- (1.) IN the present writ petition, the learned counsel appearing on behalf of Union of INdia has raised 3 points, namely : - 1. that the Jaipur Enquiry Commission appointed under the Commissions of Enquiry Act, 1952 has no jurisdiction to issue notice to Union of INdia or any of its Officer; 2. that the documents which were submitted only for perusal and which should not have been taken on record, were in the nature of privileged documents and no order was passed with regard to the nature of documents on 31. 03. 1993 and, therefore, the present order dated 17. 9. 1993 is based on wrong facts; 3. that sufficient information has already been provided by the State Wing of the Police Department and before issuing any notice to the officers of INtelligence Bureau, permission of the Central Govt. was required under Section 5-A of the Commissions of Enquiry Act, 1952.
(2.) BRIEF facts of the case are that a Commission of Enquiry was appointed by the State Government to enquire into the totality of the circumstances leading to the law and order situation at Jaipur on and after 24. 10. 1990, and to make recommendations to the Government for avoiding the recurrence of such situation in future. In pursuance of the appointment of Commission for the above purposes, proceedings were started and notices were issued to the S. I. B. beside various other persons mentioned therein. An order was passed on 31. 03. 1993 in which the then Advocate General and the Advocate for the Commission and Advocate for C. P. I. (M) party were heard and the plea of the Department claiming privilege in relation to the reports and documents, other communications and photostat copies which were already produced before the Commission, was rejected. Against the said order dated 31. 3. 1993, a Writ Petition was filed, bearing No. 4170/93, which was decided by a Division Bench of this Court on 26. 08. 1993. The writ petition was dismissed with the following 3 observations: - "1. Produce the working system of the C. I. D. (Intelligence) i. e. the item No. 2 of the notices (Annexure-3 and 4 ). 2. Disclose the names of the officers who were deputed on duty, as mentioned in Item No. 3 of the notices (Annexure-3 and 4); and 3. to disclose the source/sources, as mentioned in Item No. 5 of the notices (Anx. 3 and 4 ). " An application on behalf of Subsidiary Intelligence Bureau dated 30. 07. 1993 was submitted and orders were passed thereon by the Commission, wherein it was observed that the Commission is not prepared to take a different view than the view taken earlier in the order dated 31. 03. 1993. It is also mentioned that Mr. Pareek, who is representing the Intelligence Bureau was not able to satisfy with regard to any document that the disclosure of the same would be detrimental to the public interest. It was also observed by the Chairman of the Commission that care has been taken that the copies of the documents are not made available to the parties and only inspection has been allowed. The first point which has been raised by the learned counsel appearing on behalf of the Union of India is that the definition clause 2 (a) defines the"appropriate Government", means - (i) the Central Government, in relation to a Commission appointed by it to make an inquiry into any matter relatable to any of the entries enumerated in List I or List II or List III in the Seventh Schedule to the Constitution; and (ii) the State Government, in relation to a Commission appointed by it to make an inquiry into any matter relatable to any of the entries enumerated in List II or List III in the Seventh Schedule to the Constitution:
(3.) ACCORDING to the above definition, it is submitted that the power of the Commission is restricted only with regard to the authorities which are mentioned in the List II and List III of the Seventh Schedule to the Constitution and since the constitution of S. I. B. is in List-I, item No. 8 therefore, the Commission has no power to issue notice with regard to the object for which it is established, to any of the officers of Central Bureau of Investigation. Section 3 of the Commissions of Enquiry Act, 1952 provides that the appropriate Government may, if it is of opinion that it is necessary so to do and shall, if a resolution in this behalf is passed by the House of the People, or as the case may be the Legislative Assembly of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the Inquiry and perform the functions accordingly. Section 3 gives power to the appropriate Government for appointment of Commission and the words "appropriate Government" has been defined in Clause 2 (a) of the Act of 1952 and, therefore, the definition which has been given relates to the powers of the Appropriate Government for appointment of Commission and not the power of the Commission for making any inquiry. The power of the Commission has been defined under Section 4 of the Act of 1952, which reads as under : "4. Powers of Commission : The Commission shall have the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely : - (a) Summoning and enforcing the attendance of any person from any part of India and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commission for the examination of witnesses or documents; (f) any other matter which may be prescribed. " From the above provision of Section 4 of the Act of 1952, no restriction is found with regard to the power of the Commission and, therefore, it cannot be interpreted that the power of the Commission is restricted only to the Officers of the State and not of the Central Government when it is appointed by the State Government. Moreover, the provisions of Section 4 (a) provides for summoning and enforcing the attendance of any person from any part of India and examining him on oath. This power widens the scope of the Commission and does not put any restriction on it. The argument of the learned counsel for the petitioner that Section 5a of the Act of 1952 can be considered in the light as putting restriction on the power of the Commission with regard to utilising the services of the Officers of the Central Government and before exercising that power, the sanction of the Central Government is necessary. The provisions of Section 5a of the Act are as under : -. "5a Power of Commission to utilise the services of certain officers and investigation agencies for conducting investigation pertaining to inquiry; (1) The Commission may, for the purpose of conducting any investigation pertaining to the inquiry, utilise the services, (a) in the case of a Commission appointed by the Cental Government of any officer or investigation agency of the Central Govt. or any State Government with the concurrence of the Central Government or the State Government, as the case may be; or (b) in the case of a Commission appointed by the State Government, or any officer or investigation agency of the State Government or Central Government with the concurrence of the State Government or the Central Government, as the case may be. (2) For the' purpose of investigation into any matter pertaining to the inquiry, any officer or agency whose services are utilised under sub-section (1) may, subject to the direction and control of the Commission,- (a) summon and enforce the attendance of any person and examine him; (b) require the discovery and production of any document; and (c) requisition any public record or copy thereof from any office. (3) The provisions of Section 6 shall apply in relation to any statement made by a person before any officer or agency whose services are utilised under sub-section (1) as they apply in relation to any statement made by a person in the course of giving evidence before the Commission. (4) The officer or agency, whose services are utilised under sub- section (1), shall investigate into any matter pertaining to the inquiry and submit a report thereon (hereinafter in this section referred to as the investigation report) to the Commission within such period as may be specified by the Commission in this behalf. (5) The Commission shall satisfy itself about the correctness of the facts stated and the conclusions, if any arrived at in the investigation report submitted to it under sub section (4) and for this purpose the Commission may make such inquiry (including the examination of the person or persons who conducted or assisted in the investigation) as it think fit. " ;