Pranab Kumar Chattopadhyay, J.@mdashIt appears from the records that the West Bengal Pradesh Youth Congress gave a call of "Mahakaran Abhijan" on 21st July, 1993. At the time of the said "Mahakaran Abhijan", thirteen (13) persons were killed by police firing and several others were injured. The State Government appointed a Commission of Inquiry consisting of the Hon''ble Justice Sushanta Chatterjee (Retd.) to inquire into the aforesaid incident of police firing and the disturbances that followed the police firing. The appointment of the aforesaid Commission was notified by the State Government in The Kolkata Gazette dated 4th November, 2011. The terms of reference of the said Commission were also specifically mentioned in the aforesaid notification published in The Kolkata Gazette dated 4th November, 2011.
2. The Commission by a notice dated 10th October, 2012 called upon Mr. Nawal Kishore Singh, the appellant in A.S.T. No. 97 of 2014 to file either a written submission or deposition on affidavit as to the role played by the said appellant on 21st July, 1993, as the Deputy Commissioner of Police (South Division) on duty and also to place on record the relevant deposition made by the said appellant before the executive enquiry. The said appellant was also called upon by the Commission to appear and depose before the said Commission on November 20, 2012. The said notice was issued by the Commission u/s 4 read with Section 8B of The Commissions of Inquiry Act, 1952.
3. Challenging the aforesaid notice dated 10th October, 2012, the appellant Nawal Kishore Singh filed a writ petition being W.P. No. 24558 (W) of 2012 which was disposed of by the judgment and order dated 21st November, 2012 passed by a learned Judge of this court. A similar notice was also issued by the Commission on 27th February, 2013 to Sri Raj Kamal Johri, the appellant in A.S.T. No. 96 of 2014 u/s 4 read with Section 8B of The Commissions of Inquiry Act, 1952. Sri Johri challenged the aforesaid notice by filing a writ petition being W.P. No. 8928 (W) of 2013 which was disposed of by a learned Judge of this Court on 25th March, 2013. The Commission also issued a similar type of notice on 2nd January, 2013 to Sri Dinesh Chandra Vajpai, the appellant in A.S.T. No. 98 of 2014.
4. Sri Vajpai appeared and deposed before the Commission on January 22, 2013 and claimed similar leave before the Commission as was granted to the other appellant Sri Nawal Kishore Singh by the order dated 21st November, 2012 passed by a learned Judge of this Court in W.P. 24558 (W) of 2012.
5. The other appellant Sri Nawal Kishore Singh in the earlier writ petition being W.P. No. 24558 (W) of 2012 challenged the appointment of the Commission as well as the summons dated 10th October, 2012 issued by the said Commission whereby Sri Singh was asked to appear in person on 20th November, 2012 for adducing evidence and producing necessary documents relating to incident of Police firing on 21st July, 1993. By the said order dated 21st November, 2012, the Court, inter alia held that if at all the Commission ultimately indicts the said Sri Nawal Kishore Singh and occasion arises for him to challenge the finding of the Commission, he shall also be entitled to challenge the appointment of the Commission.
6. The learned Single Judge further directed as hereunder :-
"It is only after the oral evidence of the statement makers is received and the Commission is of the prima facie view on the basis of the materials on record that the petitioner''s conduct is required to be inquired into or that its recommendation is likely to prejudicially affect the petitioner''s reputation that he shall be given reasonable opportunity of being heard and to produce evidence in his defence, which necessarily would include the opportunity to produce witnesses in support of his version. The petitioner shall also have the right to cross-examine the statement makers who have deposed and would depose in future, and also to cross-examine any other witness who might depose in course of the inquiry."
7. As aforesaid, Sri Raj Kamal Johri, the appellant in A.S.T. No. 96 of 2014 had filed another writ petition earlier being W.P. No. 8928 (W) of 2013 challenging the earlier notice dated 27th February, 2013 issued by the Commission, which was finally disposed of by the learned Single Judge vide order dated 25th March, 2013. The learned Single Judge, by the aforesaid order dated 25th March, 2013 specifically held that the notice issued by the Commission ought to be construed as one issued only u/s 4 of the Commissions of Inquiry Act, 1952 and not u/s 8B thereof.
8. The learned Single Judge further directed that the directions contained in the first paragraph at internal page no. 6 of the order dated 21st November, 2012 passed by the learned Single Judge in W.P. No. 24558 (W) of 2012 shall apply to the petitioner, mutatis mutandis.
9. The aforesaid orders have not been challenged before the superior court and therefore, the said orders have become final and binding on the parties to the proceedings. The Commission thereafter issued two separate notices dated 28th January, 2014 u/s 5(2) of the Commissions of Inquiry Act, 1952 to the appellants Sri Raj Kamal Johri and Sri Nawal Kishore Singh. Another similar notice was issued u/s 5(2) of the Commissions of Inquiry Act, 1952 to the appellant Dinesh Ch. Vajpai on 29th January, 2014.
10. By the aforesaid similar type of notices, Secretary of the Commissions of Inquiry informed the appellants that the recording of the deposition of all the public witnesses is over and each one of the appellants were granted opportunity to inspect the records and to file written defence and thereafter to appear before the Commission as envisaged under law and with particular reference to Section 5(2) of the Commissions of Inquiry Act, 1952.
11. The appellant Sri Nawal Kishore Singh was asked to appear before the Commission by the aforesaid notice dated 28th January, 2014 on 19th February, 2014 at 12.30 P.M. The other appellant Sri Raj Kamal Johri was asked to appear before the Commission on 21st February, 2014 at 12:30 P.M. by a separate notice dated 28th January, 2014. The appellant Sri Dinesh Ch. Vajpai was however, directed to appear by the notice dated 29th January, 2014 before the Commission on 25th February, 2014 at 12.30 P.M.
12. Challenging the aforesaid notices, each one of the appellants herein filed three separate writ petitions before this court. All the three writ petitions were finally heard and disposed of by the common judgment and order dated 26th February, 2014. Assailing the aforesaid common judgment and order dated 26th February, 2014 passed by the learned Single Judge, three separate appeals were preferred at the instance of the three writ petitioners. In connection with the aforesaid appeals, stay applications were also filed. All the three appeals and the connected stay applications were heard analogously since the facts are similar and the questions of law raised by the parties are identical in nature. The appeals and the connected stay applications are also disposed of by this common judgment and order.
13. Mr. Saktinath Mukherjee, learned senior counsel appearing on behalf of the appellants submitted that the Commission issued the impugned notices u/s 5(2) of the Commissions of Inquiry Act, 1952, but the same in reality have been issued u/s 8B of the Act, 1952 since the appellants herein were asked to inspect the records and to file written defence. Mr. Mukherjee submitted that in Section 5(2) of the Act of 1952, there is no scope of filing written defence.
14. Referring to Section 5(2), Mr. Mukherjee submitted that a person is only required to furnish information on such points and matters as in the opinion of the Commission are useful subject to any privilege that may be claimed by that person. Mr. Mukherjee submitted that in terms of the aforesaid provision, a person is a mere statement maker or an informer only subject to the privilege that he may be claiming.
15. Mr. Mukherjee submitted that the reputation of the appellants are protected u/s 6(1)(b)(ii) of All India Services (Death cum Retirement Benefit) Rules, 1958. Mr. Mukherjee further submitted that the reputation of an employee is part of his right to life under Article 21 of the Constitution of India. Mr. Mukherjee referred to and relied on the following decisions of the Supreme Court in support of the aforesaid contentions:-
1.
2.
16. Mr. Mukherjee further submitted that the impugned notices do not comply with the provision of Section 5(2) of the Act as the information required by the Commission on any point or matter has not been indicated at all in the said notices and on the contrary each one of the appellants/petitioners was called upon to go through the records and file Statement of Defence, which is outside the purview of the said provision.
17. Mr. Mukherjee submitted that the impugned notices also do not comply with the provisions of Section 8B of the Act of 1952 since the same do not record or disclose any finding or ground on which the conduct of the concerned appellant/petitioner is to be inquired into or likely to be prejudicially affected by the inquiry.
18. Mr. Mukherjee further submitted that no defence can be taken by the appellants unless the charges are framed.
19. Mr. Mukherjee relied on the following judgments in support of his arguments :-
1.
2.
3.
20. Mr. Mukherjee also submitted that the Commission in the present case issued the impugned notices when the evidence of the statement makers have not been completed. Referring to the impugned notices, Mr. Mukherjee submitted that in each of the said notices it has been specifically mentioned that the recording of the deposition of all the private witness is over. Mr. Mukherjee urged before this court that the impugned notices are vague and have been issued to the appellants herein in violation of the principles of natural justice as well as the specific provisions of the Act of 1952.
21. On behalf of the appellants, it has been submitted that the Commission cannot go into the conduct or reputation of anyone of the appellants/petitioners relating to the service career, in view of Rule 6 of All India Services (Death cum Retirement Benefit) Rules, 1958, as more than 4 years have elapsed between the date of retirement of the appellants from the service and initiation of the purported inquiry.
22. Mr. Mukherjee submitted that it is a statutory privilege, which each one of the appellants herein enjoys in law and the Commission has no jurisdiction to invoke Section 8B of the Act of 1952. Mr. Mukherjee submitted that the Commission was constituted on November 8, 2011 that is long after retirement of the appellants herein.
23. In the impugned notice dated 28th January, 2014 issued to the appellant Sri Nawal Kishore Singh, the Commission specifically mentioned inter alia:-
"................................................... .....................WHEREAS in terms of the order passed by the Hon''ble High Court, Calcutta in Writ Petition No. 24558 (W) of 2012 on 21.10.2012 filed by you, that "only after the oral evidence of the statement makers is received and the Commission is of the prima facie view on the basis of the materials on record that the petitioner''s conduct is required to be inquired into or that its recommendation is likely to prejudicially affect the petitioner''s reputation, he shall be given reasonable opportunity of being heard and to produce evidence in his defence"................................................ .............................."
24. In the impugned notice dated 28th January, 2014 issued to the appellant Sri Raj Kamal Johri, the Commission also specifically mentioned inter alia :-
"................................................... .....................WHEREAS you obtained leave of the Hon''ble High Court, Calcutta passed in Writ Petition No. 8928 (W) of 2013 that "only after the oral evidence of the statement makers is received and the Commission is of the prima facie view on the basis of the materials on record that the petitioner''s conduct is required to be inquired into or that its recommendation is likely to prejudicially affect the petitioner''s reputation, he shall be given reasonable opportunity of being heard and to produce evidence in his defence"..........................................."
25. In the impugned notice dated 29th January, 2014 issued to the appellant Sri Dinesh Ch. Vajpai, the Commission specifically mentioned inter alia :-
"................................................. ................WHEREAS you have sought similar leave as granted by the Hon''ble High Court, Calcutta in Writ Petition No. 24558 (W) of 2012 on 21st November, 2012 and thus desired to make statements "only after the oral evidence of the statement makers is received and the Commission is of the prima facie view on the basis of the materials on record that the petitioner''s conduct is required to be inquired into or that its recommendation is likely to prejudicially affect the petitioner''s reputation, he shall be given reasonable opportunity of being heard and to produce evidence in his defence".............................................."
26. Referring to the impugned notices issued to each one of the appellants, Mr. Mukherjee, learned senior counsel of the appellants submitted that the Commission is really seeking to inquire into the conduct of each one of the appellants/petitioners and the recommendation of the Commission in respect of any of the appellants/petitioners is likely to prejudicially affect the reputation of the concerned appellant/petitioner. Mr. Mukherjee therefore, submitted that the Commission in the guise of notice u/s 5(2) of the Act has virtually issued notice u/s 8B of the Act without disclosing the relevant materials which persuaded the Commission to hold a prima facie opinion that the conduct of each one of the said appellants/petitioners is required to be inquired into or the recommendation of the Commission may prejudicially affect the reputation of the appellants/petitioners. Mr. Mukherjee further submitted that the Commission can proceed u/s 8B of the Act only after completion of depositions by all the statement makers.
27. It is the specific contention of the appellants/petitioners that the privilege available under the said Rules of 1958 will apply also at the stage of Section 5(2), as the information to be furnished, may be utilized by the Commission in drawing up proceeding u/s 8B.
28. Mr. Kashi Kanta Moitra, learned senior counsel appearing on behalf of the Commission submitted that the appellants herein agreed before the Commission to depose further after depositions of private witnesses were over. Mr. Moitra submitted that the appellants herein did not honour the assurance/undertaking given earlier to the Commission and challenged again the notice of summons issued to them.
29. Referring to the impugned notices dated 28th January, 2014 and 29th January, 2014, Mr. Moitra submitted that there was no direction by the Commission to the appellants/petitioners to file written defence. Mr. Moitra submitted that the appellants herein were given opportunity to inspect the records and no direction was ever issued by the Commission to the appellants to disclose defence. Mr. Moitra submitted that the Commission only wants that the appellants/petitioners herein should appear before the Commission in order to enlighten the Commission on the points or on the facts which the said appellants did not state on the earlier occasion.
30. Mr. Moitra specifically submitted that it is the obligation on the part of the appellants to appear before the Commission and disclose all necessary informations which the said appellants can recollect and recall now. Mr. Moitra submitted that the appellants herein should appear before the Commission and tell the said Commission as to what happened on 21st July, 1993.
31. Mr. Moitra also submitted that the privilege claimed by the appellants virtually is what may be called "Immunity" from appearance and deposing on oath before the Commission in terms of the Notice of Summons issued u/s 4 or 5(2) of the Commissions of Inquiry Act, 1952.
32. Mr. Moitra further submitted that the appellant Sri Nawal Kishore Singh has been given re-employment and said Sri Singh is still serving as Chief Vigilance Commissioner, Govt. of West Bengal and therefore according to Mr. Moitra, said Sri Singh cannot refuse to appear before the Commission on any plea. Mr. Moitra specifically urged before this court that the appellants cannot claim "Immunity" in the guise of privilege in view of the law settled by the Supreme Court in the case of
33. Mr. Moitra relied on paragraph 40 of the aforesaid judgment which is set out hereunder :
"40. It is in this view of the matter and in view of the provisions contained in Sections 4 to 6 of the Act and the rules framed thereunder that we are of the opinion that the petitioners on the belief that they were persons covered by Section 8B could not avoid the consequences of Sections 178 and 179 by claiming absolute immunity from binding themselves by an oath or affirmation for answering questions put to them."
34. Mr. Moitra submitted that the term ''privilege'' as mentioned in Section 5(2) of the Act is distinguishable from the term ''privilege'' mentioned in Section 8B of the Act. According to Mr. Moitra, privilege mentioned in Section 5(2) of the Act can authorize a person not to disclose any information before the Commission which may be prohibited under the provisions of Indian Oath Act, 1969, Indian Evidence Act, 1872 and Official Secrets Act, 1923.
35. Mr. Moitra submitted that the appellants herein erroneously apprehended that the informations furnished or to be furnished before the Commission would be utilized by the said Commission in drawing up proceedings u/s 8B of the Act. According to Mr. Moitra, there is no basis for the aforesaid apprehension at this stage. Referring to Section 6 of the Act, Mr. Moitra submitted that no statement made by a person in course of giving evidence before the Commission shall subject him to, or to be used against him in any Civil or Criminal proceeding except in a prosecution for giving false evidence by such statement.
36. Mr. Moitra further submitted that on the facts of the instant case, Section 8B stage admittedly has not yet reached. Mr. Moitra also submitted that the appellants herein have been asked to appear before the Commission "in the deferred proceeding" i.e. in the examination-in-chief stage which have already commenced and the appellants have also participated.
37. Mr. Moitra submitted that public interest must prevail over private reputation.
38. Mr. Ashoke Kumar Banerjee, learned Govt. Pleader appearing on behalf of the State Government only submitted that the impugned judgment and order under appeal should be upheld by the Division Bench upon dismissing the appeals and the connected applications. No argument was advanced by the learned Government Pleader. No written notes of argument have also been filed on behalf of the State Respondents although this court granted specific opportunity in this regard.
39. The learned Single Judge by the common judgment and order under appeal dated 26th February, 2014 disposed of all the three separate writ petitions filed on behalf of the appellants herein. The learned Single Judge refused to interfere with the impugned notices issued to the appellants herein and dismissed all the three writ petitions filed on behalf of the appellants herein.
40. We are to decide now, whether the learned Single Judge was justified in refusing to interfere with the impugned notices issued to the appellants herein by the Commission. The learned Single Judge, while dismissing the writ petitions held that it is not the correct interpretation of Section 8B that defence can be asked to be raised only after a notice thereunder has been issued and not prior thereto.
41. The learned Single Judge further held that the privilege which the said appellant could claim has already been exhausted by reason of due compliance of the orders passed earlier by the said learned Single Judge in the earlier writ petition filed by the appellant Sri Raj Kamal Johri being W.P. No. 8928 (W) of 2013 and the other writ petition filed by the appellant Sri Nawal Kishore Singh being W.P. No. 24558 (W) of 2012.
42. The privilege mentioned u/s 5(2) of the Commissions of Inquiry Act, 1952 is the privilege at the stage of furnishing information on such points or matters as may be useful in the opinion of the Commission.
43. The privilege as contemplated u/s 5(2) of the Commissions of Inquiry Act, 1952 is a privilege available under the provisions of Oaths Act, 1969 and Official Secrets Act, 1923 etc.
44. The learned Senior Counsel representing the appellants submitted that this court should not restrict the expression "privilege" u/s 5(2) of the Commissions of Inquiry Act, 1952 only to the privilege granted under the Oaths Act, 1969 or Official Secrets Act, 1923 since the same would be adding word to the statute.
45. u/s 5(2) of the Commissions of Inquiry Act, 1952, the Commission has the power to require any person to furnish information on certain points or matters if in the opinion of the Commission such information may be useful or relevant to the subject matter of the inquiry. Such person is thus taken as an informer or an onlooker who may have witnessed the incident or any other person having knowledge of the incident may be asked to furnish information on certain points and matters.
46. The learned Single Judge while disposing of the earlier writ petition being W.P. No. 24558 (W) of 2012 (filed by the appellant Nawal Kishore Singh) by the order dated 21st November, 2012 and the other writ petition being W.P. 8928 (W) of 2013 (filed by the appellant Sri Raj Kamal Johri) by the order dated 25th March, 2013 specifically issued certain directions which are summarized as hereunder :-
1. That the concerned police officer should not be compelled to disclose his defence before examination and cross-examination of the statement maker is complete;
2. Adducing of evidence of the concerned police officer in defence and his cross examination must wait till deposition of statement makers are received;
3. That the concerned police officer shall appear only for the purpose of examination-in-chief to the extent he would like to have his version placed on record;
4. The concerned police officer shall not be cross-examined and in particular he shall not be under any obligation to disclose his defence at this stage.
5. Only after the oral evidence of statement makers is received, and the Commission is of the prima facie view on the basis of the materials on record that the conduct of the concerned police officer is required to be inquired into or that his reputation is likely to be prejudicially affected, the concerned police officer shall be given reasonable opportunity of being heard and produce evidence in defence which necessarily would include opportunity to produce witness in support of his version.
47. The aforesaid directions of the learned Single Judge are still binding on the Commission and if the Commission issues any notice to the appellants herein u/s 4 of 1952 Act, the same should be subject to the protections already subsisting in view of the aforesaid orders passed earlier by the learned Single Judge.
48. The arguments advanced by Mr. Moitra, learned senior counsel of the Commission that there is no privilege u/s 4 of the Commissions of Inquiry Act, 1952 and therefore the Commission can exercise power u/s 4 at this stage, is subject to the restrictions imposed by the learned Single Judge by the aforesaid orders passed in the earlier writ petitions.
49. Therefore, either u/s 4 or u/s 5(2) of the Commissions of Inquiry Act, 1952, the Commission at the highest can seek information only restricted to the knowledge of the concerned police officers, i.e., the respective appellants in these appeals about the incident to the extent the said appellants remember either out of memory or upon reference to the available documents. The police officers concerned however, cannot be cross-examined nor can be asked to disclose defence.
50. By the impugned notices issued to the appellants, respondent Commission has unnecessarily complicated the matter by quoting few sentences from the earlier order passed by the learned Single Judge and also mentioning that the proceeding before the Commission is deemed to be a judicial proceeding without mentioning the words "within the meaning of Sections of 193 and 228 of the Indian Penal Code, 1860".
51. In each one of the impugned notices, respondent Commission quoted certain directions of the learned Single Judge mentioned in the earlier order passed by the said learned Single Judge while deciding the earlier writ petition being W.P. No. 24558 (W) of 2012 filed by the appellant Sri Nawal Kishore Singh. The relevant extracts from the earlier order of the learned Single Judge mentioned in the impugned notices are set out hereunder :-
"..................................................Only after the oral evidence of the statement makers is received and the Commission is of the prima facie view on the basis of the materials on record that the petitioner''s conduct is required to be inquired into or that its recommendation is likely to prejudicially affect the petitioner''s reputation, he shall be given reasonable opportunity of being heard and to produce evidence in his defence............................"
52. By quoting the aforesaid directions from the earlier order passed by the learned Single Judge, Commission made it clear to each one of the appellants herein that the conduct of the said appellants will be inquired into or its recommendation may likely to prejudicially affect the reputation of the concerned appellants although Mr. Moitra, learned senior counsel of the Commission specifically submitted before this court that Section 8B stage has admittedly not yet reached. In the written notes of arguments filed on behalf of the Commission, aforesaid stand has been specifically recorded which is reproduced hereinbelow :-
"In this context and on the facts of the instant case, Section 8B stage admittedly has not yet reached. The appellants are asked to appear before the Commission "in the deferred proceeding" i.e. in the examination-in-chief stage which had already commenced and in which they have already participated stating before the Hon''ble Single Judge that they will appear before the Commission again after the depositions of private witnesses are over."
53. Before proceeding further, the relevant provisions of the Commissions of Inquiry Act, 1952 are set out hereunder :-
"Section 5(2). The Commission shall have power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject matter of the inquiry [and any person so required shall be deemed to be legally bound to furnish such information within the meaning of Section 176 and Section 177 of the Indian Penal Code, 1860 (45 of 1860)."
Section 8B. If at any stage of the inquiry, the Commission,-
(a) considers it necessary to inquire into the conduct of any person; or
(b) is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, the Commission shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence;
54. Provided that nothing in this Section shall apply where the credit of a witness is being impeached.
55. Persons likely to be prejudicially affected should be heard in terms of Section 8B of the Commissions of Inquiry Act, 1952. Since, on behalf of the Commission, it has been specifically submitted that Section 8B stage has not yet reached, question of inquiry into the conduct of the respective appellants and/or giving opportunity of being heard and to produce evidence in defence at this stage cannot and does not arise.
56. By the impugned notices, appellants herein have been directed to file written defence which can only be asked by the Commission at the stage contemplated u/s 8B of the Commissions of Inquiry Act, 1952 which undisputedly, has not yet reached. The Commission has not yet formed any prima facie opinion in respect of the appellant/appellants to the effect that the reputation of the said appellant/appellants may be prejudicially affected by the inquiry.
57. u/s 8B of the Commissions of Inquiry Act, 1952, the Commission can inquire into the conduct of the appellant/appellants or grant the appellant/appellants reasonable opportunity of being heard in the inquiry and to produce evidence in defence only after forming opinion that the reputation of the said appellant/appellants may be prejudicially affected by the inquiry.
58. The Commission has not yet formed any prima facie opinion prejudicing the interest of the appellant/appellants herein and the learned senior counsel of the appellants also admitted before this court that Section 8B stage has not yet reached. Therefore, we do not understand what the appellants can submit in defence at this stage.
59. The appellants cannot file written defence by projecting imagination. The Hon''ble Supreme Court in the case of Surath Chandra Chakravarty vs. State of West Bengal (supra) observed :-
"Para-4. .........................................The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the persons charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has also to be stated. This Rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be establish against him................................"
60. Referring to the All India Services (Death-Cum-Retirement Benefits) Rules, 1958, Mr. Mukherjee, learned senior counsel of the appellants claimed privilege on behalf of the appellants, which in our opinion can not be taken into consideration unless any step is taken by the Commission in terms of Section 8B of the Commission of Inquiry Act, 1952. The privilege claimed by Mr. Mukherjee referring to the aforesaid Death-Cum-Retirement Benefit Rules, 1958 will apply only at the stage of Section 8B and not at Section 5(2) stage.
61. The learned Single Judge held :-
"..............................................It is not the correct interpretation of Section 8B that defence can be asked to be raised only after a notice thereunder has been issued and not prior thereto................................"
62. We are of the firm opinion that a person can be asked to produce evidence in his defence by the Commission only in terms of Section 8B of the Commissions of Enquiry Act, 1952, if the Commission is of the prima facie view on the basis of the available materials on record that the conduct of the concerned person is required to be inquired into or that the recommendation of the Commission is likely to prejudicially affect the said person.
63. The learned Single Judge while deciding the earlier writ petition being W.P. No. 24558 (W) of 2012 specifically held as hereunder:-
"The petitioner shall not be cross-examined and, in particular, he shall not be under any obligation to disclose his defence at this stage."
64. We approve the aforesaid stand of the learned Single Judge. Since Section 8B stage has not yet reached, the appellants herein should not be compelled to disclose defence at this stage.
65. In the case of Smt. Kiran Bedi & Jinder Singh Vs. The Committee of Inquiry & Anr. (supra), the Hon''ble Supreme Court considered the provisions of Sections 4, 5 and 8B of the Commissions of Inquiry Act, 1952. The principle decided by the Hon''ble Supreme Court in the aforesaid case are very much applicable in deciding the issues raised before us in the present appeals. Since Section 8B stage has not yet reached, the appellants herein should not be compelled to disclose defence at this stage.
66. It is not in dispute that 13 persons were killed on account of police firing on 21st July, 1993 at Mayo Road, Dorina Crossing and Esplanade Row (East) when each one of the appellants herein was holding responsible position in the Kolkata Police Force. Therefore, the Commission has the power to ask the appellants herein to furnish information in relation to the aforesaid incident of police firing. The appellants herein cannot refuse to furnish information specially when the said appellants had never claimed that they had no knowledge in relation to the police firing on 21st July, 1993 which admittedly claimed 13 lives. The Government has appointed the Commission to inquire into the events leading to killing of 13 persons in police firing and injury of several others on 21st July, 1993 during the "Mahakaran Abhijan Programme" held at Kolkata. The Commission has been constituted also to inquire into the role of the police and/or other authorities.
67. The appellants herein being the responsible police officers of the Kolkata Police Force at the relevant time had the responsibility to maintain law and order in different parts of the City of Kolkata including surrounding areas of the Writers'' Building. Therefore, the said appellants cannot refuse to appear before the Commission to furnish necessary information or submit relevant documents, if the same are still available with them, in order to assist the Commission to ascertain the correct facts relating to the incident. However, while disclosing any document or furnishing any information before the Commission, the respective appellants will be entitled to claim privilege as available under the provisions of the Oaths Act, 1969 or Official Secrets Act, 1923 etc.
68. Privilege should be claimed only in relation to any document to be disclosed or information to be furnished before the Commission. The privilege mentioned in Section 8B is available to a retired Government Officer only to protect the reputation and service benefits available in the retired life. The aforesaid privilege, therefore, is not available to the appellants at this stage since Section 8B stage has not yet reached.
69 . With regard to the power of the Commission, the Constitution Bench of the Hon''ble Supreme Court while deciding the Contempt Petitions being (CRL.) No. 11 of 1990 (Dr. Subramanian Swamy Vs. Arun Shourie) with Contempt Petition (CRL.) No. 12 of 1990 held :-
"...The Commission constituted under the 1952 Act is a fact finding body to enable the appropriate Government to decide as to the course of action to be followed. Such Commission is not required to adjudicate upon the rights of the parties and has no adjudicatory functions. The Government is not bound to accept its recommendations or act upon its findings. The mere fact that the procedure adopted by the Commission is of a legal character and it has the power to administer oath will not clothe it with the status of Court..............................."
70. The Commission constituted herein is also a fact finding body and has no adjudicatory function.
71. For the reasons discussed hereinabove, the notices dated 28th January, 2014 and 29th January, 2014 issued to the respective appellants by the Commission and also the subsequent notices issued by the said Commission in terms of the impugned judgment and order under appeal cannot be sustained and the same are accordingly quashed.
72. The Commission will be at liberty to issue notice u/s 4 and/or Section 5(2) of the Commissions of Inquiry Act, 1952 to call upon the appellants herein or any of them to depose before it but such deposition shall be subject to the conditions mentioned by the learned Single Judge in the order dated 21st November, 2012 passed in W.P. 24558 (W) of 2012 and the subsequent order dated 25th March, 2013 passed in W.P. No. 8928 (W) of 2013.
73. We also make it clear that there shall be no cross-examination of any of the appellants at this stage and the appellants should be treated only as statement makers and permitted to depose to the extent the appellants can recall about the incident.
74. The appellants or any of them may be asked to depose before the Commission only after the Commission comes to the finding that evidence of all the statement makers are complete and no one else is required to be examined.
75. Since it was conceded by the learned senior counsel of the Commission that the Commission has not yet reached the stage of Section 8B of the Commissions of Inquiry Act, 1952, and at present there is no material before the Commission to arrive at the conclusion to that effect, we make it clear that if the Commission at all decides to draw up proceeding against the appellants or any of them u/s 8B of the Commissions of Inquiry Act, 1952, the Commission shall formulate the points and charges and disclose all materials and documents in support thereof to the respective appellants and give full opportunity to the respective appellants to defend themselves including cross-examination of witnesses, on whose deposition the Commission shall rely on. The Commission shall give full opportunity to the respective appellants to produce witness/witnesses and disclose documents. The Commission shall also consider all legal issues that may be raised at that stage by any of the appellants herein.
76. The Commission is further directed to allow inspection of the relevant records to the appellants and take copies thereof.
77. With the aforesaid observations and directions, we modify the impugned judgment and order under appeal and dispose of the present appeals and the connected applications without awarding any costs.
78. Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
Samapti Chatterjee, J.
79. I agree.
