under-Secretaries of State if the Minister himself is a
Secretary of State. As their name implies,
Parliamentary Secretaries are members of one or other
of the Houses of Parliament, they are Junior Ministers
who change with the Government of the day. They assist
their Chief in the Parliamentary or political side of
his work, as well as in the administration of his
Department……
The detailed administration of the work of a
Government Department is carried out by “permanent”
civil servants. Although, like Ministers, they are
servants of the Crown, civil servants are called
“permanent” since their appointment is non-political
and in practice lasts during good behaviour, as opposed
to Ministers, Parliamentary Secretaries, etc., who are
responsible to Parliament and change office with the
Government.”
So also, Ramsay Muir in his book ‘How Britain is Governed’
(3rd Ed. p. 81) states as follows:-
“In this chapter we have to discuss the second
element in the Government-that which changes with every
change in the balance of power between parties in the
country, which consists not of experts, but of
politicians, and which works under the limelight of
publicity…..This changing element is known as ‘the
Ministry’.”
Asirvatham in his book ‘Political Theory’ (9th Ed p. 352)
defines Political Executive thus :-
“Turning from the nominal to the political
executive, we find at least four distinct forms, viz.,
the English, the American, the Swiss, and the French.
In England, the Prime Minister and the Cabinet
constitute the political executive. They can remain in
office only so long as they command the confidence of
Parliament. They are members of one or the other house
of the legislature and play a leading part in
initiating legislation. They are also administrative
heads of departments and, in that capacity, are
responsible to Parliament not only for policy but also
for the details of administration. They work together
as a team and, in their relation to Parliament, stand
or fall together.”
In words and Phrases (Permanent Edition, Vol. 32 [(Suppl.]
P. 226] the word ‘Political’ has been defined thus :-
“The word “political” is defined as of or
pertaining to policy, politics, or conduct of
government….or pertaining
534
to, or incidental to, exercise of functions vested in
those charged with conduct of government, and relating
to management of affairs of State”.
“The word ‘political’ is defined by Bouvier to be
pertaining to policy or the administration of
government. People v. Morgan, 90 III 558, 563.
The word “political” means that which pertains to
government of a nation………….”(P. 802)
A perusal of the observations made in the various
textbooks referred to above clearly shows that ‘political
office’ is an office which forms part of a Political
Department of the Government or the Political Executive.
This, therefore, clearly includes Cabinet Ministers,
Ministers, Deputy Ministers and Parliamentary Secretaries
who are running the Department formulating policies and are
responsible to the Parliament. The word ‘high’ is indication
of a top position and enabling the holder thereof to take
major policy decisions. Thus, the term ‘high public or
political office’ used in the Act contemplates only a
special class of officers or politicians who may be
categorised as follows:-
(1) officials wielding extraordinary powers
entitling them to take major policy decisions
and holding positions of trust and answerable
and accountable for their wrongs:
(2) persons responsible for giving to the State a
clean, stable and honest administration;
(3) persons occupying a very elevated status in
whose hands lies the destiny of the nation.
The rationale behind the classification of persons
possessing the aforesaid characteristics is that they wield
wide powers which, if exercised improperly by reason of
corruption, nepotism or breach of trust, may mar or
adversely mould the future of the country and tarnish its
image. It cannot be said, therefore, with any conviction
that persons who possess special attributes could be equated
with ordinary criminals who have neither the power nor the
resources to commit offences of the type described above. We
are, therefore satisfied that the terms ‘persons holding
high public or political offices’ is self-explanatory and
admits of no difficulty and that mere absence of definition
of the expression would not vitiate the classification made
by the Act. Such persons are in a position to take major
decisions regarding social, economic financial aspects of
the life of the community and other far-reaching decisions
on the home front as also
535
regarding external affairs and if their actions are tainted
by breach of trust, corruption or other extraneous
considerations, they would damage the interests of the
country. It is, therefore, not only proper but essential to
bring such offenders to book at the earliest possible
opportunity.
It was then contended that even the nature and
character of the offences have not been defined in the Act
which introduces an element of vagueness in the
classification. We are, however, unable to agree with this
contention because clause (4) of the preamble clearly
indicates the nature of the offences that could be tried
under the Act. Clause (4) of the preamble to the Act runs
thus:
“AND WHEREAS all powers being a trust, and holders
of high public or political offices are accountable for
the exercise of their powers in all cases where
Commissions of Inquiry appointed under the Commissions
of Inquiry Act, 1952 or investigations conducted by
Government through its agencies disclose offences
committed by such holders.”
The words ‘powers being, a trust’ clearly indicate that
any act which amounts to a breach of the trust or of the
powers conferred on the person concerned would be an offence
triable under the Act. Clause (4) is wide enough to include
any offence committed by holders of high public or political
offices which amounts to breach of trust or for which they
are accountable in law and does not leave any room for
doubt. Mr. Bhatia, however, submitted that even if the
person concerned commits a petty offence like violation of
municipal bye laws or traffic rules he would have to be
prosecuted under the Act which will be seriously prejudicial
to him. In our opinion, this argument is purely illusory and
based on a misconception of the provisions of the Act.
Section 5 which confers powers on the Central Government to
make a declaration clearly refers to the guidelines laid
down in the preamble and no Central Government would ever
third of prosecuting holders of high public or political
offices for petty offences and the doubt expressed by the
counsel for the appellant is, therefore, totally unfounded.
It was contended on behalf of the appellants that
Parliament was not competent to pass a Special Act and
create Special Courts for a particular set of offenders.
This argument need not detain us because it has been
effectively answered in the reference case which has held
clearly that Parliament was fully competent to pass the Bill
creating Special Courts.
536
Regarding the validity of sections 7 and 11 of the Act
which correspond to clauses 6 and 10 of the Bill,
Chandrachud, C.J., observed as follows:-
“In view of our conclusion that Parliament has the
legislative competence to enact clauses 6 and 10(1) of
the Bill, it is unnecessary to consider the argument of
the learn ed Solicitor General that, everything else
failing, Parliament would have the competence to
legislate upon the jurisdiction and powers of the
Supreme Court by virtue of article 248(1) read with
entry 97 of List I…..
To sum up, we are of the opinion that clauses 2, 6
and 10(1) of the Bill are within the legislative
competence of the Parliament. That is to say,
Parliament has the competence to provide for the
creation of Special Courts as clause 2 of the Bill
provides, to empower the Supreme Court to dispose of
pending appeals and revisions as provided for by clause
6 of the Bill and to confer jurisdiction on the Supreme
Court by providing, as is done by clause 10(1), that an
appeal shall lie as of right from any judgment or order
of a Special Court to the Supreme Court both on fact
and on law.”
It was also contended for the appellants that the Act
seeks to change the situs of the Court and virtually
abrogates s. 181 of the Code of Criminal Procedure. This
argument also does not merit any consideration because it
was raised in the Reference case and rejected. Dealing with
this aspect of the matter, Chandrachud, C.J observed :-
“As regards situs of trial, it is unfair to make
an assumption of mala fides and say that an
inconvenient forum will be chosen deliberately.
Besides, the provisions of chapter XII of the Code
containing section 177 to 189, which deal with
“Jurisdiction of the criminal courts in Inquiries and
Trials”, are not excluded by the Bill. Those provisions
will govern the question as to the situs of trial.”
Mr. Bhatia further submitted that the Act creates an
invidious distinction inasmuch as persons holding high
public or political offices would have the benefit of trial
by such an experienced officer as a sitting Judge of a High
Court while the appellants have been deprived of that right
and were tried by a Special Judge who was only a Sessions
Judge. This argument, in our opinion, is completely devoid
of substance. The first information report against the
appel-
537
lants was lodged on 13th April 1977 and the charge-sheet was
submitted before the Special Judge who convicted the
appellants by the order dated February 27, 1979. The Act,
however, came into force on May 16, 1979, that is to say,
three months after the conviction and about two months after
the appellants had filed their appeals before the High
Court. In these circumstances, the question of the
appellants being tried by the Special Judge appointed under
the Act could not arise because the said Special Court did
not exist at all when the trial of the appellants was
concluded. The existence of such fortuitous circumstances
cannot attract Art. 14. This matter was considered in two
decisions of this Court. In the case of Khandige Sham Bhat &
Ors v. The Agricultural Income Tax Officer, Subba Rao J,
observed as follows:-
“If there is equality and uniformity within each
group, the law will not be condemned as discriminative,
though to some fortuitous circumstance arising out of a
peculiar situation some included in a class get an
advantage over others, so long as they are not singled
out for special treatment.”
The same view was expressed thus in a later decision of his
Court reported as Dantuluri Ram Raju Ors v. State of Andhra
Pradesh Anr.
“The facts that on account of topographical
situation some landowners get greater benefit of the
drainage scheme because of their lands being more prone
to damage by floods is a fortuitous circumstance and
the same would not be a valid ground for striking down
the impugned legislation. It is well established that
if there is equality and uniformity within each group,
the law will not be condemned as discriminative though
due to some fortuitous circumstances arising out of a
peculiar situation, some included in a class get an
advantage over others so long as they are not singled
out for special treatment.”
In view of these decisions, the argument of Mr. Bhatia
must be overruled.
This, therefore, concludes the submissions made by Mr.
Bhatia generally regarding the constitutionality of the Act.
538
Mr. Mridual adopted the above-noted arguments, advanced
by Mr. Bhatia, but put forward contentions with respect to
other aspects which we shall deal with at a later stage of
the judgment.
It was next contended by Mr. Bhatia that s. 5 of the
Act suffers from several constitutional and legal
infirmities.
Sub-sections (t) and (2) thereof may be extracted here:
“Declaration by Central Government of cases to be dealt
with under this Act:
5.(1) If the Central Government is of opinion that
there is prima facie evidence of the
commission of a offence alleged to have been
committed by a person who held high public or
political office in India and that in
accordance with the guidelines contained in
the preamble hereto the said offence ought to
be dealt with under this Act, the Central
Government shall make a declaration to that
effect in every case in which it is of the
aforesaid opinion.
(2) Such declaration shall not be called in
question in any court.”
In the first place, it was contended that s. 5(1)
suffers from the vice of excessive delegation of powers so
as to violate Art. 14 in as much as the discretion conferred
on the Central Government is absolute, naked and arbitrary
and is clearly discriminatory as it is open to the Central
Government to pick and choose persons and make declarations
in respect of them while excluding others. In our opinion,
this contention is based on a serious misconception of the p
provisions of the Act. For one thing, no unguided or
uncanalised power has been conferred on the Central
Government. A basic condition imposed on the Central
Government is that there must be a proper application of
mind regarding the existence of prima facie evidence of the
commission of an offence. Secondly, the discretion has to be
exercised in accordance with the guidelines contained in the
preamble. The various clauses of the preamble which have
been set out in an earlier part of this judgment, lay down
clear guidelines and provide sufficient safeguards against
any abuse of power. Thirdly, clause (4) of the preamble
clearly lays down that the power under s. 5 is exercisable
only after the commission of an offence by the holder of a
high public or political office bas been disclosed as a
result of an inquiry conducted under the Commissions of
Inquiry Act or of an investigation conducted by the
Government through its agencies. It is well settled that
discretionary power is not the same thing
539
as power to discriminate nor can the constitutional validity
of a law be tested on the assumption that where a
discretionary power is conferred on a high authority, the
same may or would be exercised in a discriminatory manner.
In the case of Dr. N. B. Khare v. The State of Delhi, Kania,
C. J., dealing with the same aspect of the matter observed
as follows.
“Moreover, this whole argument is based on the
assumption that the Provincial Government when making
the order ill not perform its duty and may abuse the
provisions of the section. In my opinion, it is
improper to start with such an assumption and decide
the legality of an Act on that basis. Abuse of power
given by a law sometimes occurs; but the validity of
the law cannot be contested be cause of such an
apprehension. In my opinion, therefore, this contention
of the petitioner cannot be accepted.”
In the case of Kathi Raning Rawat v. The State of Saurashtra
this Court observed:
“The discretion that is conferred on official
agencies in such circumstances is not an unguided
discretion, it has to be exercised in conformity with
the policy to effectuate which the direction is given
and it is in relation to that objective that the
propriety of the classification would have to be
tested.”
The same view was taken in a later decision of this Court in
the case of Matajog Dobey v. H. C. Bhart where the court
observed as follows:-
“It has to be borne in mind that a discretionary
power is not necessarily a discriminatory power and
that abuse of power is not to be easily assumed where
the discretion is vested in the Government and not ill
a minor official.”
In the case of In Re The Kerala Education Bill, 1957, this
Court said:
“But all that we need say is that apart from
laying down a policy for the guidance of the Government
in the matter of the exercise of powers conferred on it
under the different provisions of the Bill including
cl. 36, the Kerala Legislature; has, by cl. 15 and cl.
37 provided further safeguards.
540
In this connection, we must bear in mind what has been
laid down by this Court in more decisions than one,
namely, that discretionary power is not necessarily a
discriminatory power and the abuse of power by the
Government will not be lightly assumed.”
Similarly, in the case of Jyoti Pershad v. The Administrator
for the Union Territory of Delhi, Ayyangar J., speaking for
the Court, observed :
“So long therefore as the Legislature indicates,
in the operative provisions of the statute with
certainty, the policy and purpose of the enactment, the
mere fact that the legislation is skeletal, or the fact
that a discretion is left to those entrusted with
administering the law, affords no basis either for the
contention that there has been an excessive delegation
of legislative power as to amount to an abdication of
its functions, or that the discretion vested is
uncanalised and unguided as to amount to a carte
blanche to discriminate.”
In the case of Moti Ram Deka etc. v. General Manager, N. E.
F. Railway, Maligaon, Pandu, etc Shah J., speaking for the
Court remarked-
“Power to exercise discretion is not necessarily
to be assumed to be a power to discriminate unlawfully,
and possibility of abuse of power will not invalidate
the conferment of power. Conferment of power has
necessarily to be coupled with the duty to exercise it
bona fide and for effectuating the purpose and policy
underlying the rules which provide for the exercise of
the power. If in the scheme of the rules, a clear
policy relating to the circumstances in which the
power, is to be exercised is discernible, the
conferment of power must be regarded as made in
furtherance of the scheme, and is not open to attack as
infringing the equality clause.”
In the case cf V. C. Shukla v. The State through C.B.I. this
Court pointed out that where a discretion is conferred on a
high authority such as the Central Government it must be
presumed that
541
the Government would act in accordance with law and in a
bona fide manner, and said:
“In fact, this Court has held in a number of cases
that where a power is vested in a very high authority,
the abuse of the power is reduced to the minimum.”
In view of these decisions, it must be held that the
power conferred on the Central Government is controlled by
the guidelines contained in the preamble which by virtue of
the provisions of s. 5(1) becomes a part of that section. As
the power has been conferred on the Central Government which
is to make a declaration in accordance with the conditions
laid down in s. 5(1) and, therefore, in conformity will. the
guidelines mentioned in the preamble, the attack based on
discrimination is unfounded and is hereby repelled.
Another allied argument advanced by Mr. Bhatia was that
the issuance of a declaration under s. 5(1) depends purely
on the subjective satisfaction of the Central Government and
under sub-section (2) of s. 5 such a declaration cannot be
called into question by any court so that there would be an
element of inherent bias or malice; in an order which the
Central Government may pass, for prosecuting persons who are
political opponents and that the section is therefore
invalid. We are unable to agree with this argument. As
already pointed out, the power of the Central Government to
issue a declaration is a statutory power circumscribed by
certain conditions. Further more, as the power is vested in
a very high authority, it cannot be assumed that it is
likely to be abused. On the other hand, where the power is
conferred on such a high authority as the Central
Government, the presumption will be that the power will be
exercised in a bona fide manner and according to law. In the
case of Chinta Lingam & Ors v. Government of India & Ors.,
this Court observed:
“At any rate, it has been pointed out in more than
one decision of this Court that when the power has to
be exercised by one of the highest officers the fact
that no appeal has been provided for is a matter of no
moment…. It was said that though the power was
discretionary but it was not necessarily discriminatory
and abuse of power could not be easily assumed. There
was moreover a presumption that public officials would
discharge their duties honestly and in accordance with
rules of law.”
542
To the same effect is the decision of this Court in Budhan
Choudhry & Ors. v. The State of Bihar. It was however
suggested that as the Central Government in a democracy
consists of the political Party which has the majority in
Parliament, declarations under s. 5(1) lt the Act could be
used as an engine of oppression against members of parties
who are opposed to the ideologies of the ruling party. This
is really an argument of fear and mistrust which, if
accepted, would invalidate practically all laws of the land;
for, then even a prosecution under the ordinary law may be
considered as politically motivated, which is absurd.
Furthermore, prejudice, malice or taint is not a matter for
presumption in the absence of evidence supporting it. It is
well settled that burden lies on the parties alleging bias
or malice to prove its existence, and if malice or bias is
proved in a particular case, the courts would strike down
the act vitiated by it, in exercise of its powers under
Arts. 226, 227 or 136. This aspect of the matter was dealt
with in the reference case thus:-
“Though the opinion which the Central Government
has to form under clause 4(1) is subjective, we have no
doubt that despite the provisions of sub-clause (2) it
will be open to judicial review at least within the
limits indicated by this Court in Khudaran Das Deo v.
The State of West Bengal & Ors. (1975, 2, SCR 832,
845). It was observed in that case by one of us,
Bhagwati J., while speaking for the Court. that in a
Government of laws “there; is nothing like unfettered
discretion remove from judicial reversibility”. The
opinion has to be formed by the Government, to set the
least, rationally and in a bona fide manner.”
Another limb of the argument of Mr. Bhatia regarding
the provisions about declaration contained in s. 5 (1) was
that they are violative of the principles of natural justice
inasmuch as they do not provide for any hearing being given
to the accused before a declaration is made. This argument,
in our opinion, is also without substance. It is to be borne
in mind that at the stage when the declaration is sought to
be made there is no list pending nor has any prosecution
been launched against the accused. Section 5 deals only with
the decision taken by the Central Government to prosecute
and until that decision is notified the prosecution does not
start, and the question of an accused being heard at that
stage, therefore, does not arise at all. A couple of
instances in point may be cited here with advantage. In
cases where law requires sanction to be given by the
appointing authority before a prosecution can be launched
against a Government servant, it has
543
never been suggested that the accused must be heard before
sanction, is accorded. The question of sanction arises at a
point of time when there is no danger to the liberty of the
subject and the accused at that stage is not in the picture
at all. It is only after sanction is accorded that an
accused is brought to trial or proceedings are started
against him when he is to be heard and can challenge the
validity of the sanction Similarly, when a first information
report is filed before a police officer, the law does not
require that the officer must hear the accused before
recording it or submitting a charge-sheet to the Court.
Another instance is to be found where a complaint is filed
before a Magistrate who chooses to hold an inquiry under s.
202 of the Code of Criminal Procedure before issuing process
or summons to the accused. lt has been held in several cases
that at that stage the accused has got no locus to appear
and file his objections to the inquiry. The right of the
accused to be heard comes into existence only when an order
summoning the accused is passed by the Magistrate under s.
204 of the Code of Criminal Procedure. In the case of Cozens
v. North Devon Hospital Management Committee & Anr, Lord
Salmon pithily observed:
“No one suggests that it is unfair to launch a
criminal prosecution without first hearing the
accused.”
The argument of Mr. Bhatia which is under examination
is thus also found to be wholly untenable
It was then contended that in the instant case the
declaration dated June 22, 1979 made under s. 5(1) of the
Act per se shows that it had not resulted from any real
application of mind by the Central Government. The
declaration is based, it is pointed out, on the existence of
prima facie evidence of the commission of certain offences
by Mr. Shukla and Mr. Sanjay Gandhi and proceeds to state
that the said offences ought to be dealt with under the Act.
It was vehemently argued that at the time when the
declaration was made the appellants had already been
convicted and had filed appeals in the High Court and that
therefore for the Central Government to say that ‘a prima
facie case’ was made out was to close its eyes to the
realities of the situation. The argument, in other words, is
that once the prosecution of the appellants had culminated
in a conviction and an appeal therefrom, there was no
question of the existence of any ‘prima facie case’, and
that the use of such an expression could be intelligible
only if the accused were facing criminal proceedings which
had not culminated in a conviction. The assertion about the
existence of a prima facie case clearly shows, according to
learned counsel, that the Central
544
Government did not apply its mind at all to the factors
relevant to the issuance of the declaration or that, at any
rate, the application of its mind was perfunctory. We find
ourselves, unable to accept of this argument which fails to
consider certain fundamental aspects of the scope and ambit
of s. 5(1) of the Act and is based on a misconstruction of
the nature of the declaration which is to be made. Under the
section the Government has to be satisfied on two counts
before it could issue a declaration. It must be satisfied in
the first instance that there is prima facie evidence of the
commission of an offence. Secondly, it must form the opinion
in accordance with the guidelines contained in the preamble
that such offence ought to be dealt with under the Act. The
argument under examination relates to the first limb of the
satisfaction of the Central Government. So, the question
arises whether the condition of the existence of prima facie
evidence is not fulfilled in the case of the present
declaration merely because the trial in the first court had
ended in a conviction and an appeal therefrom. The answer to
the question has to be an emphatic ‘no’, the reason being
that if conviction is construed as evidence of the existence
of something more than a mere prima facie case, that would
not mean that a prima facie case ceases to exist. That a
prima facie case must be found to exist is only the minimum
requirement for the satisfaction of the Central Government
and it would be doubly made out if the evidence available is
stronger than is needed to make out only a prima facie case.
A conviction of an accused person cannot mean that there is
no prima facie evidence against him. All that it spells out
is that not only a prima facie case is made out against him
but that the evidence available is even stronger and is
sufficient for a conviction. However, as the Government,
while acting under the section, is to satisfy itself only
with the existence of prima facie evidence, the assertion by
it in the declaration that such evidence was available to
its satisfaction cannot, by any stretch of imagination, be
held to be inapplicable to a case in which a conviction has
been recorded. In this view of the matter we find the use of
the expression ‘prima face’ evidence in the declaration to
be fully justified even though the trial had ended in a
conviction which was under appeal on the date of the
declaration. In this context, the contents of the
declaration also deserve scrutiny. It reads:
“WHEREAS the Central Bureau of Investigation
recorded under section 154 of the Code of Criminal
Procedure (2 of 1974) on the 13th April 1977 a first
information report and registered a case being RC-2/77-
CIU (1) for suspected offences of a conspiracy to
commit theft and actual theft of the film materials of
the film ‘Kissa Kursi Kaa’ pro-
545
duced by one Shri Amrit Nahata from the custody of the
Ministry of Information and Broadcasting:
AND WHEREAS investigations conducted by the
Central Bureau of Investigation disclosed offences
committed during the period while the proclamation of
emergency dated the 25th June 1975, issued by the
President under clause (i of Article 352 of the
Constitution was in force:
AND WHEREAS after completion of investigation the
Central Bureau of Investigation filed a charge-sheet on
the 14th July 1977 in the court of the Chief
Metropolitan Magistrate, Delhi:
AND WHEREAS the facts mentioned in the said
charge- sheet disclosed offences having been committed
by Shri Vidya Charan Shukla, who was the Minister of
Information and Broadcasting, Government of India, and
Shri Sanjay Gandhi, son of late Shri Feroz Gandhi,
under section 120-B of the Indian Penal Code, 1860 (45
of 1860) read with sections 409, 435, 411, 414 and 201
of the I.P.C. as well as substantive offences under
section 409, 411, 414, 435 and 201 of the I.P.C. as
also the said offences read with section 109 of the
I.P.C.:
AND WHEREAS a case (RC/2/77-CIA-I) was filed in
the court of the Chief Metropolitan Magistrate, Delhi,
with respect to the said offences and the Chief
Metropolitan Magistrate committed the case to the Court
of Session for trial on 22-2-78:
AND WHEREAS the District and Sessions Judge having
convicted the accused by his order dated 17-2-79
sentenced Shri Vidya Charan Shukla and Shri Sanjay
Gandhi with imprisonment and also imposed fines on them
as specified in the said order dated 27-2-79:
AND WHEREAS Shri Vidya Charan Shukla and Shri
Sanjay Gandhi filed appeals Nos. 71/79 and 72/79
respectively under Section 374(2) of the Code of
Criminal Procedure, 1973 (2 of 1974) in the High Court
of Delhi on 20-3-79 against the aforesaid conviction
and that the said appeals were admitted by Delhi High
Court on 21-3-79:
AND WHEREAS the State has also filed an appeal in
the Delhi High Court on 18-5-79 under section 377, Code
I of Criminal Procedure (No. 2 of 1974) for enhancement
of the sentence with respect to the aforesaid accused
persons:
546
AND WHEREAS the above-mentioned appeals are now
pending in the High Court of Delhi:
AND WHEREAS the Central Government after fully and
carefully examining the material placed before it in
regard to the aforesaid offences is of opinion that
there is prima facie evidence of the commission of the
said offences by Shri Vidya Charan Shukla, who was the
Minister of Information and Broadcasting, Government of
India, at the relevant period and as such a person who
held high public and political office, Shri Sanjay
Gandhi and others and that in accordance with the
guidelines contained in the preamble to the Special
Courts Act 7 1979 (22 of 1979) the said offences ought
to be dealt with under that Act.
NOW, THEREFORE, in exercise of the powers
conferred by sub-section (1) of Section S of the
Special Courts Act 7 1979 (22 of 1979), the Central
Government hereby declares that there is prima facie
evidence of the commission of the aforesaid offences
alleged to have been committed by ‘Shri Vidya Charan
Shukla, who was the Minister of Information and
Broadcasting, Government of India, during the relevant
period, and as such held a high public and political
office in India during the relevant period, and Shri
Sanjay Gandhi, son of late Shri Feroz Gandhi, and that
in accordance with the guidelines contained in the
Preamble to that Act, the said offences ought to be
dealt with under that Act “
A perusal of the declaration reveals that it gives the
history of the case from beginning to end which demonstrates
that the Central Government was fully aware of the various
stages through which the trial of the appellants, passed.
Thus, the formation of the opinion by the Government of the
existence of a prima facie case cannot be held to be
perfunctory or illusory. It has not been shown that the
declaration was in any way irrational or male fide or based
on extraneous considerations. The argument advanced by Mr.
Bhatia, therefore, must be overruled.
The last plank of attack on s. 5 of the Act is that the
declaration is non est because it has not been laid before
each House of Parliament as required by s. 13 of the Act.
This argument merits some consideration. Section 13 runs
thus:
“13. Every notification made under sub-section (I)
of section 3 and every declaration made under sub-
section (1)
547
of section 5 shall be laid, as soon as may be after it
is made, before each House of Parliament.”
As we read the section, we are clearly of the opinion that
its provisions are purely directory and not mandatory so
that if the conditions mentioned in it are not fulfilled the
declaration would not be vitiated. It is to be noted that
the section does not say that until a declaration is placed
before the two Houses of Parliament it shall not be deemed
to be effective, nor does the section intend that any
consequence would result from its non-compliance. Moreover,
the matter is no longer res integra and is concluded by
several decisions of this Court, the most recent of them
being M/s. Atlas Cycle Industries Ltd. & ors. v. The State
of Haryana where this Court observed:
“Thus two considerations for regarding a provision
as directory are: (l) absence of any provision for the
contingency of a particular provision not being
complied with or followed, and (2) serious general
inconvenience and prejudice that would result to the
general public if the act of the Government or an
instrumentality is declared invalid for non compliance
with the particular provision
*** *** ***
In the instant case, it would be noticed that sub-
section (6) of Section 3 of the Act merely provides
that every order made under Section 3 by the Central
Government or by any officer or authority of the
Central Government shall be laid, before both Houses of
Parliament, as soon as may be, after it is made. It
does not provide that it shall be subject to the
negative or the affirmative resolution by either House
of Parliament. It also does not provide that it shall
be open to the Parliament to approve or disapprove the
order made under Section 3 of the Act. It does not even
say that it shall be subject to any modification which
either House of Parliament may in its wisdom think it
necessary to provide. It does not even specify the
period for which the order is to be laid before both
Houses of Parliament nor does it provide any penalty
for non-observance of or non-compliance with, the
direction as to the laying of the order before both
Houses of Parliament. It would also be noticed that the
requirement as to the laying of the order before both
the Houses of Parliament is not a condition precedent
but subsequent to the making of the order. In other
words, there is no prohi-
548
bition to the making of the orders without the approval
of both Houses of Parliament. In these circumstances,
we are clearly of the view that the requirement as to,
laying contained in sub-section (6) of Section 3 of the
Act falls within the first category, i.e., “simple
laying” and is directory, not mandatory.”
We fully agree with this view and hold that on a true
interpretation of section 13 of the Act, it is a case of a
simple laying of the declaration before each House of
Parliament and the declaration cannot be struck down on he
grounds suggested by the counsel.
It was then submitted that as the declaration is based
on the result of an investigation held by a Central agency
even though the’ offences were alleged to have been
committed in a State, it affects the s basic structure of
the Constitution and is, therefore, void. This argument, in
our opinion, is also misconceived. The doctrine of the
violation of basic structure of the Constitution or its
fundamental features applies not to the provisions of a law
made by a State legislature or Parliament but comes into
operation where an amendment made in the Constitution itself
is said to affect its basic features like fundamental rights
enshrined under Articles 14, 19, 31, or the power of
amendment of the Constitution under Art. 368 and so on. The
doctrine has no application to the provisions of a Central
or State law because _ if the statute is violative of any
provision of the Constitution it can be struck down on that
ground and it is not necessary to enter into the question of
basic structure of the Constitution at all.
Mr. Mridul, appearing for Mr. Shukla, apart from
adopting the arguments of Mr. Bhatia, as discussed above,
raised two additional points. In the first place, he
submitted that s. 5(1) of the Act has no application to the
facts of the present case because under s. 5(1) a
declaration has to be made on the basis of the sources
indicated in the section, namely, inquiries conducted under
the Commissions of Inquiry Act or investigations which
become otiose and would have relevance only if his client
had not been convicted. This argument, in our opinion,
appears to be the same as was put forward by Mr. Bhatia
which we have already rejected.
It was next argued that conviction being a finding of
guilt can not be said to fall within the situation
contemplated by section 5(1) of the Act. Mr. Mridul
contended that as section 6 is an extension of the scheme
contained in section 5 the former does not overrule the
entire Code of Criminal Procedure but in fact takes in only
those cases which are pending at the trial stage
549
when the declaration is made. Once the case ends in a
conviction, section 6 spends itself out and there is no room
for the application of section 5, according to learned
counsel. It is true that section 6 does contemplate a
prosecution which is relatable to the declaration under
section 5 but that does not debar the application of section
5 to other states or a criminal case, especially those
specifically dealt with under section 7 of the Act which, as
we shall presently show, fully covers the situation in hand.
The limited field in which section 6 operates doss not
therefore exhaust the consequences flowing from the issuance
of a declaration under section 5
Mr. Mridul however contended that section 7 would not
apply to this case because its language embraces only those
appeals which arise out of a prosecution which itself is
pending at the time when a declaration ‘is made. The
argument is devoid of force as, to accept it, would be to
ignore an important part of section 7 which runs thus .
“7. If at the date of the declaration in respect
of any offence any appeal or revision against any
judgment or order in a prosecution in respect of such
offence, whether pending or disposed of is itself
pending in any court of appeal or revision, the same
shall stand transferred for disposal to the Supreme
Court.”
The words “whether pending or disposed of” are
significant and qualify the immediately preceding clause “a
prosecution in respect of such offence”. The legislature has
thus taken care to expressly provide that an appeal or
revision would be covered by section 7 and transferable to
the Supreme Court for disposal if it is directed against a
Judgment or order made in a prosecution which is either
pending has been disposed of, the only other requirement of
the section being that such appeal or revision must itself
be pending at the date of the declaration To interpret
section 7 in such a way that its applicability is limited to
appeals or revisions arising from prosecutions pending at
the trial stage at the date of the relevant declarations is
possible only if the words “or disposed of” are treated as
absent from the section a course which is not open to this
Court in view of the express language used. The argument is
therefore repealed.
Finally, it was argued that by providing in s. 7 for an
automatic transfer of appeals from the High Court to the
Supreme Court the legislature has exercised a judicial power
which is vested in the Supreme Court alone under s. 406 of
the Code of Criminal Procedure and that the section is
invalid as it conflicts with the said s. 406.
550
We are, however, unable to agree with this argument. There
is no question of the exercise of any judicial power by the
legislature in enacting s. 7 which covers a well-known
legislative process. The decision of this Court in Smt.
Indira Nehru Gandhi v. Shri Raj Narain relied upon by Mr.
Mridul deals with quite a different situation and is wholly
inapplicable to the present case. There what the legislature
did was to disposed of two appeals on merits through an
amendment to deprive the court of the opportunity to decide
the appeals which are pending before it. The amendment was
struck down by this Court in a judgment during the course of
which Mathew, J. Observed:
“At the time when the Amendment was passed, the
appeal filed by the appellant and the cross appeal of
the respondent were pending before the Supreme Court.
Clause (4) was legislation ad hominem directed against
the course of the hearing of the appeals on merits as
the appeal and the cross appeal were to be disposed of
in accordance with that clause and not by applying the
law to the facts as ascertained by the court. This was
a direct interference with the decision of these
appeals by the Supreme Court on their merits by a
legislative judgment.”
Thus, in that case the legislation was ad hominem and
was directed against the course of the hearing of the
appeals on merits. In the instant case, however, the
Parliament has done nothing of the sort. By enacting s. 7,
it has merely provided a new forum for they appeals which
were pending in the High Court and in respect of which a
valid declaration, fully consistent with the provisions of
the Act, was made-a course which involved no interference
with the P’ judicial functions of the court and was fully
open to the legislature. We are thus clearly of the opinion
that the decision relied upon by Mr. Mridul is of no
assistance to him and that his argument is without merit.
We now pass on to the next phase of the argument of Mr.
Bhatia and Mr. Mridul which relates to the nature of the
procedure provided for by the Act. According to the
contention of learned counsel for the appellants, the
procedure prescribed by the Act is harsher and more rigorous
than that provided for in the Code of Criminal Procedure and
causes serious prejudice to the accused and is, therefore.
violative of Art. 14 of the Constitution. We might mention
here that in view of our finding that the classification
made by the Act complies with the dual test laid down by
this Court and is a reasonable
551
classification, Art. 14 would not be attracted even if the
procedure is held to be harshar than that available under
the ordinary law. Apart from that, however, we find that the
procedure prescribed by the Act is not harsh or onerous as
contended but is more liberal and’ advantage to the accused
who is assured of an expeditious and fair trial thereunder.
Before, however, dealing with this aspect of the matter, we
might dispose of an argument advanced by Mr. Bhatia that his
client not having held any high public or political office
has been drawn into this case by virtue of the declaration
and has, therefore, been singled out for a discriminatory
treatment. We are unable to accept this argument. It is true
that Mr. Sanjay Gandhi has never been the holder of any high
public or political office but the first clause of the
preamble clearly includes within its ambit not only persons
holding high public or political offices but also others as
section 8 states .
“8. A Special Court shall have jurisdiction to try
any person concerned in the offence in respect of which
a declaration has been made, either as principal,
conspirator or abettor and all other offences and
accused persons as can be jointly tried therewith at
one trial in accordance with the Code.”
Section 8 thus incorporates the well-known concept of
joint trial accused persons in respect of offences forming
part of the same transaction. In these circumstances no
discrimination, as complained of by the appellants, results.
Coming now to the procedure prescribed by the Act,
reliance was placed by learned counsel for both the
appellants on a few cases decided by this Court to show that
the procedure prescribed by the Act is harsh and unfavorable
to the accused. As suggested by Mr. Bhatia we have tried to
judge the harshness or otherwise of the procedure from the
vision of an accused person but find ourselves unable to
agree with the contention. We might mention here that in the
Reference case, Chandrachud, C.J. pointed out the undernoted
three infirmities appearing in the Bill which were violative
of Art. 21 of the Constitution:
(1) that there was no provision for transfer of a
case;
(2) that a retired Judge could be appointed as a
special Judge; and
(3) that the appointment of a Special Judge was
controlled by the Government.
552
Shinghal, J., in his dissenting note observed that if
jurisdiction ill the matter of appointing a Special Judge
was given to the High Court concerned leaving its Chief
Justice to designate one of the Judges of his Court as a
Special Judge, the procedure may become very fair and
unexceptionable. This view, however, was not shared by the
majority of Judges though they did agree that if such a
course was adopted that would be undoubtedly laudable. But
then it is for the legislature to decide upon the procedure
to be followed in the matter and it is significant for our
purpose that the aforesaid infirmities have been removed by
the Act, where under not only is the appointment of a
Special Judge made free of control by the government as it
now rests with the Chief Justice of the High Court concerned
subject to the only condition that he must obtain the
concurrence of the Chief Justice of India therefor. A
provision for transfer of cases from one Special Court to
another Special Court has also been inserted in 10(1). The
challenge on the ground of violation of Art. 21 of the
Constitution fails.
We shall now deal with the contention that the
procedure prescribed by the Act is harsh. In the first
place, it was submitted that under s. 7 an appeal pending in
the High Court stands transferred to the Supreme Court and
that thus the appellant is deprived of a valuable right of
having the appeal heard and decided by the High Court which
is vested in him the moment he is convicted. Secondly, it
was urged that if the appeal in the High Court was decided
against the appellant, he would still have a right to move
the Supreme Court Under Art. 136 of the Constitution against
conviction but that by reason of the appeal having been
transferred to the Supreme Court, that right also has been
taken away. In our opinion, there is no substance in this
grievance. To begin with, an appeal being a creature of
statute, an accused has no inherent right to appeal to a
particular tribunal. The legislature may choose any tribunal
for the purpose of giving a right of appeal. Moreover, an
appeal to the High Court is less advantageous than an appeal
to the Supreme Court for the following reasons:
(1) The right of appeal given to an accused from
the order of a Session Judge or Special Judge to the
High Court is not totally unrestricted. Section 384 of
the Code of Criminal Procedure empowers an Appellate
Court to dismiss an appeal summarily if it is satisfied
that there is no sufficient ground for interference.
The relevant portion of s. 384 runs thus:
“384. (1) If upon examining the petition of appeal
and copy of the judgment received under section 382 or
section
553
383, the Appellate Court considers that there is no
sufficient ground for interfering, it may dismiss the
appeal summarily;
Provided that-
(a) no appeal presented under section 382 shall be
dismissed unless the appellant or his pleader has had a
reason able opportunity of being heard in support of
the same,
(b) no appeal presented under section 383 shall be
dismissed except after giving the appellant a
reasonable opportunity of being heard in support of the
same, unless the Appellate Court considers that the
appeal is frivolous or that the production of the
accused in custody before the Court would involve such
inconvenience as would be disproportionate in the
circumstances of the case;
(c) no appeal presented under section 383 shall be
dismissed summarily until the period allowed for
preferring such appeal has expired.
(2) Before dismissing an appeal under this section,
the Court may call for the record of the case ”
Thus, an appeal to the High Court under the Code of
Criminal Procedure is attended with the risk of being
summarily dismissed under s. 384. On the other hand, an
appeal to the Supreme Court is governed by s. 11(1) of the
Act which runs thus:-
“11. (1) Notwithstanding anything in the Code, an
appeal shall lie as of right from any judgment,
sentence or order, not being interlocutory order, of a
Special Court to the Supreme Court both on facts and on
law.”
An appeal under s. 11(1) lies as of right and both on
facts and on law. Thus, the right conferred on a convict by
s. 11(1) is wider and less restricted than the right of
appeal given by the Code of Criminal Procedure.
(2) If the appeal is filed before the Supreme Court or
is transferred thereto, the accused becomes entitled to
a hearing of his case by the highest court in the
country both on facts and on law and thus gets a far
greater advantage than a right to move the Court for
grant of special leave which may or may not be granted,
it being a matter of discretion to be exercised by the
Supreme Court.
554
A similar view was expressed in Syed Qasim Razvi v. The
State of Hyderabad & Ors where this Court made the following
observations:-
“But in this present case the original trial was
by the Special Tribunal which was invested with the
powers of a sessions court and consequently only one
appeal would lie to the High Court. It is said that the
case could have been tried by the District Magistrate
and in that case the accused could have one appeal to
the Sessions Judge and a second one to the High Court
under the Hyderabad law. This contention rests on a
pure speculation and is hardly tenable.”
In the above view of the matter, we are unable to agree
with learned counsel for the appellants that the procedure
regarding appeals is harsher than that prescribed by the
Code of Criminal Procedure.
There is yet another aspect of the matter which was
stressed by the learned Solicitor general. Under the
provisions of s. 376 of the Code of Criminal Procedure no
appeal by a convicted person would lie in any of the
following cases:-
(1) where a High Court passes only a sentence of
imprisonment for a term not exceeding six
months or of fine not exceeding one thousand
rupees;
(2) where a Court of session or a Metropolitan
Magistrate passes only a sentence of
imprisonment for a term not exceeding three
months or of fine not exceeding two hundred
rupees;
(3) where a Magistrate of the first class passes
only a sentence of fine not exceeding one
hundred rupees;
(4) where, in a case tried summarily, a
Magistrate empowered to act under section 260
passes only a sentence of fine not exceeding
two hundred rupees.
Thus if the Sessions Judge were to try an accused and
sentence him to fine or to imprisonment not exceeding three
months, he would have no right of appeal at all. On the
other hand, if a Special Judge imposes the same sentence, an
appeal lies to the Supreme Court as of right both on facts
and on law. Could it be reasonably argued in such
circumstances that the right of appeal provided by the Act
was harsher or less advantageous to the accused ? For the
reasons given above, our answer to this question is in the
negative.
555
It was then pointed out that the right of having
matters decided in A revision by the High Court has been
taken away from the accused by the procedure prescribed by
the Act, under s. 11(1) under which no appeal also lies
against an interlocutory order and it was contended that the
section therefore entailed a definite procedural
disadvantage to the accused. This argument also is based on
a misconception of the provisions of the Act and those of
the Code of Criminal Procedure, section 397(2) of which runs
thus:-
“397. (2) The powers of revision conferred by sub-
section (1) shall not be exercised in relation to any
interlocutory order passed in any appeal, inquiry,
trial or other proceeding.”
Thus, even the Code of Criminal Procedure does not
provide for any revision against an interlocutory order. As
to what is the connotation of an interlocutory order is a
matter with which we are not concerned in this case. What is
material is that so far as interlocutory orders are
concerned, there is no right of revision either under the
code of Criminal Procedure or under the Act. In considering
this aspect of the matter one must also bear in mind the
fact that under the Act the Special Court is presided over
by no less a person who is a sitting Judge of a High Court
and the possibility of miscarriage of justice is reduced to
the bare minimum. While adverting to this aspect of the
case, this Court observed in the case of V. C. Shukla v. The
State through C.B.I. (supra):
That the Act makes a distinct departure from the
trial of ordinary offences by criminal courts in that
the trial of the offences is entrusted to a very high
judicial dignitary who is a sitting Judge of the High
Court to be appointed by the Chief Justice concerned on
the recommendations of the Chief Justice of India. This
contains a built-in safeguard and a safety valve for
ensuring the independence of judiciary on the one hand
and a complete fairness of trial on the other. In
appointing the Special Judge, the Government has
absolutely no hand or control so that the Special Judge
is appointed on the recommendations of the highest
judicial authority in the country, viz., the Chief
Justice of India. This would naturally instil great
confidence of the people in the Special Judge who is
given a very elevated status.”
We may mention here that in the case of Jagannath Sonu
Parkar v. State of Maharashtra, the right of appeal, from an
order of a Special
556
Magistrate directly to the High Court (bypassing the
Sessions Judge) was held to be more advantageous from the
point of view of the accused In this connection, this Court
said:
“It is true that if the complaint was filed in the
Court of Magistrate having jurisdiction over Deogad
alone, as it could lawfully be filed, an appeal would
against an order of conviction, lie to the Court of
Session, Ratnagiri and an application in the exercise
of revisional jurisdiction to the High Court from the
order of the Court of Session. But it is difficult to
hold that this amounts to any discrimination. Apart
from the fact that the trial by a special Magistrate
and an appeal directly to the High Court against the
order of the Magistrate may be regarded normally as
more advantageous to the accused persons, the
distinction between Courts to which the appeal may lie
arises out of the constitution of the Special
Magistrate and not any special procedure evolved by the
Notification.”
What is true of an appeal to the High Court from the
order of a Special Magistrate equally applies to an appeal
to the Supreme Court from the order of a Special Court
constituted under the Act. Thus, viewed from any angle, the
procedure prescribed by the Act cannot be said to be
prejudicial or less advantageous to the accused, much less
harsher or more rigorous than the one provided in the Code
of Criminal Procedure.
It was then argued that though the Special Court has
been give the status of a Court of Session under s. 9(3) of
the Act, yet it has to follow, under s. 9(1) thereof the
procedure prescribed for the trial of warrant cases before a
Magistrate in sections 238 to 243 and 248 of the Code of
Criminal Procedure. We cannot conceive how any grievance can
be made on this score that the provision is harsh. The
procedure for trial of warrant cases gives a full
opportunity to the accused to participate in the trial at
all its stages and to rebut the case for the prosecution in
every possible manner and it has not been pointed out how
the adoption thereof for trials under the Act would be to
the disadvantage of the accused. We find that the grievance
put forward is unfounded.
Great reliance was placed by learned counsel on the
judgment in the State of West Bengal v. Anwar Ali Sarkar in
support of the proposition that the procedure prescribed by
the Act was harsh and disadvantageous to the accused. Before
referring to certain passages in
557
that judgment (which has been fully considered in the
Reference case) we consider it necessary to give the
background and the special facts in the light of which the
Judges of this Court made the relevant observations. The
West Bengal legislature passed the West Bengal Special
Courts Act (hereinafter to be referred to as the ‘West
Bengal Act’) constituting Special Courts and empowering the
State Government to refer cases or offences or classes of
cases or classes of offences to such Courts but did not at
all indicate any guidelines as to the nature of the cases to
be so referred which was thus a matter left entirely to the
discretion of the Government. In other words, the Government
was given a blanket power to refer any case of whatsoever
nature to the Special Courts. Sub-sections (1) and (2) OF s.
5 of the West Bengal Act are extracted below:-
“5(1) A Special Court shall try such offences or
classes of offences or cases or classes of cases, as
the State Government may by general or special order in
writing, direct.
(2) No direction shall be made under sub-section
(1) for the trial of an offence for which an accused
person was being tried at the commencement of this Act
before any court, but, save as aforesaid, such
direction may be made in respect of an offence, whether
such offence was committed before or after the
commencement of this Act.”
A perusal of these provisions would show that the State
Government was given an uncontrolled power to refer for
trial offences or cases by a general or special order. Under
s. 3, the Government was empowered by a notification in the
official Gazette to constitute Special Courts and s. 4
provided for the appointment of Special Judges to preside
over such Courts. Even though no conditions regulating the
exercise of discretion by the State Government were laid,
Sastri, C.J., upheld the validity of the law on the ground
that the State in the exercise of its governmental power was
entitled to make laws operating differently to different
groups of classes of persons. Elaborating the point, Sastri,
C.J., observed:
“In the face of all these considerations, it seems
to me difficult to condemn section 5(1) as violative of
Article 14, If the discretion given to the State
Government should be exercised improperly or
arbitrarily, the administrative action may be
challenged as discriminatory, but it cannot affect the
constitutionality of the law. Whether a law conferring
discretionary powers on an administrative authority is
constitutionally valid or not should not be determined
on the assumption that such authority will act in an
arbitrary manner in exercising the discretion committed
to it …. On the contrary,
558
it is to be presumed that a public authority will act
honestly and reasonably in the exercise of its
statutory powers, and that the State Government in the
present case will, before directing a case to be tried
by a Special Court, consider whether there are special
features and circumstances which might unduly protract
its trial under the ordinary procedure and mark it off
for speedier trial under the Act.
… … …
Even from the point of view of reasonable
classification, I can see no reason why the validity of
the Act should not be sustained. As already pointed
out, wide latitude must be allowed to a legislature in
classifying persons and things to be brought under the
operation of a special law, and such classification
need not be based on an exact or scientific exclusion
or inclusion.
It might be noticed, therefore, that even though no
guidelines at all were provided by the statute, yet Sastri,
C.J., held that the classification was a reasonable one and
sustained the validity of the law. The other Judges,
however, did not agree with the view of Sastri, C.J., and
struck down the provisions of section 5 of the West Bengal
Act. However, the judgment is wholly inapplicable to the
present case in which the Act not only lays down clear,
explicit and exhaustive guidelines but further requires the
State Government to act only on the basis of certain
specific conditions and after being satisfied on a fully
application of the mind that a prima facie case was made
out. We have already indicated that by enacting s. 5, the
Act makes the various clauses of the preamble as a part of
that section. Thus, any possibility of discrimination or
absolute or arbitrary exercise of powers is excluded by the
Act. The case of Anwar Ali Sarkar (supra), therefore cannot
furnish any criterion for judging the validity of any of the
provisions of the Act. It is in the light of this background
that we have to examine Anwar Ali Sarkar’s case. It may be
mentioned that one of the grounds which appealed to Sastri,
C.J., was that the object of the West Bengal Act was to
provide for speedier trial by instituting a system of
Special Courts with a simplified procedure which was
sufficient, in his opinion, to justify the validity of that
Act. Fazal Ali, J., (as he then was) laid stress on the fact
that although a procedure ensuring a speedy trial was
prescribed by the West Bengal Act yet that Act had not set
out any principle of classification while laying down the
new procedure. He held that in the absence of a reasonable
classification a procedure which catered to a speedier trial
was itself not sufficient to justify the constitutionally of
the West Bengal Act. In the instant case, we have already
pointed out
559
that a reasonable classification of a particular set of
persons or class of persons, viz., those holding high public
and political offices, has already been made and that this
classification is consistent with the object of the statute
which is a rational one, viz., expeditious trial. This was
not true of the West Bengal Act, s. 5 of which was held to
be violative of Art. 14 by Mahajan, J., also on the ground
that there was no basis for the differential treatment
prescribed in the West Bengal Act. He observed:
“Section 5 of the West Bengal Special Courts Act
is hit by article 14 of the Constitution inasmuch as it
mentions no basis for the differential treatment
prescribed in the Act for trial of criminals in certain
cases and for certain offences….
By the process of classification the State has the
power of determining who should be regarded as a class
for purposes of legislation and in relation to a law
enacted on a particular subject.”
These observations can obviously have no application to the
present case because, as already held by us, the Act makes
not only a classification but a classification which fulfils
the dual test laid down by this Court in several cases
Reliance was placed by the counsel for the appellant on
the following observations of Mahajan, J.:
“The present statute suggests no reasonable basis
or classification, either in respect of offences or in
respect of cases. It has laid down no yardstick or
measure for the grouping either of persons or of cases
or of offences by which measure these groups could be
distinguished from those who are outside the purview of
the Special Act. The Act has left this matter entirely
to the unregulated discretion of the provincial
government.”
These observations also do not apply to the facts of the
present case because the Act in the present case has
provided a rational basis for the classification and laid
down specific yardsticks for grouping of special class of
persons and has provided a different procedure which is not
harsh (the position being different in the West Bengal Act)
and which is undoubtedly favourable and advantageous to the
accused.
Reliance was also placed on a few observations of
Mukherjea, J., where he has pointed out that in making the
classification the legislature cannot certainly be expected
to provide absolute symmetry and has held
560
that while recognising the degree of evil, the
classification should not be arbitrary, artificial or
evasive. He has stated:
“It must rest always upon real and substantial
distinction bearing a reasonable and just relation to
the thing in respect to which the classification is
made.”
There can be no doubt that the present Act fulfils all
the condition laid down by Mukherjea, J., who found that
certain provisions of the West Bengal Act curtailed the
rights of the accused in a substantial manner, thereby
resulting in discrimination. Here we have already pointed
out that no rights of the accused have been curtailed and
that on the other hand, the procedure prescribed is more
advantageous and fair to him than that available under the
ordinary law of the land, namely, the Code of Criminal
Procedure.
Finally, Mukherjea, J., pointed out that the language
of s. 5(1) of the West Bengal Act vested an unrestricted
discretion in the State Government in cases or classes of
cases to be tried by the Special Court in accordance with
the procedure laid down by that Act. This infirmity is not
present in the provisions of the present Act which treats
equally all persons who form part of the classification made
by the Act, the same procedure being applicable to all. The
ordinary law governs only those persons who are left out of
the classification and do not fulfil the conditions of the
persons constituting the class, namely, holders of high
public and political offices. Thus, the observations of
Mukherjea, J., are of no help to the appellants which is
also true of passages appearing in the judgment of Das, J.,
(as he then was) and cited before us. In the first place,
Das, J., deals with the conditions necessary for a valid
classification, which have already been spelt out by us.
There the learned Judge held that if the State Government
classified offences arbitrarily, without any reasonable or
rational basis having relation to the object of the Act, its
action will amount to an abuse of its powers. We have
already pointed out that there is no question of the
classification made by the Act being arbitrary or
unreasonable because the basis for the classification is
undoubtedly a reasonable one and has a rational nexus with
the object of the Act, namely, expeditious trial. We have
pointed out that it will be in the public interest that the
offenders sought to be tried under In the Act are either
convicted or acquitted within the shortest possible time.
Bose, J., conceded that though the procedure prescribed by
the West Bengal Act may promote the ends of justice and
would be
561
welcome, yet he took serious exception to the differential
treatment resulting therefrom. He observed:
“What I have to determine is whether the
differentiation made offends what I may call the social
conscience of a sovereign democratic republic.. It is
the differentiation which matters; the singling out of
cases or groups of cases or even of offences or classes
of offences, of a kind fraught with the most serious’
consequences to the individuals concerned, for special,
and what some would regard as peculiar, treatment.”
All these observations have however, to be read in the
light of the peculiar provisions of the West Bengal Act
which contained no guidelines, no conditions, no safeguards
but conferred uncontrolled and arbitrary powers on the
Government to make the classification as it liked. This,
however, is not the case here. We are, therefore, unable to
agree with learned counsel that the observations of the
Judges constituting the Bench in Anwar Ali Sarkar’s case
(supra) can be called into aid for the purpose of striking
down the Act in the present case.
Thus, after a consideration of the provisions of the
Act, the guidelines contained in the preamble, the
procedural part of the Act and the classification made we
are clearly of the opinion that none of the sections of the
Act are violative of Art. 14 or Art. 21 or any other
provision of the Constitution. We hold that the
classification is valid and reasonable and has a rational
nexus with the object of the Act and that the procedure
prescribed is fair and advantageous to the accused.
Accordingly, we declare that the Act and its provisions are
constitutionally valid and over-rule preliminary objections
taken on behalf of the appellants.
FAZAL ALI, J. The appellant, V. C. Shukla (hereinafter
referred to as ‘A-1’) in criminal appeal No. 494 of 1979 has
been convicted by the Sessions Judge, Delhi under s. 120
read with ss. 409, 435, 411, 414 and 201, Indian Penal Code
and also under s. 409, Indian Penal Code in respect of the
positive print and negative and other material of the film
‘Kissa Kursi Kaa; under s. 411 read with s. 109, Indian
Penal Code; under s. 414 read with s. 109, Indian Penal
Code: under s. 435 read with s. 109 I.P.C. and under s. 201
read with s. 109, I.P.C. The appellant, Sanjay Gandhi
(hereinafter referred to as ‘A-2’) in Criminal appeal No.
493 of 1979 has been convicted by the Sessions Judge, Delhi
under s. 120 B read with ss 409, 435, 411, 414 and 201 of
the Indian Penal Code and
562
has been further convicted under ss. 435, 411 and 201,
I.P.C. in regard to the negative and other material of the
film ‘Kissa Kursi Kaa’ as also under s. 409 read with s. 109
of the Indian Penal Code. Accused No. 1 was sentenced under
s. 120 read with ss. 409, 435, 411, 414 and 201 to two years
rigorous imprisonment; under s. 409; regarding the negative
and other materials to two years rigorous imprisonment and a
fine of Rs. 20,000/- and in default further 6 months
rigorous imprisonment; under s. 409 regarding the positive
print of the film to two years rigorous imprisonment and
fine of Rs. 5,000/- and in case of default further rigorous
imprisonment for three months; under s. 411 read with s. 109
to rigorous imprisonment for one year; under s. 414 read
with s. 109 to rigorous imprisonment for one year; under s.
201 read with s. 109 to rigorous imprisonment for one year;
and under s. 435 read with s. 109 to rigorous imprisonment
for one year and six months. Accused No. 2 was sentenced
under s. 120 B read with ss. 409, 435, 411, 414 and 201 to
rigorous imprisonment for two years; under s. 435 to
rigorous imprisonment for one year and six months and a fine
of Rs. 10,000/- and in case of default further rigorous
imprisonment for four months; under s. 411 to rigorous
imprisonment for one year; under s. 414 to rigorous
imprisonment for one year; under s. 201 in regard to the
negative etc., to rigorous imprisonment for one year; under
s. 201 in regard to 13 trunks, etc., to rigorous
imprisonment for one year and under s. 409 read with s. 109
to rigorous imprisonment for two years. The aforesaid
sentences or imprisonment were ordered to run concurrently
in the case of both the accused.
The learned Sessions Judge has given full and complete
details of the prosecution case against the appellants and
has divided the allegations against them in several parts.
On being convicted by the Sessions Judge, Delhi, the accused
filed appeals before the Delhi High Court against their
convictions and sentences, indicated above, and were
released on bail pending the hearing of the appeals.
Meanwhile, the Special Courts Act of 1979 came into force
and by virtue of a declaration made under s. 7 of the said
Act., the appeals stood transferred to this Court and were
placed for hearing before us. As the learned Sessions Judge
has given all the necessary details of the prosecution case
against the appellants, it is not necessary for us to give
all the facts but we propose to give a bird’s eye view of
the sub-stratum of the allegations on the basis of which the
appellants have been convicted, dwelling particularly on
those aspects which merit serious consideration. We have
heard learned counsel for the parties at great length both
on the constitutional points involved in appeals and the
facts. By an order dated December 5, 1979, we
563
disposed of the constitutional points which were in the
nature of preliminary objection to the maintainability of
these appeals and overruled these objections. The reasons
for the said order have been given by us which would form
part of this judgment. Coming now to the facts, shorn of
unnecessary details, the story begins with the production of
a film called Kissa Kursi Kaa by Shri Amrit Nahata, PW 1,
under the banner of Dhwani Prakash. PW 1 was a member of
Parliament and had produced the film in the year 1975. The
film, according to the prosecution, was a grotesque satire
containing a scathing criticism of the functioning of the
Central Government and was open to serious objections which
were taken even by the Central Board of film Censors
(hereinafter to be referred to as the ‘Board’). After the
film was ready for release, PW 1, Amrit Nahata, applied for
certification of the film on the 19th of April 1975 before
the Board. The film was viewed on April 24, 1975 be an
Examining Committee of the Board and while three Members
were of the opinion that certificate for exhibition, with
drastic cuts should be given, another Member and Mr. N. S.
Thapa, the Chairman disagreed with the opinion of their
colleagues and accordingly referred the matter to the
Revising Committee. The Revising Committee after viewing the
film agreed by a majority of 6: 1 for certification of the
film, the dissent having been voiced by Mr. Thapa, the
Chairman and accordingly under rule 25(ii) of the
Cinematograph (Censorship) Rules, 1958, a reference was made
to the Central Government on 8-5-75. In this connection, a
letter was addressed to PW 6, Mr. S.M. Murshed, who was at
the relevant period Director in the Ministry of Information
& Broadcasting, Incharge of film and T.V. Projects and was
appointed Joint Secretary on, 1st May 1975. The
correspondence in this regard is to be found in the file
Ext. PW/6A. Before making his comments PW 6 saw the film
time in the middle of May 1975. Meanwhile, PW 1, Amrit
Nahata. was directed to deposit the positive print of the
film comprising 14 reels of 35 mm with the Films Division
Auditorium, situate at 1, Mahadev Road, New Delhi
(hereinafter to be referred to as the ‘Auditorium’). In
pursuance of these directions, PW 1 deposited . the positive
print and an entry thereof Was made by the Librarian-cum-
Projectionist of the Auditorium which is Ext. PW 17/A. PW 17
K.P. Sreedharan, who was a Technical Officer Incharge also
inspected the reels and found them in order.
Although Murshed, PW 6, after seeing the film agreed
with the opinion of the Chairman of the Board that film may
be open to objection on the ground that it was full of
sarcasm and contained criticism of the political functioning
of the government machinery
564
yet he was personally of the opinion that certification for
exhibition should not be refused. The witness accordingly
recorded a note and submitted it to Mr. A. J. Kidwai, the
then Secretary, Ministry of information and Broadcasting.
The matter was then examined by Mr. I.K. Gujaral, the then
Minister of Information & Broadcasting but no final decision
was taken. Meanwhile, PW 1, Amrit Nahata filed a writ
petition in this Court which is Ext. PW 1/D. On the 23rd of
June 1975, a notice was issued by the Ministry of
Information & Broadcasting to PW 1, Amrit Nahata, to show
cause why certification to the film be not refused. The
notice was made returnable by 9-7-75. Thus, it appears that
the Ministry of Information & Broadcasting had taken a
tentative decision to refuse certification to the film
because of its objectionable and offensive nature. We might
state here that so far, neither A-1 nor A-2 was anywhere in
the picture. In fact, the position is that the film faced
rough weather even at the initial stage of consideration by
the Board as a result of which the matter was referred to
the Central Government where the question of refusal of
certification was seriously considered and ultimately a
notice was issued under the directions of the Ministry. We
have particularly highlighted this aspect of the matter
because the learned Sessions Judge was largely swayed by the
consideration that A-1 took a very prominent part in banning
the film and in getting the positive print and other
material in his personal custody in order to destroy the
same with the aid of A-2. On the other hand, the facts
disclosed by the prosecution ex facie show that objections
to certification of the film had been taken at the very
initial stage and the ultimate order was passed during the
time when A-1, Mr. Shukla had taken over as Minister, which
was merely the final scene of a drama long in process.
Continuing the thread from where we left it, Emergency
was proclaimed 911 the night between 25th and 26th of June
1975 and soon thereafter A-1 took charge as the Union
Minister of Information & Broadcasting and he was of the
opinion that the film should be banned. On July 5, 1975, in
pursuance of the decision taken by the Central Government,
the Coordination Committee directed seizure of the film and
that its negatives, positives and all other materials
relating to it be taken in the custody of the Central
Government vide Ext. PW 6/D. On July 10, 1975, A-1 directed
that the film be banned from screening under the Defence of
India Rules, vide Ext. PW 6/E-4. Finally, on the 11th of
July 1975, PW 6, Murshed, passed an order that no
certification was to be given to the film for public
exhibition which was followed by a letter dated July 11,
1975, forfeiting the film to the Government. In pursuance of
the decision taken by the Central
565
Government, PW 39, S. Ghose, Deputy Secretary, Incharge of
the Films Division, wrote a letter to the Chief Secretary,
Government of Maharashtra for seizure of all the positives
and negatives of the film as also other related materials.
In pursuance of this order, the Bombay police seized the
entire film on 1-8-1975 and deposited the same in the godown
of the Board. As, however, a final order had been passed by
the Government banning the film, PW 1, Amrit Nahata, filed a
petition for special leave in the Supreme Court on 6-9-1975.
This petition was heard on 29-10-75 and this Court directed
the Government to screen the film on 17-11-1975 in the
Auditorium for being shown to the Judges constituting the
Bench. In pursuance of the order of this Court, intimation
was sent to the Ministry concerned and PW 62, Mr. S.M.H.
Burney, who was then Secretary, Ministry of Information &
Broadcasting, directed that immediate action be taken to
implement the orders of the Supreme Court, and that
arrangements should be made to book the Auditorium for 17-
11-1975. By a letter dated 5-11-1975, Ext. PW 2/A-2, the
Supreme Court was also informed regarding the steps taken
which, according to the prosecution were the prelude to the
conspiracy between the two appellants leading to the
seizure, disposal and destruction of the film.
Sometime thereafter, PW 2, L. Dayal, took over as Joint
Secretary (Films Division) in place of Mr. Murshed.
We might emphasise at this stage that there is
absolutely no evidence to show that there was any meeting of
minds between A-1 and A-2 nor is there any material to
indicate that A-2 played any role in the banning of the
film. The decision to ban the film appears to have been
taken by the Ministry headed by A-1, on the merits of the
case. No motive is attributable to A-1 at this stage because
even the Chairman of the Board, PW 8, Mr. Thapa, who was an
independent witness, was of the view that the film should
not be certificated for public exhibition. Similarly, the
steps taken by the officers of the Ministry in pursuance of
the banning of the film, namely, the seizure of the film at
Bombay and its transfer to Delhi appear to be in the nature
of routine to see that the decision taken by the Government
was implemented. As no stay had been obtained by PW 1, Amrit
Nahata, from the Supreme Court, the Government was not bound
to stay its hands. On the other hand, as soon as the
Ministry received the orders of this Court for screening the
film on 17-11-1975, immediate steps were taken to comply
with the orders of this Court.
Before we proceed further, we might indicate that it is
well settled that in order to prove a criminal conspiracy
which is punishable under
566
s. 120 B of the Indian Penal Code, there must be direct or
circumstantial evidence to show that there was an agreement
between two or more persons to commit an offence. This
clearly envisages that there must be a meeting of minds
resulting in an ultimate decision taken by the conspirators
regarding the commission of an offence. It is true that in
most case it will be difficult to get direct evidence of an
agreement to conspire but a conspiracy can be inferred even
from circumstances giving rise to a conclusive or
irresistible inference of an agreement between two or more
persons to commit an offence. After having gone through the
entire evidence, with the able assistance of Mr. Rajinder
Singh, learned counsel for A-1 and of learned counsel for
the State, we are unable to find any acceptable evidence
connecting either of the appellants with the existence of
any conspiracy. We are further of the opinion that even
taking the main parts of the prosecution case at their face
value, no connection has been proved with the destruction of
the film and the two appellants. The prosecution has, of
course, produced some witnesses to show the existence of the
alleged conspiracy or some sort of connection of the
appellants with the destruction, of the film but that
evidence, as we shall show, falls short of the standard of
proof required in a criminal case. We realise that the
prosecution was seriously handicapped because the
investigation started only after the Janata Government came
into power in March 1977, that is to say, about a year and a
half after the offences in question were allegedly
committed, by when naturally much of the evidence would have
been lost and even some of the important witnesses examined
by the prosecution had turned hostile and refused to support
its case. Despite these difficulties, the prosecution has to
discharge its onus of providing the case against the accused
beyond reasonable doubt. We, therefore, propose to deal only
with that part of the evidence led by the prosecution which
has been relied upon to prove some sort of a connection of
the appellants with the alleged destruction of the film
In this connection, we propose to deal with the
evidence in three separate parts-
(1) the deposit of the positive print in the
Auditorium and its alleged transfer to the
personal custody of A-1 ;
(2) the arrival of thirteen trunks containing
negative and other material related to the
film at New Delhi from Bombay in pursuance of
the orders of A-1 and their transfer to 1,
Safdarjung Road, then to the Maruti Complex;
and
567
(3) the actual orders alleged to have been given
by A-2 for burning the film in the premises
of the Maruti Complex which operation,
according to the prosecution was carried out
by the approver, PW 3, Kherkar, and other
witnesses between the 10th and 24th of
November 1975.
Although there are other elements on which prosecution
has adduced evidence which is by no means very convincing or
consistent but even if we assume those elements to be
proved, if the three aspects indicated above, are not proved
the prosecution is bound to fail.
We now proceed to deal with the first part of the case.
(1) The deposit of the prints at the Auditorium and its
alleged transfer to the personal custody of A-1.
In the Auditorium, PW 17, Sreedharan screened the film
in order to show the same to PW 6, Murshed, on the 22nd May
1975 and again on the next day at the instance of the
Ministry of Information & Broadcasting. Some private shows
were also screened at the instance of PW 1, Amrit Nahata,
though this was not permissible under the Rules. It was also
the prosecution case that PW 39, Ghose and PW 61, C. K.
Sharma met PW 17, Sreedharan and PW 18, Bhawani Singh and
examined the prints which were then kept in the green room.
Ghose then rang up Sreedharan and told him that he was
coming to the Auditorium to take delivery of the prints.
Accordingly, PW 39, Ghose is said to have arrived at the
Auditorium and the fourteen reels contained in cans were put
on the back seat of his car. PW 39, Ghose then went to
Shastri Bhavan and put the cans in the dicky of the staff
car of A-1 in the presence of the driver, Babu Ram, PW 33.
Thereafter, when A-1 came, Babu Ram took the car to 1,
Safdarjung Road where the cans were unloaded and kept in the
office of R. K. Dhavan, Additional Private Secretary to the
then Prime Minister. In support of this part of the case,
the prosecution examined PW 18, Bhawani Singh, PW 33, Babu
Ram; PW 61, C.K. Sharma; PW 57, V.S. Tripathi, PW 60, R. L.
Bandish and PW 39, Ghose. So far as PWs 39, 57, 60 and 61
are concerned, they did not support the prosecution case
regarding the transfer of the prints to the custody of A-1
as alleged by the prosecution. So the only witnesses to
prove the factum of transfer were PWs 17 and 33. The
prosecution also examined some other witnesses PW 1, Amrit
Nahata, PW 2, L. Dayal and PW 62, Burney to show that the
transfer
568
of the positives of the film to the custody of A-1 was
carried out at the oral instruction of A-1. PW 62, however,
did not support the prosecution and thus, on this point, the
only witnesses worth considering are PWs 1 and 2.
We would first refer to the evidence of PW 1, Amrit
Nahata. He stated that he was directed to deposit the
positive print of the Films to Films Division Auditorium at
Mahadev Road and consequently he complied with the direction
on 17-5-1975, and obtained a receipt. The witness goes on to
state that one of the factors which weighed with him in
withdrawing the writ petition he had filed in the Supreme
Court was that he was persuaded and pressurised and
threatened by A-1 to withdraw the writ petition. He,
however, admitted in his cross-examination that the process
of persuasion and pressurisation and threats was carried out
not on one but on several occasions. He then went to the
extent of saying that the Minister (A-1) used to talk to him
in this connection in Parliament, in his office and
sometimes even at Shastri Bhavan. He further stated that
even in the Central Hall of Parliament he did not hesitate
from threatening him. The witness admitted that he never
filed any written application before the Supreme Court
alleging the threats given to him by A-1. He further admits
that after the Janata Government took over in March 1977
while he had written to Mr. L. K. Advani, who succeeded A-1.
regarding the film, he made no mention of any such
conversation between him and A-1 about the threats, etc.
Finally, he admitted that no one was present in the office
when he talked to, Mr. Shukla. In view of these statements,
we find it difficult to believe the witness. The entire
version given by him is inherently improbable, firstly,
because of his failure to draw the attention of the Supreme
Court to the threats, etc. Secondly, it is impossible to
believe that after the Janata Government came to power and
he wrote a letter to Mr. Advani regarding the film, he would
not mention that he had been pressurised or threatened by
A-1 when he was undoubtedly very much interested in his film
being exhibited and bore a serious grouse and animus against
A-1 because he had refused certification for exhibition of
his film. In these circumstances, we are unable to place any
reliance of the testimony of this witness so far as the
allegation of threats, pressurisation, etc., made by A-1 is
concerned. Thus, if his evidence is rejected on this point,
then excepting the testimony of PWs 2 and 63, there is no
evidence to show that A-1 had any connection or link with
the transfer of the positive print of the film.
This brings us to the consideration of an important
witness PW 2, L. Dayal, on whom great reliance has been
placed by the learned
569
Sessions Judge. So far as PW 2 is concerned, he states that
sometime in the first week of November, A-1 called him and
said that he had decided to keep all material relating to
the film in his personal custody and that detailed
arrangements for the delivery of the material would be made
by his personal staff and the work would be done by a
respectable officer. The witness further states that PW 57,
V. S. Tripathi, was also present at the time when this
conversation between the witness and A-1 took place. He
further states that he had apprised PW 62, Burney, the
Secretary, of the talk he had with A-1. Both PW 57 and PW 62
have not supported the witness on these points and have
denied the same. The witness had also stated that he had
called PW 39, Ghose and apprised him of the instructions of
the Minister for carefully and confidentially putting all
material in the personal custody of the Minister. Ghose,
however, in his evidence does not support the story of
instructions by the Minister and denies having been told
anything of the kind by the witness. Of course, all The
three witnesses, namely, Tripathi. Burney and Ghose, had
been declared hostile. The witness further goes on to state
that he had called PW 4, Khandpur, who happened to be in
Delhi and had told him that all the film material pertaining
to the film ‘Kissa Kursi Kaa’ Lying at Bombay had to be
carefully and confidentially collected and sent to Delhi. PW
4, however, clearly admits in his evidence that the
instruction which he had received was to send the material
to the Ministry of Information & Broadcasting. As we shall
show, PW 2 appears to be deeply interested in the
prosecution. In these circumstances, even Mr. Jethmalani,
appearing for the State, frankly conceded that he would not
ask the Court to rely on this witness unless he was
corroborated by some other independent evidence. In fact,
far from there being any independent evidence to corroborate
the version of the witness in regard to the instruction
given by A-1, the persons to whom the witness mentioned
these facts, viz., Tripathi, Burney and Ghose, have not
supported him. Thus, so far as the role played by A-1 on the
first part of the case is concerned, this is all the
evidence produced by the prosecution and is this evidence is
rejected, Then it is not proved at whose instruction the
film cans were transferred from the Auditorium to 1,
Safdarjung Road nor has it been established that this was
done with the knowledge of A-1.
Coming back now to the evidence of the transfer of the
positive print from the Auditorium into the car of Ghose and
therefrom to the staff car of A-1 at Shastri Bhavan and
finally to 1, Safdarjung Road, the evidence led by the
prosecution consists of PWs 17 and 33. The other witnesses
examined on this point have not supported
570
the prosecution case. From the evidence of PW 17, it appears
that PWs Ghose, C. K. Sharma and Bhawani Singh met him and
examined the prints and then the prints were kept in the
green room. Later, the same day Ghose rang up the witness to
inform him that he was coming to take the positive print of
the film which should be kept ready. Thereafter, Ghose
arrived and the prints were brought from the green room and
placed in the back seat of car of Ghose. Ghose thereafter
drove the car but gave no receipt for taking the film. Half
an hour later, according to the witness, there was a
telephone call from Tripathi to enquire if the film had been
delivered to Ghose. The witness informed him that this had
been done. I was also stated by the witness that a letter
(Ext. PW 17/E and E-1) was got written by Ghose before he
took the film in his car. . It may be noticed here that
prior to the filing of the FIR an inquiry had been held by
PW 40, Narayanan, into the manner how the prints of the film
were missing and in that inquiry PW 17, Sreedharan, did not
say at all that Ghose had taken away the film. In this
connection, the witness deposed as follows:-
“Q. You did not tell Shri Narayanan that S. Ghose
had come to you in his car and you had delivered the
film to him in his car and he had taken it away?
Ans. No. I did not tell him like this (Voltd:-It
was so as S. Ghose had asked me to say differently to
Shri Narayanan and I stated as advised by S. Ghose.)
Q. You know that enquiry had been ordered by Shri
L. K. Advani, Minister for Information & Broadcasting ?
Ans. Yes.
Q. And yet you deliberately told a lie before Shri
Narayanan?
Ans. Yes, because of S. Ghose.”
Thus, the witness admitted that he spoke a lie before
Narayanan merely because of Ghose. Further, even in his
statement before the police, the witness did not state that
Ghose had come to him for taking away the film on the same
day, i.e., the day on which Ghose had telephoned that he
would be coming to take the film. So far as PW 39, Ghose is
concerned, he has totally denied having told the witness to
keep the positive prints ready or that he ever took delivery
of the prints from the witness and put the same in his car.
Thus, even the prosecution case relating to the transfer of
the positive prints through PW 39, Ghose, to 1, Safdarjung
Road becomes doubtful.
571
Even so, assuming that Ghose did take delivery of the
positive prints that does not conclude the matter because
the prosecution has further to prove that the prints were
taken away from the Auditorium at the instruction of A-1 and
then kept in the staff car of A-1 and taken to 1, Safdarjung
Road with the knowledge of A-1. On this print, the evidence
of PW 17 is absolutely silent and he says nothing about it
nor was he competent to say the same. The only other witness
PW 33, Babu Ram, states that sometimes in the winter of 1975
PW 61, C.K. Sharma, called him and told him that there was
some luggage (saaman) of Minister Saheb which was to be kept
in his car and asked him to bring the Minister’s car close
to where Ghose’s car was parked. The witness found 10 to 12
round boxes which were transferred to the dicky of the staff
car. Thereafter, according to the witness, PW 60, Bandlish,
had a talk with Ghose and after the Minister had come, the
car was driven to 1, Safdarjung Road. On reaching 1,
Safdarjung Road, the Minister went out of the car and a
person came and took, away the saaman. Thereafter, the
witness drove A-1 to other places. In his statement before
the police, the witness did not state that PW 61, C. K.
Sharma had told him that the saaman of Minister Saheb
(emphasis being on Minister Saheb) was to be transferred to
the dicky of the staff car. Both Bandlish and C. K. Sharma
have not supported the version of this witness and have
denied everything. Even taking the version of this witness
at its face value, there is nothing to show that when A-1
boarded the staff car at Shastri Bhavan he was told either
by the driver or by anybody that the film cans had been
placed in the dicky and were to be taken to 1, Safdarjung
Road or that they had been brought from the Auditorium. Even
when the car reached 1, Safdarjung Road. Babu Ram never
informed the Minister about the boxes having been kept in
the dicky nor is there any evidence to show that the boxes
were unloaded from the dicky of the Minister’s car either in
his presence or to his knowledge. Thus, all that has been
proved is that the cans were transferred from the Auditorium
to 1, Safdarjung, Road. Taking the evidence of PW 17 and PW
33 as also PW 18, Bhawani Singh at its face value, no
connection between A-1 and the transfer of the film has,
been established. Thus, the prosecution has failed to prove
that the positive prints of the film were transferred from
the Auditorium to the personal custody of A-1 or that the
said transfer was done in accordance with his instruction or
to his knowledge.
(2) The transfer of negatives and other material
related to the film from Bombay to Delhi and to 1,
Safdarjung Road and from there to Maruti Complex at the
order of A-1
572
So far as this part of the prosecution case Is
concerned, the evidence is wholly insufficient to attribute
any knowledge or ulterior motive tn A-1 in directing the
negatives to be sent from Bombay to Delhi. Some evidence has
no doubt been adduced be the prosecution to show some amount
of criminality on the part of A-1 but that evidence, as we
shall show, is not very reliable.
To begin with, according to PW 6, Murshed, A-1 said
that there was some sort of an informal discussion between
A-1, Mr. A. J. Kidwai, the then Secretary in the Ministry of
Information & Broadcasting and the witness when A-1 directed
that the film be banned and seized, but that no action was
taken by the witness until the file reached him. The witness
added that on July 7, 1975 there was another meeting
attended by Sarin and other officers which was presided over
by A-1 and in this meeting a final decision was taken that
the film should be taken over and mention was made that the
Defence of India Rules should be pressed into service. The
witness further stated that ultimately in the Coordination
Committee meeting which was held on July 10, 1975, and was
also presided over by A-1, the earlier decision taken by the
Government was reiterated. The witness then goes on to state
that he passed the order Ext. PW 6/A-9 on July 11, 1975
which directed that the certificate for public exhibition
was refused and the said order was communicated to PW 1,
Amrit Nahata. This was followed by another order Ext. PW
6/A-10 which forfeited the film Kissa Kursi Kaa. Both these
orders were approved by the Minister which had to be done in
consequence of the decision taken by the Government. After
the film had been banned and forfeited, the seizure of the
film material at Bombay became a necessary consequence and
accordingly a letter dated July 14, 1975 was issued under
the signatures of PW 39, Ghose to The Chief Secretary.
Government of Maharashtra for seizure of the film material
relating to the film and requiring him to deposit the same
with the Board.
The next question that arises is as to why the
negatives and other material of the film were directed to be
sent to Delhi. It is obvious that once the film was banned
and forfeited and action under the Defence of India Rules
had to be taken, it was in the. nature of a routine
operation that the negatives and other material of the film
should be placed in the custody of the Ministry of
Information & Broadcasting. This appears to US to be the
main reason why A-l 11 directed that these materials may be
sent from Bombay to Delhi. In order to incriminate the
Minister the prosecution urges that this was done by A-l to
get the. negatives, etc., in his personal custody so that
573
he would be in a position to destroy the same. On this,
there does not appear to be any clear evidence and even the
Sessions Judge has based his findings largely on
speculation.
To begin with, L. Dayal, PW 2, who was then attached to
A-1 as Joint Secretary (Films) states that on 6-11-1975 A-1
told him in the presence of Tripathi, PW 57, that A-1 had
decided to keep all material relating to the film in his (A-
1’s) personal custody, that detailed arrangements for the
delivery of the material would be made by A-1’s personal
staff and that the work had to be done by a responsible
officer. The witness adds that he conveyed the decision to
the Secretary and to S. Ghose, PW 39, and then called PW 4,
Khandpur, Chief Producer, Films Division, Bombay who
happened to be in Delhi and asked him that all the material
pertaining to the film ‘Kissa Kursi Kaa’ lying at Bombay had
to be carefully and confidentially collected and sent to
Delhi. At the time when this talk took place Ghose and
Tripathi were present, according to PW 2, who then rang up
Vyas (Chairman of the Board) and gave him similar
instructions in the presence of Ghose and Tripathi. However,
neither Tripathi nor Ghose supports PW 2 on the point that
he had asked Khandpur to collect the. material of the film
‘carefully and confidentially which particular words were
attributed to A-1 to show his criminal intent. In this
connection, Ghose, PW 39, who was declared hostile to the
prosecution, stated:
“As I was coming out of the room of Shri Burney, I
dropped in Shri Dayal’s room which was in the same
corridor with a view to inform him that had gone to the
Auditorium and checked the film and had found the film
intact. I also told him that I had informed Shri Burney
accordingly. I found Shri K. L. Khandpur also sitting
in the room of Shri Dayal. Shri Dayal asked me to take
my seat. After a few moments I found Shri V.S. Tripathi
walking into the room of Shri Dayal. He also took his
seat. When I entered the room Shri Dayal was already
conversing with Shri Khandpur. Looking at us, namely,
myself and V. S. Tripathi and Shri Khandpur, Shri Dayal
generally enquired where. filmic material was lying at
Bombay. Shri Dayal also gave direction to Shri Khandpur
for collecting the filmic material at Bombay with a
view to transporting it from Bombay to Delhi. I do not
recall Shri Dayal taking the name of the Minister or
the Secretary at the time of the discussion. I also do
not recall whether he mentioned word secretly during
this discussion. My feeling was that the entire
574
responsibility for the collection and transportation of
the filmic material from Bombay to Delhi was left with
Shri K. L. Khandpur.”
The stand of Tripathi, PW 57, who was also allowed to
be cross examined by the prosecution was as follows:-
“Shri Dayal gave instructions to Shri K.L.
Khandpur in my presence and that of Shri S. Ghose to
shift the negative material of film Kissa Kursi Kaa
from Bombay to Delhi. At the request of Shri Khandpur,
Shri Dayal also spoke to late Shri V. D. Vyas about
this matter and told him on telephone that the negative
material was to be shifted from Bombay to Delhi and
that the transportation arrangement would be explained
by Shri Khandpur to hi on his return to Bombay. Roughly
this is all that I re member and in addition that it
was early in the afternoon.”
The witness was specifically asked whether in his
presence A-1 gave instructions to L. Dayal, PW 2, that he
(A-1) wanted the positives and negatives of the film in his
own custody immediately and confidentially. He denied the
correctness of the assertion and was con fronted with the
following portion (‘E’ to ‘E’) of his statement made on the
25th April 1977, to K. N. Gupta, Deputy Superintendent of
Police, C.I.A., New Delhi:
“Later, some time in the afternoon, the Minister
called me inside his room. Shri Dayal was also inside
and I noted that discussion was going on about the film
‘Kissa Kursi Kaa . The then Minister of I & B, gave
instructions to Shri L. Dayal, Jt. Secy. (Information)
in my presence that he wanted the positives & negatives
etc. of the film, “Kissa Kursi Kaa” to be handed over
to him, in his custody immediately & confidentially.
The Minister also said that the arrangements for
transportation will be made by him and Shri Dayal
should get in touch with the personal staff for this.”
The witness also denied the correctness of the
assertion that in his presence later on Shri Dayal, PW 2,1
had told Shri Khandpur, PW 4 that the film should be brought
from Bombay to Delhi “very carefully without telling anybody
about it”. He was confronted with portion ‘F to F’ of his
said statement to the police where the assertion appears.
Even Khandpur, PW 4, who has fully supported the
prosecution has not said anything in his evidence to
indicate that PW2 had said that
575
the materials should be ‘carefully and confidentially”
collected and sent to Delhi. On the other hand, PW 4 says
thus:-
“I was called by L. Dayal, the Joint Secretary in
his office. I was asked to make arrangements for
collecting all material pertaining to film Kissa Kursi
Kaa available at Bombay and to send the same to Delhi.
I have seen file CFD/51 shown to me, Ex. PW 4/E.
It is named “Confidential Material Received from
C.B.F’.C. and sent to Ministry of 1 & B in November
1975″. This file pertains to Films Division Bombay.
This file pertains to the film materials of Kissa Kursi
Kaa. Another file pertaining to this film is the one
which contains Exts. PW 4/A to PW 4/C.”
The file Ext. PW 4/E was labelled as ‘Confidential’ and
shows that the film material was sent to the ministry of
information & Broadcasting in November 1975. But there was
nothing to indicate in the files or in the evidence of PW 4
that the materials and negatives, etc., were to be sent to
the personal custody of the Minister. As the film was banned
and forfeited, there was nothing incongruous about the
transfer of the materials to Delhi being treated as an
official and confidential matter and even if PW2 had told PW
4 that the film material should be dispatched “carefully and
confidentially” that would not show any criminal intent on
the part of A-l.
In order to show that A-1 took a somewhat unusual
interest in the dispatch of the negatives and other material
of the film from Bombay to Delhi it is further the case of
the prosecution that Tripathi who was Special Assistant to
A-1 was sent expressly to receive the materials at New Delhi
Railway station and make arrangements for their transport
But Tripathi categorically stated that he never went to the
Railway Station for the purpose of receiving the film
material, etc. On the other hand, PW2 states that on 9-11-
1975 PW4, Khandpur informed him on telephone from Bombay
that the film material was being sent from Bombay to Delhi
by Western Express and would be reaching Delhi on the next
day and that two officers, one of them being Kane, PW 5,
were accompanying the material. PW 2 adds that he then, rang
up Ghose and asked him to get in touch with Tripathi for
making the necessary arrangements for transport and delivery
of the material. The witness goes on to state that on the
10th November 1975, PW 39. Ghose. came to him and reported
that the film material had arrived and had been brought in
tempos arranged by A-l. Ghose, however, has not supported
this witness on this aspect of the matter. Reliance was.
576
therefore, placed on the evidence of PW 5, Kane to show that
when he reached Delhi along with the film material, Tripathi
was there to receive the same. It is not disputed that
Tripathi was not known to PW S, Kane, before the 10th and
that by the time the witness saw him at the New Delhi
Railway Station he had seen him only once in Bombay. The
witness doles state that his pointed attention was drawn to
Tripathi because he had asked him to settle the payment of
charges to the coolies and that but for this his attention
would not have been drawn to Tripathi. He, however, admits
that he his statement before the Central Bureau of
Investigation, he did not mention the fact that Tripathi had
asked him to settle the matter of the payment of charges to
the coolies. Thus, the existence of the only circumstance on
the basis of which the witness could have identified
Tripathi becomes doubtful and in view of the categorical
statement of Tripathi that he never went to New Delhi
Railway Station on the 10th of November to receive the film,
it is difficult to accept the evidence of PW 5 that Tripathi
was the person present at the station. The possibility that
the witness committed some mistake in identifying cannot be
ruled out. Moreover, the identification of Tripathi by the
witness for the first Lime in the court without being tested
by a prior test identification parade was valueless.
Besides, the witness admits that in the note Ext. PW 4/E-2
he did not mention Tripathi or any other person along with
Ghose to have been present at the New Delhi Railway Station.
Thus, even on the question of the arrival of the material of
the film at New Delhi no direct connection with A-1 has been
established by the prosecution. In time, it is not proved by
the prosecution that Tripathi was present at the Railway
Station to receive the film and hence it cannot be said that
A-l took an unusual interest in seeing that the film is
properly brought from Bombay to Delhi and placed in his
custody.
Coming back to the evidence of PW2, there is yet
another circumstance which he proves and which merits some
consideration. According to the witness, in the special
leave petition filed by PW 1, 12th March 1976 was fixed for
screening the film. The witness adds that he took
instruction from A-1 as to what should be done when A-l
asked him to inform the Supreme Court through an affidavit
that efforts had been made to trace the prints of the film
at Bombay as also at Delhi but that there were no chances of
their becoming available. The witness says that he was also
directed to mention in the affidavit that such misplacements
had often occurred in the past, and that he passed on this
information to the Secretary, Mr. Burney who suggested that
the orders of the Minister should be carried out. In
consonance with the instruction, Ghose filed an affidavit
before the Supreme Court on the 22nd March 1976 but the
Hon’ble Chief Justice emphasised the
577
importance of making the film available for viewing by the
Judges. The witness recorded a note Ext. PW 2/A-17 to, bring
the matter to the notice of the Minister. Ultimately,
however, as PW 1, Amrit Nahata, withdrew the petition
nothing further happened. It appears that while . the
petition was pending in the Supreme Court, contempt
proceedings ,, were taken against some of the officers
including PW 2 who also filed four affidavits, one of them
on the 28th November 1977 and the other three on the 28th
February 1978. These affidavits are Ext. PW 2/B-1 to B-4. In
these affidavits he wanted to prove that as the film had
been mixed up with lot other films received in connection
with Fifth International Film Festival, the material of the
film Kissa Kursi Kaa was misplaced, and that is a stand
which comes into direct conflict with the testimony of the
witness in court in which the entire blame is shifted to A-l
but which again runs counter to are assertion made earlier
by the witness in his own hand. That assertion appears in
the form of an amendment to a draft of a letter (Ext. PW
2/DE) to be sent to Mr. V. P. Raman. Additional Solicitor
General and reads: in spite of efforts the film has not been
found’. The witness admits clearly that this statement was
false to his knowledge. A witness who could go to the extent
of making intentionally false statement cannot be relied
upon for the purpose of convicting the appellant. On his own
showing, he was fully collaborating with A-1 in a criminal
design and was therefore, no better than an accomplice whose
testimony cannot be accepted in any material particular in
the absence. Of corroboration from reliable sources. Even
Mr. Jethmalani, the erstwhile senior counsel for the
prosecution conceded the correctness of this proposition. On
an appreciation of the evidence of PW 2 and other factors,
discussed above, his evidence has-not only not been
corroborated but definitely contradicted by other witnesses,
circumstances and documents.
PW 63, K. N. Prasad was the Additional Secretary hl the
Ministry of Information & Broadcasting. He stated that in
March 1977, A. K. Verma, the then Joint Secretary wanted to
know whether the Government had any inherent power to
destroy property which had been seized or forfeited, and
also disclosed that the enquiry was made in connection with
the film ‘Kissa Kursi Kaa’. The witness further stated that
after two or three days Verma and PW 39, Ghose came to his
room and asked the same question. The witness further goes
on to state that he was informed by his P.A. that he was
required to attend a meeting at the residence of the
Minister (A-l), that when he enters the office at the
residence of A-l, he found PW 62 Mr. Burney, Secretary to
the Ministry of information &: Broadcasting, sitting there
and that ML’. Burney (PW 62) asked the witness what the
legal
578
position was about the right of the Government to destroy
forfeited property. At that time, according to the witness,
Tripathi, Mr. Burney and A-l were present. He, however,
admits that A-] did not ask any particular question.
From the testimony of PW 63 the prosecution seeks to
draw an inference that it was A-1 at whose instance Verma,
Ghose and Burney had asked for the advice! of the former (PW
63). Now A. K. Verma has not been examined as a witness and
his statement (seeking, the advice of PW (63) is not,
therefore, admissible in evidence? while both Ghose and
Burney have denied that any such conservation as has been
deposed to by PW 63 took place between the latter and the
witnesses in the presence af A-1. In fact, a specific
suggestion was put to Burney (PW 62) in the following terms:
“Q. When Shri Nahata asked for the return of the
film material, did it happen that you discussed the
matter regarding availability and return of the film
material with Shri Shukla at his official residence and
during that discussion Shri K. N. Prasad and Shri A. K.
Verma had also come there and Shri V. S. Tripathi,
Special Asstt. to the Minister was also present ?”
His answer was an emphatic no.
Besides, the story given out by the witness does not
appear to be very plausible, for it does not stand to reason
that A-1 would depute no less than three officers (Verma,
Ghose and Burney), one after the other, to obtain advice of
PW 63 when A-1 could have had no difficulty in obtaining the
advice himself. And then how was PW 63 selected as a
Specialist in the concerned branch of law over the head of
superior officers, even if it was considered hazardous to
enlist the services of a competent lawyer ? We are,
therefore unable to place reliance on the evidence of this
witness on this point. From a discussion of the
circumstances mentioned above, we conclude that the
prosecution has failed to prove that the film materials
brought from Bombay to Delhi were placed in the personal
custody of A-1 or that A-1 had them transferred to No. l,
Safdarjung Road or to the Maruti Complex.
Another link in the chain of prosecution evidence (the
existence of which seems to have been accepted by the
learned Sessions Judge) was that two tempos belonging to the
Maruti (Company were sent to the New Delhi Railway Station
where the thirteen trunks which arrived by the Western
Express were loaded therein and were taken to l, Safdarjung
Road before being transported to Maruti Complex where they
were unloaded? kept and later on. destroyed. It was also
alleged by
579
the prosecution. that a raid of the Maruti Complex carried
out in 1977 A led to the recovery of the lid of a trunk, an
empty can which earlier contained part of the film material
and a gunny bag to the inside of which were found sticking
scraps of paper. The investigators also claimed that a few
miles away from the Maruti Complex some round cans were
recovered from a nallah. The learned counsel for the defence
submitted that the allegations about the trunks being taken
to Maruti Complex and the recoveries being made were false
and addressed to the court lengthy arguments in this behalf.
It is, however, not necessary for us to go into these
details at this stage because assuming for the purpose or
argument that the trunks were brought to the Maruti Complex,
and that the film material was destroyed unless A-l or A-2
were shown to be connected with the transport or destruction
of the material, the charge against the appellants cannot be
held to be proved.
(3) The burning of the film `Kissa Kursi Kaa’ in,
November 1975, at Maruti Complex at the orders/instructions
of A-2
In support of this part of the prosecution story,
reliance was placed mainly on the testimony of Khedkar (PW
3) who is the approver. The effort of the prosecution was to
establish that on instructions given by A-2 the film
material was burnt inside the Maruti Complex on two
consecutive nights and that the fact was reported to A-2 an
each of the two following mornings. The approver was the
Security officer in the Maruti Limited at the relevant time
and the assertions made by him in this behalf may be split,
up as follows:
(a) In the middle of November 1975, A-2 sent for the
approver and told him that some boxes containing
films were lying in the stores, that the films
were to be destroyed when the workers were away
and that the approver would get the keys of the
locks on the boxes on the next day.
(b) On the next day one of the security guards who
used to accompany A-2 handed over a sealed packet
of paper wrapped in cloth to the approver. On the
same day the approver directed his assistant named
Kanwar Singh Yadav, PW 32 to meet the approver (in
the Maruti Complex) at 9.00 p.m. along with
watchman . Om Prakash, PW 31. Kanwar Singh Yadav,
PW 32 met the approver at 9.30 p.m. They reached
the factory gate where watchman om Prakash PW 31
was waiting for them. The approver signed the key
register and obtained the key of the General
Store. The party of three opened the store and
580
found lying therein the thirteen boxes containing
the film material. The boxes were opened with the
keys which were taken out of the sealed packet
mentioned earlier. Each box was found to contain
10 or 12 cans having film spools inside them. Each
can bore a label with the legend ‘Kissa Kursi
Kaa’. The first lot of the films was removed to a
nearby pit and was burnt there, the operation
lasting from 10.30 p.m. to 2.30 p.m. watchman Om
Parkash PW 31 however left the place at about
11.00 p.m. because he felt giddy.
(c) Next morning the approver reported to A-2 that the
work had been carried out in part only and that it
would be completed on the night following, which
was done from 10.00 p.m. to, 2.00 a.m.
(d) Next morning the approver again made a report to
A-2 telling him that the job had been completed.
Learned counsel for the defence contended that the
stand taken by the approver could not be accepted at its,
face value and had to be rejected lock stock and barrel. On
a thorough consideration of the evidence we find that the
contention well-based as we shall presently show.
The film material, according to the case of the
prosecution, is said to have reached Maruti Complex on the
10th of November 1975. After the 23rd November, 1975,
Khedkar PW 3, on his showing, went away on leave. The period
during which the film is said to have been burnt thus lies
between the 10th, and the 23rd of November 1975. Further-
more Khedkar, PW 3 has firmly asserted that on the first of
the two nights on which the burning operations were carried
out, watchman Om Prakash, PW 31 was on duty from 2.00 p.m.
to 10.00 p.m. He was examined at length in relation to duty
rosters P-22 and PW 32/2 which were admittedly prepared by
him. Duty roster exhibit P-22 covers the entire month of
November 1975, and according to the entries appearing
therein watchman Om Prakash, PW 31 was to be on duty during
the whole of that month in the third shift only, i.e., daily
from 10.00 p.m. to 6.00 a.m. The approver however explained
that the roster could be changed from time to time according
to the exigencies of the situation. He averred that on the
15th of November 1975, which was a Saturday and therefore an
off-day for watchman Om Prakash, PW 31, the latter took over
duty from 2.00 p.m. to 10.00 p.m. as a substitute for
watchman Tarachand. A similar arrangement was made on the
18th of November 1975, when watchman Om Prakash,
581
PW 31 changed places with watchman Ramdular and went over
from A the 3rd to the 2nd shift (2.00 p.m. to 10.00 p.m.).
As it is, the 15th and the 18th of November 1975, were the
only two days in the month on which watchman Om Prakash, PW
31 was on duty during the second shift as a special
arrangement. For the rest of the days during the month he
was admittedly never on duty in that shift. The period
during which the film was destroyed is thus further narrowed
B down so that the first operation. Of burning could have
taken place on the night of the 15th of November or on that
of the 18th of November 1975, and on no other date.
Here we may refer to another aspect of the matter.
Evidence has been produced to show that A-2 left Delhi by
air at 7.50 a.m. On the 17th of November 1975 for Hyderabad,
and arrived back at Delhi at 8.30 p.m. the same day. He
again took off at 6.40 a.m. On the 19th of November 1975,
for Sikkim and returned to Delhi not earlier than 11.10 a.m.
On the 23rd of November 1975. On both occasions he travelled
as a member of the party of the then Prime Minister, his own
mother, namely, Shrimati Indira Gandhi. The evidence of Dr.
K. P. Mathur, DW 3, is categorical in this behalf and is
supported by the passenger manifests (Ext. DW-3/A and DW-
5/A) prepared in relation to the journeys which contain the
name of A-2, and other documents which need not be mentioned
here. We regard his testimony as conclusive as was done not
only by the learned Sessions Judge but also by the Special
Public Prosecutor who made a statement at the trial that
testimony be accepted by the prosecution in toto. In this
view of the matter the prosecution has to prove that a
period of four days in between the 14th and the 18th of
November 1975, was such as A-2 was available in Delhi during
day time on the first, third and fourth of such days.
Now, as pointed out already, the burning could have
taken place only on the 15th or the 18th of November 1975,
if the approver and the duty rosters prepared by him are to
be believed. The 18th of November 1975, has to be excluded
for the reason that on the two days following A-2 had to be
shown to have been in Delhi (for receiving the report about
the destruction of the material from the approver) which he
definitely was not. The 15th of November 1975, as the first
night of the burning operation also does not click with the
prosecution case because, although the report about it could
have been made to A-2 on the next morning (inspite of the
fact that it was a Sunday and therefore a closed day for the
factory), A-2 was not in Delhi or anywhere near it
throughout the 17th so that the story of the report made to
him by the approver about the second part of the burning
operations loses
582
weight. No other dates being in point, the story propounded
by the approver is negatived by reference to unimpeachable
documentary and circumstantial evidence, although it may be
further noted that neither Kanwar Singh Yadav, PW 32 nor
watchman Om Prakash, PW 31 supports the approver’s version
and each one of them was declared hostile to the
prosecution.
The recoveries said to have been made during
investigation have also not impressed us. As stated earlier
the incriminating articles said to have been seized are a
lid of a trunk, an empty can, a gunny bag- all from inside
the Maruti Complex-and a few cans from inside a nala lying a
few miles away. These recoveries are sought to be connected
with the destruction of the film on the basis of the
following averments forming part of the testimony of the
approver:
“It was after the elections held in March 1977,
that Sanjay Gandhi who was then Director met me in the
factory hall. Kanwar Singh Yadav was also there. Vijay
Sharma, Bus Body Manager, was called there. Sanjay
Gandhi asked us to collect all the damaged trunks with
the contractors and to deposit them in Bus Body Store.
We could collect 12 out of 13 trunks mentioned above
along with four or five other big trunks. These were
deposited in Bus Body Store. Later on I found them
shifted to Press shop store. A couple of days
thereafter, Kanwar Singh Yadav, Sanjay Gandhi and I
went inside the General Store. We walked down to Bus
Body Store. There Sanjay Gandhi asked Panna Lal, Bus
Body Supervisor and in charge Bus Body Store, to
collect all the damaged locks available with them.
Panna Lal passed on the order to Om Prakash who was Bus
Body Clerk Incharge Stores. About 25 damaged locks were
collected. These is included Harrison, Tiger and Godrej
Locks. Godrej locks were 4 or 5 . Sanjay Gandhi asked
me to get all those collected locks melted in a foundry
and I got them melted…. Ram Lakhan was Incharge of
the foundry and I handed over the collected locks to
him.. Thereafter, scrapping of the trunks and their
removal was performed by my Asstt. Kanwar Singh Yadav
and he told me about that. Kanwar Singh Yadav told me
that Sanjay Gandhi had asked him to scrap the trunks
and cans and to dispose them off. He told me that he
cut the trunks into pieces and threw them into the iron
scraps which were sold to different contractors. As
regards the cans, he told me that he had damaged the
cans and thrown them at different places on Rajasthan
Highway and Rajasthan Bye-
583
pass….He told me that the trunks had been cut into
pieces and cans had been damaged in the Press Shop.”
This story is inherently improbable. The thirteen
trunks which admittedly had no marks of identification on
them and were of the ordinary type available in any market
are said to have been shredded and the locks-which again are
available in plenty everywhere-are alleged to have been
melted in the foundry but, strangely enough, the cans which
had on them labels carrying the legend ‘Kissa Kursi Kaa’
were subjected to a much milder treatment and were merely
pressed and then thrown away at various places on the
Rajasthan Highway and Rajasthan Bypass to which Kanwar Singh
Yadav, PW 32 had to make journeys off and on. It is not
disputed that if the cans were to be shredded or melted the
operation would not have presented any difficulty whatsoever
in view of the facilities available at the Maruti factory.
And, if that be so, surely any person who wanted to
obliterate evidence of the commission of a serious offence
would see to it that the material of the cans was so
transformed as to be impossible of identification. There is
no reason why all of them should not have been melted into
lumps, or in any case shredded beyond recognition. And we
also do not see how just one can would be left intact when
so much care was bestowed on operations obliteration. In
fact, it may have been much easier for the cans to be
shredded or melted than for them to be first pressed and
then transported to far off places and thrown away there. In
this view of the matter we need not pursue this part of the
case any further.
Thus, on a complete and careful examination of the
circumstances and the evidence, mentioned above, even taking
the sub-stratum of the prosecution case at its face value,
the prosecution has not been able to prove either that there
was any existence of any conspiracy between A-1 and A-2 to
destroy the film ‘Kissa Kursi Kaa’ by burning it or to
commit any other offence in respect of the film. There is no
evidence to show that there was any meeting of minds between
A-l and A-2. We have also found that even on the first two
parts of the prosecution case, the allegation of the
prosecution that the positive prints were removed at the
instance or to the knowledge of A-l or that the negatives
and other materials of the film were sent for by A-1 and
kept in his personal custody has not been proved. The mere
fact that A-1 decided to ban the film and refused
certification for public exhibition and passed orders for
seizure of the film and its transfer to the custody of the
Ministry of Information & Broadcasting does not disclose any
offence. We have already shown that the decision to ban the
film was not taken by A-1 secretely or clandestinely but
after a full-fledged
584
discussion in the Coordination Committee meeting and it is
proved that such meetings are usually attended by senior
officers of various Ministries, as deposed to by K. N.
Prasad, PW 63. Further, that part of the case which relates
to the burning of film material rests solely on the
uncorroborated testimony of the approver and is negatived in
so far as the role therein of A-l is concerned.
We may mention here that a lot of evidence has been
produced by the prosecution to show:-
(a) that the positive print of the film found its way
into the luggage compartment of the car in which
A-1 then travelled to the Prime Minister’s house
where the print was unloaded by someone in the
absence of A-1; and
(b) that the negatives and other material relating to
the film were taken in a tempo or two to the Prime
Minister’s residence and from there to the Maruti
Complex where they were stored before their
destruction.
We have considered it purposeless to go into these
factors for the reasons that the connection of A-1 or A-2
therewith remains unproved as discussed above. Had these
factors provided circumstantial evidence oh the basis of
which alone the charge against either A-1 or A-2 could be
held established it would have been necessary for the court
to sift the evidence produced in support thereof. But that
is definitely not the case, for, if either or both of the
factors are proved, the inference of guilt of either A-l or
A-2 does not necessarily follow. For circumstantial evidence
to furnish evidence of guilt it has to be such as it cannot
be explained on any other reasonable hypothesis except the
guilt of the accused which is not the case here because
appellants A-l and A-2 could not be said to be the only
persons interested in the destruction of the film if it was
as obnoxious to the then Prime Minister or as critical of
the functioning of the then Union Government as the
prosecution would have us believe. The film and all the
material relating to it no doubt appear to have vanished
into thin air but then neither A-1 nor A-2 can be held
responsible therefor, in the absence of proof in that
behalf-proof which would exclude all reasonable doubt.
The prosecution having thus failed to prove the case
against the appellants, their appeals are allowed, the
convictions recorded against and the sentences imposed on
the appellants are set aside and they are acquitted of all
the charges framed against them. Both the appel-
585
lants who are on bail shall now be discharged from their
bail-bonds. In view of the acquittal of appellant No 1,
Shukla in Criminal appeal No. 494 of 1979 and appellant No.
2, Sanjay Gandhi in Criminal appeal No. 493 of 1979,
Criminal appeal No. 492 of 1979, filed by the State is
dismissed. In view of the fact that we have made no comments
on the conduct of the investigation or on Mr. N. K. Singh,
no order need be passed on the application filed by him.
S.R. Cvl. App. 493 & 494/7g allowed.
Cvl. App. 492/79 dismissed
586