{"id":162408,"date":"1980-04-11T00:00:00","date_gmt":"1980-04-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-c-shukla-vs-state-delhi-administration-on-11-april-1980"},"modified":"2015-04-09T03:48:31","modified_gmt":"2015-04-08T22:18:31","slug":"v-c-shukla-vs-state-delhi-administration-on-11-april-1980","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-c-shukla-vs-state-delhi-administration-on-11-april-1980","title":{"rendered":"V. C. Shukla vs State (Delhi Administration) on 11 April, 1980"},"content":{"rendered":"
Supreme Court of India<\/div>\n
V. C. Shukla vs State (Delhi Administration) on 11 April, 1980<\/div>\n
Equivalent citations: 1980 AIR 1382, \t\t 1980 SCR (3) 500<\/div>\n
Author: S M Fazalali<\/div>\n
Bench: Fazalali, Syed Murtaza<\/div>\n
           PETITIONER:\nV. C. SHUKLA\n\n\tVs.\n\nRESPONDENT:\nSTATE (DELHI ADMINISTRATION)\n\nDATE OF JUDGMENT11\/04\/1980\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nKAILASAM, P.S.\nKOSHAL, A.D.\n\nCITATION:\n 1980 AIR 1382\t\t  1980 SCR  (3) 500\n 1980 SCC  (2) 665\n CITATOR INFO :\n RF\t    1981 SC 873\t (52)\n R\t    1982 SC 839\t (25)\n RF\t    1986 SC 791\t (5)\n R\t    1988 SC1531\t (163)\n\n\nACT:\n     Criminal Conspiracy, ingredients of-Section 120B of the\nIndian Penal  Code,  evidence  required\t to  prove  criminal\nconspiracy explained-Approver's evidence, value of.\n     Words and\tPhrases-\"High Public  or political Offices\"-\nMeaning of.\n     Special  Court's\tAct  1979,   ss.  5,   7,  9  &\t 11-\nConstitutional validity of.\n\n\n\nHEADNOTE:\n     Sri Amrit\tNahata PW  1 was  a member of Parliament and\nhad produced a film titled \"Kissa Kursi Ka\" under the banner\nof Dhwani Prakash. The film according to the prosecution was\na grotesque  satire containing\ta scathing  criticism of the\nfunctioning of\tthe  Central  Government  and  was  open  to\nserious objections  which were\ttaken even  by\tthe  Central\nBoard of Film Censors. After the film was ready for release,\nPW 1, Amrit Nahata, applied for certification of the film on\nthe 19th of April 1975 before the Board. The film was viewed\non April 24, 1975 by an Examining Committee of the Board and\nwhile three members were of the opinion that certificate for\nexhibition, with  drastic cuts,\t should\t be  given,  another\nmember and  Mr. N.  S. Thapa,  Chairman, disagreed  with the\nopinion of  their colleagues  and accordingly  referred\t the\nmatter to  the Revising\t Committee. The\t Revising  Committee\nafter viewing  the film\t agreed by  a majority\tof 6  :1 for\ncertification of the film, the dissent having been voiced by\nMr. Thapa, the Chairman and accordingly under Rule 25(ii) of\nthe Cinematograph  (Censorship) Rules, 1958, a reference was\nmade  to   the\tCentral\t Government  on\t 8-5-1975.  In\tthis\nconnection, a  letter was  addressed to\t PW  6,\t Mr.  S.  M.\nMurshed, who  was at  the relevant  period Director  in\t the\nMinistry of Information & Broadcasting, Incharge of film and\nT.V. Projects  and was\tappointed, Joint Secretary on 1st of\nMay 1975.  Before making his comments PW 6 saw the film some\ntime in\t the middle  of May,  1975. Meanwhile,\tPW 1,  Amrit\nNahata, was  directed to  deposit the  positive print of the\nfilm comprising\t 14 reels  of 35  mm with  the Film Division\nAuditorium, situate  at\t 1,  Mahadev  Road,  New  Delhi.  In\npursuance of  these directions\tPW 1  deposited the positive\nprint and  an entry  thereof (Ext.  17A)  was  made  by\t the\nLibrarian-cum-Projectionist of\tthe Auditorium. PW 17, K. P.\nSreedharam,  who  was  a  Technical  Officer  incharge\talso\ninspected the reels and found them in order.\n     Although Murshed,\tPW 6,  after seeing  the film agreed\nwith the  opinion of the Chairman of the Board that the film\nmay be\topen to\t objection on the ground that it was full of\nsarcasm and contained criticism of the political functioning\nof the\tGovernmental machinery\tyet he was personally of the\nopinion that  certification for\t exhibition  should  not  be\nrefused. PW  6 accordingly  recorded a note and submitted it\nto Mr.\tA.  J.\tKidwai,\t the  then  Secretary,\tMinistry  of\nInformation and\t Broadcasting. The  matter was then examined\nby Mr.\tI. K.  Gujral, the  then Minister of Information and\nBroadcasting but\n501\nno final  decision was\ttaken. Meanwhile PW 1, Amrit Nahata,\nfiled a\t writ petition (Ex. PW 1\/D) in the Supreme Court. On\nthe 23rd  of the  June 1975,  a notice\twas  issued  by\t the\nMinistry of  Information and  Broadcasting to  PW  1,  Amrit\nNahata, to  show cause\twhy certification to the film be not\nrefused. The  notice was made returnable by 9-7-75. Thus the\nMinistry  of   Information  and\t Broadcasting  had  taken  a\ntentative decision  to\trefuse\tcertification  to  the\tfilm\nbecause of its objectionable and offensive nature.\n     Emergency was  proclaimed on  the night of between 25th\nand 26th  of June,  1975 and soon thereafter A 1 took charge\nas the Union Minister of Information and Broadcasting and he\nwas of\tthe opinion  that the film should be banned. On July\n5, 1975,  in pursuance\tof the decision taken by the Central\nGovernment, the\t Coordination Committee\t directed seizure of\nthe film  and that  its negatives,  positives and  all other\nmaterials relating  to it  be taken  in the  custody of\t the\nCentral Government  vide Ex.  PW 6\/D.  On July\t10, 1975 A 1\ndirected that  the film\t be banned  for screening  under the\nDefence of  India Rules, vide Ext. PW 6\/E-4. Finally, on the\n11th of\t July 1975  PW 6  Murshed, passed  an order  that no\ncertification was  to  be  given  to  the  film\t for  public\nexhibition which  was followed\tby a  letter dated  July 14,\n1975, forfeiting the film to the Government. In pursuance of\nthe decision taken by the Central Government PW 39, S. Ghosh\nDeputy Secretary,  incharge of\tthe films and T. V. Division\nwrote  a   letter  to  the  Chief  Secretary  Government  of\nMaharashtra for\t seizure of  all the positives and negatives\nof the film as also other related materials. In pursuance of\nthis order, the Bombay police seized the entire film on 1-8-\n1975 and  deposited in the godown of the Board. As, however,\na final\t order had been passed by the Government banning the\nfilm. PW, 1, Amrit Nahata filed a petition for special leave\nin the Supreme Court on 6-9-1975. This petition was heard on\n29-10-75 and the Court directed the Government to screen the\nfilm on\t 17-11-75 in  the Auditorium  for being shown to the\nJudges constituting  the Bench. In pursuance of the order of\nthe Court, intimation was sent to the Ministry concerned and\nPW 62,\tMr. S.\tM. H. Burney who was then Secretary Ministry\nof Information\tand  Broadcasting  directed  that  immediate\naction be taken to implement the orders of the Supreme Court\nand that  arrangements should be made to book the Auditorium\nfor 17-11-75.  By a  letter dated 5-11-75 (Ext. PW 2\/A2) the\nSupreme Court  was also\t informed regarding the steps taken.\nSometime thereafter  PW 2,  L.\tDayal  took  over  as  Joint\nSecretary (Films  Division) in\tplace of  Mr.  Murshed.\t The\nfilm, however,\twas not\t shown to  the Judges of the Supreme\nCourt on the ground that the films were not traceable.\n     After the\tgeneral elections  of March  1977,  the\t new\nGovernment directed  the Central  Bureau of Investigation to\ninvestigate into  the matter  of disappearance of the films.\nThe C.B.I.  accordingly investigated  the matter  and  found\nthat A\t1, V.  C. Shukla  and A\t 2 Sanjay  Gandhi  conspired\ntogether  and  ultimately  burnt  them\tin  Maruti  Complex.\nTherefore C.B.I.  filed charge sheets against V. C. Shukla A\n1 and  Sanjay Gandhi  A 2  under several provisions of Penal\nCode. The  prosecution examined\t several witnesses  to prove\ncriminal conspiracy  of A  1 and A 2 more particularly under\nthree stages,  namely, (i) the deposit of the positive print\nin the\tAuditorium and\tits alleged transfer to the personal\ncustody\t of  A\t1;  (ii)  the  arrival\tof  thirteen  trunks\ncontaining negatives  and other material related to the film\nat New\tDelhi from  Bombay in pursuance of the orders of A 1\nand their transfer to 1, Safdarjung Road, then to the Maruti\nComplex; and  (iii) the\t actual orders\talleged to have been\ngiven\n502\nby A  2 for  burning the  film in  the\tpremises  of  Maruti\nComplex which  operation according  to the  prosecution\t was\ncarried\t out  by  the  approver\t PW  3,\t Khedkar  and  other\nwitnesses between the 10th and 24th of November 1975.\n     The Sessions  Judge, Delhi convicted V. C. Shukla (A-1)\nappellant in  Criminal Appeal  No. 494\/79 under section 120B\nread with  Ss. 409,  435, 411, 414 and 201 Indian Penal Code\nand also  under section\t 409 Indian Penal Code in respect of\nthe positive  print and\t negative and  other material of the\nfilm \"Kissa  Kursi Ka'\tunder section  411 read\t with S. 109\nI.P.C.; under  section 414 read with section 109 I.P.C.; and\nunder  section\t 201  read   with  section  109\t I.P.C.\t The\nappellant, Sanjay Gandhi (A 1) in Criminal Appeal No. 493\/79\nwas convicted  by the  Sessions Judge,\tDelhi under  section\n120B read  with Ss.  409, 435,\t411, 414 and 201, Penal Code\nand further  convicted under Ss. 435, 411, 414 and 201 Penal\nCode in\t regard to  the negative  and other materials of the\nfilm, as also under section 409 read with section 109 of the\nPenal Code.\n     Accused No. 1 was sentenced under s. 120B read with Ss.\n409,  435,   411,  414\t and  201   to\ttwo  years  rigorous\nimprisonment; under  s. 409 regarding the negative and other\nmaterials to  two years\t rigorous imprisonment and a fine of\nRs.  20,000   and  in  default\tfurther\t 6  months  rigorous\nimprisonment, under  s. 409  regarding the positive print of\nthe film to two years rigorous imprisonment and a fine of Rs\n5000 and  in case  of default  further rigorous imprisonment\nfor three  months; under s. 411 read with s. 109 to rigorous\nimprisonment for  one year; under s. 414 read with s. 109 to\nrigorous imprisonment  for one\tyear; under s. 201 read with\ns. 109\tto rigorous  imprisonment for one year; under s. 435\nread with  s. 109  to rigorous imprisonment for one year and\nsix months.  Accused No. 2 was sentenced under s. 120 B read\nwith ss. 409, 435, 411, 414 and 201 to rigorous imprisonment\nfor two years; under s. 435 to rigorous imprisonment for one\nyear and  six months and a fine of Rs. 10,000 and in case of\ndefault further rigorous imprisonment for four months; under\ns. 411\tto rigorous  imprisonment for one year; under s. 414\nto rigorous  imprisonment for  one year;  under\t s.  201  in\nregard to  the negative,  etc., to rigorous imprisonment for\none year;  under s.  201 in  regard to\t13 trunks,  etc., to\nrigorous imprisonment  for one\tyear and  under s.  409 read\nwith s.\t 109 to\t rigorous imprisonment\tfor two\t years.\t The\naforesaid sentences  of imprisonment  were  ordered  to\t run\nconcurrently in the case of both the accused.\n     On being  convicted by  the Sessions Judge, Delhi, both\nthe accused  filed  appeals  before  the  Delhi\t High  Court\nagainst their  convictions and\tsentences, and were released\non bail\t pending the  hearing of the appeals. Meanwhile, the\nSpecial Courts\tAct of 1979 came into force and by virtue of\na declaration  made under  section 7  of the  said Act,\t the\nappeals stood transferred to the Supreme Court.\n     The  appellants   raised  the   following\t preliminary\nobjections as  to the constitutional validity of Sections 5,\n7, 9  and 11  of the  Act, apart  from the  plea that  their\nconviction and\tsentence were  not based  on  any  evidence,\nlegal or otherwise.\n     A. Even  having regard  to the principles laid down the\nSupreme Court  in the  Reference case, the Act fails to pass\nthe tests laid down for a valid classifica-\n503\ntion under Art. 14. The decision given in the Reference case\nupheld the  Bill and  rejected the  challenge that  the Bill\nviolated Art.  14 mainly  on the ground that the Bill sought\nto put\ta certain  class of persons, namely, persons holding\nhigh public  or political offices who had committed offences\nonly during  the period\t of Emergency.\tIn other  words, the\nconstitutionality of  the Bill was upheld on the ground that\nthe legislation was confined to select offences committed by\na particular  class of\tpersons during the Emergency period.\nThe impugned  Act transgressed\tthe limits  imposed  by\t the\njudgment in  the Reference  case by bringing within its fold\noffences committed prior and subsequent to the Emergency and\nthus was  in direct  conflict with the opinion of this Court\nrendered in  the Reference  case. In  other words this Court\nstruck down  that part\tof the\tBill which  related  to\t the\nperiod between\tFebruary and  June 1975\t on the\t ground that\npersons having\tcommitted offences  during that period could\nnot be\tclubbed with those who had committed offences during\nthe period  of Emergency. Thus the Act, by clubbing together\npersons accused\t of offences  committed during the Emergency\nwith those  alleged to\tbe guilty  of crimes  pertaining  to\nperiods before and after the Emergency (i.e. by dealing with\noffences committed  at any  point of  time whatsoever),\t has\nviolated the  guarantee under Art. 14 and the classification\nmade by\t the Act  is in\t direct contravention of the opinion\ngiven by this Court in the Reference Case.\n     B.\t Even  if  the\tclassification\twas  valid,  as\t the\nprocedure prescribed  by the  Act  is  extremely  harsh\t and\nprejudicial to\tthe accused,  Articles 14 and 21 are clearly\nviolated.\n\t  (a)\tSection\t 7  deprives  a\t valuable  right  of\n\t       appeal;\n\t  (b)\tSection 11(1)  takes away the valuable right\n\t       of revision against interlocutory orders;\n\t  (c)\tSection\t 9(3)  of  the\tAct  prescribes\t the\n\t       procedure for  the  trial  of  Warrant  cases\n\t       before the  Magistrate in Sections 238 to 243\n\t       and 248 Crl. P.C., while treating the special\n\t       Court as Court of Sessions.\n     C. Assuming  the classification of persons holding high\npublic or political offices to be justified, it suffers from\na serious  infirmity in\t that neither the terms \"high public\nor political  office\" has been defined nor have the offences\nbeen delivered\tor defined  so as to make the prosecution of\nsuch offenders a practical reality.\n     D. Even  the nature  and character of the offences have\nnot been  defined in  the Act which introduces an element of\nvagueness in the classification.\n     E. Parliament  was not  competent to pass a special Act\nand create Special Courts for a particular set of offenders.\n     F. The  Act seeks\tto change the situs of the Court and\nvirtually abrogates  section 181  of the  Code\tof  Criminal\nProcedure.\n     G. The  Act creates an invidious distinction in as much\nas persons  holding high  public or  political offices would\nhave the  benefit of trial by such an experienced officer as\na sitting  judge of  a High Court, while the appellants have\nbeen deprived  of that\tright and  were tried  by a  Special\nJudge who was only a Sessions Judge.\n504\n     H.\t Section   5  of   the\tAct   suffers  from  several\nconstitutional and  legal infirmities, namely, (a) Section 5\n(1) suffers  from the vice of excessive delegation of powers\nso as  to violate  Article 14  in as  much as the discretion\nconferred on  the Central  Government is absolute, naked and\narbitrary and is clearly discriminatory as it is open to the\nCentral Government  to\tpick  and  choose  persons  to\tmake\ndeclarations in respect of them while excluding others.\n     (b) The issuance of a declaration under section 5(1) of\nthe Act depends purely on the subjective satisfaction of the\nCentral Government  and under  sub-section (2)\tof section 5\nsuch a\tdeclaration cannot  be called  into question  by any\ncourt so  that there would be an element of inherent bias or\nmalice in  an order  which the\tCentral Government may pass,\nfor prosecuting persons who are political opponents and that\nthe section is therefore invalid.\n     (c) As  the Central  Government in a democracy consists\nof the political party which has the majority in Parliament,\ndeclarations under  section 5(1) of the Act could be used as\nan engine  of oppression  against members of parties who are\nopposed to the ideologies of the ruling party.\n     (d)  the  provisions  about  declaration  contained  in\nSection 5(1)  are violative  of\t the  principle\t of  natural\njustice in  as much  as they  do not provide for any bearing\nbeing given to the accused before a declaration is made.\n     (e) in  an instant case, the declaration dated June 22,\n1979 made under section 5(1) of the Act per se shows that it\nhad not\t resulted from\tany real  application of the mind by\nthe  Central   Government.  Once   the\tprosecution  of\t the\nappellants had\tculminated in  a conviction  and  an  appeal\ntherefrom there\t was no\t question of  the existence  of\t any\n\"prima facie  case\" and\t that the  use of such an expression\ncould be  intelligible\tonly  if  the  accused\twere  facing\ncriminal  proceedings\twhich  had   not  culminated   in  a\nconviction; and\n     (f) the  declaration made under section 5 of the Act is\nnon est\t because it  has not  been laid before each House of\nParliament as required by section 13 of the Act.\n     J. The  appellant not  having held\t any high  public or\npolitical office  has been drawn into this case by virtue of\na declaration  and has\ttherefore been\tsingled\t out  for  a\ndiscriminatory treatment.\n     K. Section\t 5(1) of  the Act  has no application to the\nfacts of  the present  case because  under  section  5(1)  a\ndeclaration has\t to be\tmade on\t the  basis  of\t the  source\nindicated in  the section, namely, inquiries conducted under\nthe Commissions\t of  Inquiry  Act  or  investigations  which\nbecome otiose and would have relevance only if the appellant\nhad not been convicted.\n     L. Conviction  being a  finding of guilt cannot be said\nto fall within the situation contemplated by section 5(1) of\nthe Act.  Section 6  is an extension of the scheme contained\nin section  5, the  former does not overrule the entire code\nof Criminal  Procedure but in fact takes in only those cases\nwhich are pending at the trial stage when the declaration is\nmade. Once  the case  ends in a conviction, section 5 spends\nitself out  and there  is no  room for\tthe  application  of\nsection 5.\n     M. Section\t 7 would  not apply to this case because its\nlanguage embraces  only those  appeals which  arise out of a\nprosecution which  itself is  pending at  the  time  when  a\ndeclaration is made.\n505\n     N. By  providing in section 7 for an automatic transfer\nof appeals  from the  High Court  to the  Supreme Court, the\nLegislature has\t exercised a  judicial power which is vested\nin the\tSupreme Court alone under section 406 of the Code of\nCriminal Procedure  and that  the section  is invalid  as it\nconflicts with section 406 Crl. P.C.\n     Allowing the appeals, the Court\n^\n     HELD: (Regarding Constitutional validity of the Act)\n     1. In  a diverse  society and a large democracy such as\nours where the expanding needs of the nation change with the\ntemper of  the times,  it is  extremely\t difficult  for\t any\nlegislature to\tmake laws  applicable to  all persons alike.\nSome amount  of classification\tis, therefore,\tnecessary to\nadminister various  spheres of\tthe activities of the State.\n[522 D-E]\n     2.\t It  is\t well  settled\tthat  in  applying  Art.  14\nmathematical precision\tor nicety  or perfect equanimity are\nnot required.  Similarity rather  than identity of treatment\nis enough. The courts should not make a doctrinaire approach\nin construing  Art. 14\tso as  to destroy  or frustrate\t any\nbeneficial legislation.\t What Art.  14 prohibits  is hostile\ndiscrimination and  not reasonable  classification  for\t the\npurpose of  legislation. Furthermore,  the Legislature which\nis  in\tthe  best  position  to\t understand  the  needs\t and\nrequirements of the people must be given sufficient latitude\nfor making  selection or differentiation and so long as such\na selection is not arbitrary and has a rational basis having\nregard to  the object  of the  Act, Art.  14  would  not  be\nattracted. That\t is  why  this\tCourt  has  laid  down\tthat\npresumption is\talways in favour of the constitutionality of\nan enactment  and the  onus lies upon the person who attacks\nthe statute to show that there has been an infraction of the\nconstitutional concept\tof equality.  It has  also been held\nthat   in    order   to\t   sustain   the    presumption\t  of\nconstitutionality,  the\t Court\tis  entitled  to  take\tinto\nconsideration matters  of common  knowledge, common  report,\nthe history  of the  times and\tall other facts which may be\nexisting at  the time  of  the\tlegislation.  Similarly,  it\ncannot be  presumed that  the administration of a particular\nlaw would  be done  with an  \"evil eye and an unequal hand\".\nFinally, any  person invoking  Art. 14\tof the\tConstitution\nmust show  that there  has  been  discrimination  against  a\nperson who  is similarly  situate or  equally circumstanced.\n[522 E-H, 523 A]\n     State of  U.P. v.\tDeoman Upadhyaya,<\/a>  [1961] 1  SCR 14,\nfollowed.\n     3. The classical tests laid down for the application of\nArt. 14 are the following:\n\t  1.\tThe  classification must  be founded  on  an\n\t       intelligible differentia\t which distinguishes\n\t       persons who are placed in a group from others\n\t       who are left out of the group.\n\t  2.\tSuch  differentiation must  have a  rational\n\t       relation to  the object sought to be achieved\n\t       by the Act.\n\t  3.\t   There   must\t be   a\t nexus\tbetween\t the\n\t       differentiation which  is the  basis  of\t the\n\t       classification and  the object  of  the\tAct.\n\t       [523 D-F]\n     4. It  cannot be gainsaid that this Court while dealing\nwith the  Reference case  was not  at all concerned with the\nprovisions of the Act which is of much\n506\nwider application  than the  Bill considered by the Court in\nthe Reference.\tIt is  no doubt true that the Bill contained\nprovisions for\tpunishing  only\t those\toffenders  who\twere\naccused of  offences committed\tduring a  particular period,\nnamely, the  period of\tEmergency. It  is also true that the\nperiod of  Emergency was an extraordinary one in the history\nof our\tcountry and  its features have been spelt out in the\npreamble of  the Bill  as also in the judgment given by this\nCourt in  the aforesaid\t case. But  that by  itself does not\ndebar Parliament from passing a permanent Act to deal with a\nspecified  class  of  persons  who  occupy  high  public  or\npolitical offices (which are offices of trust) and misuse or\nabuse them.  It cannot be doubted that for the establishment\nand continuance\t of a  Parliamentary democracy and to secure\nefficiency and purity of administration it is necessary that\nwhen such  persons commit  serious abuse  of power  and\t are\nguilty of  a breach of the trust reposed in them, they would\nform a special class of offenders. [525 F-H, 526 A]\n     5. That  Purity of\t life is a desired goal at all times\nitself is  a sufficient justification for the classification\nmade by\t the Act which widens its scope to include offenders\nof a  particular type,\twhether before,\t during or after the\nEmergency. In  fact, such  persons would  undoubtedly form a\nspecial\t class\t of  offenders\t which\twould\tjustify\t the\nlegislative measure  singling them  out for  an\t expeditious\ntrial. To  hold otherwise  would  be  to  say  that  persons\nbearing\t the  aforesaid\t attributes  would  be\timmune\tfrom\nprosecution under any Special Act. Passing of such a Special\nAct is within the Legislative competence of Parliament.\n\t\t\t\t   [526 D-E, 527 G-H, 528 B]\n     6. The  Act does  not suffer from any infirmity and the\ncircumstance that  it applies  to offences  committed at any\ntime by\t a particular  set  of\tpersons\t possessing  special\ncharacteristics does  not render  it unconstitutional;\tfor,\nwhen it puts into a class a particular set of persons having\nspecial characteristics\t which distinguish  them from others\nwho are left out of that class and who are to be tried under\nthe  ordinary\tlaw,   the   classification   is   eminently\nreasonable. The\t classification made  has a reasonable nexus\nwith the  object sought to be achieved. Separate grouping of\nholders of high offices for purposes of expeditious criminal\naction to  be taken  by superior  courts is a reasonable and\nvalid classification  because it  enhances confidence in the\nrule of\t law, strengthens  the democratic system and ensures\npurity of public life and political conduct.\n\t\t\t\t   [528 E-G, 529 G-H, 530 A]\n     7. The opinion of the Supreme Court in Re. Special Act,\nin no  way amounted  to disapproval  or\t condemnation  of  a\npermanent law  in  future  bringing  within  its  scope\t all\nholders of high public or political office. [530 G-H]\n     The Bill was challenged before the Supreme Court on the\ntouch stone  of Art.  14 on  several groups.  In  the  first\nplace, it  was argued  that no rational basis for separately\nclassifying Emergency  offenders existed.  The second ground\nof challenge  was that\tassuming  that\tthere  was  a  valid\nclassification, the  same was  bad because  it suffered from\nthe vice  of under-inclusion  inasmuch as  holders  of\thigh\npublic or  political offices  were  left  out.\tThis  Court,\nhowever, repelled  the argument\t of rational  basis  on\t the\nground that  the Emergency  period, because  of its  special\ncharacteristics,  afforded   adequate  basis   for  separate\nclassification of  Emergency offences.\tThe Court was not at\nall at that time concerned expressly with the question as to\nwhether\t classification\t  of  high   public   or   political\ndignitaries without  reference to  any period  during  which\nthey were  alleged  to\thave  committed\t offences  would  be\nviolative of Art. 14 of the Constitution. On\n507\nthe other  hand, this  Court made clear observations that an\nAct providing  for such\t a classification  would be not only\nvalid but also highly welcome. It is true that the provision\nregarding a  particular period before the Emergency was then\nstruck down but that was so because the Bill was confined to\noffences committed  only during\t the period of Emergency and\nthe inclusion of another period meant bad classification for\nthe reason  that the  period last  mentioned  could  not  be\ndistinguished from  either pre-or  post-Emergency periods on\nany reasonable\tbasis. This  view of  the Court could not be\ninterpreted as\tlaying down  a law  of universal application\nthat  no  Special  Act\ton  a  permanent  basis\t classifying\noffenders   possessing\t  particular   characteristics\t  or\nattributes and\tproviding  for\ttheir  prosecution  under  a\nspecial procedure  would be invalid or violative of Art. 14.\n[530 A-G]\n     8. The expression \"high public or political offices\" is\nof well\t known significance  and bears\ta clear\t connotation\nwhich admits  of no  vagueness or ambiguity. Persons holding\nhigh public  or political  offices mean\t persons holding top\npositions wielding large powers. [531 C-D, F]\n     Political office  is an  office which  forms part\tof a\nPolitical Department  of the  Government  or  the  Political\nExecutive.  This,   therefore,\tclearly\t  includes   Cabinet\nMinisters, Ministers,  Deputy  Ministers  and  Parliamentary\nSecretaries  who  are  running\tthe  Department\t formulating\npolicies and  are responsible  to the  Parliament. The\tword\n'high' is  indication of  a top\t position and  enabling\t the\nholders thereof\t to take  major policy\tdecisions. Thus, the\nterm 'high  public or  political office'  used\tin  the\t Act\ncontemplates only a special class of officers or politicians\nwho may be categorised as follows:-\n\t  1.\t  Officials  wielding  extraordinary  powers\n\t       entitling them to take major policy decisions\n\t       and holding positions of trust and answerable\n\t       and accountable for their wrongs.\n\t  2.   Persons responsible for giving to the State a\n\t       clean, stable and honest administration;\n\t  3.\tPersons\t occupying a very elevated status in\n\t       whose hands  lies the  destiny of the nation.\n\t       [534 C-E]\n     The rationale  behind  the\t classification\t of  persons\npossessing the\taforesaid characteristics is that they wield\nwide powers  which, if\texercised improperly  by  reason  of\ncorruption,  nepotism\tor  breach  of\ttrust,\tmay  mar  or\nadversely mould\t the future  of the  country and tarnish its\nimage. It  cannot be  said, therefore,\twith any  conviction\nthat persons who possess special attributes could be equated\nwith ordinary  criminals who  have neither the power nor the\nresources to  commit offences  of the  type described above.\nThe term  'persons holding high public or political offices'\nis self-explanatory  and admits\t of no\tdifficulty and\tthat\nmere absence  of definition  of\t the  expression  would\t not\nvitiate the classification made by the Act. Such persons are\nin a  position to  take major  decisions  regarding  social,\neconomic, financial aspects of the life of the community and\nother far-reaching  decisions on  the  home  front  as\talso\nregarding external  affairs and if their actions are tainted\nby  breach   of\t trust,\t  corruption  or   other  extraneous\nconsideration,\tthey  would  damage  the  interests  of\t the\ncountry. It  is, therefore, not only proper but essential to\nbring such  offenders  to  book\t at  the  earliest  possible\nopportunity. [534 F-H, 535 A]\n508\n     9. Clause\t4 of  the preamble to the Special Courts Act\nclearly indicates  the nature  of the offences that would be\ntried under the Act. [535 B]\n     The words\t'power being  a Trust' clearly indicate that\nany act\t which amounts\tto a  breach of\t the trust or of the\npowers conferred on the person concerned would be an offence\ntriable under  the Act. Clause (4) is wide enough to include\nany offence committed by holders of high public or political\noffices which  amounts to  breach of trust or for which they\nare accountable\t in law\t and does  not leave  any  room\t for\ndoubt.\tSection\t 5  which  confers  powers  on\tthe  Central\nGovernment to  make a  declaration  clearly  refers  to\t the\nguidelines  laid   down\t in  the  preamble  and\t no  Central\nGovernment would  ever think  of prosecuting holders of high\npublic or political offices for petty offences. [535 D-G]\n     10. Sections  7 and  11 of\t the Special  Courts Act are\nwithin the legislative competence of the Parliament. That is\nto say\tParliament has\tthe competence\tto provide  for\t the\ncreation of Special Courts and to confer jurisdiction on the\nSupreme Court  by providing  that an  appeal shall lie as of\nright from  any judgment  or order  of Special\tCourt to the\nSupreme Court both on fact and on law.\n\t\t\t\t\t\t   [536 A-D]\n     In re. Special Courts Bill [1979] 2 SCR 476; applied.\n     11. The  Act neither  seeks to  change the situs of the\nCourt nor  virtually abrogates\tSection 181  of the  Code of\nCriminal Procedure. [536 E]\n     In re. Special Court Bill, [1979] 3 SCR; followed.\n     12. The  question of  the appellants being tried by the\nSpecial Judge  appointed under\tthe Special Courts Act could\nnot arise  because the\tsaid Special  Court did not exist at\nall even  when the trial of the appellant was concluded. The\nFirst Information  report against  the appellants was lodged\non 13th\t April 1977 and the chargesheet was submitted before\nthe Special  Judge who convicted the appellants by his order\ndated February\t27, 1979.  The Act, however, came into force\non May\t16, 1979,  that is  to say,  three months  after the\nconviction and\tabout two  months after\t the appellants\t had\nfiled their  appeals before the High Court. The existence of\nsuch fortuitous\t circumstances cannot  attract\tArticle\t 14.\n[536 G-H, 537 A-B]\n     Khandige Sham Bhatt and Ors. v. The Agricultural Income\nTax Officer,<\/a>  [1963] 3\tSCR 809; Dantuluri Ram Raju and Ors.\nv. State  of Andhra  Pradesh and  Anr.,<\/a> [1972]\t1  SCR\t421;\napplied.\n     13. Section  5(1) does  not suffer\t from  the  vice  of\nexcessive delegation  of powers so as to violate Article 14.\nNo unguided  or uncanalised  power has been conferred on the\nCentral Government. A basic condition imposed on the Central\nGovernment is  that there  must be  a proper  application of\nmind regarding\tthe existence of prima facie evidence of the\ncommission of an offence. Secondly, the discretion has to be\nexercised in accordance with the guidelines contained in the\npreamble. The various clauses of the preamble lay down clear\nguidelines and\tprovide sufficient  safe-guards against\t any\nabuse of  power. Thirdly, clause (4) of the preamble clearly\nlays down  that the  power under  s. 5\tis exercisable\tonly\nafter the  Commission of  an offence by the holder of a high\npublic or political office has been disclosed as a result of\nan inquiry conducted under the Commissions of Inquiry Act or\nof an  investigation conducted by the Government through its\nagencies. It is well settled that discretionary power is not\nthe same thing as power to discriminate nor\n509\ncan the\t constitutional validity  of a\tlaw be tested on the\nassumption that\t where a discretionary power is conferred on\na high\tauthority, the\tsame may  or would be exercised in a\ndiscriminatory manner. [538 E-H, 539 A]\n     The  power\t conferred  on\tthe  Central  Government  is\ncontrolled by the guidelines contained in the preamble which\nby virtue  of the  provisions of  s. 5(1)  becomes a part of\nthat section. As the power has been conferred on the Central\nGovernment which is to make a declaration in accordance with\nthe conditions\tlaid down  in s.  5(1)\tand,  therefore,  in\nconformity with\t the guidelines\t mentioned in  the preamble,\nthe attack based on discrimination is unfounded. [541 B-C]\n     Dr. N.  B. Khare v. The State of Delhi,<\/a> [1950] SCR 519,\nKathi Raning  Rawat v.\tThe State  of Saurashtra,<\/a> [1952] SCR\n435; Matajog  Dubey v.\tH. C. Bhari,<\/a> [1955] 2 SCR 925 In Re.\nThe Kerala  Education  Bill,  1957,  [1959]  SCR  995  Jyoti\nParshad v.  The Administrator  for the\tUnion  Territory  of\nDelhi, [1968]  2 SCR  125; Moti\t Ram Dekha  etc. v.  General\nManager, N.E.F., Railways, Maligaon, Pandu etc. [1964] 5 SCR\n683; V.\t C. Shukla v. The State through C.B.I., [1980] 1 SCR\n380; followed.\n     14. The  power of\tthe Central  Government to  issue  a\ndeclaration is\ta statutory  power circumscribed  by certain\nconditions. Furthermore,  as the  power is  vested in a very\nhigh authority, it cannot be assumed that it is likely to be\nabused. On  the other  hand, where the power is conferred on\nsuch  a\t high  authority  as  the  Central  Government,\t the\npresumption will  be that  the power  will be exercised in a\nbona fide manner and according to law. [541 D-F]\n     Chinta Lingam and Ors. v. Government of India and Ors.,<\/a>\n[1971] 2  SCR 871; Budhan Chaudhary and Ors. v. The State of\nBihar, [1955] 1 SCR 1045; referred to.\n     15. The  contention that  declarations under s. 5(1) of\nthe Act\t could be  used as  an engine  of oppression against\nmembers of  parties who are opposed to the ideologies of the\nruling party  is one arising out of fear and mistrust which,\nif accepted  would invalidate  practically all\tlaws of\t the\nland; for,  then even  a prosecution  under the ordinary law\nmay be considered as politically motivated, which is absurd.\nFurthermore, prejudice,\t malice or taint is not a matter for\npresumption in\tthe absence of evidence supporting it. It is\nwell settled  that burden  lies on the parties alleging bias\nor malice  to prove  its existence, and if malice or bias is\nproved in  a particular\t case, the  courts would strike down\nthe act\t vitiated by  it, in  exercise of  its powers  under\nArticles 226, 227 or 136. [542 A-D]\n     In Re.  Special Courts  Bill, [1979] 2 SCR 476 referred\nto.\n     16. At  the stage\twhen the declaration is sought to be\nmade there  is no  list pending nor has any prosecution been\nlaunched against  the accused. Section 5 deals only with the\ndecision taken\tby the\tCentral Government  to prosecute and\nuntil that  decision is\t notified, the\tprosecution does not\nstart, and  the question  of an\t accused being heard at that\nstage, therefore, does not arise at all.\n\t\t\t\t\t\t   [542 F-G]\n     Cozons v. North Devon Hospital Management Committee and\nAnr., [1966] 2 Q.B. 330: quoted with approval.\n     17. Under section 5(1) of the Act the Government has to\nbe  satisfied\ton  two\t counts\t before\t it  could  issue  a\ndeclaration. It must be satisfied in the first\n510\ninstance  that\t there\tis   prima  facie  evidence  of\t the\ncommission of an offence. Secondly, it must form the opinion\nin accordance  with the guidelines contained in the preamble\nthat such  offence ought to be dealt with under the Act. The\ncondition of  the  existence  of  prima\t facie\tevidence  is\nfulfilled in  the case of the present declaration though the\ntrial in  the first  Court had\tended in a conviction and an\nappeal therefrom,  the reason  being that  if conviction  is\nconstrued as  evidence of  the existence  of something\tmore\nthan a\tmere prima  facie case,\t that would  not mean that a\nprima facie  case cease\t to exist.  That a  prima facie case\nmust be\t found to  exist is only the minimum requirement for\nthe satisfaction  of the  Central Government and it would be\ndoubly made  out if  the evidence available is stronger than\nis needed  to make out only a prima facie case. A conviction\nof an  accused person  cannot mean  that there\tis no  prima\nfacie evidence\tagainst him.  All that it spells out is that\nnot only a prima facie case is made out against him but that\nthe evidence  available is  even stronger  and is sufficient\nfor a  conviction. However,  as the Government, while acting\nunder the  section, is\tto  satisfy  itself  only  with\t the\nexistence of  prima facie  evidence, the  assertion by it in\nthe declaration\t that such  evidence was  available  to\t its\nsatisfaction cannot,  by any stretch of imagination, be held\nto be  inapplicable to a case in which a conviction has been\nrecorded. In  this  view  of  the  matter  the\tuse  of\t the\nexpression 'prima  facie' evidence  in\tthe  declaration  is\nfully justified\t even  though  the  trial  had\tended  in  a\nconviction which  was  under  appeal  on  the  date  of\t the\ndeclaration. [544 A-G]\n     A perusal\tof the declaration reveals that it gives the\nhistory of the case from beginning to end which demonstrates\nthat the  Central Government  was fully aware of the various\nstages through\twhich the  trial of  the appellants  passed.\nThus, the  formation of the opinion by the Government of the\nexistence of  a prima  facie  case  cannot  be\theld  to  be\nperfunctory or\tillusory. It  has not  been shown  that\t the\ndeclaration was\t in any way irrational or mala fide or based\non extraneous considerations. [546 F-G]\n     18. The  provisions of Section 13 of the Special Courts\nAct are\t purely directory  and not  mandatory so that if the\nconditions mentioned in it are not fulfilled the declaration\nwould not  be vitiated.\t It is\tto be noted that the section\ndoes not  say that  until a declaration is placed before the\ntwo Houses  of Parliament  it shall  not  be  deemed  to  be\neffective, nor does the section intend that any consequences\nwould  result\tfrom   its   non-compliance.   On   a\ttrue\ninterpretation of section 13 of the Act, it is clear that it\nis a  case of a simple laying of the declaration before each\nHouse of Parliament. [547 A-B, 548 B]\n     M\/s Atlas\tCycle Industries  Ltd. and  Ors. v. State of\nHaryana,<\/a> [1979] 2 SCC 196; applied.\n     19. The doctrine of the violation of basic structure of\nthe Constitution  or its fundamental features applies not to\nthe provisions\tof a  law made\tby a  State  legislature  or\nParliament but\tcomes into operation where an amendment made\nin the\tConstitution itself  is said  to  affect  its  basic\nfeatures like  fundamental rights  enshrined under  Articles\n14, 19,\t 31 or\tthe power  of amendment\t of the Constitution\nunder Art. 368 and so on. The doctrine has no application to\nthe provisions\tof a  Central or  State law  because if\t the\nstatute is violative of any provision of the Constitution it\ncan be struck down on that ground and it is not necessary to\nenter  into   the  question   of  basic\t  structure  of\t the\nConstitution at all.\n\t\t\t\t\t\t   [548 C-E]\n511\n     20. It  is true  that section  6 of  the Act  does\t not\ncontemplate  a\t prosecution  which   is  relatable  to\t the\ndeclaration under  section 5  but that\tdoes not  debar\t the\napplication of section 5 to other stages of a criminal case,\nespecially those  specifically dealt with under section 7 of\nthe Act\t which fully  covers  the  situation  in  hand.\t The\nlimited field in which section 6 operates does not therefore\nexhaust the  consequences flowing  from the  issuance  of  a\ndeclaration under section 5 of the Act. [549 A-B]\n     21. The  words \"whether  pending or  disposed  of\"\t are\nsignificant and\t qualify the immediately preceding clause \"a\nprosecution in\trespect of  such offences\".  The legislature\nhas thus  taken care  to expressly provide that an appeal or\nrevision would\tbe covered  by section 7 and transferable to\nthe Supreme  Court for\tdisposal if it is directed against a\njudgment or  order  made  in  prosecution  which  is  either\npending or  has been disposed of, the only other requirement\nof the\tsection being  that such  appeal  or  revision\tmust\nitself be  pending at the date of the declaration. Therefore\nto interpret section 7 in such a way as its applicability is\nlimited to  appeals or\trevisions arising  from prosecutions\npending at  the trial  stage at\t the date  of  the  relevant\ndeclarations is\t possible only if the words \"or disposed of\"\nare treated  as absent\tfrom section-a\tcourse which  is not\nopen to\t this Court  in view  of the  express language used.\n[549 E-G]\n     22. There\tis  no\tquestion  of  the  exercise  of\t any\njudicial power\tby the\tlegislature in enacting section 7 of\nthe Act\t which covers  a well  known legislative process. By\nenacting section  7, Parliament\t has merely  provided a\t new\nforum for  the appeals\twhich were pending in the High Court\nand  in\t  respect  of\twhich  a  valid\t declaration,  fully\nconsistent with the provisions of the Act, was made-a course\nwhich involved\tno interference\t with the judicial functions\nof the\tcourt and was fully open to the legislature. [550 A,\nE-F]\n     Indira Nehru  Gandhi v.  Sri Raj  Narain,<\/a> [1976]  2 SCR\n347; distinguished.\n     23. Since\tthe classification  made by the Act complies\nwith the  dual test  laid down\tby  the\t Supreme  Court\t and\ntherefore held\tto be  a reasonable classifications, Article\n14 would  not be  attracted even if the procedure is held to\nbe harsher than that available under the ordinary law. Apart\nfrom that,  the procedure prescribed by the Act is not harsh\nor onerous  but is  more liberal  and  advantageous  to\t the\naccused who  is assured\t of an\texpeditious and\t fair  trial\nthereunder.\n\t\t\t\t\t    [550 G-H, 551 A]\n     24. An  appeal being  a creature of statute, an accused\nhas no\tinherent right\tto appeal  to a particular tribunal.\nThe legislature\t may choose  any tribunal for the purpose of\ngiving a  right of  appeal. Moreover,  an appeal to the High\nCourt is  less advantageous  than an  appeal to\t the Supreme\nCourt for the following reason:\n\t  \"The right  of appeal given to an accused from the\n     order of  a Session  Judge or Special Judge to the High\n     Court is  not totally  unrestricted. Section 384 of the\n     Code of  Criminal Procedure empowers an Appellate Court\n     to dismiss\t an appeal summarily if it is satisfied that\n     there is no sufficient ground for interference.\"\nWhile an appeal to the High Court under the Code of Criminal\nProcedure is  attended with  the  risk\tof  being  summarily\ndismissed under\t section 384,  an appeal under section 11(1)\nof the Act which runs thus:\n512\n\t  \"11. (1)  Notwithstanding anything  in the Code an\n     appeal shall lie as of right from any judgment sentence\n     or order,\tnot being  interlocutory order, of a Special\n     Court to the Supreme Court both on facts and on law.\"\nis not so.\n     An appeal\tunder s.  11(1) lies as of right and both on\nfacts and  on law. Thus, the right conferred on a convict by\ns. 11(1)  is wider  and less  restricted than  the right  of\nappeal given by the Code of Criminal Procedure.\n\t  (2)\tIf the\tappeal is  filed before\t the Supreme\n\t       Court or\t is transferred thereto, the accused\n\t       becomes entitled\t to a hearing of his case by\n\t       the highest  court in  the  country  both  on\n\t       facts and  on law and thus gets a far greater\n\t       advantage than  a right to move the Court for\n\t       grant of\t special leave\twhich may or may not\n\t       be granted,  it being  a matter of discretion\n\t       to be exercised by the Supreme Court.\n     Therefore the procedure regarding the appeals under the\nAct is\tnot harsher  than that\tprescribed by  the  Code  of\nCriminal Procedure.\n\t\t\t      [552 D-H, 553 E-H, 554 C]\n     Syed Quasim  Razvi v.  The State  of Hyderabad and Ors.<\/a>\n[1953] SCR 589; applied.\n     25. Even  the  Code  of  Criminal\tProcedure  does\t not\nprovide for  any revision  against an  interlocutory  order.\nSection 397(2) of the Criminal Procedure Code expressly bars\nrevision against  interlocutory orders. Inasmuch as there is\nno right  of revision  either under  the  Code\tof  Criminal\nProcedure or  under the\t Act, it cannot be said that section\n11(1) of  the Act creates a definite procedural disadvantage\nto the\taccused. In fact under the Act, the Special Court is\npresided over  by no less a person who is a sitting judge of\na High\tCourt and  the possibility of miscarriage of justice\nis reduced to the barest minimum. [555 C-D]\n     V. C. Shukla v. The State, through C.B.I., [1980] 1 SCR\n380; Jagannath\tSonu Parker  v. State of Maharashtra,<\/a> [1963]\nSuppl. 1 SCR 573; followed.\n     26. The  procedure for  trial of  warrant cases gives a\nfull opportunity  to the accused to participate in the trial\nat all\tits stages and to rebut the case for the prosecution\nin every possible manner and it has not been pointed out how\nthe adoption  thereof for  trials under\t the Act would be to\nthe disadvantage of the accused. Therefore the provisions of\nsections 9(1) and (3) of the Act cannot be said to be harsh.\n[556 E-G]\n     State of  West Bengal  v. Anwal  Ali Sarkar,<\/a> [1952] SCR\n284 explained and distinguished.\n     27. None  of the  sections of  the Act are violative of\nArticle 14  or Article\t21 or  any other  provision  of\t the\nConstitution. The  classification made\tin the\tAct is valid\nand reasonable\tand has\t a rational nexus with the object of\nthe Act\t and that  the\tprocedure  prescribed  is  fair\t and\nadvantageous to the accused. [561 E-F]\n     28. The  appellant in  Crl. Appeal\t 493\/79 has not been\nsingled out  for a discriminatory treatment. It is true that\nhe has never been the holder of any high public or political\noffice but the first clause of the preamble\n513\nclearly includes  within its  ambit not only persons holding\nhigh public  or political offices but also others. Section 8\nthus incorporates  the well  known concept of joint trial of\naccused persons\t in respect  of offences forming part of the\nsame transaction. [551 C-E]\n     Further Held (on merits):\n     29. In  order to  prove a\tcriminal conspiracy which is\npunishable under  section 120B\tof the\tIndian\tPenal  Code,\nthere must be direct or circumstantial evidence to show that\nthere was an agreement between two or more persons to commit\nan offence.  This clearly  envisages that  there must  be  a\nmeeting of the minds resulting in an ultimate decision taken\nby the\tconspirators regarding\tthe ommission of an offence.\n[565 H, 566 A]\n     30. It is true that in most cases, it will be difficult\nto get\tdirect evidence\t of an\tagreement to  conspire but a\nconspiracy can\tbe inferred  even from\tcircumstances giving\nrise  to  a  conclusive\t or  irresistible  inference  of  an\nagreement two  or more persons to commit an offence. [566 A-\nB]\n     In the  instant case,  there is  no acceptable evidence\nconnecting either  of the  appellants with  the existence of\nany conspiracy. Even taking the main part of the prosecution\ncase at their face value, no connection has been proved with\nthe destruction\t of the\t film 'Kissa  Kursi Ka'\t and the two\nappellants. The\t evidence produced  by the prosecution falls\nshort of  the standard of proof required in a criminal case.\nThe  prosecution  failed  to  prove  either  there  was\t any\nexistence of  any conspiracy  between A 1 and A 2 to destroy\nthe film  'Kissa Kursi\tKa' by\tburning it  or to commit any\nother offence  in respect  of the film. There is evidence to\nshow that  there was  any meeting of minds between A 1 and A\n2. Even\t on the first two parts of the prosecution case, the\nallegation of  the prosecution that the positive prints were\nremoved at  the instance  or to the knowledge of A 1 or that\nthe negatives  and other materials of the film were sent for\nby A 1 and kept in his personal custody has not been proved.\nThe mere  fact that A 1 decided to show the film and refused\ncertification for  public exhibition  and passed  orders for\nseizure of  the film  and its transfer to the custody of the\nMinistry of  Information does  not disclose any offence. The\ndecision to  ban the  film was\tnot taken by A 1 secretly or\nclandestinely but  after a  full fledged  discussion in\t the\ncoordination Committee\tmeeting attended  by senior officers\nof various  ministries as  deposed by  Prasad PW 63. Further\nthat part  of the  case which relates to the burning of film\nmaterial rests solely on the uncorroborated testimony of the\napprover and is negatived insofar as the role therein of A 1\nis concerned. [566 C-D, 583 F-H, 584 A-B]\n     (i) Till  9-7-75 i.e.  the date  by which the notice to\nshow cause  why certification  of the  film 'Kissa Kursi Ka'\nwas made returnable, neither A 1 nor A 2 was anywhere in the\npicture. The  facts disclosed  by the  prosecution ex  facie\nshow that  objection to\t certification of  the film had been\ntaken at  the very  initial stage and the ultimate order was\npassed during  the time\t when A 1, Mr. Shukla had taken over\nas Minister,  which was\t merely the  final scene  of a drama\nlong in process; [564 C-E]\n     (ii) Even\tat the\tstage of  proposed exhibition of the\nfilm to\t the Judges of the Supreme Court who constituted the\nBench and  heard the  Special Leave  Petition i.e.  17-11-75\nthere was absolutely no evidence to show that there\n514\nwas any\t meeting of  minds of  A 1  and A 2 nor is there any\nmaterial to indicate that A 2 played any role in the burning\nof the\tfilm. The  decision to ban the film was taken by the\nMinistry headed by A 1, on the merits of the case. No motive\nis attributable\t to A  1 at  this  stage  because  even\t the\nChairman of the Board, PW 8 Mr. Thapa who was an independent\nwitness was  of\t the  view  that  the  film  should  not  be\ncertificated for  public exhibition.  Similarly,  the  steps\ntaken by  the officers\tof the\tMinistry in persuance of the\nfilm at\t Bombay and  its transfer to Delhi was in the nature\nof routine  to see that the decision taken by the Government\nwas implemented. As soon as the Ministry received the orders\nof the\tSupreme Court  for screening the film on 17-11-1975,\nimmediate steps\t were taken to comply with the orders of the\nCourt.\tAdmittedly   between  17th  November  1975  to\t23rd\nNovember 1975, A 2 was either away to Hyderabad or Sikkim as\nproved by  DW 3.  This negatives  the story  of the approver\nconnecting A  2 with  the burning of the film. [565 E-H, 581\nC-D, 582 A]\n     A lot  of evidence has been produced by the prosecution\nto show:\n\t  (a)  that the positive print of the film found its\n\t       way into\t the luggage  compartment of the car\n\t       in which\t A 1  then travelled  to  the  Prime\n\t       Minister's house where the print was unloaded\n\t       by someone in the absence of A 1; and\n\t  (b)\t  that\tthe  negatives\tand  other  material\n\t       relating to the film were taken in a tempo or\n\t       two to  the Prime  Minister's  residence\t and\n\t       from there  to the  Maruti Complex where they\n\t       were stored before their destruction. [584 B-\n\t       D]\nBut the connection of A 1 or A 2 therewith remains unproved.\nHad these  factors provided  circumstantial evidence  on the\nbasis of  which alone  the charge  against either A 1 or A 2\ncould be  held established  it would have been necessary for\nthe Court  to sift the evidence produced in support thereof.\nBut that  is definitely not the case, for, if either or both\nof the\tfactors are proved, the inference of guilt of either\nA 1  or A  2 does not necessarily follow. For circumstantial\nevidence to  furnish evidence  of guilt it has to be such as\nit cannot  be explained\t on any\t other reasonable hypothesis\nexcept the  guilt of  the accused which is not the case here\nbecause appellants  A 1\t and A 2 could not be said to be the\nonly persons interested in the destruction of the film if it\nwas as\tobnoxious to  the then Prime Minister or as critical\nof the\tfunctioning of\tthe then  Union\t Government  as\t the\nprosecution would  have the  Court believe. The film and all\nthe material relating to it no doubt appear to have vanished\ninto thin  air but  then neither  A 1  nor A  2 can  be held\nresponsible therefor, in the absence of proof in that behalf\nproof which would exclude all reasonable doubt. [594 D-G]\n     (iii) A mere identification by a witness of a person in\nthe Court  for the  first time\twho was\t not  known  to\t the\nwitness and  who had  only caught  a glimpse  of the person,\nlong time  before  is  valueless,  in  the  absence  of\t the\noperative witness  being tested\t by a  previously held\tTest\nIdentification does  not exclude  possibility of mistakes in\nidentification. [576 B-D]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL APPELLATE\t JURISDICTION: Criminal\t Appeal Nos.
\n492, 493 and 494 of 1979.\n<\/p>\n
     Appeals under section 7 of the Special Courts Act, 1979
\non transfer  from the Delhi High Court at New Delhi from the
\nJudgment and
\n515<\/span>
\nOrder dated  27-2-1979 of  the Sessions\t Court at  Delhi  in
\nSessions Case No. 340\/1978.\n<\/p>\n
     J. S.  Wasu, M.  L. Nanda\tand M.\tN.  Shroff  for\t the
\nAppellant in Crl. A. 492\/79.\n<\/p>\n
     K. L.  Arora, K. G. Bhagat, Harish Gulati, Madan Bhatia
\nand D. Goburdhan for the Appellant in Crl. A. 493\/79.\n<\/p>\n
     P. R.  Mridul, Rajinder  Singh, O.\t P.  Sharma,  R.  C.
\nBhatia and Vivek Tankha for the Appellant in Crl. A. 494\/79.\n<\/p>\n
     K. L.  Arora,  K.\tG.  Bhatat,  Harish  Gulati  and  D.
\nGoburdhan for the Respondent No. 1 in Crl. A. 492\/79.\n<\/p>\n
     Rajinder Singh  B. R.  Handa and  O. P.  Sharma for the
\nRespondent No. 2 in Crl. A. 492\/79.\n<\/p>\n
     Soli J.  Sorabjee, Sol.  Genl.  Ram  Jethmalani,  Grish
\nChandra,  S.  Markandeya  and  S.  B.  Jaisinghani  for\t the
\nRespondent in Crl. As. 493-494\/79.\n<\/p>\n
     The following Judgments were delivered
\n     FAZAL ALI,\t J. These  two criminal appeals are directed
\nagainst a  judgment dated 27th February 1979 of the Sessions
\nJudge, Delhi  by which\tthe accused (hereinafter referred to
\nas  the\t  appellants)  have  been  convicted  under  various
\nsections of  the Penal Code and awarded sentences of various
\nterms of  imprisonment not  exceeding two  years (which have
\nbeen ordered to run concurrently) in addition to fines.\n<\/p>\n
     Both the appeals were originally filed before the Delhi
\nHigh Court  and were  admitted by  it on the 21st March 1979
\nwhen the sentences of the appellants were suspended and they
\nwere released on bail. On the 17th May. 1979, the State also
\nfiled an  appeal to  the Delhi High Court for enhancement of
\nthe sentences.\tThe Special  Courts Act\t (No. 22 of 1979 and
\nhereinafter to\tbe referred  to as  the ‘Act’) was passed by
\nParliament and\treceived the assent of the President on 16th
\nMay 1979. On the 27th June 1979, the Central Government made
\na declaration  under s.5  (1) of the Act as a consequence of
\nwhich the appeals stood transferred to this Court.\n<\/p>\n
     The appellants  have raised  a  number  of\t preliminary
\nobjections relating  to the  constitutional validity  of the
\nAct  and  various  provisions  thereof\ton  several  grounds
\nincluding the  contravention of\t Articles 14  and 21  of the
\nConstitution of\t India. Alternatively,\tit was\targued\tthat
\nsome of\t the provisions\t of the\t Act did not at all apply to
\nthe appellants and the transfer of the appeals from the High
\nCourt to
\n516<\/span>
\nthis Court  was not  legal. The\t State has  appeared through
\nShri Soli  J. Sorabjee\twho has countered all the objections
\nraised by the appellants and has submitted that the Act is a
\nvalid piece  of legislation  and that there is no illegality
\nin the\ttransfer of  the appeals from the High Court to this
\nCourt. In  view of  the nature of the preliminary objections
\nraised by  the appellants  we decided  to  dispose  them  of
\nbefore entering\t into  the  merits  of\tthe  appeals.  After
\nhearing the  parties at\t great length,\tby  an\torder  dated
\nDecember 5,  1979 we  overruled all  the said objections and
\nproceeded to  hear the\tappeals on merits. We now proceed to
\nset out\t the reasons  given for\t the order  rejecting  those
\nobjections.\n<\/p>\n
     In\t order\tto  understand\tthe  arguments\tadvanced  by
\nlearned counsel\t for the  parties it  will be  necessary  to
\nstate certain  undisputed facts.  The Act  was preceded by a
\nBill (introduced  by a\tMember of  the Lok  Sabha) which was
\nadopted\t by   the  Government\tbut  in\t  view\tof   certain
\nConstitutional objections  the President made a reference to
\nthis Court  for its  opinion regarding\tthe validity  of the
\nBill and  its provisions. The matter was heard by a Bench of
\nseven Judges  and in its report dated December 1, 1978, this
\nCourt upheld  the  validity  of\t the  Bill  generally  by  a
\nmajority of  six  to  one.  Certain  clauses  of  the  Bill,
\nhowever, were  held to\tbe  violative  of  Art.\t 21  of\t the
\nConstitution. This  Court further  held that  Parliament had
\nlegislative competence\tto  create  Special  Courts  and  to
\nprovide for  appeals against  judgments and  orders of\tsuch
\nCourts to  the Supreme\tCourt. This  Court also\t upheld\t the
\nClassification provided\t in clause  4(1) of  the Bill  which
\nconferred  power   on  the  Central  Government\t to  make  a
\ndeclaration in\trespect of  an offence\talleged to have been
\ncommitted  during  the\toperation  of  the  Proclamation  of
\nEmergency dated\t 25th June  1975 by  a person  who held high
\npublic or  political office in India. To the extent that the
\nclause brought within the purview of the Act persons who had
\ncommitted offences  between February  27, 1975\tand June 25,
\n1975 it\t was, however,\theld to\t be invalid.  Similarly, the
\nprovisions of  clause 7\t of the\t Bill  laying  down  that  a
\nretired Judge  of a High Court could be appointed as a Judge
\nof the\tSpecial Court  and that\t this could  be done  by the
\nCentral Government  in consultation  with  but\twithout\t the
\nconcurrence of\tthe Chief  Justice of  India were held to be
\nbad. Furthermore,  the Court  observed that the absence of a
\nprovision for  the transfer of a case from one Special Court
\nto  another   affected\tthe   fairness\tof  the\t trial\tand,
\ntherefore, was\tviolative of  Art. 21  of the  Constitution.
\nBarring these  infirmities, the\t constitutional validity  of
\nthe Bill  was upheld by this Court. It may be mentioned here
\nthat during  the course of arguments learned counsel for the
\nUnion gave an express undertaking that the defects
\n517<\/span>
\npointed out  in the  Bill would be suitably removed so as to
\nbring the  Bill in  accord with the opinion expressed by the
\nCourt. Consequently,  a fresh  Bill  was  prepared  and\t was
\nintroduced in  the Lok Sabha on the 21st February 1979. This
\nBill incorporated  the suggestions  of this  Court,  deleted
\nreference to  the period  prior to the 25th June 1975 in the
\npreamble, made\ta provision  for transfer of a case from one
\nSpecial Judge  to another  by the Supreme Court and provided
\nthat a\tSpecial Court  would consist of a sitting Judge of a
\nHigh Court  nominated by  the Central  Government  with\t the
\nconcurrence of the Chief Justice of India. After some debate
\nthe Bill  was passed by the Lok Sabha on the 9th March 1979.
\nIt was\tthen sent  to the  Rajya  Sabha\t where\tits  various
\nprovisions  were   fully  debated   and\t certain   important
\nsuggestions were made by the Members of the Rajya Sabha as a
\nresult of  which the  Bill was\treturned by  the Rajya Sabha
\nwith certain  amendments on  21st March 1979. Thereafter the
\nGovernment accepted  the amendments  suggested by  the Rajya
\nSabha and  incorporated the  same in the Bill which was then
\npassed and  ultimately received\t the assent of the President
\non 16th May, 1979.\n<\/p>\n
     Some  of\tthe  substantial  changes  which  have\tbeen
\nincorporated in the Act may be summarised thus:\n<\/p>\n
     The Act  is now  a permanent Act and does not deal only
\nwith offences  committed during\t the  period  of  Emergency.
\nSecondly, in  the preamble  an additional  clause  has\tbeen
\nadded to  indicate the\tnature of  the offences committed by
\npersons holding high public or political office. Thirdly, it
\nhas been  provided that\t a Special  Court would consist of a
\nsitting Judge of a High Court nominated by the Chief Justice
\nof the\tHigh Court  concerned with  the concurrence  of\t the
\nChief Justice  of India. Thus, the Government has absolutely
\nno hand either in the appointment of or any control over the
\nSpecial Judge.\tThis provision\tappears to  ensure  complete
\nindependence of\t the Special Judge who is to be appointed to
\ndecide cases  of highly placed public or political officers,
\nso that\t they may  have complete confidence in the Judge who
\ntries their case.\n<\/p>\n
     Another special feature of the Act is that the preamble
\nand its various clauses are not merely intended to spell out
\nthe object  of the  Act but contain important guidelines and
\nessential safeguards and by virtue of s. 5(1) of the Act the
\nclauses of the preamble become a part of the Act itself.\n<\/p>\n
     As the  Act has  thus assumed  a new  complexion, it is
\nnecessary to  analyse briefly its scheme before we deal with
\nthe contentions\t raised by  learned counsel for the parties.
\nThe heading of the Act
\n518<\/span>
\nshows that  its main  object is\t to provide  for the  speedy
\ntrial of  a certain class of offences (emphasis ours). There
\nare as many as nine clauses of the preamble which run thus:\n<\/p>\n
\t  “AN ACT
\n\t  to provide for the speedy trial of a certain class
\n     of offences.\n<\/p><\/blockquote>\n
\t  (1) WHEREAS Commissions of Inquiry appointed under
\n     the Commissions  of Inquiry  Act,\t1952  have  rendered
\n     reports  disclosing   the\texistence   of\tprima  facie
\n     evidence of offences committed by persons who held high
\n     public or\tpolitical offices  in the country and others
\n     connected with  the commission  of such offences during
\n     the operation  of the  proclamation of  Emergency dated
\n     the 25th June, 1975, issued under clause (1) of article
\n     352 of the Constitution;\n<\/p><\/blockquote>\n
\t  (2) AND  WHEREAS investigations  conducted by\t the
\n     Government through\t its agencies  have  also  disclosed
\n     similar offences committed during the period aforesaid;
\n\t  (3) AND  WHEREAS the\toffences referred  to in the
\n     recitals aforesaid\t were committed during the operation
\n     of the  said Proclamation\tof Emergency, during which a
\n     grave emergency was clamped on the whole country, civil
\n     liberties were  curtailed to  a great extent, important
\n     fundamental rights of the people were suspended, strict
\n     censorship was  imposed on\t the press,  judicial powers
\n     were severely crippled and the parliamentary democratic
\n     system was emasculated;\n<\/p><\/blockquote>\n
\t  (4) AND  WHEREAS all\tpowers being  a\t trust,\t and
\n     holders  of   high\t public\t or  political\toffices\t are
\n     accountable for  the exercise  of their  powers in\t all
\n     cases where  Commissions of Inquiry appointed under the
\n     Commissions of  Inquiry  Act,  1952  or  investigations
\n     conducted by  Government through  its agencies disclose
\n     offences committed by such holders;\n<\/p><\/blockquote>\n
\t  (5) AND  WHEREAS it  is the  constitutional, legal
\n     and moral\tobligation of the State to prosecute persons
\n     involved in the said offences;\n<\/p><\/blockquote>\n
\t  (6) AND  WHEREAS the\tordinary criminal courts due
\n     to\t congestion   of  work\t and  other  reasons  cannot
\n     reasonably be expected to bring those prosecutions to a
\n     speedy termination;\n<\/p><\/blockquote>\n
519<\/span><\/p>\n
\t  (7) AND WHEREAS it is imperative for the efficient
\n     functioning  of   parliamentary   democracy   and\t the
\n     institutions created  by or  under the  Constitution of
\n     India that\t the commission\t of offences  referred to in
\n     the recitals  aforesaid should be judicially determined
\n     with the utmost dispatch;\n<\/p><\/blockquote>\n
\t  (8) AND  WHEREAS it  is  necessary  for  the\tsaid
\n     purpose to establish additional courts presided over by
\n     sitting Judges of High Courts;\n<\/p><\/blockquote>\n
\t  (9) AND  WHEREAS it  is  expedient  to  make\tsome
\n     procedural changes whereby avoidable delay in the final
\n     determination of  the innocence or guilt of the persons
\n     to be  tried is eliminated without interfering with the
\n     right to a fair trial.”<\/p><\/blockquote>\n
\t  (Numbering of\t the clauses  by  us  to  facilitate
\n     discussion)
\n     So\t far  as  clause  (1)  is  concerned  it  refers  to
\nCommissions  of\t Inquiry  and  the  reports  given  by\tthem
\ndisclosing the existence of prima facie evidence of offences
\ncommitted  by  persons\tholding\t high  public  or  political
\noffices\t in  the  country  and\tothers\tconnected  with\t the
\ncommission of  such offences  during the  operation  of\t the
\nProclamation of\t Emergency dated  June 25, 1975. Clauses (2)
\nand (3)\t give the  history of  the special  features of\t the
\nEmergency and  the result  of the investigation conducted by
\nthe  Government\t regarding  offences  committed\t during\t the
\nEmergency.  Clause  (4)\t makes\tthe  Act  a  permanent\tone.
\nAccording to  this clause,  persons holding  high public  or
\npolitical offices  are actually\t trustees in  regard to\t the
\npowers vested  in them\tand offences  committed by  them  in
\nbreach of the trust or confidence reposed in them would also
\nfall  within  the  ambit  of  the  Act,\t if  either  by\t the
\nCommissions of\tInquiry or  investigations conducted  by the
\nGovernment such\t offences are disclosed. Clause (5) makes it
\nclear  that  it\t is  the  constitutional,  legal  and  moral
\nobligation of the State to prosecute persons involved in the
\noffences mentioned in the foregoing clauses. Clauses (6) and
\n(7) deal  with the  main object of the Act which is to bring
\nthe prosecution of the offenders falling within the ambit of
\nthe Act\t to a  speedy  termination  and\t to  bring  about  a
\njudicial determination\tof the\toffences said  to have\tbeen
\ncommitted by  them with\t the  utmost  dispatch.\t Clause\t (3)
\nprovides for the establishment of additional courts presided
\nover by\t sitting Judges of High Courts. Clause (9) refers to
\ncertain procedural  changes brought  about by the Act in the
\nprovisions of the Code of Criminal Procedure and intended to
\navoid delay  in the  final determination of the innocence or
\nguilt of the persons to be tried. To sum
\n520<\/span>
\nup from the object of the various clauses of the preamble it
\nis manifest  that particular  type of persons, namely, those
\nwho are holding high public or political offices by way of a
\ntrust have been put in a separate class along with those who
\nhave committed\toffences during\t the Emergency\tand who also
\nbear the  same characteristics\tas those indicated in clause
\n(4). Section  2 of the Act defines “Code”, “declaration” and
\n“Special Court”\t and the  residuary clause  (d) thereof says
\nthat words and expressions not defined in the Act would have
\nthe same  meaning as  in the  Code  of\tCriminal  Procedure.
\nSection 3(1)  gives  power  to\tthe  Central  Government  to
\nestablish  an\tadequate  number   of  Special\t Courts\t  by
\nnotification in\t the Official  Gazette. Section\t 3(1) enacts
\nthat a\tSpecial Court  shall consist of a sitting Judge of a
\nHigh Court  nominated by  the Chief Justice thereof with the
\nconcurrence  of\t the  Chief  Justice  of  India.  Section  4
\nempowers the  Special Court  to take cognizance and try such
\ncases as  are instituted  before it  or transferred to it in
\naccordance with the manner provided by the Act. Section 5(1)
\nis the\tpivotal provision  which lays  down  the  conditions
\nunder which  the Central  Government is\t empowered to make a
\ndeclaration which  is the  starting point of the prosecution
\nof the offenders falling within the ambit of the Act. It may
\nbe noticed  that s.5(1)\t clearly states\t that the guidelines
\ncontained in  the preamble are to be followed by the Central
\nGovernment in  determining whether an offence is to be dealt
\nwith under the Act. Section 5(2) provides that a declaration
\nmade by\t the Central  Government  shall\t not  be  called  in
\nquestion  in  any  court.  Section  6  provides\t that  on  a
\ndeclaration made  under\t section  5(1)\tin  respect  of\t any
\noffence, any prosecution in respect of such offence shall be
\ninstituted only in a special Court designated by the Central
\nGovernment and\tthat where  a prosecution  is pending in any
\nother court, the same shall stand transferred to the special
\nCourt. This  would be in derogation of anything contained in
\nthe code  of Criminal  Procedure. Section  7 deals  with the
\nautomatic transfer  to\tthe  Supreme  Court  of\t appeals  or
\nrevisions pending  in any court of appeal or revision at the
\ndate of\t the declaration.  Section 8 embodies the well-known
\nprovisions of  the Code\t of Criminal Procedure relating to a
\njoint trial  of a  number of accused persons who are charged
\nwith the  offence of  abetment or  conspiracy. Section\t9(1)
\nprovides that  the Special  Court would follow the procedure
\nprescribed by the Code for the trial of warrant cases before
\na Magistrate,  that  is\t to  say  it  makes  applicable\t the
\nprovisions of  ss. 238\tto 243 and 248 of the Code to trials
\nby a  Special Court.  Sub-section (3)  of s.9 lays down that
\nthe provisions\tof the\tCode  of  Criminal  Procedure  shall
\napply, in  so far as they are not inconsistent with those of
\nthe Act,  no proceedings  before a Special Court which shall
\nbe deemed to be a
\n521<\/span>
\nCourt of  Session and would have all the powers thereof, and
\nthat a\tperson conducting  a prosecution  before  a  special
\nCourt shall be deemed to be a public prosecutor. Sub-section
\n(4) of s. 9 empowers a Special Court to pass upon any person
\nconvicted by  it any  sentence authorised  by  law  for\t the
\npunishment of the offence of which such person is convicted.
\nSection 10(1)  contains a  provision for the transfer by the
\nSupreme Court  of a  case from\tone Special Court to another
\nwhere such  an order is expedient in the ends of justice. In
\nfact, in the opinion given by this Court on the Presidential
\nReference  this\t  aspect  of  the  matter  was\tparticularly
\nhighlighted. Sub-section  (2) of  s. 10,  however, lays down
\nthe norms  under which\tan application for transfer could be
\nmade. Sub-section  (3) of s.10 empowers the Supreme Court to
\ngrant  compensation  to\t any  person  who  has\topposed\t the
\napplication for\t the transfer  of a  case if the Court finds
\nthat such an application was frivolous or vexatious. Section
\n11(1) prescribes the forum of an appeal to the Supreme Court
\nagainst a  judgment, order  or sentence\t passed by a Special
\nCourt but  excludes interlocutory  order, from its ambit. It
\nmay be\tnoted that  interlocutory orders  have been excluded
\nfrom the  purview of s. 11(1) so as to eliminate unnecessary
\ndelays in  the trial  of a case by a Special Court. Even the
\ncode of\t Criminal Procedure  has barred any revision against
\nan interlocutory  order by  virtue of  the provisions  of s.
\n397(2) of  the code of Criminal Procedure, 1973. Sub-section
\n(2) of\ts. 11  provides that no appeal or revision shall lie
\nto any\tcourt from  any judgment,  sentence or\torder  of  a
\nSpecial Court  except as  provided for\tunder section 11(1).
\nSub-section (3) provides the period of limitation for filing
\nan appeal  before the  Supreme Court and the proviso thereto
\nconfers power  on the  Supreme Court to condone any delay if
\nsufficient cause is shown, it may be noticed here that under
\ns. 11  an appeal  to the  Supreme Court from an order of the
\nSpecial Judge lies as a matter of right. Section 12 empowers
\nthe Supreme  Court to  frame  rules  for  carrying  out\t the
\npurposes  of   the  Act.  Section  13  provides\t that  every
\nnotification made  under sub-section  (1) of  s. 3 and every
\ndeclaration made  under sub-section  (1) of  s. 5  shall  be
\nlaid, as  soon as may be after it is made, before each House
\nof Parliament.\n<\/p>\n
     Thus, by  and large,  the Act  contains almost the same
\nprovisions as  were contained  in the Bill which was sent to
\nthis Court  for its  opinion by the President. Clause (1) of
\nthe Bill is now s.1 (1) of the Act. Clause (2) is now s.3 of
\nthe Act.  Clause (3)  of the  Bill is  now s.4\tof the\tAct.
\nClause (4)  of the  Bill is now section 5 of the Act. Clause
\n(5) of\tthe Bill is now s.6 of the Act. Clause 6 of the Bill
\nis now\ts.7 of the Act. Clause (7) of the Bill is now s.3(2)
\nof the Act, with an explanation added to it. Clause 8 of the
\nBill is now
\n522<\/span>
\ns.8 of\tthe Act. Clause (9) of the Bill is now s.9(1) of the
\nAct with  sub-sections (2)(3)  and (4)\tadded to  it. Clause
\n(10) of\t the Bill is now s.11(1) of the Act. Thus, in so far
\nas the arguments advanced before this Court in the Reference
\ncase are concerned, they are concluded by the decision given
\nthereon and we do not propose to go behind the opinion given
\nby this Court in that case or the reasons thereof with which
\nwe are\tin respectful  agreement. Learned  counsel  for\t the
\nappellants having  realised  the  force\t of  this  position,
\nconfined their\targuments to certain points which either did
\nnot arise  at the  Reference stage or were not argued before
\nthe Court  and on  which no decision was given, and in fact,
\nrelied on some of the findings given and the propositions of
\nlaw adumbrated by this Court in the Reference case.\n<\/p>\n
     The main  ground of attack regarding the constitutional
\nvalidity of  the Act  is based\ton Articles 14 and 21 of the
\nConstitution. Before  dealing with  the arguments  we  might
\nmention certain important principles laid down by this Court
\nin the Reference case.\n<\/p>\n
     In a diverse society and a large democracy such as ours
\nwhere the  expanding needs  of the  nation change  with\t the
\ntemper of  the times,  it is  extremely\t difficult  for\t any
\nlegislature to\tmake laws  applicable to  all persons alike.
\nSome amount  of classification\tis, therefore,\tnecessary to
\nadminister various  spheres of\tthe activities of the State.
\nIt is  well settled  that in  applying Art.  14 mathematical
\nprecision or  nicety or perfect equanimity are not required.
\nSimilarity rather  than identify of treatment is enough. The
\ncourts should  not make a doctrinaire approach in construing
\nArt. 14\t so  as\t to  destroy  or  frustrate  any  beneficial
\nlegislation.   What    Art.   14    prohibits\tis   hostile
\ndiscrimination and  not reasonable  classification  for\t the
\npurpose of  legislation. Furthermore,  the Legislature which
\nis  in\tthe  best  position  to\t understand  the  needs\t and
\nrequirements of the people must be given sufficient latitude
\nfor making  selection or differentiation and so long as such
\na selection is not arbitrary and has a rational basis having
\nregard to  the object  of the  Act, Art.  14  would  not  be
\nattracted. That\t is  why  this\tCourt  has  laid  down\tthat
\npresumption is\talways in favour of the constitutionality of
\nan enactment  and the  onus lies upon the person who attacks
\nthe statute to show that there has been an infraction of the
\nconstitutional concept\tof equality.  It has  also been held
\nthat   in    order   to\t   sustain   the    presumption\t  of
\nconstitutionality,  the\t Court\tis  entitled  to  take\tinto
\nconsideration matters  of common  knowledge, common  report,
\nthe history  of the  times and\tall other facts which may be
\nexisting at  the time  of  the\tlegislation.  Similarly,  it
\ncannot be  presumed that  the administration of a particular
\nlaw would be done with an
\n523<\/span>
\n“evil eye and an unequal hand”. Finally, any person invoking
\nArt. 14\t of the\t Constitution must  show that there has been
\ndiscrimination against\ta person who is similarly situate or
\nequally circumstanced.\tIn the\tcase of\t State\tof  U.P.  v.
\nDeoman Upadhyaya, Subba Rao, J.,<\/a> observed as follows:-\n<\/p>\n
\t  “No discrimination  can  be  made  either  in\t the
\n     privileges conferred or in the liabilities imposed. But
\n     these propositions\t conceived in  the interests  of the
\n     public, if logically stretched too far, may not achieve
\n     the high  purpose behind  them. In a society of unequal
\n     basic structure,  it is  well nigh\t impossible to\tmake
\n     laws suitable  in their  application to all the persons
\n     alike.  So,   reasonable  classification  is  not\tonly
\n     permitted but is necessary if society should progress.”<\/p><\/blockquote>\n
     With this\tbrief introduction,  we now  proceed to deal
\nwith the arguments of learned counsel for the appellants. In
\nthe first  place, Mr. Bhatia, appearing for appellant Sanjay
\nGandhi submitted  that even  having regard to the principles
\nlaid down by this Court in the Reference case, the Act fails
\nto pass\t the test laid down for a valid classification under
\nArt. 14. Therefore, we might mention here that the classical
\ntests laid  down for  the application  of Art.\t14  are\t the
\nfollowing:-\n<\/p>\n
\t  (1)  The classification  must\t be  founded  on  an
\n\t       intelligible differentia\t which distinguishes
\n\t       persons who are placed in a group from others
\n\t       who are left out of the group.\n<\/p><\/blockquote>\n
\t  (2)  Such differentiation  must  have\t a  rational
\n\t       relation to  the object sought to be achieved
\n\t       by the Act.\n<\/p><\/blockquote>\n
\t  (3)  There   must   be   a   nexus   between\t the
\n\t       differentiation which  is the  basis  of\t the
\n\t       classification and the object of the Act.<\/p><\/blockquote>\n
     In applying  the aforesaid\t tests, Mr. Bhatia contended
\nthat the  decision given  in the  Reference Case  upheld the
\nBill and  rejected the challenge that the Bill violated Art.
\n14 mainly  on the  ground that\tthe Bill  sought  to  put  a
\ncertain class  of  persons,  namely,  persons  holding\thigh
\npublic or  political offices who had committed offences only
\nduring the  period of  Emergency. In  other words, he argued
\nthat the  constitutionality of\tthe Bill  was upheld  on the
\nground that it was legislation confined to selected offences
\ncommitted by  a\t particular  class  of\tpersons\t during\t the
\nEmergency period.  It was  contended that  the impugned\t Act
\ntransgressed the  limits imposed  by  the  judgment  in\t the
\nReference  case\t  by  bringing\t within\t its  fold  offences
\ncommitted prior
\n524<\/span>
\nand subsequent\tto the\tEmergency and  thus  was  in  direct
\nconflict with  the opinion  of this  Court rendered  in\t the
\nReference case.\t In amplification  of this  argument it\t was
\ncontended that\tthis Court struck down that part of the Bill
\nwhich related  to the  period between February and June 1975
\non the\tground that persons having committed offences during
\nthat  period  could  not  be  clubbed  with  those  who\t had
\ncommitted offences  during the period of Emergency. In other
\nwords, the  argument was  that the Act, by clubbing together
\npersons accused\t of offences  committed during the Emergency
\nwith those  alleged to\tbe guilty  of crimes  pertaining  to
\nperiods before\tand after  the Emergency  (i.e., by  dealing
\nwith offences  committed at  any point\tof time whatsoever),
\nhas  violated\tthe  guarantee\t under\tArt.   14  and\t the
\nclassification made  by the Act is n direct contravention of
\nthe opinion  given by  this Court  in the Reference case. In
\nsupport of his contention Mr. Bhatia relied on the following
\nobservations of this Court in the Reference case:-\n<\/p>\n
\t  “The classification  which section 4(1) thus makes
\n     is both  of  offences  and\t offenders,  the  former  in
\n     relation to  the period mentioned in the preamble, that
\n     is to  say, from  February 27, 1975 until the expiry of
\n     the proclamation  of emergency  dated June 25, 1975 and
\n     in relation  to the  objective mentioned  in the  sixth
\n     paragraph of the preamble that it is imperative for the
\n     functioning  of   parliamentary   democracy   and\t the
\n     institutions created  by or  under the  Constitution of
\n     India that\t the commission\t of such  offences should be
\n     judicially determined with the utmost dispatch, and the
\n     latter in\trelation to their status, that is to say, in
\n     relation to the high public or political office held by
\n     them in  India. It is only if both of these factors co-
\n     exist that\t the prosecution  in respect of the offences
\n     committed by the particular offenders can be instituted
\n     in the Special Court…………..\n<\/p><\/blockquote>\n
\t  We are  not concerned\t with the truth or otherwise
\n     of the allegations, the narrow question before us being
\n     whether, in  the first  instance, the classification is
\n     based on some qualities or characteristics which are to
\n     be found in all the persons grouped together and not in
\n     others who\t are left  out. The  answer to that question
\n     can be  one and one only, namely, that offences alleged
\n     to have  been committed during the emergency by persons
\n     holding high public or political offices in India stand
\n     in a  class apart.\t The cover  of emergency,  so it  is
\n     alleged, provided a unique opportunity to the holders
\n525<\/span>
\n     of\t such  offices\tto  subvert  the  rule\tof  law\t and
\n     perpetrate political crimes on the society. Others left
\n     out of  that  group  had  neither\tthe  means  nor\t the
\n     opportunity to  do so,  since they lacked the authority
\n     which comes  from official\t position. Thus, persons who
\n     are singled  out by  the Bill  for trial before Special
\n     Courts possess  common characteristics  and  those\t who
\n     fall outside that group do not possess them……….
\n\t  The suppression  of people’s liberties facilitates
\n     easy commission of crimes. Public criticism is a potent
\n     deterrent to  misbehaviour and when that is suppressed,
\n     there is  no fear\tof detection. Secondly, crimes which
\n     are alleged to have been committed during extraordinary
\n     periods like  the period  of emergency  are oblique  in
\n     their design  and selective  in their  object ….\t But
\n     those crimes  are not woven out of the warp and woof of
\n     political motivations. Equal laws have to be applied to
\n     all in  the same  situation and  legislature is free to
\n     recognise the degree of harm or evil.”\n<\/p><\/blockquote>\n
\t\t\t\t\t     (Emphasis ours)
\n     Special stress  was laid  on the  observations of\tthis
\nCourt that  the offences  alleged  to  have  been  committed
\nduring the  Emergency by  persons  holding  high  public  or
\npolitical offices  were a  class apart because such offences
\nwere committed under the cover of Emergency which provided a
\nunique opportunity  to the  holders of\tthe said  offices to
\nsubvert the  rule of  law. It  was urged that this cannot be
\nsaid of the period either before or after the emergency when
\nno such\t cover or opportunity was available to the offenders
\nconcerned  to  misuse  or  abuse  their\t powers\t and  commit
\noffences. We find this argument to be without any substance.\n<\/p><\/blockquote>\n
To begin  with, it  cannot be gainsaid that this Court while
\ndealing with  the Reference  case was  not at  all concerned
\nwith the  provisions of\t the Act  which\t is  of\t much  wider
\napplication than  the Bill  considered by  the Court  in the
\nReference. It  is no  doubt true  that\tthe  Bill  contained
\nprovisions for\tpunishing  only\t those\toffenders  who\twere
\naccused of  offences committed\tduring a  particular  period
\nnamely the  period of  Emergency. It  is also  true that the
\nperiod of  Emergency was an extraordinary one in the history
\nof our\tcountry and  its features have been spelt out in the
\npreamble of  the Bill  as also in the judgment given by this
\nCourt in  the aforesaid\t case. But  that by  itself does not
\ndebar Parliament from passing a permanent Act to deal with a
\nspecified  class  of  persons  who  occupy  high  public  or
\npolitical offices (which are offices of trust) and misuse or
\nabuse them.  It cannot be doubted that for the establishment
\nand continuance\t of a  Parliamentary democracy and to secure
\nefficiency and purity of administration it is necessary that
\nwhen such persons
\n526<\/span>
\ncommit serious\tabuse of power and are guilty of a breach of
\nthe trust  reposed in  them, they would form a special class
\nof offenders.  The simple  answer to  the  argument  of\t Mr.
\nBhatia is  that this Court was not at all concerned with the
\nbroader aspect\tof the matter as envisaged by the Act at the
\ntime when the Bill was being considered. That this is so, is
\nclear from  the observations  made by Chandrachud, C.J., and
\nKrishna Iyer, J. The former observed:-\n<\/p>\n
\t  “Parliamentary democracy will see its halycon days
\n     in India  when law\t will provide  for a speedy trial of
\n     all offenders  who misuse\tthe public  offices held  by
\n     them. Purity  in public  is a desired goal at all times
\n     and in  all situations, emergency or no emergency. But,
\n     we cannot\tsit as\ta super\t legislature and strike down
\n     the instant  classification on  the  ground  of  under-
\n     inclusion on  the score  that  those  others  are\tleft
\n     untouched,\t so   long  as\tthere  is  no  violation  of
\n     constitutional restraints.”\n<\/p><\/blockquote>\n
\t\t\t\t\t     (Emphasis ours)
\nThe observation that purity in public life is a desired goal
\nat  all\t  times\t is   a\t sufficient  justification  for\t the
\nclassification made  by the  Act which\twidens its  scope to
\ninclude offenders  of a\t particular type  to be punished for
\noffences committed  at any  time, whether  before, during or
\nafter the Emergency.<\/p><\/blockquote>\n
     Similar observations  were made  by Krishna  Iyer J. in
\nhis concurring Judgment:-\n<\/p>\n
\t  The pathology\t of our\t public law,  with its class
\n     slant, is\tthat an\t unmincing ombudsman  or sentinel on
\n     the qui  vive with power to act against those in power,
\n     now  or  before,  and  offering  legal  access  to\t the
\n     informed citizen  to complain  with immunity  does\t not
\n     exist……….. And  so, to  track down and give short
\n     shrift to ………………\n<\/p><\/blockquote>\n
\t  x\t     x\t\t\tx\t      x
\n\t  Where the  proposed law excludes the pre-and post-
\n     emergency crime-doers  in the higher brackets and picks
\n     out only  ’emergency’  offenders,\tits  benign  purpose
\n     perhaps be\t comes a  crypto cover-up  of like criminals
\n     before and\t after. An  ‘ephemeral’ measure\t to  meet  a
\n     perennial menace is neither a logical step nor national
\n     fulfillment. The classification, if I may anticipate my
\n     conclusion, is  on the  brink of  constitutional break-
\n     down at that point and becomes almost vulnerable to the
\n     attack of Art. 14.\n<\/p><\/blockquote>\n
\t\t     x\t\t\t   x\t\t  x
\n527<\/span>
\n\t  The crucial  test is\t‘All power  is a trust’, its
\n     holders are  ‘accountable for  its exercise’, for ‘from
\n     the people\t and for  the people,  all springs,  and all
\n     must exist’.  By this  high and  only standard the Bill
\n     must fail morally if it exempts non-Emergency criminals
\n     about whom\t prior Commission  Reports,  now  asleep  in
\n     official  pigeon\tholes,\tbear   witness\tand   future
\n     Commission\t Reports   (who\t knows\t ?)  may,  in  time,
\n     testify………..\n<\/p><\/blockquote>\n
\t  Nothing about\t Emergency  period  is\tadverted  to
\n     there as  a distinguishing\t mark. If  at all, the clear
\n     clue is  that all\tabuse of public authority by exalted
\n     public men,  whatever the\ttime of Commission, shall be
\n     punished without  the tedious  delay  which  ordinarily
\n     defeats justice  in the  case  of\ttop  echelons  whose
\n     crimes affect the credentials of democratic regimes.
\n\t  Assuming civil  liberty was  a casualty during the
\n     emergency, as  it was,  how did  it obstruct  trials of
\n     super-political  criminals?   if  faith  in  democratic
\n     institutions is the victim in case there is undue delay
\n     in punishing  high public and political offenders, that
\n     holds   good,    regardless   Emergency………….The
\n     question, then,  is  whether  there  is  constitutional
\n     rationale for  keeping  out  of  the  reach  of  speedy
\n     justice  non-emergency  criminals\tin  high  public  or
\n     Political Offices.\t Such a\t Bill, were  it a  permanent
\n     addition  to  the\tcorpus\tjuris  and  available  as  a
\n     jurisdiction for  the public to compel government, if a
\n     prima facie  case were made out even against a minister
\n     in office,\t to launch  a prosecution  before a  sitting
\n     High Court\t Judge, would  be a whole some corrective to
\n     the spreading evil of corruption in power pyramids.”\n<\/p><\/blockquote>\n
\t\t\t\t\t     (Emphasis ours)
\n     It would thus appear from the observations quoted above
\nthat the  majority judgment never meant to indicate that the
\npassing of  an Act  covering all persons holding high public
\nor political  offices without reference to any period during
\nwhich they are alleged to have committee the offences sought
\nto be  made the subject matter of their indictment, would be
\nbeyond the  legislative competence  of Parliament.  In fact,
\nsuch persons  would undoubtedly\t form  a  special  class  of
\noffenders  which   would  justify  the\tlegislative  measure
\nsingling  them\t out  for  an  expeditious  trial.  To\thold
\notherwise would be to say that persons bearing the aforesaid
\nattributes  would  be  immune  from  prosecution  under\t any
\nSpecial Act. Reading the opinion rendered in the
\n528<\/span>
\nReference case\tcarefully we  are unable  to agree  with Mr.
\nBhatia that  this Court\t held that  only Emergency offenders
\ncould be  punished under  a special  Act and  that  any\t Act
\nseeking to  punish offenders  of a special type unrelated to
\nthe Emergency  would be hit by Art. 14. It is true that some
\nof the\tobservations made  by the  learned Chief Justice, if
\nread out of context, may apparently lend some support to the
\narguments of  Mr. Bhatia  but taken as a whole (as they must
\nbe) they  clearly indicate  that the  passing of a permanent
\nlegislation classifying\t the type  of offenders mentioned in
\nthe Act,  namely, persons  holding high\t public or political
\noffices would  be valid\t and, in  fact, would  be  an  ideal
\nachievement.<\/p><\/blockquote>\n
     We may  mention here that the various observations made
\nby Chandrachud,\t C.J., and Krishna Iyer, J. in the Reference
\ncase were  highlighted during the debates which followed the
\nintroduction of\t the bill  in the  Lok Sabha  and the  Rajya
\nSabha after  the opinion  of this  Court was given. The Bill
\nwas returned  to the  Lok  Sabha  on  March  21,  1979\twith
\nsuggestions for\t its amendment\tso as  to  make\t it  embrace
\noffences without  reference to\ta particular period, namely,
\nthe  period   of  Emergency.  The  Lok\tSabha  accepted\t the
\nsuggestions and passed the Bill in the form of the Act which
\nreceived the  assent of\t the President on the 16th May 1979.
\nThus, the  Act incorporates  not  only\tthe  above-extracted
\nobservations made by Chandrachud, C.J., and Krishna Iyer, J.
\nbut also  the views  expressed by the Hon’ble Members of the
\ntwo Houses of Parliament.\n<\/p>\n
     In view  of the  factors mentioned\t above, we are fully
\nsatisfied that\tthe Act does not suffer from the infirmities
\npointed out  by Mr.  Bhatia and\t the  circumstance  that  it
\napplies to  offences committed\tat any\ttime by a particular
\nset of\tpersons possessing  special characteristics does not
\nrender it unconstitutional, for, when it puts into a class a
\nparticular set\tof persons  having  special  characteristics
\nwhich distinguish  them from others who are left out of that
\nclass and  who are  to be  tried under the ordinary law, the
\nclassification is  eminently  reasonable.  It  may  also  be
\nstated here  that the  classification made  has a reasonable
\nnexus with  the object\tsought to be achieved, namely, quick
\ndespatch  and\tspeedy\ttrials.\t In  this  connection,\tsome
\nobservations of Chandrachud, C.J., in the Reference case may
\nbe adverted to:\n<\/p>\n
\t  “If prosecutions  which  the\tBill  envisages\t are
\n     allowed  to   have\t their\tnormal,\t leisurely  span  of
\n     anything between  5 to  10 years,\tno fruitful  purpose
\n     will be served by launching them. Speedy termination of
\n     prosecutions under\t the Bill  is the  heart and soul of
\n     the Bill…………\n<\/p><\/blockquote>\n
529<\/span><\/p>\n
     Thus, both\t the tests are fulfilled in the instant case
\n     namely, that  (1) the  classification is  founded on an
\n     intelligible  differentia\t which\tdistinguishes  those
\n     which are grouped together from others who are left out
\n     and (2)  the said\tdifferentia has\t a rational relation
\n     with the  object sought  to be  achieved by  the  Bill,
\n     namely, speedy termination of prosecutions initiated in
\n     pursuance of  the declaration made under clause 4(1) of
\n     the Bill.”\n<\/p><\/blockquote>\n
     The same, we hold, is true of the Act.<\/p><\/blockquote>\n
     It was  then submitted  by Mr.  Bhatia that even if the
\nclassification was valid, as the procedure prescribed by the
\nAct is\textremely harsh\t and  prejudicial  to  the  accused,
\nArticles 14  and 21 are clearly violated. This aspect of the
\nmatter also  has been  expressly dealt\twith by Chandrachud,
\nC.J., in  the Reference\t case where  he has pointed out that
\nonce the  classification is  held to  be valid\teven if\t the
\nprocedure  is  harsher\tor  disadvantageous  that  will\t not
\nattract Art. 14. In this connection, he observed:-\n<\/p>\n
     If the  classification is\tvalid and  its basis bears a
\n     reasonable relationship with the object of the Bill, no
\n     grievance can  be entertained under article 14 that the
\n     procedure prescribed  by the  Bill\t for  the  trial  of
\n     offences which fall within its terms is harsher or more
\n     onerous as\t compared with\tthe procedure  which governs
\n     ordinary trials. Classification necessarily entails the
\n     subjection of  those who  fall within it to a different
\n     set of  rules and\tprocedure, which  may conceivably be
\n     more disadvantageous than the procedure which generally
\n     applies to ordinary trials….But once a classification
\n     is\t upheld\t  by  the  application\tof  the\t dual  test,
\n     subjection\t  to harsher  treatment\t or  disadvantageous
\n     procedure loses  its relevance,  the reason  being that
\n     for  the\tpurposes  of  article  14,  unequals  cannot
\n     complain of unequal treatment.”<\/p><\/blockquote>\n
     We shall,\thowever, deal  with the\t question whether or
\nnot the\t procedure is  disadvantageous when  we examine\t the
\nargument of  the learned  counsel regarding sections 5, 6, 7
\nand 11 of the Act.\n<\/p>\n
     Thus, to  sum up,\tthe position  so far as this part of
\nthe argument is concerned is as follows:-\n<\/p>\n
\t  (1)\tSeparate grouping of holders of high offices
\n\t       for purposes  of expeditious  criminal action
\n\t       to  be\ttaken  by   superior  courts   is  a
\n\t       reasonable and  valid classification  because
\n\t       it enhances confidence on the rule of law,
\n530<\/span>
\n\t       strengthens  the\t  democratic  system\t and
\n\t       ensures purity  of public  life and political
\n\t       conduct.\n<\/p><\/blockquote>\n
\t  (2)\tThe Bill  was challenged  before the Supreme
\n\t       Court on the touchstone of Art. 14 on several
\n\t       grounds. In  the first  place, it  was argued
\n\t       that  no\t  rational  basis   for\t  separately
\n\t       classifying Emergency  offenders existed. The
\n\t       second ground  of challenge was that assuming
\n\t       that there  was a  valid classification,\t the
\n\t       same was\t bad because  it suffered  from\t the
\n\t       vice of\tunder-inclusion inasmuch  as holders
\n\t       of high public or political offices were left
\n\t       out.  This   Court,  however,   repelled\t the
\n\t       argument of rational basis on the ground that
\n\t       the Emergency  period, because of its special
\n\t       characteristics, afforded  adequate basis for
\n\t       separate\t   classification    of\t   Emergency
\n\t       offences. The  Court was\t not at\t all at that
\n\t       time concerned expressly with the question as
\n\t       to whether  classification of  high public or
\n\t       political dignitaries  without  reference  to
\n\t       any period  during which they were alleged to
\n\t       have committed offences would be violative of
\n\t       Art. 14\tof the\tConstitution. On  the  other
\n\t       hand, this Court made clear observations that
\n\t       an Act  providing for  such a  classification
\n\t       would be\t not  only  valid  but\talso  highly
\n\t       welcome. It  is\ttrue\tthat  the  provision
\n\t       regarding  a  particular\t period\t before\t the
\n\t       Emergency was  then struck  down but that was
\n\t       so because  the Bill was confined to offences
\n\t       committed only during the period of Emergency
\n\t       and the\tinclusion of  that period  meant bad
\n\t       classification for the reason that the period
\n\t       last mentioned  could  not  be  distinguished
\n\t       from other  pre-or post-Emergency  periods on
\n\t       any reasonable  basis. This view of the Court
\n\t       could not be interpreted as laying down a law
\n\t       of universal  application that no Special Act
\n\t       on a  permanent basis  classifying  offenders
\n\t       possessing  particular\tcharacteristics\t  or
\n\t       attributes   and\t   providing\tfor    their
\n\t       prosecution under  a special  procedure would
\n\t       be invalid  or violative of Art. 14. Thus, we
\n\t       do not  think that the opinion of the Supreme
\n\t       Court in\t any way  amounted to disapproval or
\n\t       condemnation of\ta permanent  law  in  future
\n\t       bringing within its scope all holders of high
\n\t       public or political office.<\/p><\/blockquote>\n
     It was  then argued  by Mr.  Bhatia that  assuming\t the
\nclassification of  persons holding  high public or political
\noffices to be justified, it suff-\n<\/p>\n
531<\/span><\/p>\n
ers from  a serions infirmity in that neither the term ‘high
\npublic or   political  office’ has been defined nor have the
\noffences been  delineated or  defined  so  as  to  make\t the
\nprosecution of\tsuch offenders\ta practical reality. Dealing
\nwith this  argument, the  learned Solicitor  General pointed
\nout that  it was  specifically raised  when  the  Court\t was
\nhearing the  Reference and written submissions were filed by
\nthe parties  but that,\tunfortunately, the  opinion did\t not
\ngive any finding on it and urged that even in absence of any
\nfinding, the  argument must be deemed to have been rejected.
\nWe find\t sufficient force  in  what  the  learned  Solicitor
\nGeneral says  but as  we are  hearing the appeals of persons
\nwho have  been convicted  and sentenced\t to various terms of
\nimprisonment so that their liberty is involved, we feel that
\nwe should go into Mr. Bhatia’s argument.\n<\/p>\n
     As regards\t the definition of ‘high public or political
\noffices’ the  expression is  of well-known  significance and
\nbears a\t clear connotation  which admits  of no vagueness or
\nambiguity. Even\t during the debate in Parliament, it was not
\nsuggested that\tthe expression\tsuffered from any vagueness.
\nApart from  that even  in the  Reference case, Krishna Iyer,
\nJ., referred to holders of such offices thus:-\n<\/p>\n
\t  “heavy-weight criminaloids  who often\t mislead the
\n     people by\tpublic moral  weight-lifting and  multipoint
\n     manifestoes……..\n<\/p><\/blockquote>\n
\t  ……such super-offenders in top positions…..
\n\t  …….No erudite pedantry can stand in the way of
\n     pragmatic\tgrouping   of  high-placed   office  holders
\n     separately, for  purposes of high-speed criminal action
\n     invested with early conclusiveness and inquired into by
\n     high-level courts.”\n<\/p><\/blockquote>\n
\t\t\t\t\t     (Emphasis ours)
\n     It is  manifest from  the observations of Krishna Iyer,
\nJ. that\t persons holding  high public  or political  offices
\nmean persons holding top positions wielding large powers.<\/p><\/blockquote>\n
     In American  Jurisprudence 2d  (Vol. 63, PP, 626, 627 &\n<\/p>\n
637)  the   author  describes\tpersons\t holding  public  or
\npolitical offices thus:\n<\/p>\n
\t  “Public offices  are cheated\tfor the\t purpose  of
\n     effecting\tthe   end  for\twhich  government  has\tbeen
\n     instituted, which\tis the\tcommon good, and not for the
\n     profit, honour,  or private  interest of  any one\tman,
\n     family, or\t class of  men….The powers  and  functions
\n     attached to  a position  manifest\tits  character,\t and
\n     there is implied in every public office an authority to
\n     exercise some portion of the sovereign power of the 14-
\n     289 SCI\/80
\n532<\/span>
\n     state  in\t making,  executing,  or  administering\t the
\n     law…….Various positions,  on the  other hand,\thave
\n     been held\tnot to\tbe public  offices, as, for examine,
\n     auditor   of    accounts\t appointed    by    railroad
\n     Commissioners….”\n<\/p><\/blockquote>\n
Similarly, Ferris  in his  thesis  on  ‘Extraordinary  Legal
\nRemedies defines public or political offices thus:\n<\/p>\n
\t  “A public  office is the right, authority and duty
\n     created and conferred by law, by which an individual is
\n     vested with  some portion of the sovereign functions of
\n     the Government  to be  exercised by him for the benefit
\n     of\t the   public,\tfor  the  term\tand  by\t the  tenure
\n     prescribed by  law. It  implies  a\t   delegation  of  a
\n     portion of\t the sovereign\tpower. It is trust conferred
\n     by public authority for a public purpose, embracing the
\n     ideas   of\t   tenure,    duration,\t   emoluments\t and
\n     duties……The  determining   factor,  the   test,  is
\n     whether the office involves a delegation of some of the
\n     solemn  functions\t of  Government,  either  executive,
\n     legislative or  judicial, to be exercised by the holder
\n     for the public benefit.”<\/p><\/blockquote>\n
     (72 Calcutta Weekly Notes, P.64, Vol.72)
\n     Similarly, Wade  and Phillips  in ‘Constitutional\tLaw’
\ndefines political offices thus:-\n<\/p>\n
\t  The Cabinet  is the  body of\tprincipal  Ministers
\n     with whom\trests the real direction of policy. We speak
\n     of the  Ministry or  the Administration of a particular
\n     Prime Minister  with reference  to\t the  full  body  of
\n     political office holders who from time to time hold the
\n     reins of  Government, i.e.,  the Ministers of the Crown
\n     and their Parliamentary Secretaries.”<\/p><\/blockquote>\n
     O. Hood  Phillips in ‘Constitutional and Administrative
\nLaw’ (4th  Edition, p.\t312 &  314) defines the hierarchy of
\nGovernment Departments thus:\n<\/p>\n
\t  “Ministers-At the  head of  each Department-except
\n     the  “non-political”   Departments,   which   are\t not
\n     important for present purposes-is the Minister, whether
\n     he\t is   called  Minister\tor  Secretary  of  State  or
\n     President\tof   the  Board.  He  is  a  member  of\t the
\n     Government and  changes with  the Ministry\t of the day;
\n     and he may also be a member of the Cabinet.
\n\t  Parliamentary Secretaries-Under  the Minister will
\n     be\t one   or   more   Parliamentary   Secretaries,\t  or
\n     Parliamentary
\n533<\/span>
\n     Under-Secretaries of State if the Minister himself is a
\n     Secretary\t of    State.\tAs   their   name   implies,
\n     Parliamentary Secretaries\tare members  of one or other
\n     of the  Houses of Parliament, they are Junior Ministers
\n     who change\t with the Government of the day. They assist
\n     their Chief  in the  Parliamentary or political side of
\n     his work,\tas well\t as in\tthe  administration  of\t his
\n     Department……\n<\/p><\/blockquote>\n
\t  The detailed\tadministration\tof  the\t work  of  a
\n     Government Department  is carried\tout  by\t “permanent”
\n     civil servants.  Although,\t like  Ministers,  they\t are
\n     servants  of  the\tCrown,\tcivil  servants\t are  called
\n     “permanent” since\ttheir appointment  is  non-political
\n     and in practice lasts during good behaviour, as opposed
\n     to Ministers,  Parliamentary Secretaries, etc., who are
\n     responsible to  Parliament and  change office  with the
\n     Government.”\n<\/p><\/blockquote>\n
So also,  Ramsay Muir  in his book ‘How Britain is Governed’
\n(3rd Ed. p. 81) states as follows:-\n<\/p>\n
\t  “In this  chapter we\thave to\t discuss the  second
\n     element in the Government-that which changes with every
\n     change in\tthe balance  of power between parties in the
\n     country,  which   consists\t not   of  experts,  but  of
\n     politicians, and  which works  under the  limelight  of
\n     publicity…..This changing  element is  known as\t‘the
\n     Ministry’.”\n<\/p><\/blockquote>\n
Asirvatham in  his book\t ‘Political Theory’  (9th Ed p. 352)
\ndefines Political Executive thus :-\n<\/p>\n
\t  “Turning  from   the\tnominal\t  to  the  political
\n     executive, we  find at least four distinct forms, viz.,
\n     the English,  the American,  the Swiss, and the French.
\n     In\t England,   the\t Prime\t Minister  and\tthe  Cabinet
\n     constitute the  political executive. They can remain in
\n     office only  so long  as they command the confidence of
\n     Parliament. They  are members of one or the other house
\n     of\t the   legislature  and\t  play\ta  leading  part  in
\n     initiating legislation.  They are\talso  administrative
\n     heads  of\t departments  and,  in\tthat  capacity,\t are
\n     responsible to  Parliament not only for policy but also
\n     for the  details of  administration. They work together
\n     as a  team and,  in their relation to Parliament, stand
\n     or fall together.”\n<\/p><\/blockquote>\n
In words  and Phrases  (Permanent Edition, Vol. 32 [(Suppl.]
\nP. 226]\t the word ‘Political’ has been defined thus :-\n<\/p>\n
\t  “The\tword   “political”  is\t defined  as  of  or
\n     pertaining\t to   policy,  politics,   or\tconduct\t  of
\n     government….or pertaining
\n534<\/span>
\n     to, or  incidental to,  exercise of functions vested in
\n     those charged  with conduct of government, and relating
\n     to management of affairs of State”.\n<\/p><\/blockquote>\n
\t  “The word  ‘political’ is defined by Bouvier to be
\n     pertaining\t to   policy  or   the\t administration\t  of
\n     government. People v. Morgan, 90 III 558, 563.<\/p><\/blockquote>\n
\t  The word  “political” means that which pertains to
\n     government of a nation………….”(P. 802)
\n     A perusal\tof the\tobservations  made  in\tthe  various
\ntextbooks referred  to above  clearly shows  that ‘political
\noffice’ is  an\toffice\twhich  forms  part  of\ta  Political
\nDepartment of  the Government  or the  Political  Executive.
\nThis,  therefore,   clearly  includes\tCabinet\t  Ministers,
\nMinisters, Deputy  Ministers and  Parliamentary\t Secretaries
\nwho are\t running the Department formulating policies and are
\nresponsible to the Parliament. The word ‘high’ is indication
\nof a  top position  and enabling  the holder thereof to take
\nmajor policy  decisions. Thus,\tthe  term  ‘high  public  or
\npolitical office’  used\t in  the  Act  contemplates  only  a
\nspecial\t class\t of  officers  or  politicians\twho  may  be
\ncategorised as follows:-\n<\/p>\n
\t  (1)\t  officials  wielding  extraordinary  powers
\n\t       entitling them to take major policy decisions
\n\t       and holding positions of trust and answerable
\n\t       and accountable for their wrongs:\n<\/p><\/blockquote>\n
\t  (2)  persons responsible for giving to the State a
\n\t       clean, stable and honest administration;
\n\t  (3)\tpersons occupying  a very elevated status in
\n\t       whose hands lies the destiny of the nation.<\/p><\/blockquote>\n
     The rationale  behind  the\t classification\t of  persons
\npossessing the\taforesaid characteristics is that they wield
\nwide powers  which, if\texercised improperly  by  reason  of
\ncorruption,  nepotism\tor  breach  of\ttrust,\tmay  mar  or
\nadversely mould\t the future  of the  country and tarnish its
\nimage. It  cannot be  said, therefore,\twith any  conviction
\nthat persons who possess special attributes could be equated
\nwith ordinary  criminals who  have neither the power nor the
\nresources to commit offences of the type described above. We
\nare, therefore\tsatisfied that\tthe terms  ‘persons  holding
\nhigh public  or political  offices’ is\tself-explanatory and
\nadmits of  no difficulty and that mere absence of definition
\nof the\texpression would not vitiate the classification made
\nby the\tAct. Such  persons are\tin a  position to take major
\ndecisions regarding  social, economic  financial aspects  of
\nthe life  of the  community and other far-reaching decisions
\non the home front as also
\n535<\/span>
\nregarding external  affairs and if their actions are tainted
\nby  breach   of\t trust,\t  corruption  or   other  extraneous
\nconsiderations, they  would  damage  the  interests  of\t the
\ncountry. It  is, therefore, not only proper but essential to
\nbring such  offenders  to  book\t at  the  earliest  possible
\nopportunity.\n<\/p>\n
     It\t was   then  contended\tthat  even  the\t nature\t and
\ncharacter of  the offences  have not been defined in the Act
\nwhich  introduces   an\t element   of\tvagueness   in\t the
\nclassification. We  are, however,  unable to agree with this
\ncontention  because  clause  (4)  of  the  preamble  clearly
\nindicates the  nature of  the offences\tthat could  be tried
\nunder the  Act. Clause\t(4) of\tthe preamble to the Act runs
\nthus:\n<\/p>\n
\t  “AND WHEREAS all powers being a trust, and holders
\n     of high public or political offices are accountable for
\n     the  exercise  of\ttheir  powers  in  all\tcases  where
\n     Commissions of  Inquiry appointed under the Commissions
\n     of Inquiry\t Act, 1952  or investigations  conducted  by
\n     Government\t through   its\tagencies  disclose  offences
\n     committed by such holders.”<\/p><\/blockquote>\n
     The words ‘powers being, a trust’ clearly indicate that
\nany act\t which amounts\tto a  breach of\t the trust or of the
\npowers conferred on the person concerned would be an offence
\ntriable under  the Act. Clause (4) is wide enough to include
\nany offence committed by holders of high public or political
\noffices which  amounts to  breach of trust or for which they
\nare accountable\t in law\t and does  not leave  any  room\t for
\ndoubt. Mr.  Bhatia, however,  submitted\t that  even  if\t the
\nperson concerned  commits a  petty offence like violation of
\nmunicipal bye  laws or\ttraffic rules  he would\t have to  be
\nprosecuted under the Act which will be seriously prejudicial
\nto him. In our opinion, this argument is purely illusory and
\nbased on  a misconception  of the  provisions  of  the\tAct.
\nSection 5  which confers powers on the Central Government to
\nmake a\tdeclaration clearly  refers to\tthe guidelines\tlaid
\ndown in\t the preamble  and no  Central Government would ever
\nthird of  prosecuting holders  of high\tpublic or  political
\noffices for  petty offences  and the  doubt expressed by the
\ncounsel for the appellant is, therefore, totally unfounded.\n<\/p>\n
     It was  contended on  behalf  of  the  appellants\tthat
\nParliament was\tnot competent  to pass\ta  Special  Act\t and
\ncreate Special\tCourts for  a particular  set of  offenders.
\nThis argument  need  not  detain  us  because  it  has\tbeen
\neffectively answered  in the  reference case  which has held
\nclearly that Parliament was fully competent to pass the Bill
\ncreating Special Courts.\n<\/p>\n
536<\/span><\/p>\n
     Regarding the  validity of sections 7 and 11 of the Act
\nwhich  correspond   to\tclauses\t  6  and  10  of  the  Bill,
\nChandrachud, C.J., observed as follows:-\n<\/p>\n
\t  “In view of our conclusion that Parliament has the
\n     legislative competence  to enact clauses 6 and 10(1) of
\n     the Bill, it is unnecessary to consider the argument of
\n     the learn\ted Solicitor  General that,  everything else
\n     failing,  Parliament   would  have\t the  competence  to
\n     legislate upon  the  jurisdiction\tand  powers  of\t the
\n     Supreme Court  by virtue  of article  248(1) read\twith
\n     entry 97 of List I…..\n<\/p><\/blockquote>\n
\t  To sum up, we are of the opinion that clauses 2, 6
\n     and 10(1)\tof  the\t Bill  are  within  the\t legislative
\n     competence\t of   the  Parliament.\t That  is   to\tsay,
\n     Parliament\t has  the  competence  to  provide  for\t the
\n     creation of  Special Courts  as clause  2 of  the\tBill
\n     provides, to  empower the\tSupreme Court  to dispose of
\n     pending appeals and revisions as provided for by clause
\n     6 of the Bill and to confer jurisdiction on the Supreme
\n     Court by providing, as is done by clause 10(1), that an
\n     appeal shall lie as of right from any judgment or order
\n     of a  Special Court  to the  Supreme Court both on fact
\n     and on law.”<\/p><\/blockquote>\n
     It was  also contended  for the appellants that the Act
\nseeks to  change  the  situs  of  the  Court  and  virtually
\nabrogates s.  181 of  the Code\tof Criminal  Procedure. This
\nargument also  does not\t merit any  consideration because it
\nwas raised  in the Reference case and rejected. Dealing with
\nthis aspect of the matter, Chandrachud, C.J observed :-\n<\/p>\n
\t  “As regards  situs of\t trial, it is unfair to make
\n     an\t assumption   of  mala\t fides\tand   say  that\t  an
\n     inconvenient  forum   will\t be   chosen   deliberately.
\n     Besides, the  provisions of  chapter XII  of  the\tCode
\n     containing\t section   177\tto   189,  which  deal\twith
\n     “Jurisdiction of  the criminal  courts in Inquiries and
\n     Trials”, are not excluded by the Bill. Those provisions
\n     will govern the question as to the situs of trial.”<\/p><\/blockquote>\n
     Mr. Bhatia\t further submitted  that the  Act creates an
\ninvidious  distinction\tinasmuch  as  persons  holding\thigh
\npublic or  political offices would have the benefit of trial
\nby such\t an experienced officer as a sitting Judge of a High
\nCourt while  the appellants have been deprived of that right
\nand were  tried by  a Special  Judge who was only a Sessions
\nJudge. This  argument, in  our opinion, is completely devoid
\nof substance.  The  first  information\treport\tagainst\t the
\nappel-\n<\/p>\n
537<\/span><\/p>\n
lants was lodged on 13th April 1977 and the charge-sheet was
\nsubmitted  before   the\t Special  Judge\t who  convicted\t the
\nappellants by  the order  dated February  27, 1979. The Act,
\nhowever, came  into force  on May  16, 1979, that is to say,
\nthree months after the conviction and about two months after
\nthe appellants\thad filed  their  appeals  before  the\tHigh
\nCourt.\tIn   these  circumstances,   the  question   of\t the
\nappellants being  tried by the Special Judge appointed under
\nthe Act\t could not  arise because the said Special Court did
\nnot exist  at all  when the  trial  of\tthe  appellants\t was
\nconcluded. The\texistence of  such fortuitous  circumstances
\ncannot attract\tArt. 14.  This matter  was considered in two
\ndecisions of this Court. In the case of Khandige Sham Bhat &
\nOrs v.\tThe Agricultural  Income Tax  Officer, Subba  Rao J,<\/a>
\nobserved as follows:-\n<\/p>\n
\t  “If there  is equality  and uniformity within each
\n     group, the law will not be condemned as discriminative,
\n     though to some fortuitous circumstance arising out of a
\n     peculiar situation\t some included\tin a  class  get  an
\n     advantage over  others, so long as they are not singled
\n     out for special treatment.”\n<\/p><\/blockquote>\n
The same  view was expressed thus in a later decision of his
\nCourt reported as Dantuluri Ram Raju  Ors v. State of Andhra
\nPradesh Anr.<\/a>\n<\/p>\n
\t  “The\tfacts\tthat  on  account  of  topographical
\n     situation some  landowners get  greater benefit  of the
\n     drainage scheme because of their lands being more prone
\n     to damage\tby floods  is a\t fortuitous circumstance and
\n     the same  would not be a valid ground for striking down
\n     the impugned  legislation. It  is well established that
\n     if there  is equality and uniformity within each group,
\n     the law  will not be condemned as discriminative though
\n     due to  some fortuitous  circumstances arising out of a
\n     peculiar situation,  some included\t in a  class get  an
\n     advantage over  others so\tlong as they are not singled
\n     out for special treatment.”<\/p><\/blockquote>\n
     In view  of these decisions, the argument of Mr. Bhatia
\nmust be overruled.\n<\/p>\n
     This, therefore,  concludes the submissions made by Mr.
\nBhatia generally regarding the constitutionality of the Act.\n<\/p>\n
538<\/span><\/p>\n
     Mr. Mridual adopted the above-noted arguments, advanced
\nby Mr.\tBhatia, but  put forward contentions with respect to
\nother aspects  which we\t shall deal with at a later stage of
\nthe judgment.\n<\/p>\n
     It was  next contended  by Mr.  Bhatia that s. 5 of the
\nAct  suffers   from   several\tconstitutional\t and   legal
\ninfirmities.\n<\/p>\n
     Sub-sections (t) and (2) thereof may be extracted here:
\n     “Declaration by Central Government of cases to be dealt
\nwith under this Act:\n<\/p>\n
\t  5.(1) If the Central Government is of opinion that
\n\t       there  is   prima  facie\t  evidence  of\t the
\n\t       commission of  a offence alleged to have been
\n\t       committed by a person who held high public or
\n\t       political  office   in  India   and  that  in
\n\t       accordance with\tthe guidelines\tcontained in
\n\t       the preamble hereto the said offence ought to
\n\t       be dealt\t with under  this Act,\tthe  Central
\n\t       Government shall\t make a\t declaration to that
\n\t       effect in  every case  in which\tit is of the
\n\t       aforesaid opinion.\n<\/p><\/blockquote>\n
\t  (2)  Such  declaration  shall\t not  be  called  in
\n\t       question in any court.”<\/p><\/blockquote>\n
     In the  first place,  it was  contended  that  s.\t5(1)
\nsuffers from  the vice\tof excessive delegation of powers so
\nas to violate Art. 14 in as much as the discretion conferred
\non the\tCentral Government  is absolute, naked and arbitrary
\nand is\tclearly discriminatory\tas it is open to the Central
\nGovernment to  pick and choose persons and make declarations
\nin respect  of them  while excluding others. In our opinion,
\nthis contention is based on a serious misconception of the p
\nprovisions of  the  Act.  For  one  thing,  no\tunguided  or
\nuncanalised  power   has  been\t conferred  on\tthe  Central
\nGovernment.  A\t basic\tcondition  imposed  on\tthe  Central
\nGovernment is  that there  must be  a proper  application of
\nmind regarding\tthe existence of prima facie evidence of the
\ncommission of an offence. Secondly, the discretion has to be
\nexercised in accordance with the guidelines contained in the
\npreamble. The  various clauses\tof the\tpreamble which\thave
\nbeen set  out in  an earlier part of this judgment, lay down
\nclear guidelines  and provide  sufficient safeguards against
\nany abuse  of power.  Thirdly, clause  (4) of  the  preamble
\nclearly lays  down that\t the power under s. 5 is exercisable
\nonly after  the commission  of an offence by the holder of a
\nhigh public  or political  office bas  been disclosed  as  a
\nresult of  an inquiry  conducted under\tthe  Commissions  of
\nInquiry\t Act   or  of  an  investigation  conducted  by\t the
\nGovernment through  its agencies.  It is  well settled\tthat
\ndiscretionary power is not the same thing
\n539<\/span>
\nas power to discriminate nor can the constitutional validity
\nof  a\tlaw  be\t tested\t on  the  assumption  that  where  a
\ndiscretionary power  is conferred  on a\t high authority, the
\nsame may  or would  be exercised in a discriminatory manner.
\nIn the case of Dr. N. B. Khare v. The State of Delhi, Kania,
\nC. J.,<\/a>\tdealing with  the same aspect of the matter observed
\nas follows.\n<\/p>\n
\t  “Moreover, this  whole argument  is based  on\t the
\n     assumption that  the Provincial  Government when making
\n     the order\till not\t perform its  duty and may abuse the
\n     provisions\t of  the  section.  In\tmy  opinion,  it  is
\n     improper to  start with  such an  assumption and decide
\n     the legality  of an  Act on  that basis. Abuse of power
\n     given by  a law  sometimes occurs;\t but the validity of
\n     the law  cannot  be  contested  be\t cause\tof  such  an
\n     apprehension. In my opinion, therefore, this contention
\n     of the petitioner cannot be accepted.”\n<\/p><\/blockquote>\n
In the case of Kathi Raning Rawat v. The State of Saurashtra<\/a>
\nthis Court observed:\n<\/p>\n
\t  “The discretion  that\t is  conferred\ton  official
\n     agencies in  such\tcircumstances  is  not\tan  unguided
\n     discretion, it  has to  be exercised in conformity with
\n     the policy\t to effectuate\twhich the direction is given
\n     and it  is in  relation  to  that\tobjective  that\t the
\n     propriety\tof  the\t classification\t would\thave  to  be
\n     tested.”\n<\/p><\/blockquote>\n
The same view was taken in a later decision of this Court in
\nthe case  of Matajog  Dobey v.\tH. C.  Bhart<\/a> where the court
\nobserved as follows:-\n<\/p>\n
\t  “It has  to be  borne in mind that a discretionary
\n     power is  not necessarily\ta discriminatory  power\t and
\n     that abuse\t of power  is not to be easily assumed where
\n     the discretion  is vested in the Government and not ill
\n     a minor official.”\n<\/p><\/blockquote>\n
In the\tcase of\t In Re The Kerala Education Bill, 1957, this
\nCourt said:\n<\/p>\n
\t  “But all  that we  need say  is  that\t apart\tfrom
\n     laying down a policy for the guidance of the Government
\n     in the matter of the exercise of powers conferred on it
\n     under the\tdifferent provisions  of the  Bill including
\n     cl. 36,  the Kerala Legislature; has, by cl. 15 and cl.
\n     37 provided further safeguards.\n<\/p><\/blockquote>\n
540<\/span><\/p>\n
     In this  connection, we must bear in mind what has been
\n     laid down\tby this\t Court in  more decisions  than one,
\n     namely, that  discretionary power\tis not necessarily a
\n     discriminatory power  and the  abuse of  power  by\t the
\n     Government will not be lightly assumed.”\n<\/p><\/blockquote>\n
Similarly, in the case of Jyoti Pershad v. The Administrator<\/a>
\nfor the\t Union Territory of Delhi, Ayyangar J., speaking for
\nthe Court, observed :\n<\/p>\n
\t  “So long  therefore as  the Legislature indicates,
\n     in\t the   operative  provisions  of  the  statute\twith
\n     certainty, the policy and purpose of the enactment, the
\n     mere fact that the legislation is skeletal, or the fact
\n     that a  discretion is  left  to  those  entrusted\twith
\n     administering the\tlaw, affords no basis either for the
\n     contention that  there has been an excessive delegation
\n     of legislative  power as  to amount to an abdication of
\n     its  functions,   or  that\t the  discretion  vested  is
\n     uncanalised and  unguided\tas  to\tamount\tto  a  carte
\n     blanche to discriminate.”\n<\/p><\/blockquote>\n
In the\tcase of Moti Ram Deka etc. v. General Manager, N. E.
\nF. Railway,  Maligaon, Pandu,  etc Shah J., speaking for the
\nCourt remarked-\n<\/p>\n
\t  “Power to  exercise discretion  is not necessarily
\n     to be assumed to be a power to discriminate unlawfully,
\n     and possibility  of abuse\tof power will not invalidate
\n     the  conferment  of  power.  Conferment  of  power\t has
\n     necessarily to  be coupled with the duty to exercise it
\n     bona fide\tand for\t effectuating the purpose and policy
\n     underlying the  rules which provide for the exercise of
\n     the power.\t If in\tthe scheme  of the  rules,  a  clear
\n     policy relating  to  the  circumstances  in  which\t the
\n     power,  is\t  to  be   exercised  is   discernible,\t the
\n     conferment\t of  power  must  be  regarded\tas  made  in
\n     furtherance of the scheme, and is not open to attack as
\n     infringing the equality clause.”\n<\/p><\/blockquote>\n
In the case cf V. C. Shukla v. The State through C.B.I. this
\nCourt pointed  out that where a discretion is conferred on a
\nhigh authority\tsuch as\t the Central  Government it  must be
\npresumed that
\n541<\/span>
\nthe Government\twould act  in accordance  with law  and in a
\nbona fide manner, and said:\n<\/p>\n
\t  “In fact, this Court has held in a number of cases
\n     that where\t a power is vested in a very high authority,
\n     the abuse of the power is reduced to the minimum.”<\/p><\/blockquote>\n
     In view  of these\tdecisions, it  must be held that the
\npower conferred\t on the\t Central Government is controlled by
\nthe guidelines\tcontained in the preamble which by virtue of
\nthe provisions of s. 5(1) becomes a part of that section. As
\nthe power has been conferred on the Central Government which
\nis to  make a  declaration in accordance with the conditions
\nlaid down in s. 5(1) and, therefore, in conformity will. the
\nguidelines mentioned  in the  preamble, the  attack based on
\ndiscrimination is unfounded and is hereby repelled.\n<\/p>\n
     Another allied argument advanced by Mr. Bhatia was that
\nthe issuance  of a  declaration under s. 5(1) depends purely
\non the subjective satisfaction of the Central Government and
\nunder sub-section  (2) of  s. 5 such a declaration cannot be
\ncalled into  question by any court so that there would be an
\nelement of  inherent bias  or malice;  in an order which the
\nCentral Government may pass, for prosecuting persons who are
\npolitical  opponents  and  that\t the  section  is  therefore
\ninvalid. We  are unable\t to agree  with\t this  argument.  As
\nalready pointed\t out, the power of the Central Government to
\nissue a\t declaration is\t a statutory  power circumscribed by
\ncertain conditions.  Further more, as the power is vested in
\na very\thigh authority,\t it cannot  be assumed\tthat  it  is
\nlikely to  be abused.  On the other hand, where the power is
\nconferred  on\tsuch  a\t  high\tauthority   as\tthe  Central
\nGovernment, the\t presumption will  be that the power will be
\nexercised in a bona fide manner and according to law. In the
\ncase of\t Chinta Lingam\t& Ors v. Government of India & Ors.,<\/a>
\nthis Court observed:\n<\/p>\n
\t  “At any rate, it has been pointed out in more than
\n     one decision  of this  Court that when the power has to
\n     be exercised  by one  of the  highest officers the fact
\n     that no  appeal has been provided for is a matter of no
\n     moment…. It  was\t said  that  though  the  power\t was
\n     discretionary but it was not necessarily discriminatory
\n     and abuse\tof power  could not be easily assumed. There
\n     was moreover  a presumption that public officials would
\n     discharge their  duties honestly and in accordance with
\n     rules of law.”\n<\/p><\/blockquote>\n
542<\/span><\/p>\n
To the\tsame effect  is the decision of this Court in Budhan
\nChoudhry &  Ors. v.  The State\tof  Bihar.  It<\/a>\twas  however
\nsuggested that\tas the\tCentral Government  in\ta  democracy
\nconsists of  the political  Party which\t has the majority in
\nParliament, declarations  under s.  5(1) lt the Act could be
\nused as\t an engine  of oppression against members of parties
\nwho are\t opposed to the ideologies of the ruling party. This
\nis really  an  argument\t of  fear  and\tmistrust  which,  if
\naccepted, would invalidate practically all laws of the land;
\nfor, then  even a  prosecution under the ordinary law may be
\nconsidered  as\t politically  motivated,  which\t is  absurd.
\nFurthermore, prejudice,\t malice or taint is not a matter for
\npresumption in\tthe absence of evidence supporting it. It is
\nwell settled  that burden  lies on the parties alleging bias
\nor malice  to prove  its existence, and if malice or bias is
\nproved in  a particular\t case, the  courts would strike down
\nthe act\t vitiated by  it, in  exercise of  its powers  under
\nArts. 226,  227 or  136. This aspect of the matter was dealt
\nwith in the reference case thus:-\n<\/p>\n
\t  “Though the  opinion which  the Central Government
\n     has to form under clause 4(1) is subjective, we have no
\n     doubt that\t despite the provisions of sub-clause (2) it
\n     will be  open to  judicial review\tat least  within the
\n     limits indicated  by this\tCourt in Khudaran Das Deo v.
\n     The State\tof West\t Bengal &  Ors. (1975,\t2, SCR\t832,\n<\/p><\/blockquote>\n
     845). It  was observed  in that  case  by\tone  of\t us,
\n     Bhagwati J.,  while speaking  for the  Court. that in a
\n     Government of  laws “there;  is nothing like unfettered
\n     discretion remove\tfrom  judicial\treversibility”.\t The
\n     opinion has  to be formed by the Government, to set the
\n     least, rationally and in a bona fide manner.”<\/p><\/blockquote>\n
     Another limb  of the  argument of\tMr. Bhatia regarding
\nthe provisions\tabout declaration  contained in s. 5 (1) was
\nthat they are violative of the principles of natural justice
\ninasmuch as  they do not provide for any hearing being given
\nto the\taccused before a declaration is made. This argument,
\nin our opinion, is also without substance. It is to be borne
\nin mind\t that at the stage when the declaration is sought to
\nbe made\t there is  no list  pending nor\t has any prosecution
\nbeen launched against the accused. Section 5 deals only with
\nthe decision  taken by\tthe Central  Government to prosecute
\nand until that decision is notified the prosecution does not
\nstart, and  the question  of an\t accused being heard at that
\nstage, therefore,  does\t not  arise  at\t all.  A  couple  of
\ninstances in  point may\t be cited  here with  advantage.  In
\ncases where  law  requires  sanction  to  be  given  by\t the
\nappointing authority  before a\tprosecution can\t be launched
\nagainst a Government servant, it has
\n543<\/span>
\nnever been  suggested that  the accused must be heard before
\nsanction, is  accorded. The question of sanction arises at a
\npoint of  time when there is no danger to the liberty of the
\nsubject and  the accused at that stage is not in the picture
\nat all.\t It is\tonly after  sanction  is  accorded  that  an
\naccused is  brought to\ttrial  or  proceedings\tare  started
\nagainst him  when he  is to  be heard  and can challenge the
\nvalidity of the sanction Similarly, when a first information
\nreport is  filed before\t a police  officer, the law does not
\nrequire that  the  officer  must  hear\tthe  accused  before
\nrecording it  or submitting  a charge-sheet  to\t the  Court.
\nAnother instance  is to\t be found where a complaint is filed
\nbefore a  Magistrate who chooses to hold an inquiry under s.
\n202 of the Code of Criminal Procedure before issuing process
\nor summons to the accused. lt has been held in several cases
\nthat at\t that stage  the accused  has got no locus to appear
\nand file  his objections  to the  inquiry. The\tright of the
\naccused to  be heard comes into existence only when an order
\nsummoning the  accused is  passed by the Magistrate under s.
\n204 of the Code of Criminal Procedure. In the case of Cozens
\nv. North  Devon Hospital  Management Committee\t& Anr,\tLord
\nSalmon pithily observed:\n<\/p>\n
\t  “No one  suggests that  it is\t unfair to  launch a
\n     criminal  prosecution   without   first   hearing\t the
\n     accused.”<\/p><\/blockquote>\n
     The argument  of Mr.  Bhatia which is under examination
\nis thus also found to be wholly untenable
\n     It was  then contended  that in  the instant  case\t the
\ndeclaration dated  June 22,  1979 made\tunder s. 5(1) of the
\nAct per\t se shows  that it  had not  resulted from  any real
\napplication  of\t  mind\tby   the  Central   Government.\t The
\ndeclaration is based, it is pointed out, on the existence of
\nprima facie  evidence of  the commission of certain offences
\nby Mr.\tShukla and  Mr. Sanjay\tGandhi and proceeds to state
\nthat the said offences ought to be dealt with under the Act.
\nIt  was\t  vehemently  argued  that  at\tthe  time  when\t the
\ndeclaration  was   made\t the  appellants  had  already\tbeen
\nconvicted and  had filed  appeals in the High Court and that
\ntherefore for  the Central  Government to  say that ‘a prima
\nfacie case’  was made  out was\tto close  its  eyes  to\t the
\nrealities of the situation. The argument, in other words, is
\nthat once  the prosecution  of the appellants had culminated
\nin a  conviction and  an  appeal  therefrom,  there  was  no
\nquestion of  the existence  of any  ‘prima facie  case’, and
\nthat the  use of  such an  expression could  be intelligible
\nonly if\t the accused  were facing criminal proceedings which
\nhad not\t culminated in a conviction. The assertion about the
\nexistence of  a prima facie case clearly shows, according to
\nlearned counsel, that the Central
\n544<\/span>
\nGovernment did\tnot apply  its mind  at all  to the  factors
\nrelevant to  the issuance of the declaration or that, at any
\nrate, the  application of  its mind was perfunctory. We find
\nourselves, unable  to accept of this argument which fails to
\nconsider certain  fundamental aspects of the scope and ambit
\nof s.  5(1) of\tthe Act and is based on a misconstruction of
\nthe nature of the declaration which is to be made. Under the
\nsection the  Government has  to be  satisfied on  two counts
\nbefore it could issue a declaration. It must be satisfied in
\nthe first instance that there is prima facie evidence of the
\ncommission of an offence. Secondly, it must form the opinion
\nin accordance  with the guidelines contained in the preamble
\nthat such  offence ought to be dealt with under the Act. The
\nargument under\texamination relates to the first limb of the
\nsatisfaction of\t the Central  Government. So,  the  question
\narises whether the condition of the existence of prima facie
\nevidence is  not  fulfilled  in\t the  case  of\tthe  present
\ndeclaration merely  because the trial in the first court had
\nended in a conviction and an appeal therefrom. The answer to
\nthe question  has to  be an  emphatic ‘no’, the reason being
\nthat if conviction is construed as evidence of the existence
\nof something  more than\t a mere prima facie case, that would
\nnot mean  that a  prima facie  case ceases  to exist. That a
\nprima facie  case must be found to exist is only the minimum
\nrequirement for\t the satisfaction  of the Central Government
\nand it would be doubly made out if the evidence available is
\nstronger than is needed to make out only a prima facie case.
\nA conviction  of an accused person cannot mean that there is
\nno prima  facie evidence against him. All that it spells out
\nis that\t not only a prima facie case is made out against him
\nbut that  the evidence\tavailable is  even stronger  and  is
\nsufficient for\ta conviction.  However, as  the\t Government,
\nwhile acting  under the\t section, is  to satisfy itself only
\nwith the existence of prima facie evidence, the assertion by
\nit in  the declaration\tthat such  evidence was available to
\nits satisfaction  cannot, by  any stretch of imagination, be
\nheld to\t be inapplicable to a case in which a conviction has
\nbeen recorded. In this view of the matter we find the use of
\nthe expression\t‘prima face’  evidence in the declaration to
\nbe fully  justified even  though the  trial had\t ended in  a
\nconviction which  was  under  appeal  on  the  date  of\t the
\ndeclaration.  In   this\t context,   the\t contents   of\t the
\ndeclaration also deserve scrutiny. It reads:\n<\/p>\n
\t  “WHEREAS  the\t  Central  Bureau  of  Investigation
\n     recorded under  section 154  of the  Code\tof  Criminal
\n     Procedure (2  of 1974)  on the  13th April 1977 a first
\n     information report and registered a case being RC-2\/77-
\n     CIU (1)  for suspected  offences  of  a  conspiracy  to
\n     commit theft  and actual theft of the film materials of
\n     the film ‘Kissa Kursi Kaa’ pro-\n<\/p><\/blockquote>\n
545<\/span><\/p>\n
     duced by  one Shri Amrit Nahata from the custody of the
\n     Ministry of Information and Broadcasting:
\n\t  AND  WHEREAS\t investigations\t conducted   by\t the
\n     Central  Bureau  of  Investigation\t disclosed  offences
\n     committed during  the period  while the proclamation of
\n     emergency dated  the 25th\tJune  1975,  issued  by\t the
\n     President\tunder  clause  (i  of  Article\t352  of\t the
\n     Constitution was in force:\n<\/p><\/blockquote>\n
\t  AND WHEREAS  after completion of investigation the
\n     Central Bureau of Investigation filed a charge-sheet on
\n     the  14th\t July  1977   in  the  court  of  the  Chief
\n     Metropolitan Magistrate, Delhi:\n<\/p><\/blockquote>\n
\t  AND  WHEREAS\tthe  facts  mentioned  in  the\tsaid
\n     charge- sheet  disclosed offences having been committed
\n     by Shri  Vidya Charan  Shukla, who\t was the Minister of
\n     Information and  Broadcasting, Government of India, and
\n     Shri Sanjay  Gandhi, son  of late\tShri  Feroz  Gandhi,
\n     under section  120-B of the Indian Penal Code, 1860 (45
\n     of 1860)  read with sections 409, 435, 411, 414 and 201
\n     of the  I.P.C. as\twell as\t substantive offences  under
\n     section 409,  411, 414,  435 and  201 of  the I.P.C. as
\n     also the  said offences  read with\t section 109  of the
\n     I.P.C.:\n<\/p><\/blockquote>\n
\t  AND WHEREAS  a case  (RC\/2\/77-CIA-I) was  filed in
\n     the court\tof the Chief Metropolitan Magistrate, Delhi,
\n     with  respect  to\tthe  said  offences  and  the  Chief
\n     Metropolitan Magistrate committed the case to the Court
\n     of Session for trial on 22-2-78:\n<\/p><\/blockquote>\n
\t  AND WHEREAS the District and Sessions Judge having
\n     convicted\tthe  accused  by  his  order  dated  17-2-79
\n     sentenced Shri  Vidya Charan  Shukla  and\tShri  Sanjay
\n     Gandhi with imprisonment and also imposed fines on them
\n     as specified in the said order dated 27-2-79:
\n\t  AND WHEREAS  Shri Vidya  Charan  Shukla  and\tShri
\n     Sanjay  Gandhi  filed  appeals  Nos.  71\/79  and  72\/79
\n     respectively  under  Section  374(2)  of  the  Code  of
\n     Criminal Procedure,  1973 (2 of 1974) in the High Court
\n     of Delhi  on 20-3-79  against the\taforesaid conviction
\n     and that  the said\t appeals were admitted by Delhi High
\n     Court on 21-3-79:\n<\/p><\/blockquote>\n
\t  AND WHEREAS  the State has also filed an appeal in
\n     the Delhi High Court on 18-5-79 under section 377, Code
\n     I of Criminal Procedure (No. 2 of 1974) for enhancement
\n     of the  sentence with  respect to the aforesaid accused
\n     persons:\n<\/p><\/blockquote>\n
546<\/span><\/p>\n
\t  AND WHEREAS  the above-mentioned  appeals are\t now
\n     pending in the High Court of Delhi:\n<\/p><\/blockquote>\n
\t  AND WHEREAS the Central Government after fully and
\n     carefully examining  the material\tplaced before  it in
\n     regard to\tthe aforesaid  offences is  of opinion\tthat
\n     there is  prima facie evidence of the commission of the
\n     said offences  by Shri Vidya Charan Shukla, who was the
\n     Minister of Information and Broadcasting, Government of
\n     India, at\tthe relevant period and as such a person who
\n     held high\tpublic and  political  office,\tShri  Sanjay
\n     Gandhi and\t others and  that  in  accordance  with\t the
\n     guidelines contained  in the  preamble to\tthe  Special
\n     Courts Act\t 7 1979 (22 of 1979) the said offences ought
\n     to be dealt with under that Act.\n<\/p><\/blockquote>\n
\t  NOW,\tTHEREFORE,   in\t exercise   of\tthe   powers
\n     conferred by  sub-section\t(1)  of\t Section  S  of\t the
\n     Special Courts  Act 7  1979 (22  of 1979),\t the Central
\n     Government hereby\tdeclares that  there is\t prima facie
\n     evidence of  the commission  of the  aforesaid offences
\n     alleged to\t have been  committed by  ‘Shri Vidya Charan
\n     Shukla,  who   was\t the  Minister\tof  Information\t and
\n     Broadcasting, Government  of India, during the relevant
\n     period, and  as such  held a  high public and political
\n     office in\tIndia during  the relevant  period, and Shri
\n     Sanjay Gandhi,  son of late Shri Feroz Gandhi, and that
\n     in accordance  with the  guidelines  contained  in\t the
\n     Preamble to  that Act,  the said  offences ought  to be
\n     dealt with under that Act “<\/p><\/blockquote>\n
     A perusal\tof the declaration reveals that it gives the
\nhistory of the case from beginning to end which demonstrates
\nthat the  Central Government  was fully aware of the various
\nstages through\twhich the  trial of  the appellants, passed.
\nThus, the  formation of the opinion by the Government of the
\nexistence of  a prima  facie  case  cannot  be\theld  to  be
\nperfunctory or\tillusory. It  has not  been shown  that\t the
\ndeclaration was\t in any way irrational or male fide or based
\non extraneous  considerations. The  argument advanced by Mr.
\nBhatia, therefore, must be overruled.\n<\/p>\n
     The last plank of attack on s. 5 of the Act is that the
\ndeclaration is\tnon est\t because it has not been laid before
\neach House  of Parliament  as required\tby s. 13 of the Act.
\nThis argument  merits some  consideration. Section  13\truns
\nthus:\n<\/p>\n
\t  “13. Every notification made under sub-section (I)
\n     of section\t 3 and\tevery declaration  made\t under\tsub-
\n     section (1)
\n547<\/span>
\n     of section\t 5 shall be laid, as soon as may be after it
\n     is made, before each House of Parliament.”\n<\/p><\/blockquote>\n
As we  read the\t section, we are clearly of the opinion that
\nits provisions\tare purely  directory and  not mandatory  so
\nthat if the conditions mentioned in it are not fulfilled the
\ndeclaration would  not be  vitiated. It\t is to be noted that
\nthe section  does not say that until a declaration is placed
\nbefore the  two Houses\tof Parliament it shall not be deemed
\nto be  effective, nor  does  the  section  intend  that\t any
\nconsequence would  result from its non-compliance. Moreover,
\nthe matter  is no  longer res  integra and  is concluded  by
\nseveral decisions  of this  Court, the\tmost recent  of them
\nbeing M\/s.  Atlas Cycle\t Industries Ltd. & ors. v. The State
\nof Haryana<\/a> where this Court observed:\n<\/p>\n
\t  “Thus two considerations for regarding a provision
\n     as directory  are: (l) absence of any provision for the
\n     contingency  of   a  particular   provision  not  being
\n     complied with  or followed,  and  (2)  serious  general
\n     inconvenience and\tprejudice that\twould result  to the
\n     general public  if the  act of  the  Government  or  an
\n     instrumentality is\t declared invalid for non compliance
\n     with the particular provision
\n\t   ***\t\t ***\t\t ***
\n\t  In the instant case, it would be noticed that sub-
\n     section (6)  of Section  3 of  the Act  merely provides
\n     that every\t order made  under Section  3 by the Central
\n     Government or  by\tany  officer  or  authority  of\t the
\n     Central Government shall be laid, before both Houses of
\n     Parliament, as  soon as  may be,  after it\t is made. It
\n     does not  provide that  it\t shall\tbe  subject  to\t the
\n     negative or  the affirmative resolution by either House
\n     of Parliament.  It also  does not provide that it shall
\n     be open  to the Parliament to approve or disapprove the
\n     order made under Section 3 of the Act. It does not even
\n     say that  it shall be subject to any modification which
\n     either House  of Parliament  may in its wisdom think it
\n     necessary to  provide. It\tdoes not  even\tspecify\t the
\n     period for\t which the  order is  to be laid before both
\n     Houses of\tParliament nor\tdoes it\t provide any penalty
\n     for  non-observance  of  or  non-compliance  with,\t the
\n     direction as  to the  laying of  the order\t before both
\n     Houses of Parliament. It would also be noticed that the
\n     requirement as  to the  laying of the order before both
\n     the Houses\t of Parliament\tis not a condition precedent
\n     but subsequent  to the  making of\tthe order.  In other
\n     words, there is no prohi-\n<\/p><\/blockquote>\n
548<\/span><\/p>\n
     bition to the making of the orders without the approval
\n     of both  Houses of\t Parliament. In these circumstances,
\n     we are  clearly of the view that the requirement as to,
\n     laying contained in sub-section (6) of Section 3 of the
\n     Act falls\twithin the  first  category,  i.e.,  “simple
\n     laying” and is directory, not mandatory.”<\/p><\/blockquote>\n
     We fully  agree with  this view and hold that on a true
\ninterpretation of  section 13  of the Act, it is a case of a
\nsimple laying  of  the\tdeclaration  before  each  House  of
\nParliament and\tthe declaration\t cannot be struck down on he
\ngrounds suggested by the counsel.\n<\/p>\n
     It was  then submitted that as the declaration is based
\non the\tresult of  an investigation held by a Central agency
\neven  though   the’  offences  were  alleged  to  have\tbeen
\ncommitted in  a State,\tit affects  the s basic structure of
\nthe Constitution  and is, therefore, void. This argument, in
\nour opinion,  is also  misconceived.  The  doctrine  of\t the
\nviolation of  basic structure  of the  Constitution  or\t its
\nfundamental features  applies not to the provisions of a law
\nmade by\t a State  legislature or  Parliament but  comes into
\noperation where an amendment made in the Constitution itself
\nis said to affect its basic features like fundamental rights
\nenshrined under\t Articles  14,\t19,  31,  or  the  power  of
\namendment of  the Constitution under Art. 368 and so on. The
\ndoctrine has  no application  to the provisions of a Central
\nor State  law because  _ if  the statute is violative of any
\nprovision of  the Constitution it can be struck down on that
\nground and it is not necessary to enter into the question of
\nbasic structure of the Constitution at all.\n<\/p>\n
     Mr.  Mridul,  appearing  for  Mr.\tShukla,\t apart\tfrom
\nadopting the  arguments of  Mr. Bhatia,\t as discussed above,
\nraised\ttwo  additional\t points.  In  the  first  place,  he
\nsubmitted that\ts. 5(1) of the Act has no application to the
\nfacts  of   the\t present   case\t because  under\t s.  5(1)  a
\ndeclaration has\t to be\tmade on\t the basis  of\tthe  sources
\nindicated in  the section, namely, inquiries conducted under
\nthe Commissions\t of  Inquiry  Act  or  investigations  which
\nbecome otiose  and would  have relevance  only if his client
\nhad not\t been convicted.  This\targument,  in  our  opinion,
\nappears to  be the  same as  was put  forward by  Mr. Bhatia
\nwhich we have already rejected.\n<\/p>\n
     It was  next argued  that conviction being a finding of
\nguilt  can   not  be  said  to\tfall  within  the  situation
\ncontemplated  by   section  5(1)  of  the  Act.\t Mr.  Mridul
\ncontended that\tas section  6 is  an extension of the scheme
\ncontained in  section 5\t the former  does not  overrule\t the
\nentire Code  of Criminal Procedure but in fact takes in only
\nthose cases which are pending at the trial stage
\n549<\/span>
\nwhen the  declaration is  made. Once  the  case\t ends  in  a
\nconviction, section 6 spends itself out and there is no room
\nfor the\t application of\t section  5,  according\t to  learned
\ncounsel. It  is true  that  section  6\tdoes  contemplate  a
\nprosecution which  is relatable\t to  the  declaration  under
\nsection 5 but that does not debar the application of section
\n5 to  other states  or a  criminal  case,  especially  those
\nspecifically dealt with under section 7 of the Act which, as
\nwe shall presently show, fully covers the situation in hand.
\nThe limited  field in  which section  6\t operates  doss\t not
\ntherefore exhaust the consequences flowing from the issuance
\nof a declaration under section 5
\n     Mr. Mridul\t however contended  that section 7 would not
\napply to  this case because its language embraces only those
\nappeals which  arise out  of a\tprosecution which  itself is
\npending at  the\t time  when  a\tdeclaration  ‘is  made.\t The
\nargument is  devoid of\tforce as,  to accept it, would be to
\nignore an important part of section 7 which runs thus .\n<\/p>\n
\t  “7. If  at the  date of the declaration in respect
\n     of any  offence any  appeal  or  revision\tagainst\t any
\n     judgment or  order in  a prosecution in respect of such
\n     offence, whether  pending\tor  disposed  of  is  itself
\n     pending in\t any court  of appeal  or revision, the same
\n     shall stand  transferred for  disposal to\tthe  Supreme
\n     Court.”<\/p><\/blockquote>\n
     The  words\t  “whether  pending   or  disposed  of”\t are
\nsignificant and\t qualify the immediately preceding clause “a
\nprosecution in respect of such offence”. The legislature has
\nthus taken  care to  expressly provide\tthat  an  appeal  or
\nrevision would\tbe covered  by section 7 and transferable to
\nthe Supreme  Court for\tdisposal if it is directed against a
\nJudgment or  order made\t in a  prosecution which  is  either
\npending has  been disposed of, the only other requirement of
\nthe section  being that\t such appeal or revision must itself
\nbe pending  at the  date of  the  declaration  To  interpret
\nsection 7 in such a way that its applicability is limited to
\nappeals or  revisions arising  from prosecutions  pending at
\nthe trial  stage at the date of the relevant declarations is
\npossible only  if the  words “or disposed of” are treated as
\nabsent from  the section  a course which is not open to this
\nCourt in  view of the express language used. The argument is
\ntherefore repealed.\n<\/p>\n
     Finally, it was argued that by providing in s. 7 for an
\nautomatic transfer  of appeals\tfrom the  High Court  to the
\nSupreme Court the legislature has exercised a judicial power
\nwhich is  vested in  the Supreme Court alone under s. 406 of
\nthe Code  of Criminal  Procedure and  that  the\t section  is
\ninvalid as it conflicts with the said s. 406.\n<\/p>\n
550<\/span><\/p>\n
We are,\t however, unable  to agree with this argument. There
\nis no  question of the exercise of any judicial power by the
\nlegislature in\tenacting s.  7\twhich  covers  a  well-known
\nlegislative process.  The decision  of this  Court  in\tSmt.
\nIndira Nehru  Gandhi v.\t Shri Raj  Narain<\/a> relied upon by Mr.
\nMridul deals  with quite a different situation and is wholly
\ninapplicable to the present case. There what the legislature
\ndid was\t to disposed  of two  appeals on  merits through  an
\namendment to  deprive the court of the opportunity to decide
\nthe appeals  which are\tpending before it. The amendment was
\nstruck down by this Court in a judgment during the course of
\nwhich Mathew, J. Observed:\n<\/p>\n
\t  “At the  time when  the Amendment  was passed, the
\n     appeal filed  by the  appellant and the cross appeal of
\n     the respondent  were pending  before the Supreme Court.
\n     Clause (4)\t was legislation ad hominem directed against
\n     the course\t of the\t hearing of the appeals on merits as
\n     the appeal\t and the cross appeal were to be disposed of
\n     in accordance  with that clause and not by applying the
\n     law to  the facts as ascertained by the court. This was
\n     a\tdirect\tinterference  with  the\t decision  of  these
\n     appeals by\t the Supreme  Court on\ttheir  merits  by  a
\n     legislative judgment.”<\/p><\/blockquote>\n
     Thus, in  that case  the legislation was ad hominem and
\nwas directed  against the  course  of  the  hearing  of\t the
\nappeals\t on  merits.  In  the  instant\tcase,  however,\t the
\nParliament has\tdone nothing  of the sort. By enacting s. 7,
\nit has\tmerely provided\t a new\tforum for they appeals which
\nwere pending  in the  High Court  and in  respect of which a
\nvalid declaration,  fully consistent  with the provisions of
\nthe Act,  was made-a  course which  involved no interference
\nwith the  P’ judicial  functions of  the court and was fully
\nopen to\t the legislature. We are thus clearly of the opinion
\nthat the  decision relied  upon\t by  Mr.  Mridul  is  of  no
\nassistance to him and that his argument is without merit.\n<\/p>\n
     We now pass on to the next phase of the argument of Mr.
\nBhatia and  Mr. Mridul\twhich relates  to the  nature of the
\nprocedure  provided   for  by  the  Act.  According  to\t the
\ncontention  of\tlearned\t counsel  for  the  appellants,\t the
\nprocedure prescribed by the Act is harsher and more rigorous
\nthan that provided for in the Code of Criminal Procedure and
\ncauses serious\tprejudice to  the accused and is, therefore.
\nviolative of  Art. 14  of the Constitution. We might mention
\nhere that  in view  of our  finding that  the classification
\nmade by\t the Act  complies with\t the dual  test laid down by
\nthis Court and is a reasonable
\n551<\/span>
\nclassification, Art.  14 would\tnot be attracted even if the
\nprocedure is  held to  be harshar  than that available under
\nthe ordinary law. Apart from that, however, we find that the
\nprocedure prescribed  by the  Act is not harsh or onerous as
\ncontended but  is more liberal and’ advantage to the accused
\nwho is\tassured of an expeditious and fair trial thereunder.
\nBefore, however,  dealing with this aspect of the matter, we
\nmight dispose of an argument advanced by Mr. Bhatia that his
\nclient not  having held\t any high public or political office
\nhas been  drawn into  this case by virtue of the declaration
\nand has,  therefore, been  singled out\tfor a discriminatory
\ntreatment. We are unable to accept this argument. It is true
\nthat Mr. Sanjay Gandhi has never been the holder of any high
\npublic or  political office  but the  first  clause  of\t the
\npreamble clearly  includes within its ambit not only persons
\nholding high  public or political offices but also others as
\nsection 8 states .\n<\/p>\n
\t  “8. A Special Court shall have jurisdiction to try
\n     any person concerned in the offence in respect of which
\n     a declaration  has\t been  made,  either  as  principal,
\n     conspirator or  abettor  and  all\tother  offences\t and
\n     accused persons  as can  be jointly  tried therewith at
\n     one trial in accordance with the Code.”<\/p><\/blockquote>\n
     Section 8\tthus incorporates  the well-known concept of
\njoint trial  accused persons  in respect of offences forming
\npart of\t the same  transaction. In  these  circumstances  no
\ndiscrimination, as complained of by the appellants, results.\n<\/p>\n
     Coming now\t to the\t procedure prescribed  by  the\tAct,
\nreliance  was\tplaced\tby  learned  counsel  for  both\t the
\nappellants on a few cases decided by this Court to show that
\nthe procedure prescribed by the Act is harsh and unfavorable
\nto the\taccused. As suggested by Mr. Bhatia we have tried to
\njudge the  harshness or\t otherwise of the procedure from the
\nvision of  an accused  person but  find ourselves  unable to
\nagree with the contention. We might mention here that in the
\nReference case, Chandrachud, C.J. pointed out the undernoted
\nthree infirmities appearing in the Bill which were violative
\nof Art. 21 of the Constitution:\n<\/p>\n
\t  (1)  that there was no provision for transfer of a
\n\t       case;\n<\/p><\/blockquote>\n
\t  (2)  that a  retired Judge could be appointed as a
\n     special Judge; and
\n\t  (3)  that the\t appointment of\t a Special Judge was
\n     controlled by the Government.<\/p><\/blockquote>\n
552<\/span><\/p>\n
     Shinghal, J.,  in his  dissenting note observed that if
\njurisdiction ill  the matter  of appointing  a Special Judge
\nwas given  to the  High Court  concerned leaving  its  Chief
\nJustice to  designate one  of the  Judges of  his Court as a
\nSpecial Judge,\tthe  procedure\tmay  become  very  fair\t and
\nunexceptionable. This  view, however,  was not shared by the
\nmajority of  Judges though  they did  agree that  if such  a
\ncourse was  adopted that  would be undoubtedly laudable. But
\nthen it\t is for the legislature to decide upon the procedure
\nto be  followed in  the matter and it is significant for our
\npurpose that  the aforesaid infirmities have been removed by
\nthe Act,  where under  not only\t is  the  appointment  of  a
\nSpecial Judge  made free  of control by the government as it
\nnow rests with the Chief Justice of the High Court concerned
\nsubject to  the only  condition\t that  he  must\t obtain\t the
\nconcurrence of\tthe  Chief  Justice  of\t India\ttherefor.  A
\nprovision for  transfer of  cases from\tone Special Court to
\nanother Special\t Court has  also been inserted in 10(1). The
\nchallenge on  the ground  of violation\tof Art.\t 21  of\t the
\nConstitution fails.\n<\/p>\n
     We\t shall\t now  deal  with  the  contention  that\t the
\nprocedure prescribed  by the  Act is  harsh.  In  the  first
\nplace, it was submitted that under s. 7 an appeal pending in
\nthe High  Court stands\ttransferred to the Supreme Court and
\nthat thus  the appellant  is deprived of a valuable right of
\nhaving the  appeal heard and decided by the High Court which
\nis vested  in him  the moment  he is convicted. Secondly, it
\nwas urged  that if  the appeal in the High Court was decided
\nagainst the  appellant, he  would still have a right to move
\nthe Supreme Court Under Art. 136 of the Constitution against
\nconviction but\tthat by\t reason of  the appeal\thaving\tbeen
\ntransferred to\tthe Supreme  Court, that right also has been
\ntaken away.  In our  opinion, there  is no substance in this
\ngrievance. To  begin with,  an appeal  being a\tcreature  of
\nstatute, an  accused has  no inherent  right to\t appeal to a
\nparticular tribunal. The legislature may choose any tribunal
\nfor the\t purpose of  giving a  right of appeal. Moreover, an
\nappeal to the High Court is less advantageous than an appeal
\nto the Supreme Court for the following reasons:\n<\/p>\n
\t  (1) The  right of  appeal given to an accused from
\n     the order\tof a  Session Judge  or Special Judge to the
\n     High Court\t is not totally unrestricted. Section 384 of
\n     the Code  of Criminal  Procedure empowers\tan Appellate
\n     Court to dismiss an appeal summarily if it is satisfied
\n     that there is no sufficient ground for interference.
\n     The relevant portion of s. 384 runs thus:
\n\t  “384. (1) If upon examining the petition of appeal
\n     and copy  of the judgment received under section 382 or
\n     section
\n553<\/span>
\n     383, the  Appellate Court\tconsiders that\tthere is  no
\n     sufficient ground\tfor interfering,  it may dismiss the
\n     appeal summarily;\n<\/p><\/blockquote>\n
     Provided that-\n<\/p><\/blockquote>\n
     (a)  no appeal  presented under  section 382  shall  be
\n     dismissed unless the appellant or his pleader has had a
\n     reason able  opportunity of  being heard  in support of
\n     the same,\n<\/p><\/blockquote>\n
     (b)  no appeal  presented under  section 383  shall  be
\n     dismissed\texcept\t after\tgiving\t the   appellant   a
\n     reasonable opportunity of being heard in support of the
\n     same, unless  the Appellate  Court considers  that\t the
\n     appeal is\tfrivolous or  that  the\t production  of\t the
\n     accused in\t custody before the Court would involve such
\n     inconvenience  as\twould  be  disproportionate  in\t the
\n     circumstances of the case;\n<\/p><\/blockquote>\n
     (c)  no appeal  presented under  section 383  shall  be
\n     dismissed\tsummarily   until  the\tperiod\tallowed\t for
\n     preferring such appeal has expired.<\/p><\/blockquote>\n
     (2)  Before dismissing  an appeal\tunder this  section,
\nthe Court may call for the record of the case ”\n<\/p>\n
     Thus, an  appeal to  the High  Court under\t the Code of
\nCriminal Procedure  is\tattended  with\tthe  risk  of  being
\nsummarily dismissed  under s.  384. On\tthe other  hand,  an
\nappeal to  the Supreme\tCourt is governed by s. 11(1) of the
\nAct which runs thus:-\n<\/p>\n
     “11. (1)  Notwithstanding\tanything  in  the  Code,  an
\n     appeal  shall  lie\t as  of\t right\tfrom  any  judgment,
\n     sentence or  order, not being interlocutory order, of a
\n     Special Court to the Supreme Court both on facts and on
\n     law.”<\/p><\/blockquote>\n
     An appeal\tunder s.  11(1) lies as of right and both on
\nfacts and  on law. Thus, the right conferred on a convict by
\ns. 11(1)  is wider  and less  restricted than  the right  of
\nappeal given by the Code of Criminal Procedure.\n<\/p>\n
     (2) If  the appeal is filed before the Supreme Court or
\n     is transferred thereto, the accused becomes entitled to
\n     a hearing\tof his\tcase by\t the highest  court  in\t the
\n     country both  on facts  and on  law and thus gets a far
\n     greater advantage\tthan a\tright to  move the Court for
\n     grant of special leave which may or may not be granted,
\n     it being  a matter of discretion to be exercised by the
\n     Supreme Court.\n<\/p>\n
554<\/span><\/p>\n
     A similar view was expressed in Syed Qasim Razvi v. The
\nState of Hyderabad & Ors<\/a> where this Court made the following
\nobservations:-\n<\/p>\n
\t  “But in  this present\t case the original trial was
\n     by the  Special Tribunal  which was  invested with\t the
\n     powers of\ta sessions  court and  consequently only one
\n     appeal would lie to the High Court. It is said that the
\n     case could\t have been  tried by the District Magistrate
\n     and in  that case\tthe accused could have one appeal to
\n     the Sessions  Judge and  a second one to the High Court
\n     under the\tHyderabad law.\tThis contention\t rests on  a
\n     pure speculation and is hardly tenable.”<\/p><\/blockquote>\n
     In the above view of the matter, we are unable to agree
\nwith learned  counsel for  the appellants that the procedure
\nregarding appeals  is harsher  than that  prescribed by\t the
\nCode of Criminal Procedure.\n<\/p>\n
     There is  yet another  aspect of  the matter  which was
\nstressed  by   the  learned  Solicitor\tgeneral.  Under\t the
\nprovisions of  s. 376  of the  Code of Criminal Procedure no
\nappeal by  a convicted\tperson\twould  lie  in\tany  of\t the
\nfollowing cases:-\n<\/p>\n
\t  (1)  where a\tHigh Court passes only a sentence of
\n\t       imprisonment for\t a term\t not  exceeding\t six
\n\t       months or  of fine not exceeding one thousand
\n\t       rupees;\n<\/p><\/blockquote>\n
\t  (2)  where a\tCourt of  session or  a Metropolitan
\n\t       Magistrate  passes   only   a   sentence\t  of
\n\t       imprisonment for\t a term\t not exceeding three
\n\t       months or  of fine  not exceeding two hundred
\n\t       rupees;\n<\/p><\/blockquote>\n
\t  (3)  where a\tMagistrate of the first class passes
\n\t       only a  sentence of  fine not  exceeding\t one
\n\t       hundred rupees;\n<\/p><\/blockquote>\n
\t  (4)  where,  in   a  case   tried   summarily,   a
\n\t       Magistrate empowered to act under section 260
\n\t       passes only  a sentence of fine not exceeding
\n\t       two hundred rupees.<\/p><\/blockquote>\n
     Thus if  the Sessions  Judge were to try an accused and
\nsentence him  to fine or to imprisonment not exceeding three
\nmonths, he  would have\tno right  of appeal  at all.  On the
\nother hand, if a Special Judge imposes the same sentence, an
\nappeal lies  to the  Supreme Court as of right both on facts
\nand  on\t  law.\tCould\tit  be\treasonably  argued  in\tsuch
\ncircumstances that  the right  of appeal provided by the Act
\nwas harsher  or less  advantageous to  the accused ? For the
\nreasons given  above, our  answer to this question is in the
\nnegative.\n<\/p>\n
555<\/span><\/p>\n
     It was  then pointed  out\tthat  the  right  of  having
\nmatters decided\t in A  revision by  the High  Court has been
\ntaken away  from the  accused by the procedure prescribed by
\nthe Act,  under s.  11(1) under\t which no  appeal also\tlies
\nagainst an interlocutory order and it was contended that the
\nsection\t  therefore    entailed\t  a    definite\t  procedural
\ndisadvantage to\t the accused. This argument also is based on
\na misconception\t of the\t provisions of\tthe Act and those of
\nthe Code of Criminal Procedure, section 397(2) of which runs
\nthus:-\n<\/p>\n
\t  “397. (2) The powers of revision conferred by sub-
\n     section (1)  shall not  be exercised in relation to any
\n     interlocutory order  passed  in  any  appeal,  inquiry,
\n     trial or other proceeding.”<\/p><\/blockquote>\n
     Thus, even\t the Code  of Criminal\tProcedure  does\t not
\nprovide for  any revision against an interlocutory order. As
\nto what\t is the\t connotation of\t an interlocutory order is a
\nmatter with which we are not concerned in this case. What is
\nmaterial  is   that  so\t far  as  interlocutory\t orders\t are
\nconcerned, there  is no\t right of  revision either under the
\ncode of\t Criminal Procedure or under the Act. In considering
\nthis aspect  of the  matter one\t must also  bear in mind the
\nfact that  under the  Act the Special Court is presided over
\nby no  less a  person who is a sitting Judge of a High Court
\nand the\t possibility of miscarriage of justice is reduced to
\nthe bare  minimum. While  adverting to\tthis aspect  of\t the
\ncase, this Court observed in the case of V. C. Shukla v. The
\nState through C.B.I. (supra):\n<\/p>\n
\t  That the  Act makes  a distinct departure from the
\n     trial of  ordinary offences  by criminal courts in that
\n     the trial\tof the\toffences is entrusted to a very high
\n     judicial dignitary\t who is\t a sitting Judge of the High
\n     Court to be appointed by the Chief Justice concerned on
\n     the recommendations of the Chief Justice of India. This
\n     contains a\t built-in safeguard  and a  safety valve for
\n     ensuring the  independence of judiciary on the one hand
\n     and a  complete fairness  of trial\t on  the  other.  In
\n     appointing\t the   Special\tJudge,\tthe  Government\t has
\n     absolutely no hand or control so that the Special Judge
\n     is appointed  on the  recommendations  of\tthe  highest
\n     judicial authority\t in the\t country,  viz.,  the  Chief
\n     Justice of\t India. This  would naturally  instil  great
\n     confidence of  the people\tin the\tSpecial Judge who is
\n     given a very elevated status.”<\/p><\/blockquote>\n
     We may  mention here that in the case of Jagannath Sonu
\nParkar v. State of Maharashtra, the<\/a> right of appeal, from an
\norder of a Special
\n556<\/span>
\nMagistrate  directly   to  the\tHigh  Court  (bypassing\t the
\nSessions Judge)\t was held  to be  more advantageous from the
\npoint of  view of the accused In this connection, this Court
\nsaid:\n<\/p>\n
\t  “It is true that if the complaint was filed in the
\n     Court of  Magistrate having  jurisdiction\tover  Deogad
\n     alone, as\tit could  lawfully be filed, an appeal would
\n     against an\t order of  conviction, lie  to the  Court of
\n     Session, Ratnagiri\t and an\t application in the exercise
\n     of revisional  jurisdiction to  the High Court from the
\n     order of  the Court  of Session. But it is difficult to
\n     hold that\tthis amounts  to any  discrimination.  Apart
\n     from the  fact that  the trial  by a special Magistrate
\n     and an  appeal directly  to the  High Court against the
\n     order of  the Magistrate  may be  regarded normally  as
\n     more  advantageous\t  to  the   accused   persons,\t the
\n     distinction between  Courts to which the appeal may lie
\n     arises  out   of  the   constitution  of\tthe  Special
\n     Magistrate and not any special procedure evolved by the
\n     Notification.”<\/p><\/blockquote>\n
     What is  true of  an appeal  to the High Court from the
\norder of  a Special  Magistrate equally applies to an appeal
\nto the\tSupreme Court  from the\t order of  a  Special  Court
\nconstituted under  the Act. Thus, viewed from any angle, the
\nprocedure prescribed  by  the  Act  cannot  be\tsaid  to  be
\nprejudicial or\tless advantageous  to the accused, much less
\nharsher or  more rigorous  than the one provided in the Code
\nof Criminal Procedure.\n<\/p>\n
     It was  then argued  that though  the Special Court has
\nbeen give  the status of a Court of Session under s. 9(3) of
\nthe Act,  yet it  has to  follow, under\t s. 9(1) thereof the
\nprocedure prescribed for the trial of warrant cases before a
\nMagistrate in  sections 238  to 243  and 248  of the Code of
\nCriminal Procedure. We cannot conceive how any grievance can
\nbe made\t on this  score that  the provision  is\t harsh.\t The
\nprocedure  for\t trial\tof   warrant  cases   gives  a\tfull
\nopportunity to\tthe accused  to participate  in the trial at
\nall its\t stages and to rebut the case for the prosecution in
\nevery possible\tmanner and  it has  not been pointed out how
\nthe adoption  thereof for  trials under\t the Act would be to
\nthe disadvantage  of the accused. We find that the grievance
\nput forward is unfounded.\n<\/p>\n
     Great reliance  was placed\t by learned  counsel on\t the
\njudgment in  the State of West Bengal v. Anwar Ali Sarkar<\/a> in
\nsupport of  the proposition that the procedure prescribed by
\nthe Act was harsh and disadvantageous to the accused. Before
\nreferring to certain passages in
\n557<\/span>
\nthat judgment  (which  has  been  fully\t considered  in\t the
\nReference  case)  we  consider\tit  necessary  to  give\t the
\nbackground and\tthe special  facts in the light of which the
\nJudges of  this Court  made the\t relevant observations.\t The
\nWest Bengal  legislature  passed  the  West  Bengal  Special
\nCourts Act  (hereinafter to  be referred  to  as  the  ‘West
\nBengal Act’)  constituting Special Courts and empowering the
\nState Government  to refer  cases or  offences or classes of
\ncases or  classes of  offences to such Courts but did not at
\nall indicate any guidelines as to the nature of the cases to
\nbe so  referred which was thus a matter left entirely to the
\ndiscretion of the Government. In other words, the Government
\nwas given  a blanket  power to\trefer any case of whatsoever
\nnature to the Special Courts. Sub-sections (1) and (2) OF s.
\n5 of the West Bengal Act are extracted below:-\n<\/p>\n
\t  “5(1) A  Special Court  shall try such offences or
\n     classes of\t offences or  cases or\tclasses of cases, as
\n     the State Government may by general or special order in
\n     writing, direct.\n<\/p><\/blockquote>\n
\t  (2) No  direction shall  be made under sub-section
\n     (1) for  the trial\t of an\toffence for which an accused
\n     person was\t being tried at the commencement of this Act
\n     before  any   court,  but,\t  save\tas  aforesaid,\tsuch
\n     direction may be made in respect of an offence, whether
\n     such  offence   was  committed   before  or  after\t the
\n     commencement of this Act.”<\/p><\/blockquote>\n
     A perusal of these provisions would show that the State
\nGovernment was\tgiven an  uncontrolled power  to  refer\t for
\ntrial offences or cases by a general or special order. Under
\ns. 3,  the Government was empowered by a notification in the
\nofficial Gazette  to constitute\t Special  Courts  and  s.  4
\nprovided for  the appointment  of Special  Judges to preside
\nover such  Courts. Even\t though no conditions regulating the
\nexercise of  discretion by  the State  Government were laid,
\nSastri, C.J.,  upheld the  validity of the law on the ground
\nthat the State in the exercise of its governmental power was
\nentitled to  make laws\toperating differently  to  different
\ngroups of classes of persons. Elaborating the point, Sastri,
\nC.J., observed:\n<\/p>\n
\t  “In the face of all these considerations, it seems
\n     to me difficult to condemn section 5(1) as violative of
\n     Article 14,  If  the  discretion  given  to  the  State
\n     Government\t  should    be\t exercised   improperly\t  or
\n     arbitrarily,   the\t  administrative   action   may\t  be
\n     challenged as  discriminatory, but it cannot affect the
\n     constitutionality of  the law. Whether a law conferring
\n     discretionary powers  on an administrative authority is
\n     constitutionally valid  or not should not be determined
\n     on the  assumption that  such authority  will act in an
\n     arbitrary manner in exercising the discretion committed
\n     to it …. On the contrary,
\n558<\/span>
\n     it is  to be  presumed that a public authority will act
\n     honestly  and   reasonably\t in   the  exercise  of\t its
\n     statutory powers,\tand that the State Government in the
\n     present case  will, before directing a case to be tried
\n     by a  Special Court, consider whether there are special
\n     features and  circumstances which might unduly protract
\n     its trial\tunder the ordinary procedure and mark it off
\n     for speedier trial under the Act.\n<\/p><\/blockquote>\n
\t  …\t\t      …\t\t …\n<\/p><\/blockquote>\n
\t  Even\tfrom   the  point   of\tview  of  reasonable
\n     classification, I can see no reason why the validity of
\n     the Act  should not  be sustained.\t As already  pointed
\n     out, wide\tlatitude must be allowed to a legislature in
\n     classifying persons  and things to be brought under the
\n     operation of  a special  law, and\tsuch  classification
\n     need not  be based\t on an exact or scientific exclusion
\n     or inclusion.<\/p><\/blockquote>\n
     It might  be noticed,  therefore, that  even though  no
\nguidelines at  all were provided by the statute, yet Sastri,
\nC.J., held  that the classification was a reasonable one and
\nsustained  the\tvalidity  of  the  law.\t The  other  Judges,
\nhowever, did  not agree\t with the  view of Sastri, C.J., and
\nstruck down  the provisions  of section 5 of the West Bengal
\nAct. However,  the judgment  is wholly\tinapplicable to\t the
\npresent case  in which\tthe Act\t not only  lays down  clear,
\nexplicit and  exhaustive guidelines but further requires the
\nState Government  to  act  only\t on  the  basis\t of  certain
\nspecific conditions  and after\tbeing satisfied\t on a  fully
\napplication of\tthe mind  that a  prima facie  case was made
\nout. We\t have already  indicated that  by enacting s. 5, the
\nAct makes  the various\tclauses of the preamble as a part of
\nthat section.  Thus, any  possibility of  discrimination  or
\nabsolute or  arbitrary exercise of powers is excluded by the
\nAct. The  case of Anwar Ali Sarkar (supra), therefore cannot
\nfurnish any criterion for judging the validity of any of the
\nprovisions of the Act. It is in the light of this background
\nthat we\t have to  examine Anwar Ali Sarkar’s case. It may be
\nmentioned that\tone of the grounds which appealed to Sastri,
\nC.J., was  that the  object of\tthe West  Bengal Act  was to
\nprovide for  speedier  trial  by  instituting  a  system  of
\nSpecial\t Courts\t  with\ta  simplified  procedure  which\t was
\nsufficient, in\this opinion, to justify the validity of that
\nAct. Fazal Ali, J., (as he then was) laid stress on the fact
\nthat although  a  procedure  ensuring  a  speedy  trial\t was
\nprescribed by  the West\t Bengal Act yet that Act had not set
\nout any\t principle of  classification while  laying down the
\nnew procedure.\tHe held\t that in the absence of a reasonable
\nclassification a procedure which catered to a speedier trial
\nwas itself not sufficient to justify the constitutionally of
\nthe West  Bengal Act.  In the  instant case, we have already
\npointed out
\n559<\/span>
\nthat a\treasonable classification  of a\t particular  set  of
\npersons or class of persons, viz., those holding high public
\nand political  offices, has  already been made and that this
\nclassification is  consistent with the object of the statute
\nwhich is  a rational  one, viz., expeditious trial. This was
\nnot true  of the  West Bengal Act, s. 5 of which was held to
\nbe violative  of Art.  14 by Mahajan, J., also on the ground
\nthat there  was no  basis  for\tthe  differential  treatment
\nprescribed in the West Bengal Act. He observed:\n<\/p>\n
\t  “Section 5  of the  West Bengal Special Courts Act
\n     is hit by article 14 of the Constitution inasmuch as it
\n     mentions  no   basis  for\tthe  differential  treatment
\n     prescribed in the Act for trial of criminals in certain
\n     cases and for certain offences….\n<\/p><\/blockquote>\n
\t  By the process of classification the State has the
\n     power of  determining who should be regarded as a class
\n     for purposes  of legislation  and in  relation to a law
\n     enacted on a particular subject.”\n<\/p><\/blockquote>\n
These observations  can obviously have no application to the
\npresent case  because, as  already held by us, the Act makes
\nnot only a classification but a classification which fulfils
\nthe dual test laid down by this Court in several cases
\n     Reliance was placed by the counsel for the appellant on
\nthe following observations of Mahajan, J.:\n<\/p>\n
\t  “The present\tstatute suggests no reasonable basis
\n     or classification,\t either in respect of offences or in
\n     respect of\t cases. It  has laid  down no  yardstick  or
\n     measure for  the grouping either of persons or of cases
\n     or of  offences by\t which measure these groups could be
\n     distinguished from those who are outside the purview of
\n     the Special  Act. The Act has left this matter entirely
\n     to\t the   unregulated  discretion\t of  the  provincial
\n     government.”\n<\/p><\/blockquote>\n
These observations  also do  not apply\tto the\tfacts of the
\npresent case  because  the  Act\t in  the  present  case\t has
\nprovided a  rational basis  for the  classification and laid
\ndown specific  yardsticks for  grouping of  special class of
\npersons and  has provided a different procedure which is not
\nharsh (the  position being different in the West Bengal Act)
\nand which  is undoubtedly favourable and advantageous to the
\naccused.\n<\/p>\n
     Reliance was  also placed\ton  a  few  observations  of
\nMukherjea, J.,\twhere he  has pointed out that in making the
\nclassification the  legislature cannot certainly be expected
\nto provide absolute symmetry and has held
\n560<\/span>
\nthat   while   recognising   the   degree   of\t evil,\t the
\nclassification\tshould\t not  be  arbitrary,  artificial  or
\nevasive. He has stated:\n<\/p>\n
\t  “It must  rest always\t upon real  and\t substantial
\n     distinction bearing  a reasonable\tand just relation to
\n     the thing\tin respect  to which  the classification  is
\n     made.”<\/p><\/blockquote>\n
     There can\tbe no doubt that the present Act fulfils all
\nthe condition  laid down  by Mukherjea,\t J., who  found that
\ncertain provisions  of the  West Bengal\t Act  curtailed\t the
\nrights of  the accused\tin  a  substantial  manner,  thereby
\nresulting in  discrimination. Here  we have  already pointed
\nout that  no rights  of the  accused have been curtailed and
\nthat on\t the other  hand, the  procedure prescribed  is more
\nadvantageous and  fair to  him than that available under the
\nordinary law  of the  land, namely,  the  Code\tof  Criminal
\nProcedure.\n<\/p>\n
     Finally, Mukherjea,  J., pointed  out that the language
\nof s.  5(1) of\tthe West  Bengal Act  vested an unrestricted
\ndiscretion in  the State  Government in\t cases or classes of
\ncases to  be tried  by the  Special Court in accordance with
\nthe procedure  laid down  by that Act. This infirmity is not
\npresent in  the provisions  of the  present Act which treats
\nequally all persons who form part of the classification made
\nby the\tAct, the same procedure being applicable to all. The
\nordinary law  governs only those persons who are left out of
\nthe classification  and do  not fulfil the conditions of the
\npersons constituting  the class,  namely,  holders  of\thigh
\npublic and  political offices.\tThus,  the  observations  of
\nMukherjea, J.,\tare of\tno help\t to the\t appellants which is
\nalso true  of passages appearing in the judgment of Das, J.,
\n(as he\tthen was)  and cited  before us. In the first place,
\nDas, J.,  deals with  the conditions  necessary for  a valid
\nclassification, which  have already  been spelt\t out by\t us.
\nThere the  learned Judge  held that  if the State Government
\nclassified offences  arbitrarily, without  any reasonable or
\nrational basis having relation to the object of the Act, its
\naction will  amount to\tan abuse  of  its  powers.  We\thave
\nalready pointed\t out  that  there  is  no  question  of\t the
\nclassification\tmade   by  the\t Act  being   arbitrary\t  or
\nunreasonable because  the basis\t for the  classification  is
\nundoubtedly a  reasonable one  and has a rational nexus with
\nthe object  of the  Act, namely,  expeditious trial. We have
\npointed out  that it will be in the public interest that the
\noffenders sought  to be\t tried under  In the  Act are either
\nconvicted or  acquitted within\tthe shortest  possible time.
\nBose, J.,  conceded that  though the procedure prescribed by
\nthe West  Bengal Act  may promote  the ends  of justice\t and
\nwould be
\n561<\/span>
\nwelcome, yet  he took  serious exception to the differential
\ntreatment resulting therefrom. He observed:\n<\/p>\n
\t  “What\t I   have  to\tdetermine  is\twhether\t the
\n     differentiation made offends what I may call the social
\n     conscience of  a sovereign\t democratic republic.. It is
\n     the differentiation  which matters; the singling out of
\n     cases or groups of cases or even of offences or classes
\n     of offences,  of a\t kind fraught with the most serious’
\n     consequences to the individuals concerned, for special,
\n     and what some would regard as peculiar, treatment.”<\/p><\/blockquote>\n
     All these\tobservations have however, to be read in the
\nlight of  the peculiar\tprovisions of  the West\t Bengal\t Act
\nwhich contained\t no guidelines, no conditions, no safeguards
\nbut conferred  uncontrolled  and  arbitrary  powers  on\t the
\nGovernment to  make the\t classification as  it liked.  This,
\nhowever, is  not the case here. We are, therefore, unable to
\nagree with  learned counsel  that the  observations  of\t the
\nJudges constituting  the Bench\tin Anwar  Ali Sarkar’s\tcase
\n(supra) can  be called\tinto aid for the purpose of striking
\ndown the Act in the present case.\n<\/p>\n
     Thus, after  a consideration  of the  provisions of the
\nAct,  the   guidelines\tcontained   in\tthe   preamble,\t the
\nprocedural part\t of the\t Act and  the classification made we
\nare clearly  of the opinion that none of the sections of the
\nAct are\t violative of  Art. 14\tor  Art.  21  or  any  other
\nprovision  of\tthe   Constitution.   We   hold\t  that\t the
\nclassification is  valid and  reasonable and  has a rational
\nnexus with  the object\tof the\tAct and\t that the  procedure
\nprescribed  is\t fair  and   advantageous  to  the  accused.
\nAccordingly, we\t declare that the Act and its provisions are
\nconstitutionally valid\tand over-rule preliminary objections
\ntaken on behalf of the appellants.\n<\/p>\n
     FAZAL ALI,\t J. The appellant, V. C. Shukla (hereinafter
\nreferred to as ‘A-1’) in criminal appeal No. 494 of 1979 has
\nbeen convicted\tby the\tSessions Judge,\t Delhi under  s. 120
\nread with  ss. 409, 435, 411, 414 and 201, Indian Penal Code
\nand also  under s.  409, Indian Penal Code in respect of the
\npositive print\tand negative  and other material of the film
\n‘Kissa Kursi  Kaa; under  s. 411  read with  s. 109,  Indian
\nPenal Code;  under s.  414 read\t with s.  109, Indian  Penal
\nCode: under  s. 435 read with s. 109 I.P.C. and under s. 201
\nread with  s.  109,  I.P.C.  The  appellant,  Sanjay  Gandhi
\n(hereinafter referred  to as  ‘A-2’) in\t Criminal appeal No.
\n493 of\t1979 has been convicted by the Sessions Judge, Delhi
\nunder s.  120 B\t read with  ss 409, 435, 411, 414 and 201 of
\nthe Indian Penal Code and
\n562<\/span>
\nhas been  further convicted  under ss.\t435,  411  and\t201,
\nI.P.C. in  regard to  the negative and other material of the
\nfilm ‘Kissa Kursi Kaa’ as also under s. 409 read with s. 109
\nof the\tIndian Penal Code. Accused No. 1 was sentenced under
\ns. 120 read with ss. 409, 435, 411, 414 and 201 to two years
\nrigorous imprisonment;\tunder s. 409; regarding the negative
\nand other materials to two years rigorous imprisonment and a
\nfine of\t Rs.  20,000\/-\tand  in\t default  further  6  months
\nrigorous imprisonment;\tunder s.  409 regarding the positive
\nprint of  the film  to two  years rigorous  imprisonment and
\nfine of\t Rs. 5,000\/- and in case of default further rigorous
\nimprisonment for three months; under s. 411 read with s. 109
\nto rigorous  imprisonment for  one year;  under s.  414 read
\nwith s.\t 109 to rigorous imprisonment for one year; under s.
\n201 read  with s. 109 to rigorous imprisonment for one year;
\nand under  s. 435  read with s. 109 to rigorous imprisonment
\nfor one\t year and  six months.\tAccused No.  2 was sentenced
\nunder s.  120  B read with ss. 409, 435, 411, 414 and 201 to
\nrigorous  imprisonment\tfor  two  years;  under\t s.  435  to
\nrigorous imprisonment for one year and six months and a fine
\nof Rs.\t10,000\/- and  in case  of default  further  rigorous
\nimprisonment for  four months;\tunder  s.  411\tto  rigorous
\nimprisonment  for   one\t year;\tunder  s.  414\tto  rigorous
\nimprisonment for  one year;  under s.  201 in  regard to the
\nnegative etc.,\tto rigorous imprisonment for one year; under
\ns.  201\t  in  regard   to  13\ttrunks,\t etc.,\tto  rigorous
\nimprisonment for  one year and under s. 409 read with s. 109
\nto  rigorous  imprisonment  for\t two  years.  The  aforesaid
\nsentences or  imprisonment were\t ordered to run concurrently
\nin the case of both the accused.\n<\/p>\n
     The learned  Sessions Judge has given full and complete
\ndetails of  the prosecution  case against the appellants and
\nhas divided  the allegations  against them in several parts.
\nOn being convicted by the Sessions Judge, Delhi, the accused
\nfiled appeals  before the  Delhi High  Court  against  their
\nconvictions  and   sentences,  indicated   above,  and\twere
\nreleased  on  bail  pending  the  hearing  of  the  appeals.
\nMeanwhile, the\tSpecial Courts\tAct of\t1979 came into force
\nand by\tvirtue of  a declaration made under s. 7 of the said
\nAct., the  appeals stood  transferred to this Court and were
\nplaced for  hearing before us. As the learned Sessions Judge
\nhas given  all the necessary details of the prosecution case
\nagainst the  appellants, it  is not necessary for us to give
\nall the\t facts but  we propose\tto give a bird’s eye view of
\nthe sub-stratum of the allegations on the basis of which the
\nappellants have\t been convicted,  dwelling  particularly  on
\nthose aspects  which merit  serious consideration.  We\thave
\nheard learned  counsel for  the parties at great length both
\non the\tconstitutional points  involved in  appeals and\t the
\nfacts. By an order dated December 5, 1979, we
\n563<\/span>
\ndisposed of  the constitutional\t points which  were  in\t the
\nnature of  preliminary objection  to the  maintainability of
\nthese appeals  and overruled  these objections.\t The reasons
\nfor the\t said order  have been\tgiven by us which would form
\npart of\t this judgment.\t Coming now  to the  facts, shorn of
\nunnecessary details, the story begins with the production of
\na film\tcalled Kissa  Kursi Kaa\t by Shri Amrit Nahata, PW 1,
\nunder the  banner of  Dhwani Prakash.  PW 1  was a member of
\nParliament and\thad produced  the film in the year 1975. The
\nfilm, according\t to the\t prosecution, was a grotesque satire
\ncontaining a  scathing criticism  of the  functioning of the
\nCentral Government  and was open to serious objections which
\nwere taken  even  by  the  Central  Board  of  film  Censors
\n(hereinafter to\t be referred  to as  the ‘Board’). After the
\nfilm was  ready for release, PW 1, Amrit Nahata, applied for
\ncertification of  the film  on the 19th of April 1975 before
\nthe Board.  The film  was viewed  on April  24, 1975  be  an
\nExamining Committee  of the  Board and\twhile three  Members
\nwere of\t the opinion  that certificate\tfor exhibition, with
\ndrastic cuts  should be\t given, another Member and Mr. N. S.
\nThapa, the  Chairman disagreed\twith the  opinion  of  their
\ncolleagues  and\t accordingly  referred\tthe  matter  to\t the
\nRevising Committee. The Revising Committee after viewing the
\nfilm agreed  by a  majority of 6: 1 for certification of the
\nfilm, the  dissent having  been voiced\tby  Mr.\t Thapa,\t the
\nChairman  and\taccordingly  under   rule  25(ii)   of\t the
\nCinematograph (Censorship) Rules, 1958, a reference was made
\nto the\tCentral Government  on 8-5-75. In this connection, a
\nletter was  addressed to  PW 6, Mr. S.M. Murshed, who was at
\nthe relevant  period Director in the Ministry of Information
\n& Broadcasting,\t Incharge of  film and T.V. Projects and was
\nappointed  Joint   Secretary   on,   1st   May\t 1975.\t The
\ncorrespondence in  this regard\tis to  be found\t in the file
\nExt. PW\/6A.  Before making  his comments  PW 6\tsaw the film
\ntime in\t the middle  of May  1975. Meanwhile,  PW  1,  Amrit
\nNahata. was  directed to  deposit the  positive print of the
\nfilm comprising\t 14 reels  of 35  mm with the Films Division
\nAuditorium,  situate   at  1,\tMahadev\t Road,\t New   Delhi
\n(hereinafter to\t be referred  to as  the  ‘Auditorium’).  In
\npursuance of these directions, PW 1 deposited . the positive
\nprint and  an entry  thereof Was  made by the Librarian-cum-
\nProjectionist of the Auditorium which is Ext. PW 17\/A. PW 17
\nK.P. Sreedharan,  who was  a Technical Officer Incharge also
\ninspected the reels and found them in order.\n<\/p>\n
     Although Murshed,\tPW 6,  after seeing  the film agreed
\nwith the  opinion of the Chairman of the Board that film may
\nbe open\t to objection  on the  ground that  it was  full  of
\nsarcasm and contained criticism of the political functioning
\nof the government machinery
\n564<\/span>
\nyet he\twas personally of the opinion that certification for
\nexhibition should  not be  refused. The\t witness accordingly
\nrecorded a  note and  submitted it  to Mr. A. J. Kidwai, the
\nthen Secretary,\t Ministry of  information and  Broadcasting.
\nThe matter  was then  examined by Mr. I.K. Gujaral, the then
\nMinister of Information & Broadcasting but no final decision
\nwas taken.  Meanwhile, PW  1,  Amrit  Nahata  filed  a\twrit
\npetition in  this Court which is Ext. PW 1\/D. On the 23rd of
\nJune  1975,   a\t notice\t  was  issued  by  the\tMinistry  of
\nInformation &  Broadcasting to\tPW 1,  Amrit Nahata, to show
\ncause why  certification to  the film  be not  refused.\t The
\nnotice was  made returnable by 9-7-75. Thus, it appears that
\nthe Ministry  of Information  &\t Broadcasting  had  taken  a
\ntentative decision  to\trefuse\tcertification  to  the\tfilm
\nbecause of  its objectionable and offensive nature. We might
\nstate here  that so far, neither A-1 nor A-2 was anywhere in
\nthe picture.  In fact,\tthe position  is that the film faced
\nrough weather  even at the initial stage of consideration by
\nthe Board  as a\t result of  which the matter was referred to
\nthe Central  Government where  the question  of\t refusal  of
\ncertification was  seriously  considered  and  ultimately  a
\nnotice was  issued under  the directions of the Ministry. We
\nhave particularly  highlighted this  aspect  of\t the  matter
\nbecause the learned Sessions Judge was largely swayed by the
\nconsideration that A-1 took a very prominent part in banning
\nthe film  and  in  getting  the\t positive  print  and  other
\nmaterial in  his personal  custody in  order to\t destroy the
\nsame with  the aid  of A-2.  On the  other hand,  the  facts
\ndisclosed by  the prosecution  ex facie show that objections
\nto certification  of the  film had  been taken\tat the\tvery
\ninitial stage  and the\tultimate order was passed during the
\ntime when  A-1, Mr. Shukla had taken over as Minister, which
\nwas merely the final scene of a drama long in process.\n<\/p>\n
     Continuing the  thread from where we left it, Emergency
\nwas proclaimed\t911 the\t night between 25th and 26th of June
\n1975 and  soon thereafter  A-1\ttook  charge  as  the  Union
\nMinister of  Information &  Broadcasting and  he was  of the
\nopinion that  the film should be banned. On July 5, 1975, in
\npursuance of  the decision  taken by the Central Government,
\nthe Coordination  Committee directed seizure of the film and
\nthat  its  negatives,  positives  and  all  other  materials
\nrelating to  it be  taken in  the  custody  of\tthe  Central
\nGovernment vide\t Ext. PW 6\/D. On July 10, 1975, A-1 directed
\nthat the  film be banned from screening under the Defence of
\nIndia Rules,  vide Ext.\t PW 6\/E-4.  Finally, on\t the 11th of
\nJuly  1975,   PW  6,   Murshed,\t passed\t an  order  that  no
\ncertification was  to  be  given  to  the  film\t for  public
\nexhibition which  was followed\tby a  letter dated  July 11,
\n1975, forfeiting the film to the Government. In pursuance of
\nthe decision taken by the Central
\n565<\/span>
\nGovernment, PW\t39, S.\tGhose, Deputy Secretary, Incharge of
\nthe Films  Division, wrote  a letter to the Chief Secretary,
\nGovernment of  Maharashtra for\tseizure of all the positives
\nand negatives  of the  film as also other related materials.
\nIn pursuance  of this  order, the  Bombay police  seized the
\nentire film on 1-8-1975 and deposited the same in the godown
\nof the\tBoard. As, however, a final order had been passed by
\nthe Government banning the film, PW 1, Amrit Nahata, filed a
\npetition for special leave in the Supreme Court on 6-9-1975.
\nThis petition  was heard on 29-10-75 and this Court directed
\nthe Government\tto screen  the film  on\t 17-11-1975  in\t the
\nAuditorium for\tbeing shown  to the  Judges constituting the
\nBench. In  pursuance of\t the order of this Court, intimation
\nwas sent  to the  Ministry concerned  and PW  62, Mr. S.M.H.
\nBurney, who  was then  Secretary, Ministry  of Information &
\nBroadcasting, directed\tthat immediate\taction be  taken  to
\nimplement  the\t orders\t of  the  Supreme  Court,  and\tthat
\narrangements should  be made  to book the Auditorium for 17-
\n11-1975. By  a letter  dated 5-11-1975,\t Ext. PW  2\/A-2, the
\nSupreme Court  was also\t informed regarding  the steps taken
\nwhich, according  to the prosecution were the prelude to the
\nconspiracy  between   the  two\tappellants  leading  to\t the
\nseizure, disposal and destruction of the film.\n<\/p>\n
     Sometime thereafter, PW 2, L. Dayal, took over as Joint
\nSecretary (Films Division) in place of Mr. Murshed.\n<\/p>\n
     We\t might\t emphasise  at\tthis  stage  that  there  is
\nabsolutely no evidence to show that there was any meeting of
\nminds between  A-1 and\tA-2 nor\t is there  any\tmaterial  to
\nindicate that  A-2 played  any role  in the  banning of\t the
\nfilm. The  decision to\tban the\t film appears  to have\tbeen
\ntaken by  the Ministry\theaded by  A-1, on the merits of the
\ncase. No motive is attributable to A-1 at this stage because
\neven the  Chairman of the Board, PW 8, Mr. Thapa, who was an
\nindependent witness,  was of  the view\tthat the film should
\nnot be\tcertificated for  public exhibition.  Similarly, the
\nsteps taken  by the officers of the Ministry in pursuance of
\nthe banning  of the film, namely, the seizure of the film at
\nBombay and  its transfer to Delhi appear to be in the nature
\nof routine  to see that the decision taken by the Government
\nwas implemented. As no stay had been obtained by PW 1, Amrit
\nNahata, from the Supreme Court, the Government was not bound
\nto stay\t its hands.  On the  other  hand,  as  soon  as\t the
\nMinistry received the orders of this Court for screening the
\nfilm on\t 17-11-1975, immediate\tsteps were  taken to  comply
\nwith the orders of this Court.\n<\/p>\n
     Before we proceed further, we might indicate that it is
\nwell settled  that in  order to\t prove a criminal conspiracy
\nwhich is punishable under
\n566<\/span>
\ns. 120\tB of  the Indian Penal Code, there must be direct or
\ncircumstantial evidence\t to show that there was an agreement
\nbetween two  or more  persons to  commit  an  offence.\tThis
\nclearly envisages  that there  must be\ta meeting  of  minds
\nresulting in  an ultimate decision taken by the conspirators
\nregarding the  commission of  an offence. It is true that in
\nmost case  it will be difficult to get direct evidence of an
\nagreement to  conspire but a conspiracy can be inferred even
\nfrom  circumstances   giving  rise   to\t a   conclusive\t  or
\nirresistible inference\tof an  agreement between two or more
\npersons to  commit an offence. After having gone through the
\nentire evidence,  with the  able assistance  of Mr. Rajinder
\nSingh, learned\tcounsel for  A-1 and  of learned counsel for
\nthe State,  we are  unable to  find any\t acceptable evidence
\nconnecting either  of the  appellants with  the existence of
\nany conspiracy.\t We are\t further of  the opinion  that\teven
\ntaking the  main parts of the prosecution case at their face
\nvalue, no connection has been proved with the destruction of
\nthe film  and the  two appellants.  The prosecution  has, of
\ncourse, produced some witnesses to show the existence of the
\nalleged\t conspiracy  or\t some  sort  of\t connection  of\t the
\nappellants with\t the  destruction,  of\tthe  film  but\tthat
\nevidence, as  we shall\tshow, falls short of the standard of
\nproof required\tin a  criminal case.  We  realise  that\t the
\nprosecution   was    seriously\t handicapped   because\t the
\ninvestigation started  only after the Janata Government came
\ninto power in March 1977, that is to say, about a year and a
\nhalf  after   the  offences   in  question   were  allegedly
\ncommitted, by when naturally much of the evidence would have
\nbeen lost  and even some of the important witnesses examined
\nby the prosecution had turned hostile and refused to support
\nits case. Despite these difficulties, the prosecution has to
\ndischarge its onus of providing the case against the accused
\nbeyond reasonable doubt. We, therefore, propose to deal only
\nwith that  part of the evidence led by the prosecution which
\nhas been  relied upon  to prove some sort of a connection of
\nthe appellants with the alleged destruction of the film
\n     In\t this  connection,  we\tpropose\t to  deal  with\t the
\nevidence in three separate parts-\n<\/p>\n
\t  (1)  the deposit  of the  positive  print  in\t the
\n\t       Auditorium and  its alleged  transfer to\t the
\n\t       personal custody of A-1 ;\n<\/p><\/blockquote>\n
\t  (2)\tthe arrival  of thirteen  trunks  containing
\n\t       negative and  other material  related to\t the
\n\t       film at New Delhi from Bombay in pursuance of
\n\t       the orders  of A-1  and their  transfer to 1,
\n\t       Safdarjung Road,\t then to the Maruti Complex;
\n\t       and
\n567<\/span>
\n\t  (3)  the actual  orders alleged to have been given
\n\t       by A-2  for burning  the film in the premises
\n\t       of  the\t Maruti\t Complex   which  operation,
\n\t       according to  the prosecution was carried out
\n\t       by the  approver, PW  3, Kherkar,  and  other
\n\t       witnesses  between   the\t 10th  and  24th  of
\n\t       November 1975.<\/p><\/blockquote>\n
     Although there  are other elements on which prosecution
\nhas adduced evidence which is by no means very convincing or
\nconsistent but\teven if\t we  assume  those  elements  to  be
\nproved, if the three aspects indicated above, are not proved
\nthe prosecution is bound to fail.\n<\/p>\n
     We now proceed to deal with the first part of the case.
\n     (1) The deposit of the prints at the Auditorium and its
\nalleged transfer to the personal custody of A-1.\n<\/p>\n
     In the  Auditorium, PW 17, Sreedharan screened the film
\nin order  to show the same to PW 6, Murshed, on the 22nd May
\n1975 and  again on  the next  day at  the  instance  of\t the
\nMinistry of  Information &  Broadcasting. Some private shows
\nwere also  screened at\tthe instance  of PW 1, Amrit Nahata,
\nthough this was not permissible under the Rules. It was also
\nthe prosecution\t case that  PW 39,  Ghose and  PW 61,  C. K.
\nSharma met  PW 17,  Sreedharan and  PW 18, Bhawani Singh and
\nexamined the  prints which were then kept in the green room.
\nGhose then  rang up  Sreedharan and  told him  that  he\t was
\ncoming to  the Auditorium  to take  delivery of\t the prints.
\nAccordingly, PW\t 39, Ghose  is said  to have  arrived at the
\nAuditorium and the fourteen reels contained in cans were put
\non the\tback seat  of his  car. PW  39, Ghose  then went  to
\nShastri Bhavan\tand put\t the cans  in the dicky of the staff
\ncar of\tA-1 in\tthe presence of the driver, Babu Ram, PW 33.
\nThereafter, when  A-1 came,  Babu Ram  took the\t car  to  1,
\nSafdarjung Road where the cans were unloaded and kept in the
\noffice of  R. K. Dhavan, Additional Private Secretary to the
\nthen Prime  Minister. In  support of  this part of the case,
\nthe prosecution\t examined PW  18, Bhawani Singh, PW 33, Babu
\nRam; PW\t 61, C.K. Sharma; PW 57, V.S. Tripathi, PW 60, R. L.
\nBandish and  PW 39,  Ghose. So\tfar as PWs 39, 57, 60 and 61
\nare concerned,\tthey did  not support  the prosecution\tcase
\nregarding the  transfer of  the prints to the custody of A-1
\nas alleged  by the  prosecution. So  the only  witnesses  to
\nprove the  factum of  transfer\twere  PWs  17  and  33.\t The
\nprosecution also  examined some\t other witnesses PW 1, Amrit
\nNahata, PW  2, L.  Dayal and  PW 62, Burney to show that the
\ntransfer
\n568<\/span>
\nof the\tpositives of  the film\tto the\tcustody of  A-1\t was
\ncarried out  at the oral instruction of A-1. PW 62, however,
\ndid not support the prosecution and thus, on this point, the
\nonly witnesses worth considering are PWs 1 and 2.\n<\/p>\n
     We would  first refer  to the  evidence of\t PW 1, Amrit
\nNahata. He  stated that\t he  was  directed  to\tdeposit\t the
\npositive print\tof the Films to Films Division Auditorium at
\nMahadev Road and consequently he complied with the direction
\non 17-5-1975, and obtained a receipt. The witness goes on to
\nstate that  one of  the factors\t which weighed\twith him  in
\nwithdrawing the\t writ petition\the had\tfiled in the Supreme
\nCourt  was   that  he  was  persuaded  and  pressurised\t and
\nthreatened  by\tA-1  to\t withdraw  the\twrit  petition.\t He,
\nhowever, admitted  in his cross-examination that the process
\nof persuasion and pressurisation and threats was carried out
\nnot on\tone but\t on several  occasions. He  then went to the
\nextent of saying that the Minister (A-1) used to talk to him
\nin  this   connection  in  Parliament,\tin  his\t office\t and
\nsometimes even\tat Shastri  Bhavan. He\tfurther stated\tthat
\neven in\t the Central  Hall of Parliament he did not hesitate
\nfrom threatening  him. The  witness admitted  that he  never
\nfiled any  written  application\t before\t the  Supreme  Court
\nalleging the  threats given to him by A-1. He further admits
\nthat after  the Janata\tGovernment took\t over in  March 1977
\nwhile he had written to Mr. L. K. Advani, who succeeded A-1.
\nregarding  the\t film,\the  made  no  mention  of  any\tsuch
\nconversation between  him and  A-1 about  the threats,\tetc.
\nFinally, he  admitted that  no one was present in the office
\nwhen he\t talked to, Mr. Shukla. In view of these statements,
\nwe find\t it difficult  to believe  the witness.\t The  entire
\nversion given  by him  is  inherently  improbable,  firstly,
\nbecause of  his failure to draw the attention of the Supreme
\nCourt to  the threats,\tetc. Secondly,\tit is  impossible to
\nbelieve that  after the\t Janata Government came to power and
\nhe wrote a letter to Mr. Advani regarding the film, he would
\nnot mention  that he  had been\tpressurised or threatened by
\nA-1 when he was undoubtedly very much interested in his film
\nbeing exhibited and bore a serious grouse and animus against
\nA-1 because  he had  refused certification for exhibition of
\nhis film. In these circumstances, we are unable to place any
\nreliance of  the testimony  of this  witness so\t far as\t the
\nallegation of  threats, pressurisation, etc., made by A-1 is
\nconcerned. Thus,  if his evidence is rejected on this point,
\nthen excepting\tthe testimony  of PWs  2 and 63, there is no
\nevidence to  show that\tA-1 had\t any connection or link with
\nthe transfer of the positive print of the film.\n<\/p>\n
     This brings  us to\t the consideration  of an  important
\nwitness PW  2, L.  Dayal, on  whom great  reliance has\tbeen
\nplaced by the learned
\n569<\/span>
\nSessions Judge.\t So far as PW 2 is concerned, he states that
\nsometime in  the first\tweek of November, A-1 called him and
\nsaid that  he had  decided to  keep all material relating to
\nthe  film   in\this   personal\tcustody\t and  that  detailed
\narrangements for  the delivery of the material would be made
\nby his\tpersonal staff\tand the\t work would  be\t done  by  a
\nrespectable officer.  The witness further states that PW 57,
\nV. S.  Tripathi, was  also present  at the  time  when\tthis
\nconversation between  the witness  and A-1  took  place.  He
\nfurther states\tthat he\t had apprised  PW  62,\tBurney,\t the
\nSecretary, of the talk he had with A-1. Both PW 57 and PW 62
\nhave not  supported the\t witness on  these points  and\thave
\ndenied the  same. The  witness had  also stated\t that he had
\ncalled PW  39, Ghose and apprised him of the instructions of
\nthe Minister  for carefully  and confidentially\t putting all
\nmaterial in  the personal  custody of  the Minister.  Ghose,
\nhowever, in  his evidence  does not  support  the  story  of
\ninstructions by\t the Minister  and denies  having been\ttold
\nanything of  the kind  by the  witness. Of  course, all\t The
\nthree witnesses,  namely, Tripathi.  Burney and\t Ghose,\t had
\nbeen declared  hostile. The witness further goes on to state
\nthat he\t had called  PW 4,  Khandpur, who  happened to be in
\nDelhi and had told him that all the film material pertaining
\nto the\tfilm ‘Kissa  Kursi Kaa’\t Lying at  Bombay had  to be
\ncarefully and confidentially collected and sent to Delhi. PW
\n4,  however,   clearly\tadmits\tin  his\t evidence  that\t the
\ninstruction which  he had  received was to send the material
\nto the\tMinistry of  Information & Broadcasting. As we shall
\nshow,  PW   2  appears\t to  be\t deeply\t interested  in\t the
\nprosecution. In\t these circumstances,  even Mr.\t Jethmalani,
\nappearing for  the State, frankly conceded that he would not
\nask the\t Court\tto  rely  on  this  witness  unless  he\t was
\ncorroborated by\t some other  independent evidence.  In fact,
\nfar from there being any independent evidence to corroborate
\nthe version  of the  witness in\t regard to  the\t instruction
\ngiven by  A-1, the  persons to\twhom the  witness  mentioned
\nthese facts,  viz., Tripathi,  Burney and  Ghose,  have\t not
\nsupported him. Thus, so far as the role played by A-1 on the
\nfirst part  of the  case  is  concerned,  this\tis  all\t the
\nevidence produced by the prosecution and is this evidence is
\nrejected, Then\tit is  not proved  at whose  instruction the
\nfilm  cans  were  transferred  from  the  Auditorium  to  1,
\nSafdarjung Road\t nor has  it been  established that this was
\ndone with the knowledge of A-1.\n<\/p>\n
     Coming back  now to the evidence of the transfer of the
\npositive print from the Auditorium into the car of Ghose and
\ntherefrom to  the staff\t car of\t A-1 at\t Shastri Bhavan\t and
\nfinally to  1, Safdarjung  Road, the  evidence\tled  by\t the
\nprosecution consists  of PWs  17 and 33. The other witnesses
\nexamined on this point have not supported
\n570<\/span>
\nthe prosecution case. From the evidence of PW 17, it appears
\nthat PWs  Ghose, C.  K. Sharma and Bhawani Singh met him and
\nexamined the  prints and  then the  prints were\t kept in the
\ngreen room. Later, the same day Ghose rang up the witness to
\ninform him  that he was coming to take the positive print of
\nthe film  which should\tbe  kept  ready.  Thereafter,  Ghose
\narrived and  the prints were brought from the green room and
\nplaced in  the back  seat of  car of Ghose. Ghose thereafter
\ndrove the  car but gave no receipt for taking the film. Half
\nan hour\t later,\t according  to\tthe  witness,  there  was  a
\ntelephone call from Tripathi to enquire if the film had been
\ndelivered to  Ghose. The  witness informed him that this had
\nbeen done.  I was  also stated\tby the witness that a letter
\n(Ext. PW  17\/E and  E-1) was  got written by Ghose before he
\ntook the  film in  his car.  . It  may be  noticed here that
\nprior to  the filing  of the FIR an inquiry had been held by
\nPW 40, Narayanan, into the manner how the prints of the film
\nwere missing  and in that inquiry PW 17, Sreedharan, did not
\nsay at\tall that  Ghose had  taken away\t the film.  In\tthis
\nconnection, the witness deposed as follows:-\n<\/p>\n
\t  “Q. You  did not tell Shri Narayanan that S. Ghose
\n     had come  to you  in his  car and you had delivered the
\n     film to him in his car and he had taken it away?
\n\t  Ans. No.  I did  not tell him like this (Voltd:-It
\n     was so  as S.  Ghose had asked me to say differently to
\n     Shri Narayanan and I stated as advised by S. Ghose.)
\n\t  Q. You  know that enquiry had been ordered by Shri
\n     L. K. Advani, Minister for Information & Broadcasting ?
\n\t  Ans. Yes.\n<\/p><\/blockquote>\n
\t  Q. And yet you deliberately told a lie before Shri
\n     Narayanan?\n<\/p><\/blockquote>\n
\t  Ans. Yes, because of S. Ghose.”<\/p><\/blockquote>\n
     Thus, the\twitness admitted  that he spoke a lie before
\nNarayanan merely  because of  Ghose. Further,  even  in\t his
\nstatement before  the police, the witness did not state that
\nGhose had  come to  him for taking away the film on the same
\nday, i.e.,  the day  on which  Ghose had  telephoned that he
\nwould be  coming to take the film. So far as PW 39, Ghose is
\nconcerned, he  has totally denied having told the witness to
\nkeep the positive prints ready or that he ever took delivery
\nof the\tprints from the witness and put the same in his car.
\nThus, even  the prosecution case relating to the transfer of
\nthe positive  prints through  PW 39, Ghose, to 1, Safdarjung
\nRoad becomes doubtful.\n<\/p>\n
571<\/span><\/p>\n
Even so,  assuming that\t Ghose\tdid  take  delivery  of\t the
\npositive prints\t that does  not conclude  the matter because
\nthe prosecution\t has further  to prove\tthat the prints were
\ntaken away from the Auditorium at the instruction of A-1 and
\nthen kept in the staff car of A-1 and taken to 1, Safdarjung
\nRoad with  the knowledge of A-1. On this print, the evidence
\nof PW  17 is  absolutely silent and he says nothing about it
\nnor was he competent to say the same. The only other witness
\nPW 33, Babu Ram, states that sometimes in the winter of 1975
\nPW 61,\tC.K. Sharma,  called him and told him that there was
\nsome luggage (saaman) of Minister Saheb which was to be kept
\nin his\tcar and\t asked him to bring the Minister’s car close
\nto where  Ghose’s car was parked. The witness found 10 to 12
\nround boxes which were transferred to the dicky of the staff
\ncar. Thereafter,  according to the witness, PW 60, Bandlish,
\nhad a  talk with  Ghose and after the Minister had come, the
\ncar was\t driven\t to  1,\t Safdarjung  Road.  On\treaching  1,
\nSafdarjung Road,  the Minister\twent out  of the  car and  a
\nperson came  and took,\taway  the  saaman.  Thereafter,\t the
\nwitness drove  A-1 to  other places. In his statement before
\nthe police,  the witness  did not  state that  PW 61,  C. K.
\nSharma had  told him  that  the\t saaman\t of  Minister  Saheb
\n(emphasis being\t on Minister Saheb) was to be transferred to
\nthe dicky  of the  staff car. Both Bandlish and C. K. Sharma
\nhave not  supported the\t version of  this witness  and\thave
\ndenied everything.  Even taking\t the version of this witness
\nat its\tface value,  there is  nothing to show that when A-1
\nboarded the  staff car\tat Shastri Bhavan he was told either
\nby the\tdriver or  by anybody  that the\t film cans  had been
\nplaced in  the dicky  and were\tto be taken to 1, Safdarjung
\nRoad or that they had been brought from the Auditorium. Even
\nwhen the  car reached  1, Safdarjung  Road. Babu  Ram  never
\ninformed the  Minister about  the boxes\t having been kept in
\nthe dicky  nor is  there any evidence to show that the boxes
\nwere unloaded from the dicky of the Minister’s car either in
\nhis presence  or to  his knowledge.  Thus, all that has been
\nproved is that the cans were transferred from the Auditorium
\nto 1,  Safdarjung, Road. Taking the evidence of PW 17 and PW
\n33 as  also PW\t18, Bhawani  Singh at  its  face  value,  no
\nconnection between  A-1 and  the transfer  of the  film has,
\nbeen established.  Thus, the prosecution has failed to prove
\nthat the  positive prints  of the film were transferred from
\nthe Auditorium\tto the\tpersonal custody  of A-1 or that the
\nsaid transfer was done in accordance with his instruction or
\nto his knowledge.\n<\/p>\n
\t  (2) The  transfer of\tnegatives and other material
\n     related to\t the film  from Bombay\tto Delhi  and to  1,
\n     Safdarjung Road and from there to Maruti Complex at the
\n     order of A-1
\n572<\/span>
\n     So\t far  as  this\tpart  of  the  prosecution  case  Is
\nconcerned, the\tevidence is wholly insufficient to attribute
\nany knowledge  or ulterior  motive tn  A-1 in  directing the
\nnegatives to be sent from Bombay to Delhi. Some evidence has
\nno doubt been adduced be the prosecution to show some amount
\nof criminality\ton the\tpart of A-1 but that evidence, as we
\nshall show, is not very reliable.\n<\/p>\n
     To begin  with, according\tto PW  6, Murshed,  A-1 said
\nthat there  was some  sort of an informal discussion between
\nA-1, Mr. A. J. Kidwai, the then Secretary in the Ministry of
\nInformation & Broadcasting and the witness when A-1 directed
\nthat the  film be  banned and seized, but that no action was
\ntaken by the witness until the file reached him. The witness
\nadded that  on\tJuly  7,  1975\tthere  was  another  meeting
\nattended by Sarin and other officers which was presided over
\nby A-1\tand in\tthis meeting a final decision was taken that
\nthe film  should be taken over and mention was made that the
\nDefence of  India Rules\t should be pressed into service. The
\nwitness further\t stated that  ultimately in the Coordination
\nCommittee meeting  which was  held on July 10, 1975, and was
\nalso presided over by A-1, the earlier decision taken by the
\nGovernment was reiterated. The witness then goes on to state
\nthat he\t passed the  order Ext.\t PW 6\/A-9  on July  11, 1975
\nwhich directed\tthat the  certificate for  public exhibition
\nwas refused  and the  said order  was communicated  to PW 1,
\nAmrit Nahata.  This was\t followed by  another order  Ext. PW
\n6\/A-10 which  forfeited the film Kissa Kursi Kaa. Both these
\norders were approved by the Minister which had to be done in
\nconsequence of\tthe decision  taken by the Government. After
\nthe film  had been  banned and forfeited, the seizure of the
\nfilm material  at Bombay  became a necessary consequence and
\naccordingly a  letter dated  July 14,  1975 was issued under
\nthe signatures\tof PW  39, Ghose  to  The  Chief  Secretary.
\nGovernment of  Maharashtra for\tseizure of the film material
\nrelating to  the film  and requiring him to deposit the same
\nwith the Board.\n<\/p>\n
     The  next\tquestion  that\tarises\tis  as\tto  why\t the
\nnegatives and other material of the film were directed to be
\nsent to\t Delhi. It  is obvious that once the film was banned
\nand forfeited  and action  under the  Defence of India Rules
\nhad to\tbe taken,  it  was  in\tthe.  nature  of  a  routine
\noperation that\tthe negatives and other material of the film
\nshould\tbe   placed  in\t the  custody  of  the\tMinistry  of
\nInformation &  Broadcasting. This  appears to  US to  be the
\nmain reason  why A-l 11 directed that these materials may be
\nsent from  Bombay to  Delhi. In\t order\tto  incriminate\t the
\nMinister the  prosecution urges that this was done by A-l to
\nget the. negatives, etc., in his personal custody so that
\n573<\/span>
\nhe would  be in\t a position  to destroy\t the same.  On this,
\nthere does  not appear to be any clear evidence and even the
\nSessions  Judge\t  has  based   his   findings\tlargely\t  on
\nspeculation.\n<\/p>\n
     To begin with, L. Dayal, PW 2, who was then attached to
\nA-1 as\tJoint Secretary (Films) states that on 6-11-1975 A-1
\ntold him  in the  presence of  Tripathi, PW 57, that A-1 had
\ndecided to keep all material relating to the film in his (A-
\n1’s) personal  custody, that  detailed arrangements  for the
\ndelivery of  the material  would be  made by  A-1’s personal
\nstaff and  that the  work had  to be  done by  a responsible
\nofficer. The  witness adds  that he conveyed the decision to
\nthe Secretary  and to S. Ghose, PW 39, and then called PW 4,
\nKhandpur,  Chief   Producer,  Films   Division,\t Bombay\t who
\nhappened to  be in Delhi and asked him that all the material
\npertaining to the film ‘Kissa Kursi Kaa’ lying at Bombay had
\nto be  carefully and  confidentially collected\tand sent  to
\nDelhi. At  the time  when this\ttalk took  place  Ghose\t and
\nTripathi were  present, according  to PW 2, who then rang up
\nVyas  (Chairman\t  of  the   Board)  and\t  gave\thim  similar
\ninstructions in the presence of Ghose and Tripathi. However,
\nneither Tripathi  nor Ghose  supports PW 2 on the point that
\nhe had\tasked Khandpur\tto collect the. material of the film
\n‘carefully and\tconfidentially which  particular words\twere
\nattributed to  A-1 to  show his\t criminal  intent.  In\tthis
\nconnection, Ghose,  PW 39,  who was  declared hostile to the
\nprosecution, stated:\n<\/p>\n
\t  “As I was coming out of the room of Shri Burney, I
\n     dropped in\t Shri Dayal’s  room which  was in  the\tsame
\n     corridor with a view to inform him that had gone to the
\n     Auditorium and  checked the film and had found the film
\n     intact. I also told him that I had informed Shri Burney
\n     accordingly. I  found Shri\t K. L. Khandpur also sitting
\n     in the  room of Shri Dayal. Shri Dayal asked me to take
\n     my seat. After a few moments I found Shri V.S. Tripathi
\n     walking into  the room  of Shri Dayal. He also took his
\n     seat. When\t I entered  the room  Shri Dayal was already
\n     conversing with  Shri Khandpur.  Looking at us, namely,
\n     myself and V. S. Tripathi and Shri Khandpur, Shri Dayal
\n     generally enquired\t where. filmic material was lying at
\n     Bombay. Shri Dayal also gave direction to Shri Khandpur
\n     for collecting  the filmic\t material at  Bombay with  a
\n     view to  transporting it from Bombay to Delhi. I do not
\n     recall Shri  Dayal taking\tthe name  of the Minister or
\n     the Secretary  at the time of the discussion. I also do
\n     not recall\t whether he  mentioned word  secretly during
\n     this discussion. My feeling was that the entire
\n574<\/span>
\n     responsibility for the collection and transportation of
\n     the filmic\t material from Bombay to Delhi was left with
\n     Shri K. L. Khandpur.”<\/p><\/blockquote>\n
     The stand\tof Tripathi,  PW 57, who was also allowed to
\nbe cross examined by the prosecution was as follows:-\n<\/p>\n
\t  “Shri\t Dayal\t gave  instructions   to  Shri\tK.L.
\n     Khandpur in  my presence  and that\t of Shri S. Ghose to
\n     shift the\tnegative material  of film  Kissa Kursi\t Kaa
\n     from Bombay  to Delhi. At the request of Shri Khandpur,
\n     Shri Dayal\t also spoke  to late  Shri V.  D. Vyas about
\n     this matter and told him on telephone that the negative
\n     material was  to be  shifted from\tBombay to  Delhi and
\n     that the  transportation arrangement would be explained
\n     by Shri Khandpur to hi on his return to Bombay. Roughly
\n     this is  all that\tI re  member and in addition that it
\n     was early in the afternoon.”<\/p><\/blockquote>\n
     The witness  was  specifically  asked  whether  in\t his
\npresence A-1  gave instructions\t to L.\tDayal, PW 2, that he
\n(A-1) wanted  the positives and negatives of the film in his
\nown custody  immediately and  confidentially. He  denied the
\ncorrectness of\tthe assertion  and was\tcon fronted with the
\nfollowing portion  (‘E’ to ‘E’) of his statement made on the
\n25th April  1977, to  K. N.  Gupta, Deputy Superintendent of
\nPolice, C.I.A., New Delhi:\n<\/p>\n
\t  “Later, some\ttime in\t the afternoon, the Minister
\n     called me\tinside his  room. Shri Dayal was also inside
\n     and I noted that discussion was going on about the film
\n     ‘Kissa Kursi  Kaa .  The then  Minister of\t I & B, gave
\n     instructions to  Shri L. Dayal, Jt. Secy. (Information)
\n     in my presence that he wanted the positives & negatives
\n     etc. of  the film,\t “Kissa Kursi Kaa” to be handed over
\n     to him,  in his  custody immediately  & confidentially.
\n     The  Minister  also  said\tthat  the  arrangements\t for
\n     transportation will  be made  by  him  and\t Shri  Dayal
\n     should get in touch with the personal staff for this.”<\/p><\/blockquote>\n
     The  witness   also  denied   the\tcorrectness  of\t the
\nassertion that\tin his\tpresence later on Shri Dayal, PW 2,1
\nhad told Shri Khandpur, PW 4 that the film should be brought
\nfrom Bombay to Delhi “very carefully without telling anybody
\nabout it”.  He was  confronted with  portion ‘F to F’ of his
\nsaid statement to the police where the assertion appears.\n<\/p>\n
     Even Khandpur,  PW\t 4,  who  has  fully  supported\t the
\nprosecution  has  not  said  anything  in  his\tevidence  to
\nindicate that PW2 had said that
\n575<\/span>
\nthe  materials\tshould\tbe  ‘carefully\tand  confidentially”
\ncollected and  sent to\tDelhi. On  the other hand, PW 4 says
\nthus:-\n<\/p>\n
\t  “I was  called by L. Dayal, the Joint Secretary in
\n     his office.  I  was  asked\t to  make  arrangements\t for
\n     collecting all  material pertaining to film Kissa Kursi
\n     Kaa available at Bombay and to send the same to Delhi.
\n\t  I have  seen file  CFD\/51 shown to me, Ex. PW 4\/E.
\n     It\t is   named  “Confidential  Material  Received\tfrom
\n     C.B.F’.C. and  sent to  Ministry of  1 &  B in November
\n     1975″. This  file pertains\t to Films  Division  Bombay.
\n     This file pertains to the film materials of Kissa Kursi
\n     Kaa. Another  file pertaining  to this  film is the one
\n     which contains Exts. PW 4\/A to PW 4\/C.”\n<\/p><\/blockquote>\n
The file  Ext. PW  4\/E was  labelled as\t ‘Confidential’\t and
\nshows that  the film  material was  sent to  the ministry of
\ninformation &  Broadcasting in\tNovember 1975. But there was
\nnothing to  indicate in the files or in the evidence of PW 4
\nthat the  materials and\t negatives, etc., were to be sent to
\nthe personal custody of the Minister. As the film was banned
\nand forfeited,\tthere  was  nothing  incongruous  about\t the
\ntransfer of  the materials  to Delhi  being  treated  as  an
\nofficial and confidential matter and even if PW2 had told PW
\n4 that the film material should be dispatched “carefully and
\nconfidentially” that  would not\t show any criminal intent on
\nthe part of A-l.\n<\/p>\n
     In order  to show\tthat A-1  took\ta  somewhat  unusual
\ninterest in the dispatch of the negatives and other material
\nof the\tfilm from  Bombay to Delhi it is further the case of
\nthe prosecution\t that Tripathi\twho was Special Assistant to
\nA-1 was sent expressly to receive the materials at New Delhi
\nRailway station\t and make  arrangements for  their transport
\nBut Tripathi  categorically stated that he never went to the
\nRailway Station\t for  the  purpose  of\treceiving  the\tfilm
\nmaterial, etc.\tOn the\tother hand, PW2 states that on 9-11-
\n1975 PW4,  Khandpur informed  him on  telephone from  Bombay
\nthat the  film material\t was being sent from Bombay to Delhi
\nby Western  Express and\t would be reaching Delhi on the next
\nday and\t that two  officers, one  of them  being Kane, PW 5,
\nwere accompanying the material. PW 2 adds that he then, rang
\nup Ghose  and asked  him to  get in  touch with Tripathi for
\nmaking the necessary arrangements for transport and delivery
\nof the\tmaterial. The  witness goes  on to state that on the
\n10th November  1975, PW\t 39. Ghose. came to him and reported
\nthat the  film material\t had arrived and had been brought in
\ntempos arranged\t by A-l.  Ghose, however,  has not supported
\nthis witness on this aspect of the matter. Reliance was.\n<\/p>\n
576<\/span><\/p>\n
therefore, placed on the evidence of PW 5, Kane to show that
\nwhen he reached Delhi along with the film material, Tripathi
\nwas there  to receive  the same.  It is\t not  disputed\tthat
\nTripathi was  not known\t to PW\tS, Kane, before the 10th and
\nthat by\t the time  the witness\tsaw him\t at  the  New  Delhi
\nRailway Station\t he had\t seen him  only once  in Bombay. The
\nwitness doles  state that his pointed attention was drawn to
\nTripathi because  he had  asked him to settle the payment of
\ncharges to  the coolies\t and that but for this his attention
\nwould not  have been  drawn to Tripathi. He, however, admits
\nthat  he   his\tstatement   before  the\t Central  Bureau  of
\nInvestigation, he did not mention the fact that Tripathi had
\nasked him  to settle the matter of the payment of charges to
\nthe coolies. Thus, the existence of the only circumstance on
\nthe  basis  of\twhich  the  witness  could  have  identified
\nTripathi becomes  doubtful and\tin view\t of the\t categorical
\nstatement of  Tripathi that  he\t never\twent  to  New  Delhi
\nRailway Station on the 10th of November to receive the film,
\nit is difficult to accept the evidence of PW 5 that Tripathi
\nwas the\t person present at the station. The possibility that
\nthe witness  committed some mistake in identifying cannot be
\nruled out.  Moreover, the  identification of Tripathi by the
\nwitness for the first Lime in the court without being tested
\nby  a\tprior  test  identification  parade  was  valueless.
\nBesides, the  witness admits  that in the note Ext. PW 4\/E-2
\nhe did\tnot mention  Tripathi or any other person along with
\nGhose to have been present at the New Delhi Railway Station.
\nThus, even on the question of the arrival of the material of
\nthe film at New Delhi no direct connection with A-1 has been
\nestablished by the prosecution. In time, it is not proved by
\nthe prosecution\t that Tripathi\twas present  at the  Railway
\nStation to receive the film and hence it cannot be said that
\nA-l took  an unusual  interest in  seeing that\tthe film  is
\nproperly brought  from Bombay  to Delhi\t and placed  in\t his
\ncustody.\n<\/p>\n
     Coming back  to the  evidence  of\tPW2,  there  is\t yet
\nanother circumstance  which he\tproves and which merits some
\nconsideration. According  to the  witness,  in\tthe  special
\nleave petition\tfiled by PW 1, 12th March 1976 was fixed for
\nscreening  the\t film.\tThe   witness  adds   that  he\ttook
\ninstruction from  A-1 as  to what  should be  done when\t A-l
\nasked him  to inform  the Supreme Court through an affidavit
\nthat efforts  had been\tmade to trace the prints of the film
\nat Bombay as also at Delhi but that there were no chances of
\ntheir becoming\tavailable. The witness says that he was also
\ndirected to mention in the affidavit that such misplacements
\nhad often  occurred in\tthe past, and that he passed on this
\ninformation to\tthe Secretary, Mr. Burney who suggested that
\nthe orders  of\tthe  Minister  should  be  carried  out.  In
\nconsonance with\t the instruction,  Ghose filed\tan affidavit
\nbefore the  Supreme Court  on the  22nd March  1976 but\t the
\nHon’ble Chief Justice emphasised the
\n577<\/span>
\nimportance of  making the  film available for viewing by the
\nJudges. The witness recorded a note Ext. PW 2\/A-17 to, bring
\nthe matter  to\tthe  notice  of\t the  Minister.\t Ultimately,
\nhowever, as  PW\t 1,  Amrit  Nahata,  withdrew  the  petition
\nnothing further\t happened.  It\tappears\t that  while  .\t the
\npetition  was\tpending\t in   the  Supreme  Court,  contempt
\nproceedings ,,\twere taken  against  some  of  the  officers
\nincluding PW  2 who  also filed four affidavits, one of them
\non the\t28th November  1977 and\t the other three on the 28th
\nFebruary 1978. These affidavits are Ext. PW 2\/B-1 to B-4. In
\nthese affidavits  he wanted  to prove  that as\tthe film had
\nbeen mixed  up with  lot other\tfilms received in connection
\nwith Fifth  International Film Festival, the material of the
\nfilm Kissa  Kursi Kaa  was misplaced,  and that\t is a  stand
\nwhich comes  into direct  conflict with the testimony of the
\nwitness in court in which the entire blame is shifted to A-l
\nbut which  again runs  counter to are assertion made earlier
\nby the\twitness in  his own  hand. That assertion appears in
\nthe form  of an\t amendment to  a draft\tof a letter (Ext. PW
\n2\/DE) to  be sent  to Mr.  V. P. Raman. Additional Solicitor
\nGeneral and reads: in spite of efforts the film has not been
\nfound’. The  witness admits  clearly that this statement was
\nfalse to his knowledge. A witness who could go to the extent
\nof making  intentionally false\tstatement cannot  be  relied
\nupon for the purpose of convicting the appellant. On his own
\nshowing, he  was fully\tcollaborating with A-1 in a criminal
\ndesign and was therefore, no better than an accomplice whose
\ntestimony cannot  be accepted  in any material particular in
\nthe absence.  Of corroboration\tfrom reliable  sources. Even
\nMr.  Jethmalani,   the\terstwhile  senior  counsel  for\t the
\nprosecution conceded the correctness of this proposition. On
\nan appreciation\t of the\t evidence of PW 2 and other factors,
\ndiscussed  above,   his\t evidence   has-not  only  not\tbeen
\ncorroborated but definitely contradicted by other witnesses,
\ncircumstances and documents.\n<\/p>\n
     PW 63, K. N. Prasad was the Additional Secretary hl the
\nMinistry of  Information &  Broadcasting. He  stated that in
\nMarch 1977,  A. K. Verma, the then Joint Secretary wanted to
\nknow whether  the  Government  had  any\t inherent  power  to
\ndestroy property  which had  been seized  or forfeited,\t and
\nalso disclosed\tthat the enquiry was made in connection with
\nthe film  ‘Kissa Kursi Kaa’. The witness further stated that
\nafter two  or three  days Verma and PW 39, Ghose came to his
\nroom and  asked the  same question. The witness further goes
\non to  state that  he was  informed by\this P.A. that he was
\nrequired to  attend  a\tmeeting\t at  the  residence  of\t the
\nMinister (A-l),\t that when  he\tenters\tthe  office  at\t the
\nresidence of  A-l, he  found PW\t 62 Mr. Burney, Secretary to
\nthe Ministry  of information  &: Broadcasting, sitting there
\nand that  ML’. Burney  (PW 62)\tasked the  witness what\t the
\nlegal
\n578<\/span>
\nposition was  about the\t right of  the Government to destroy
\nforfeited property.  At that time, according to the witness,
\nTripathi, Mr.  Burney and  A-l were  present.  He,  however,
\nadmits that A-] did not ask any particular question.\n<\/p>\n
     From the  testimony of  PW 63  the prosecution seeks to
\ndraw an\t inference that\t it was A-1 at whose instance Verma,
\nGhose and Burney had asked for the advice! of the former (PW\n<\/p>\n
63). Now  A. K. Verma has not been examined as a witness and
\nhis statement  (seeking, the  advice  of  PW  (63)  is\tnot,
\ntherefore, admissible  in evidence?  while  both  Ghose\t and
\nBurney have  denied that  any such  conservation as has been
\ndeposed to  by PW  63 took  place between the latter and the
\nwitnesses in  the presence  af\tA-1.  In  fact,\t a  specific
\nsuggestion was put to Burney (PW 62) in the following terms:\n<\/p>\n
\t  “Q. When  Shri Nahata\t asked for the return of the
\n     film material,  did it  happen that  you discussed\t the
\n     matter regarding  availability and\t return of  the film
\n     material with Shri Shukla at his official residence and
\n     during that discussion Shri K. N. Prasad and Shri A. K.
\n     Verma had\talso come  there and  Shri V.  S.  Tripathi,
\n     Special Asstt. to the Minister was also present ?”
\n     His answer was an emphatic no.<\/p><\/blockquote>\n
     Besides, the  story given\tout by\tthe witness does not
\nappear to be very plausible, for it does not stand to reason
\nthat A-1  would depute\tno less\t than three officers (Verma,
\nGhose and  Burney), one after the other, to obtain advice of
\nPW 63 when A-1 could have had no difficulty in obtaining the
\nadvice himself.\t And then  how\twas  PW\t 63  selected  as  a
\nSpecialist in  the concerned  branch of law over the head of
\nsuperior officers,  even if  it was  considered hazardous to
\nenlist\tthe  services  of  a  competent\t lawyer\t ?  We\tare,
\ntherefore   unable to place reliance on the evidence of this
\nwitness\t on   this  point.   From  a   discussion   of\t the
\ncircumstances  mentioned   above,  we\tconclude  that\t the
\nprosecution has\t failed to  prove that\tthe  film  materials
\nbrought from  Bombay to\t Delhi were  placed in\tthe personal
\ncustody of  A-1 or  that A-1  had them transferred to No. l,
\nSafdarjung Road or to the Maruti Complex.\n<\/p>\n
      Another link in the chain of prosecution evidence (the
\nexistence of  which seems  to  have  been  accepted  by\t the
\nlearned Sessions Judge) was that two tempos belonging to the
\nMaruti (Company\t were sent  to the New Delhi Railway Station
\nwhere the  thirteen trunks  which  arrived  by\tthe  Western
\nExpress were  loaded therein and were taken to l, Safdarjung
\nRoad before  being transported\tto Maruti Complex where they
\nwere unloaded?\tkept and  later on.  destroyed. It  was also
\nalleged by
\n579<\/span>
\nthe prosecution.  that a  raid of the Maruti Complex carried
\nout in\t1977 A led to the recovery of the lid of a trunk, an
\nempty can  which earlier contained part of the film material
\nand a  gunny bag  to the inside of which were found sticking
\nscraps of  paper. The  investigators also claimed that a few
\nmiles away  from the  Maruti Complex  some round  cans\twere
\nrecovered from a nallah. The learned counsel for the defence
\nsubmitted that\tthe allegations about the trunks being taken
\nto Maruti  Complex and\tthe recoveries being made were false
\nand addressed to the court lengthy arguments in this behalf.
\nIt is,\thowever, not  necessary for  us\t to  go\t into  these
\ndetails at  this stage\tbecause assuming  for the purpose or
\nargument that the trunks were brought to the Maruti Complex,
\nand that  the film  material was destroyed unless A-l or A-2
\nwere shown to be connected with the transport or destruction
\nof the material, the charge against the appellants cannot be
\nheld to be proved.\n<\/p>\n
     (3) The  burning of  the film  `Kissa  Kursi  Kaa’\t in,
\nNovember 1975,\tat Maruti Complex at the orders\/instructions
\nof A-2
\n     In support\t of this  part\tof  the\t prosecution  story,
\nreliance was  placed mainly  on the testimony of Khedkar (PW\n<\/p>\n
3) who is the approver. The effort of the prosecution was to
\nestablish  that\t on  instructions  given  by  A-2  the\tfilm
\nmaterial  was\tburnt  inside  the  Maruti  Complex  on\t two
\nconsecutive nights  and that the fact was reported to A-2 an
\neach of\t the two  following mornings.  The approver  was the
\nSecurity officer  in the Maruti Limited at the relevant time
\nand the\t assertions made by him in this behalf may be split,
\nup as follows:\n<\/p>\n
     (a)   In the  middle of November 1975, A-2 sent for the
\n\t  approver and\ttold him  that some boxes containing
\n\t  films were  lying in\tthe stores,  that the  films
\n\t  were to  be destroyed\t when the  workers were away
\n\t  and that  the approver  would get  the keys of the
\n\t  locks on the boxes on the next day.\n<\/p><\/blockquote>\n
     (b)   On the  next day  one of  the security guards who
\n\t  used to  accompany A-2 handed over a sealed packet
\n\t  of paper  wrapped in cloth to the approver. On the
\n\t  same day the approver directed his assistant named
\n\t  Kanwar Singh Yadav, PW 32 to meet the approver (in
\n\t  the  Maruti  Complex)\t at  9.00  p.m.\t along\twith
\n\t  watchman .  Om Prakash, PW 31. Kanwar Singh Yadav,
\n\t  PW 32\t met the approver at 9.30 p.m.\tThey reached
\n\t  the factory  gate where  watchman om Prakash PW 31
\n\t  was waiting  for them. The approver signed the key
\n\t  register and\tobtained  the  key  of\tthe  General
\n\t  Store. The party of three opened the store and
\n580<\/span>
\n\t  found lying  therein the thirteen boxes containing
\n\t  the film  material. The boxes were opened with the
\n\t  keys which  were taken  out of  the sealed  packet
\n\t  mentioned earlier.  Each box\twas found to contain
\n\t  10 or 12 cans having film spools inside them. Each
\n\t  can bore  a label  with the  legend  ‘Kissa  Kursi
\n\t  Kaa’. The  first lot of the films was removed to a
\n\t  nearby pit  and was  burnt  there,  the  operation
\n\t  lasting from\t10.30 p.m.  to 2.30 p.m. watchman Om
\n\t  Parkash PW  31 however  left the  place  at  about
\n\t  11.00 p.m. because he felt giddy.\n<\/p><\/blockquote>\n
     (c)  Next morning the approver reported to A-2 that the
\n\t  work had been carried out in part only and that it
\n\t  would be  completed on  the night following, which
\n\t  was done from 10.00 p.m. to, 2.00 a.m.\n<\/p><\/blockquote>\n
     (d)   Next morning\t the approver again made a report to
\n\t  A-2 telling him that the job had been completed.<\/p><\/blockquote>\n
     Learned counsel  for the  defence\tcontended  that\t the
\nstand taken  by the  approver could  not be accepted at its,
\nface value  and had to be rejected lock stock and barrel. On
\na thorough  consideration of  the evidence  we find that the
\ncontention well-based as we shall presently show.\n<\/p>\n
     The  film\tmaterial,  according  to  the  case  of\t the
\nprosecution, is\t said to  have reached Maruti Complex on the
\n10th of\t November  1975.  After\t the  23rd  November,  1975,
\nKhedkar PW 3, on his showing, went away on leave. The period
\nduring which  the film\tis said to have been burnt thus lies
\nbetween the 10th, and the 23rd of November 1975. Further-
\nmore Khedkar,  PW 3 has firmly asserted that on the first of
\nthe two\t nights on which the burning operations were carried
\nout, watchman  Om Prakash,  PW 31 was on duty from 2.00 p.m.
\nto 10.00  p.m. He was examined at length in relation to duty
\nrosters P-22  and PW  32\/2 which were admittedly prepared by
\nhim. Duty  roster exhibit  P-22 covers\tthe entire  month of
\nNovember  1975,\t and  according\t to  the  entries  appearing
\ntherein watchman  Om Prakash, PW 31 was to be on duty during
\nthe whole of that month in the third shift only, i.e., daily
\nfrom 10.00  p.m. to 6.00 a.m. The approver however explained
\nthat the roster could be changed from time to time according
\nto the\texigencies of  the situation. He averred that on the
\n15th of November 1975, which was a Saturday and therefore an
\noff-day for watchman Om Prakash, PW 31, the latter took over
\nduty from  2.00 p.m.  to 10.00\tp.m.  as  a  substitute\t for
\nwatchman Tarachand.  A similar\tarrangement was\t made on the
\n18th of November 1975, when watchman Om Prakash,
\n581<\/span>
\nPW 31  changed places  with watchman  Ramdular and went over
\nfrom A\tthe 3rd\t to the 2nd shift (2.00 p.m. to 10.00 p.m.).
\nAs it  is, the\t15th and the 18th of November 1975, were the
\nonly two  days in the month on which watchman Om Prakash, PW
\n31 was\ton  duty  during  the  second  shift  as  a  special
\narrangement. For  the rest  of the  days during the month he
\nwas admittedly\tnever on  duty in  that\t shift.\t The  period
\nduring which the film was destroyed is thus further narrowed
\nB down\tso that\t the first  operation. Of burning could have
\ntaken place  on the night of the 15th of November or on that
\nof the 18th of November 1975, and on no other date.\n<\/p>\n
     Here we  may refer\t to another  aspect of\tthe  matter.
\nEvidence has  been produced  to show  that A-2 left Delhi by
\nair at 7.50 a.m. On the 17th of November 1975 for Hyderabad,
\nand arrived  back at  Delhi at\t8.30 p.m.  the same  day. He
\nagain took  off at  6.40 a.m.  On the 19th of November 1975,
\nfor Sikkim and returned to Delhi not earlier than 11.10 a.m.
\nOn the 23rd of November 1975. On both occasions he travelled
\nas a member of the party of the then Prime Minister, his own
\nmother, namely,\t Shrimati Indira Gandhi. The evidence of Dr.
\nK. P.  Mathur, DW  3, is  categorical in  this behalf and is
\nsupported by  the passenger  manifests (Ext.  DW-3\/A and DW-
\n5\/A) prepared  in relation to the journeys which contain the
\nname of A-2, and other documents which need not be mentioned
\nhere. We  regard his testimony as conclusive as was done not
\nonly by\t the learned  Sessions Judge but also by the Special
\nPublic Prosecutor  who made  a statement  at the  trial that
\ntestimony be  accepted by  the prosecution  in toto. In this
\nview of\t the matter  the prosecution  has to  prove  that  a
\nperiod of  four days  in between  the 14th  and the  18th of
\nNovember 1975, was such as A-2 was available in Delhi during
\nday time on the first, third and fourth of such days.\n<\/p>\n
     Now, as  pointed out  already, the\t burning could\thave
\ntaken place  only on  the 15th or the 18th of November 1975,
\nif the\tapprover and the duty rosters prepared by him are to
\nbe believed.  The 18th\tof November 1975, has to be excluded
\nfor the\t reason that on the two days following A-2 had to be
\nshown to  have been in Delhi (for receiving the report about
\nthe destruction\t of the material from the approver) which he
\ndefinitely was\tnot. The 15th of November 1975, as the first
\nnight of  the burning operation also does not click with the
\nprosecution case because, although the report about it could
\nhave been  made to  A-2 on  the next morning (inspite of the
\nfact that it was a Sunday and therefore a closed day for the
\nfactory),  A-2\t was  not  in  Delhi  or  anywhere  near  it
\nthroughout the\t17th so that the story of the report made to
\nhim by\tthe approver  about the\t second part  of the burning
\noperations loses
\n582<\/span>
\nweight. No  other dates being in point, the story propounded
\nby the\tapprover is  negatived by reference to unimpeachable
\ndocumentary and\t circumstantial evidence, although it may be
\nfurther noted  that neither  Kanwar Singh  Yadav, PW  32 nor
\nwatchman Om  Prakash, PW  31 supports the approver’s version
\nand  each   one\t of   them  was\t  declared  hostile  to\t the
\nprosecution.\n<\/p>\n
     The  recoveries   said  to\t  have\tbeen   made   during
\ninvestigation have  also not impressed us. As stated earlier
\nthe incriminating  articles said  to have  been seized are a
\nlid of\ta trunk,  an empty can, a gunny bag- all from inside
\nthe Maruti Complex-and a few cans from inside a nala lying a
\nfew miles  away. These recoveries are sought to be connected
\nwith the  destruction of  the  film  on\t the  basis  of\t the
\nfollowing averments  forming part  of the  testimony of\t the
\napprover:\n<\/p>\n
\t  “It was  after the  elections held  in March 1977,
\n     that Sanjay  Gandhi who was then Director met me in the
\n     factory hall.  Kanwar Singh Yadav was also there. Vijay
\n     Sharma, Bus  Body Manager,\t was  called  there.  Sanjay
\n     Gandhi asked  us to collect all the damaged trunks with
\n     the contractors  and to deposit them in Bus Body Store.
\n     We could  collect 12  out of  13 trunks mentioned above
\n     along with\t four or  five other  big trunks. These were
\n     deposited in  Bus Body  Store. Later  on I\t found\tthem
\n     shifted  to   Press  shop\t store.\t A  couple  of\tdays
\n     thereafter, Kanwar\t Singh Yadav,  Sanjay Gandhi  and  I
\n     went inside  the General  Store. We  walked down to Bus
\n     Body Store.  There Sanjay\tGandhi asked  Panna Lal, Bus
\n     Body Supervisor  and  in  charge  Bus  Body  Store,  to
\n     collect all  the damaged  locks  available\t with  them.
\n     Panna Lal passed on the order to Om Prakash who was Bus
\n     Body Clerk Incharge Stores. About 25 damaged locks were
\n     collected. These is included Harrison, Tiger and Godrej
\n     Locks. Godrej  locks were\t4 or 5 . Sanjay Gandhi asked
\n     me to get all those collected locks melted in a foundry
\n     and I  got them  melted…. Ram  Lakhan was Incharge of
\n     the foundry  and I\t handed over  the collected locks to
\n     him.. Thereafter,\tscrapping of  the trunks  and  their
\n     removal was  performed by\tmy Asstt. Kanwar Singh Yadav
\n     and he  told me  about that. Kanwar Singh Yadav told me
\n     that Sanjay  Gandhi had  asked him\t to scrap the trunks
\n     and cans  and to  dispose them  off. He told me that he
\n     cut the trunks into pieces and threw them into the iron
\n     scraps which  were sold  to different  contractors.  As
\n     regards the  cans, he  told me  that he had damaged the
\n     cans and  thrown them  at different places on Rajasthan
\n     Highway and Rajasthan Bye-\n<\/p><\/blockquote>\n
583<\/span><\/p>\n
     pass….He told  me that  the trunks  had been cut into
\n     pieces and cans had been damaged in the Press Shop.”<\/p><\/blockquote>\n
     This  story  is  inherently  improbable.  The  thirteen
\ntrunks which  admittedly had  no marks\tof identification on
\nthem and  were of  the ordinary type available in any market
\nare said to have been shredded and the locks-which again are
\navailable in  plenty everywhere-are  alleged  to  have\tbeen
\nmelted in  the foundry but, strangely enough, the cans which
\nhad on\tthem labels  carrying the  legend ‘Kissa  Kursi Kaa’
\nwere subjected\tto a  much milder  treatment and were merely
\npressed and  then thrown  away\tat  various  places  on\t the
\nRajasthan Highway and Rajasthan Bypass to which Kanwar Singh
\nYadav, PW  32 had  to make  journeys off  and on.  It is not
\ndisputed that  if the cans were to be shredded or melted the
\noperation would not have presented any difficulty whatsoever
\nin view\t of the\t facilities available at the Maruti factory.
\nAnd, if\t that  be  so,\tsurely\tany  person  who  wanted  to
\nobliterate evidence  of the  commission of a serious offence
\nwould see  to it  that the  material  of  the  cans  was  so
\ntransformed as\tto be impossible of identification. There is
\nno reason  why all  of them should not have been melted into
\nlumps, or  in any  case shredded  beyond recognition. And we
\nalso do\t not see  how just one can would be left intact when
\nso much\t care was  bestowed on\toperations obliteration.  In
\nfact, it  may have  been much  easier for  the\tcans  to  be
\nshredded or  melted than  for them  to be  first pressed and
\nthen transported to far off places and thrown away there. In
\nthis view  of the matter we need not pursue this part of the
\ncase any further.\n<\/p>\n
     Thus, on  a complete  and careful\texamination  of\t the
\ncircumstances and the evidence, mentioned above, even taking
\nthe sub-stratum\t of the\t prosecution case at its face value,
\nthe prosecution has not been able to prove either that there
\nwas any\t existence of  any conspiracy between A-1 and A-2 to
\ndestroy the  film ‘Kissa  Kursi Kaa’  by burning  it  or  to
\ncommit any other offence in respect of the film. There is no
\nevidence to show that there was any meeting of minds between
\nA-l and\t A-2. We  have also found that even on the first two
\nparts  of  the\tprosecution  case,  the\t allegation  of\t the
\nprosecution that  the positive\tprints were  removed at\t the
\ninstance or  to the  knowledge of  A-l or that the negatives
\nand other  materials of\t the film  were sent  for by A-1 and
\nkept in\t his personal  custody has not been proved. The mere
\nfact  that   A-1  decided   to\tban  the  film\tand  refused
\ncertification for  public exhibition  and passed  orders for
\nseizure of  the film  and its transfer to the custody of the
\nMinistry of Information & Broadcasting does not disclose any
\noffence. We  have already shown that the decision to ban the
\nfilm was  not taken  by A-1  secretely or  clandestinely but
\nafter a full-fledged
\n584<\/span>
\ndiscussion in  the Coordination\t Committee meeting and it is
\nproved that  such meetings  are usually\t attended by  senior
\nofficers of  various Ministries,  as deposed  to  by  K.  N.
\nPrasad, PW  63. Further, that part of the case which relates
\nto  the\t burning  of  film  material  rests  solely  on\t the
\nuncorroborated testimony of the approver and is negatived in
\nso far as the role therein of A-l is concerned.\n<\/p>\n
     We may  mention here  that a  lot of  evidence has been
\nproduced by the prosecution to show:-\n<\/p>\n
     (a)   that the positive print of the film found its way
\n\t  into the  luggage compartment\t of the car in which
\n\t  A-1 then  travelled to  the Prime Minister’s house
\n\t  where the  print was\tunloaded by  someone in\t the
\n\t  absence of A-1; and\n<\/p><\/blockquote>\n
     (b)   that the negatives and other material relating to
\n\t  the film were taken in a tempo or two to the Prime
\n\t  Minister’s residence\tand from there to the Maruti
\n\t  Complex  where   they\t were  stored  before  their
\n\t  destruction.<\/p><\/blockquote>\n
     We have  considered it  purposeless to  go\t into  these
\nfactors for  the reasons  that the  connection of A-1 or A-2
\ntherewith remains  unproved as\tdiscussed above.  Had  these
\nfactors provided  circumstantial evidence  oh the  basis  of
\nwhich alone  the charge\t against either\t A-1 or A-2 could be
\nheld established  it would have been necessary for the court
\nto sift\t the evidence  produced in support thereof. But that
\nis definitely  not the\tcase, for,  if either or both of the
\nfactors are  proved, the inference of guilt of either A-l or
\nA-2 does not necessarily follow. For circumstantial evidence
\nto furnish evidence of guilt it has to be  such as it cannot
\nbe explained  on any  other reasonable hypothesis except the
\nguilt of  the accused  which is\t not the  case here  because
\nappellants A-l\tand A-2\t could not  be said  to be  the only
\npersons interested  in the destruction of the film if it was
\nas obnoxious  to the  then Prime  Minister or as critical of
\nthe  functioning   of  the  then  Union\t Government  as\t the
\nprosecution would  have us  believe. The  film and  all\t the
\nmaterial relating  to it  no doubt  appear to  have vanished
\ninto thin  air but  then neither  A-1 nor  A-2 can  be\theld
\nresponsible therefor,  in  the\tabsence\t of  proof  in\tthat
\nbehalf-proof which would exclude all reasonable doubt.\n<\/p>\n
     The prosecution  having thus  failed to  prove the case
\nagainst the  appellants,  their\t appeals  are  allowed,\t the
\nconvictions recorded  against and  the sentences  imposed on
\nthe appellants\tare set\t aside and they are acquitted of all
\nthe charges framed against them. Both the appel-\n<\/p>\n
585<\/span><\/p>\n
lants who  are on  bail shall  now be  discharged from their
\nbail-bonds. In\tview of\t the acquittal\tof appellant  No  1,
\nShukla in  Criminal appeal No. 494 of 1979 and appellant No.
\n2, Sanjay  Gandhi  in  Criminal\t appeal\t No.  493  of  1979,
\nCriminal appeal\t No. 492  of 1979,  filed by  the  State  is
\ndismissed. In view of the fact that we have made no comments
\non the\tconduct of  the investigation or on Mr. N. K. Singh,
\nno order need be passed on the application filed by him.\n<\/p>\n
S.R.\t\t\t     Cvl. App. 493 & 494\/7g allowed.\n\t\t\t\t  Cvl. App. 492\/79 dismissed\n586<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India V. C. Shukla vs State (Delhi Administration) on 11 April, 1980 Equivalent citations: 1980 AIR 1382, 1980 SCR (3) 500 Author: S M Fazalali Bench: Fazalali, Syed Murtaza 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-162408","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nV. C. 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