State of Jammu And Kashmir Vs. Bakshi
Ghulam Mohammad  INSC 124 (6 May 1966)
06/05/1966 SARKAR, A.K. (CJ)
SARKAR, A.K. (CJ) MUDHOLKAR, J.R.
CITATION: 1967 AIR 122 1966 SCR (4) 1
E 1970 SC2086 (24) R 1978 SC 68
(134,227,231,269,271) R 1982 SC 710 (101) D 1989 SC 714 (18)
Constitution of Jammu and Kashmir, s.
37-Jammu and Kashmir Commission of Inquiry Act 1962, ss. 3, 4(c) and 10-Acts of
a Minister while in office, whether can be subject of inquiry under Inquiry
Acts. 37 of Constitution whether a bar to such inquiry Matters of public
importance' and 'definite' in s.
3, meaning of-Affidavits filed before
Commission of InquiryRight to cross examine deponents, extent of.
The first respondent became a member of the
Council of Ministers of the State of Jammu and Kashmir in 1947 and was the
Prime Minister of the State from 1953 'to January 1963, when he resigned.
Thereafter a Notification was issued by the State Government under s. 3 of the
Jammu and Kashmir Commission of Inquiry Act 1962 setting up a Commission to
inquire into the wealth, acquired by the first respondent and certain specified
members of his family during his period of office; the Commission was also to
inquire whether in acquiring this wealth there was any abuse of his official
position by the first respondent or the said relatives. The Commissioner so
appointed held certain sittings between February 1965 and August 1965 in which
the first respondent took part. In September 1965 he filed a writ petition
before the High Court of Jammu and Kashmir and the High Court, allowing the
said petition, set aside the Notification instituting the inquiry and quashed
the proceedings of the Commission. The State appealed to the Court.
HELD:-(i) Section 37 of the Constitution of
Jammu and Kashmir talks of the collective responsibility of Ministers to the
Legislative Assembly. That, only means that the Council of Ministers will have
to stand or. fall together, every member being responsible for the action of
The section does not mean that a Minister is
responsible for his acts only to the Legislature and no action can be taken
against him except for criminal or tortuous acts, in the ordinary course of
law, unless the Legislature by a resolution demanded it. No British convention
to this effect, if any, can be said to have been adopted by s. 37.
Furthermore, the responsibility to the
Legislature is of the Council of Ministers, and not of those who have, like the
first respondent ceased to be Ministers. [405C-E].
(ii)Section 3 of the Commission of Inquiry
Act expressly gives power to Government as well as to both the Houses of
Legislature to initiate action instituting an inquiry. When enacting it the
Legislature obviously did not consider that there was any convention or
anything in s. 37 which prevented a Commission of Inquiry being set up under
the Act at the instance of the Government orthe Legislative Council. [405F-G],
(iii)The acts of a Minister while in office do not cease to be matters of
public importance after he ceases to hold office; their character cannot
change. When it is alleged that a Minister has acquired vast wealth for himself
and his friends by abuse of his official' position, there can be no question
that the matter is of public 402 importance. It does not cease to be of public
importance merely because what is proposed is to inquire into allegations and
not into the steps to be taken to prevent lapses in the future. Nor can absence
of public agitation show that the facts to be inquired into are not of, public
importance. [407E-G; 408-G] Ram Krishan Dalmia v. Shri Justice S. R. Tendolkar,
 S.C.R. 279, referred to.
(iv) It is incorrect to say that) allegations
mentioned are not definiteor that an inquiry into them is not contemplated by
the Inquiry Act. [409 E-F] (v) It cannot be inferred from the provisions ofs.
10 of the Act that a Commission of Inquiry can inquire into the conduct of a
person only incidentally, when the main inquiry is in respect of something
else. What can be done indirectly should obviously have been considered capabe
of being done directly. [411B] (vi)On the facts of the case the inquiry could
not be said to be mala fide. [412F] (vii)The. doctrine of Cabinet responsibility
does not mean that if an inquiry was made against one of the members of the
Cabinet that would be discrimination under Art. 14.
The respondent was in -a class, by himself
and the classification was justified. [414A-B] (viii)The rule of natural justice
only requires that a hearing should be given. When the Commission refused
permission to the first respondent to cross-examine all the witnesses who had
filed affidavits against him no rule of natural justice was violated. [415G]
Meenglas Tea Estate V. Their Workmen, 2 S.C.R. 165 and Nagendra Nath Bora
v. Commissioner of Hills Division & Appeals, ,Assam  S.C.R. 1240.
(ix)Section 10 of the Act gives a right to
cross-examine only these persons who give viva voce evidence before the
Commissioner. [416F] (x)Section 4(c) of the Act does not confer a right on a
party appearing before the Commission to require a witness giving evidence by
affidavit to be produced for his cross examination. The Commission would, of
course, permit crossexamination in a case where it thinks that necessary.
CIVIL APPELLATE JURISDICTION:Civil Appeal No.
1102 of 1966.
Appeal from the judgment and order dated
December 27, 1965 of the Jammu and Kashmir High Court in W. P. No. 67 of 1965.
C.K. Daphtary, Attorney-General, S. V. Gupte,
SolicitorGeneral, Jaswant Singh, Advocate-General for the State of J. & K.
H. R. Khanna; S. Javali, Ravinder Narain, for the appellants.
B. Sen, I. N. Shroff, M. K. Banerjee, B. N.
Kirpal, R. K. Kaul, R. N. Kaul, P. L. Handu, Lalit Bhasin and T. R. Bhasin, for
respondent No. 1.
The Judgment of the Court was delivered by
Sarkar C.J. This is an appeal by the State of Jammu and Kashmir, G. M. Sadiq,
Chief Minister of that State and D.
P.Dhar its Home Minister. The appeal is
contested by respondent 403 No. 1, Bakshi Ghulam Mohammad. The other
respondent, N., Rajagopala Ayyangar, a retired Judge of this Court, has not
appeared in this Court or in the court below. These are the parties to the
proceedings before us.
After the accession of the State of Jammu and
Kashmir to India in 1947, a responsible Government was set up there under the
Prime Ministership of Shiekh Mohammad Abdulla.
Bakshi Ghulam Muhammad was the Deputy Prime
Minister in that Government and G. M. Sadiq was also in the Cabinet. In 1953
Sheikh Mohammad Abdulla was dismissed from office and a new Government was
formed with Bakshi Ghulam Mohammad as the Prime Minister and G. M. Sadiq and D.
P. Dhar were included in the Cabinet. On January 26, 1957, a new Constitution
was framed for Jammu & Kashmir. In the first elections held under the
Constitution, a party called the National Conference got the majority of votes.
Bakshi Ghulam Mohammad and Sadiq were members of this party. A Ministry was
then formed with Bakshi Ghulam Mohammad as the Prime Minister. It appears that
G. M. Sadiq left the party sometime after 1957 and rejoined it along with D. P.
Dhar in December 1960 and they were taken into the Cabinet. The next General
Elections were held in 1962. Again, the National Conference Party came into
power. In the Government that was formed, Bakshi Ghulam Mohammad became the
Prime Minister and G. M. Sadiq and D. P. Dhar were taken in the Ministry. In
September 1963, Bakshi Ghulam Mohammad resigned from the Ministry under what is
called the Kamraj Plan and Shamsudd in became the Prime Minister in his place.
It will be noticed that Bakshi Ghulam
Mohammad was the Deputy Prime Minister of the State from 1947 to 1953 and its
Prime Minister from 1953 to 1963. So he held these offices, one after the
other, for a total period of about sixteen years.
In February 1964, Shamsuddin left office and
a new Government was formed with G. M. Sadiq as the Prime Minister. It is said
that shortly thereafter, political rivalry between him and Bakshi Ghulam
Mohammad started. In August 1964, a notice was issued fixing a session of the
Legislature of the State in the following September. According to Bakshi Ghulam
Mohammad, thereafter, some of the legislators wanted to bring in vote of
no-confidence against G. M.Sadiqs Ministry and by September 21, 1964 the
no-confidence motion had obtained the support of the majority of. members of
the Assembly. On September 22, 1964, at 5 o'clock in the morning, Bakshi Ghulam
Mohammad and some of his supporters were arrested under the Defence of India
Rules. At 8.30 a.m. on the same day the notice of the motion of no-confidence
with the signatures of some members was handed over to the Secretary of the
Legislative Assembly. G. M. Sadiq challenges the genuineness of the, signatures
on the notice of the motion and also denies that it had the support of, a
majority:of the Assembly-, At 9 a.m. the Legislative Assembly which was to meet
on that day,.
404 was prorogued by the Speaker under the
directions of the Sadar-i-Riyasat, the constitutional head of the State.
Sometime in November 1964, a petition for a
writ of habeas corpus for the release of Bakshi Ghulam Mohammad was presented
to the High Court of Jammu and Kashmir. On December 15, 1964, before the
petition could be heard and decided, Bakshi Ghulam Mohammad was released from
arrest by the State Government. On January 30, 1965, a Notification was issued
by the State Government appointing a Commission of Inquiry constituted by N.
Rajagopala Ayyangar to enquire into (1) the nature and extent of the assets and
pecuniary resources of Bakshi Ghulam Mohammad and the members of his family and
other relatives mentioned in the first Schedule to the Order, in October 1947
and in October 1963; and (ii) whether during this period, Bakshi Ghulam
Mohammad and the others mentioned in the Schedule had obtained any assets and
pecuniary resources or advantages by Bakshi Ghulam Mohammad abusing the
official positions held by him or by the aforesaid people set out in the first
Schedule by exploiting that position with his knowledge, consent and
The Notification provided that in making the
inquiry under head (ii) the Commission would examine only the allegations set
out in the second Schedule to it. It is this Notification that has given rise
to the present proceedings.
The Commission held certain sittings between
February 1965 and August 1965 in which Bakshi Ghulam Mohammad took part.
On September 1, 1965, Bakshi Ghulam Mohammad
moved the High Court of Jammu and Kashmir under ss. 103 and 104 of the
Constitution of Jammu and Kashmir, which correspond to Arts.
226 and 227 of the Indian Constitution, for a
writ striking down the Notification and quashing the proceedings of the
Commission taken till then and for certain other reliefs to which it is not
necessary to refer. The petition was heard by a Bench of three learned Judges
of the High Court. The High Court allowed the petition, set aside the
Notification and quashed the proceedings of the Commission. This appeal is
against the judgment of the High Court. In the High Court, eight grounds had
been advanced in support of the petition, three of which were rejected but the
rest were accepted, some unanimously and some by the majority of the learned
Judges. They have however not all been pressed in this Court.
The Notification had been issued under the
Jammu & Kashmir Commission of Inquiry Act, 1962. The first point taken was
that the Notification was not justified by the Act because under the Jammu
& Kashmir Constitution, a Minister was responsible for his acts only to the
Legislature and no action could be taken against him except for criminal and
tortuous acts in the ordinary courts of law, unless the Legislature by a
resolution demanded it. The substance of this contention is that an inquiry
cannot be directed under the Act into the actions of a Minister except at the
instance of the Legislature, it cannot be directed by an order of the
Government. This contention is based on S. 37 of the Jammu 405 & Kashmir
Constitution. That section states that the Council of Ministers shall be
collectively responsible to the Legislative Assembly. It is contended that this
implies that in no other way is a Minister responsible for anything that he
does when in office. It is also said that is the convention in Britain and it
has been adopted in the State of Jammu & Kashmir.
We confess to a certain amount of difficulty
in appreciating this argument. The point about the British convention need not
detain us. It has not been shown that any such convention, even if it exists in
England, as to which we say nothing, has been adopted in the State of Jammu
The Jammu & Kashmir Constitution is a
written document and we can only be guided by its provisions. It is said that
37 indicates that the British convention was
adopted by the State of Jammu & Kashmir. We are unable to agree with this
view. Section 37 talks of collective responsibility of Ministers to the
Legislative Assembly. That only means that the Council of Ministers will have
to stand or fall toother, every member being responsible for the action of any
Other. The emphasis is on collective responsibility as distinguished from
individual responsibility. The only way that a legislature can effectively
enforce this responsibility of the Council of Ministers to it is by voting it
out of office. Furthermore, this responsibility is of the Council of Ministers.
Bakshi Ghulam Mohammad did not, at the date of the Notification, belong to that
Council. He did not on that date owe any responsibility to the Legislature
under s. 37. That section has no application to this case Again s. 3 of the
Inquiry Act states, "The Government may and shall if a resolution in this
behalf is passed by the Jammu & Kashmir State Legislative Assembly or the
Jammu & Kashmir Legislative Council by notification appoint a Commission of
Inquiry". It ,would, therefore, appear that the Act gave power to the
Government to set up a Commission and also to both the Houses of the
Legislature to require a Commission to be set up. It is important to note that
even the Legislative Council has a right to get a Commission appointed though
s. 37 of the Constitution does not say anything about the responsibility of the
Ministers to that Council. The Act was passed by the State Legislature
consisting of both the Houses. It would show that the Legislature did not
consider that there was any convention or anything in s. 37 which prevented a
Commission of Inquiry being set up under the Act at the instance of the
Government or the Legislative Council. The High Court had rejected this
contention and we think that it did so rightly.
The next point urged in support of the
petition was that the Act permitted a Commission to be set up for making an
inquiry into a definite matter of public importance and the matters which the
Commission had been set tip to inquire into were not such. This contention
found favour with all the learned Judges of the High Court. We are, however,
unable to accept it. It is true that 406 a Commission can be set up only to
inquire into a definite matter of public importance. But we think that the
matters into which the Commission was asked to inquire were such matters. The
first inquiry was as to the assets possessed by Bakshi Ghulam Mohammad and the
other persons mentioned in the Notification, in October 1947 and in October
1963 and the second was whether during this period being the sixteen years when
he held office as Prime Minister and Deputy Prime Minister, he and the other
persons named had obtained any assets or pecuniary advantage by abuse of his
official position or by that position being exploited by the others with his
consent, knowledge or connivance, this inquiry being confined only to the
instances set out in the second Schedule to the Notification. That Schedule
contains 38 instances, the first of which, in substance, repeats the second
head of inquiry earlier mentioned. The other items refer to individual
instances of people being made to part with property under pressure brought
upon them by abuse of official position and of public money being
At the end of this Schedule, there is a note'
stating that the gravamen of the charge was that Bakshi Ghulam Mohammad abused
his official position and the other persons named, exploited that position with
his consent, knowledge or connivance in committing the acts whereby they
acquired vast wealth. The inquiry was, therefore, into the assets possessed by
Bakshi Ghulam Mohammad and the persons named, respectively in October 1947 and
in October 1963 and to find out whether they had during this period acquired
wealth by the several acts mentioned in the second Schedule by abuse or
exploitation of Bakshi Ghulam Mohammad's official position.
The first question is, whether these are
matters of public importance. Two of the learned Judges held that they were not
and the third took the contrary view. This was put on two grounds. First, it
was said that these matters were not of public importance because they had to
be so at the date of the Notification and they, were not so on that date as
Bakshi Ghulam Mohammad did not then hold any office in the Government. It was
next said that there was no evidence of public agitation in respect of the
conduct complained of and this showed that they were not matters of public
We do not think that either of these grounds
leads to the view that the matters were not of public importance. As regards
the first, it is difficult to imagine how a Commission can be set up by a
Council of Ministers to inquire into the acts of its head, the Prime Minister,
while he is in office. It certainly would be a most unusual thing to happen. If
the rest of the Council of Ministers resolves to have any inquiry, the Prime
Minister can be expected to ask for their resignation. In any case, he would
himself go out. If he takes the first course, then no Commission would be set
up for the Ministers wanting the inquiry Would have gone. If he went out
himself, then the Commission would be set up to inquire into the acts of a
person who was no longer in office and 407 for that reason, if the learned
Judges of the High Court were right, into matters which were not of public
importance. The result would be that the acts of a Prime Minister could never
be inquired into under the Act. We find it extremely difficult to accept that
These learned Judges of the High Court
expressed the view that the acts of Bakshi Ghulam Mohammad would have been acts
of public importance if he was in office but they ceased to be so as he was out
of office when the Notification was issued. In taking this view, they appear to
have based themselves on the observation made by this Court in Ram Krishan
Dalmia v. Shri Justice S. R. Tendolkar(1) that "the conduct of an
individual may assume such a dangerous proportion and may so prejudicially
affect or threaten to affect the public well-being as to make such conduct a
definite matter of public importance, urgently calling for a full
inquiry". The learned Judges felt that since Bakshi Ghulam Mohammad was
out of office, he had become innocuous;
apparently, it was felt that he could no
longer threaten the public wellbeing by his acts and so was outside the
observation in Dalmia's case. We are clear in our mind that this is a
misreading of this Court's observation. This Court, as the learned Judges
themselves noticed, was not laying down an exhaustive definition of matters of
public importance. What is to be inquired into in any case are necessarily past
acts and it is because they have already affected the public well-being or
their effect might do so, that they became matters of public importance. It is
irrelevant whether the person who committed those acts is still in power to be
able to repeat them. The inquiry need not necessarily be into his capacity to
do again what he has already done and it may well be into what he has done. The
fact that Bakshi Ghulam Mohammad is no longer in office does not affect he
question whether his acts already done constitute matters of public importance.
If once it is admitted, as it was done before us, that if he had been in office
his acts would have been matters of public importance, that would be
acknowledging that his acts were of this character. His resignation from office
cannot change that character. A Minister, of course, holds a public office. His
acts are necessarily public acts if they arise out of his office. If they are
grave enough, they would be matters of public importance. When it is alleged
that a Minister has acquired vast wealth for himself, his relations and
friends, as is done here, by abuse of his official position, there can be no
question that the matter is of public importance.
It was said that the object of inquiry was to
collect material for the prosecution of Bakshi Ghulam Mohammad and, therefore,
the matters to be required into were not of public importance. This contention
is, in our view, fallacious. It is of public importance that public men failing
in their duty should be called upon (1)  S.C.R. 279.
5SCI 28 408 to face the consequences. It is
certainly a matter of importance to the public that lapses on the part of the
Ministers should be exposed. The cleanliness of public life in which the public
should be vitally interested, must be a matter of public importance. The people
are entitled to know whether they have entrusted their affairs to an unworthy
man. It is said that the Notification did not mention anything about the steps
to be taken to prevent recurrence of the lapses in future. But that it could
not do. Before the facts were found steps could not be thought of, for the
steps had to suit the facts. The inquiry proposed in this case will, in the
course of finding out the lapses alleged, find out the process as to how they
occurred and it is only after the process is known that steps can be devised to
It was also contended that the inquiry was
into allegations of misconduct against Bakshi Ghulam Mohammad and an inquiry
into allegations was not contemplated by the Inquiry Act.
We are wholly unable to agree. An inquiry
usually is into a question. That question may arise on allegations made.
Dabnia's case(1) dealt with an inquiry
ordered at least in part into allegations made against people in charge of a
big mercantile enterprise. Allegations may very well raise questions of great
public importance. Suppose it is alleged that people in a city are suffering
from ill-health and that is dueto the contaminated water supplied by the city
administration. It cannot be said that these allegations about the existence of
poor health and its causes are not matters of grave public importance. They
would be so even if it was found that the people's health was not poor and the
water was not contaminated. It cannot also be said that allegations can never
be definite. They can be as definite as any existing concrete matter. It must
depend on what the allegation is.
Then as to the question whether the
allegations against Bakshi Ghulam Mohammad were not matters of public
importance because there was no public agitation over them. The Notification
itself and the affidavits filed in this case on behalf of the appellants in
fact state that there had been allegations made by the public against Bakshi
Ghulam Mohammad that he had amassed a large fortune by the misuse of his
office. But it was said that there was no proof that the allegations had
actually been made. Whether there was proof would depend on whether the
statements in the Notification and the affidavits were accepted or not. We are,
however, unable to agree that a matter cannot be of public importance unless
there was public agitation over it.
Public may not be aware of the gravity of the
They may not know the facts. Some members of
the public may be aware of individual cases but the entire public may not know
all of them. There may have been influences working to prevent public
agitation. Again, whether (1) S.C.R. 279.
409 a matter is of public importance or not
has to be decided essentially from its intrinsic nature. If a matter is
intrinsically of public importance, it does not cease to be so because the
public did not agitate over it. Take this case. Suppose the Government sets up
a Commission to inquire into the mineral wealth in our country. The public are
not likely to agitate over this matter for they would not know about the
mineral wealth at all. Can it be said that the inquiry does not relate to a
matter of public importance because they did not agitate over it? The answer
must plainly be in the negative. This would be so whether there were in fact
minerals or not. Considering the allegations contained in the Notification by
themselves, we think for the reasons earlier mentioned, that they constitute
matters of public importance even if there was no public agitation over them.
It was said that G. M. Sadiq, D. P. Dhar and various other people had praised
the administration of Bakshi Ghulam Mohammad. That they no doubt did. But these
were speeches made in support of party politics. They might again have been
made without knowledge of full facts. They cannot, in any event, turn a matter
of public importance into one not of that character.
It was then pointed out that the Notification
only mentioned that the matters were of public importance but did not say that
they were definite matters of public importance. The Act, as we have earlier
pointed out, requires that the matters to be inquired into shall be definite
matters of public importance. But this omission of the word
"definite" in the Notification does not, in our opinion, make any
difference. A Court can decide whether the matters to be inquired into are
definite matters of public importance.
'Definite' in this connection means something
which is not vague. One of the learned Judges of the High Court held that the
matters set out in the second Schedule were vague as some of the instances did
not give any date or year. He also said that the note at the end of the second
Schedule., to which we have earlier referred, added to the vagueness.
We are unable to accede to this view. What
the learned Judge had in mind was apparently the particulars of the acts. In
most cases, the acts are identifiable from the particulars given in the second
Schedule in respect of them.
Further, it is not obvious that they had to
be identified at the hearing and could not be proved nor any notice taken of
them unless that was done. It does not appear to have been contended before the
Commission that there was any matter not so identifiable. Neither do we think
that the note drawing attention to the gravamen of the charges at the end of
the second schedule indicates any indefiniteness. In most of the allegations it
had been expressly stated that the act was done by the misuse of Bakshi Ghulam
Mohammad's official position and by his permitting others to exploit that-it is
this which made the matters, matters of public importance-and it was for
greater safety that the note was appended so that no 5SCI-28(a) 410 doubt was
left as to the gravamen of the charge in each of the allegations made.
The next point against the validity of the
Notification was based on s. IO of the Act which is in these terms:"10.
(1) If at any stage of the inquiry the Commission considers it necessary to
inquire into the conduct of any person or is of opinion that the reputation of
any person is likely to be prejudicially effected by the inquiry, the
Commission shall give to that persona, reasonable opportunity of being heard in
the inquiry and producing evidence in his defence;
Provided that nothing in this sub-section
shall apply when the credit of a witness is being impeached.
(2)The Government, every person referred to
in sub-section (1) and with the permission of the Commission, any other person
whose evidence is recorded by the Commission:(a) may cross-examine any person
appearing before the Commission other than a person produced by it or him as a
witness, (b) may address the Commission.
(3) It was contended that it showed that an
inquiry may be made under the Act into the conduct of a person only
incidentally, that is to say, it can be made only when that becomes necessary in
connection with an inquiry into something else. It was, therefore, contended
that the present inquiry which was directly into the conduct of Bakshi Ghulam
Mohammad was outside the scope of the Act. It was also said that s. 10 gives a
statutory form to the rules of natural justice and provides for the application
of such rules only in the case when a person's conduct comes up for inquiry by
the Commission incidentally. It was then said that the Act could not have
contemplated an inquiry directly into the conduct of an individual since it did
not provide specifically that he should have the right to be heard, the right
to cross-examine and the right to lead evidence which were given by s. 10 to
the person whose conduct came to be inquired into incidentally. We are unable
to accept this view of s. 10. Section 3 which permits a Commission of Inquiry
to be appointed is wide enough to cover an inquiry into the conduct of any
individual. It could not be a natural reading of the Act to cut down the scope
of s. 3 by an implication drawn from s. 10. We also think that this argument is
ill founded for we are unable to agree that s. 10 does not apply to a person
whose conduct comes up directly for inquiry before a Commission set up under s.
3. We find nothing in the words of s. 10 to justify that view. If a Commission
is set up to inquire directly into the conduct of a person, the Commission must
find 411 it necessary to inquire into that conduct and such a person would
therefore, be one covered by s. 10. It would be strange indeed if the Act
provided for rights of a person whose conduct incidentally came to be enquired
into but did not do so in the case of persons whose conduct has directly to be
inquired into under the order setting up the Commission. It would be equally
strange if the Act contemplated the conduct of a person being inquired into
incidentally and not directly. What can be done indirectly should obviously
have been considered capable of being done directly. We find no justification
for accepting the reading of the Act which learned counsel for Bakshi Ghulam
The next attack on the Notification was that
it had been issued mala fide. One of the learned Judges of the High Court
expressly rejected this contention and the others also seem to have been of the
same view for they did not accept it. We find no reason to accept it either. In
that view of the matter, we consider it unnecessary to discuss this aspect of
the case in great detail. We have set out the broad events of the case and it is
on them that the case of mala fide is based. It is not in dispute that for some
time past there was political rivalry between Bakshi Ghulam Mohammad and G. M.
Sadiq. It was also said that there was personal animosity because G. M. Sadiq
wanted to advance the interest of his relatives and followers by ousting
persons belonging to Bakshi Ghulam Mohammad's group in various fields. This
allegation of personal animosity cannot be said to have been established. It is
really on the political rivalry and the events happening since September 21,
1964 that the allegation of male fide is founded. It was said that the steps
taken since the arrest of Bakshi Ghulam Mohammad down to the setting up of the
Commission of Inquiry were all taken with the intention of driving him out of
the political life so that G. M. Sadiq would have no rival as a political
leader. First, as to the arrest. The case of Bakshi Ghulam Mohammad was that
the arrest was mala fide. On the other side, it was said that since about July
1964 various allegations of abuse of power by Bakshi Ghulam Mohammad some of
which formed the subject matter of inquiry, had come to the notice of the
Government and thereupon investigations were started by the Criminal
Investigation Department at the instance of the Government. In order to stop
the investigation Bakshi Ghulam Mohammad and his followers started dowdyism and
other form of breaches of law and order endangering public safety and
maintenance of public order. It was pointed out that the situation in Kashmir had
not been easy for some time past due to the hostile intentions of Pakistan and
China and breach of law and order added to the seriousness of the position. It
was said that for these reasons Bakshi Ghulam Mohammad had to be arrested and
detained under the Defence of India Rules. it was said on behalf of Bakshi
Ghulam Mohammad that prior to the arrest, a no confidence motion had been
sponsored and had actually gathered in volume and the arrest was made to
stultify 412 it. What support the no confidence motion had we do not know. It
would appear however that the Criminal Investigation Department had been making
inquiries against Bakshi Ghulam Mohammad's acts for some time past and the
situation in Kashmir was inflammable. In those circumstances, it cannot be said
that Bakshi Ghulam Mohammad's arrest was mala fide. He was no doubt released
from arrest after a petition had been moved for his release and before the
petition was heard. It was said that he was released because the Government
found that the petition was bound to succeed. We have no material before us on
which we can say that the petition was bound to succeed. On behalf of G. M.
Sadiq and D. P. Dhar it was said that he was released because of ill-health.
This does not appear to have been denied. It was also said on behalf of G. M.
Sadiq that the investigation having been completed there was no cause for
Bakshi Ghulam Mohammad to instigate breaches of law and order and therefore it
was not necessary to keep him in detention any longer. On the evidence before
us, we are unable to say that the case made by G. M. Sadiq cannot be accepted.
As to the prorogation of the Assembly, it is said by the appellants that it was
necessary because it was apprehended that if the Assembly met, there might have
been trouble inside the House created by Bakshi Ghufam Mohammad's followers who
resented the arrest. On the materials before us, we are unable to say that this
apprehension was pretended. It was also said by the appellants that the
prorogation had been decided upon before the arrest of Bakshi Ghulam Mohammad
but the order could not be passed because the Sadar-i-Riyasat was out of
Srinagar from before September 15, 1964 when both the arrest and prorogation
had been decided upon and did not return there till some time on September 21,
1964. The fact that the Sadar-i-Riyasat returned on that date is not denied. As
we have said, the arrest and the prorogation took place on the next day, that
is, September 22, 1964. Bakshi Ghulam Mohammad was released on December 15,
1964 and the Notification challenged was issued on January 30, 1965. On these
facts, we are unable to hold that Bakshi Ghulam Mohammad has been able to
establish that the inquiry had been set up mala fide owing to political
It has been said on behalf of the appellants
that there could be no political rivalry because, as appears from Bakshi Ghulam
Mohammad's own affidavit, he had declared his intention to retire from
politics. On behalf of Bakshi Ghulam Mohammad it was stated that G. M. Sadiq
had made a statement that he would be released after a Commission of Inquiry
was set up and this would show that the detention was mala fide and that would
indicate that the Notification had also been issued mala fide. That statement
is not before us. On behalf of G. M. Sadiq it was said that such a statement
had not been made and what had been said was that he would be released after
the completion of investigation by the Criminal Investigation Department as
thereafter, there 413 will be no occasion for Bakshi Ghulam Mohammad to disturb
the public peace and safety. It was also said that it had been mentioned that
after the completion of the investigation, the Commission of Inquiry would be
This is not denied. It however does not make
the arrest mala fide. It was further said by Bakshi Ghulam Mohammad that the
statement showed that the Commission was set up to prevent him from disturbing
public safety and law and order and that, therefore, it was outside the scope
of the Inquiry Act. This was denied on behalf of G. M. Sadiq. In the absence of
the statement, it is impossible for us to say which is the correct version.
Another point taken was that the affidavits filed on behalf of the appellants
showed that the Government were satisfied about the correctness of the
allegations into which the inquiry was directed. It was contended that since
the inquiry is for finding facts, if the Government were already satisfied
about them, there was no need for further inquiry. This contention has no force
at all. What the affidavit really said was that the Government were prima facie
satisfied. They had to be so before they could honestly set up the Commission
to make the inquiry. It was said on behalf of G. M. Sadiq that before setting
up the Commission the Government had investigated into the facts through the
Criminal Investigation Department and if the Government's intention was mala
fide, they could have started criminal proceedings and ruined the political
life of Bakshi Ghulam Mohammad just as well thereby and kept him busy and out
of politics for a long time. It was pointed out that this might have resulted
in serious consequences for Bakshi Ghulam Mohammad which the Commission of
Inquiry would not. It was also pointed out that the Commissioner appointed was
a retired Judge of the Supreme Court of India. All this, it was said, would
indicate that the action had not been prompted by malice. We cannot say that
these contentions of the appellants have no force.
The next ground of attack on the Notification
was based on Art. 14. It was said that most of the matters into which the
Commission had been directed to inquire formed the subject matters of Cabinet
decisions. It was pointed out that since such matters are confidential and no
one is allowed to divulge in what way the members of the Cabinet voted on them,
it must be held that they were all equally responsible for the acts sanctioned.
That being so, it was contended that by picking Bakshi Ghulam Mohammad out of
the entire Cabinet for the purpose of the Inquiry the Government had
discriminated against him in a hostile way. It was contended that the
Notification must be set aside on that ground. We find this contention
untenable. The inquiry is in respect of wealth acquired by Bakshi Ghulam
Mohammad and his friends and relatives by misuse of his official position. It
would be strange if all the members of the Cabinet voluntarily abused their
office for putting money into the pockets of Bakshi Ghulam Mohammad and his
Let us, however, assume that all the 414
members of the Cabinet assisted Bakshi Ghulam Mohammad in doing this. It is
however not said that other members had acquired wealth by these acts. He was,
therefore, in a class by himself. This classification has further a rational
connection with the setting up of the Commission, for the object is to find out
whether the wealth had been acquired by Bakshi Ghulam Mohammad by the abuse of
It remains now to deal with the last point.
This was directed against the proceedings of the Commission. It was said that
the proceedings had been conducted in a manner contrary to the rules of natural
justice and to statutory provisions. Two specific complaints were made. The
first was that the Commission had not allowed Bakshi Ghulam Mohammad to inspect
all the documents before he was called upon to answer the allegations made
against him. The second was that the Commission had refused him permission to
crossexamine persons who had filed affidavits supporting the allegations made
against him. We have now to set out the procedure followed by the Commission.
It first called upon the Government to file affidavits in support of the
allegations in the second schedule to the Notification and to produce the
documents which supported them. It then asked Bakshi Ghulam Mohammad to file
his affidavit in answer. Thereafter the Commission decided whether any prima
facie case had been made for Bakshi Ghulam Mohammad to meet and in that process
rejected some of the allegations.
Bakshi Ghulam Mohammad was told that there
was no case, which be had to meet in respect of them. Out of the remaining
allegations, a group was selected for final consideration and it was decided
that the rest would be taken up gradually thereafter. In connection with that
group of cases, counsel for Bakshi Ghulam Mohammad wanted to cross-examine all
the persons who had filed affidavits supporting the Government's allegations in
the cases included in that group. The Commissioner ordered that he would not
give permission to cross-examine all the deponents of affidavits but would
decide each case separately. It was after this that the petition for the writ
The question of inspection is no longer a
live question. It is true that when Bakshi Ghulam Mohammad was directed to file
his affidavits he had not been given inspection of' all the documents and files
which the Government proposed to use to support their case. On behalf of Bakshi
Ghulam Mohammad it was said that this was a denial of the rules of natural
justice. It is not necessary to consider this question because it is admitted
that since then inspection of the entire lot of files and documents has been
given. At the final hearing of the allegations, therefore, Bakshi Ghulam
Mohammad would no longer be at any disadvantage.
The next point is as to the right of
This claim was first based on the rules of
It was said 415 that these rules require that
Bakshi Ghulam Mohammad should have been given a right to cross-examine all
those persons who had sworn affidavits supporting the allegations against him.
We are not aware of any such rule of natural justice.
No authority has been cited in support of it.
Our attention was drawn to Meenglas Tea Estates v. Their Workmen(1), but there
all that was said was that when evidence is given viva voce against a person be
must have the opportunity to hear it and to put the witnesses questions in
That is not our case. Furthermore, in
Meenglas Tea Estate case(1) the Court was not dealing With a fact finding body
as we are. Rules of natural justice require that a party against whom an
allegation is being inquired into should be given a hearing. Bakshi Ghulam
Mohammad was certainly given that It was said that the right to the hearing
included a right to cross-examine. We are unable to agree that is so.
The right must depend upon the circumstances
of each case and must also depend on the statute under which the allegations
are being inquired into. This Court has held in Nagendra Nath Bora v.
Commissioner of Hills Division and Appeals, Assam(1) that "the rules of
natural justice vary with the varying constitution of statutory bodies and the
rules prescribed by the Act under which they function; and the question whether
or not any rules of natural justice had been contravened, should be decided not
under any preconceived notions, but in the light of the statutory rules and
provisions." We have to remember that we are dealing with a statute which
permits a Commission of Inquiry to be set up for fact-finding purposes. The
report of the Commission has no force proportion vigorous. This aspect of the
matter is important in deciding the rules of natural justice reasonably
applicable in the proceedings of the Commission of Inquiry under the Act. 'Then
we find that s.
10 to which we have earlier referred, gives a
right to be heard but only a restricted right of cross-explanation.
The latter right is confined only to the
witnesses called to depose against the person demanding the right. So the Act
did not contemplate a right of hearing to include a right to cross examine. It
will be natural to think that the statute did not intend that in other cases a
party appearing before the Commission should have any further right of cross examination.
We, therefore. think that no case has been made out by Bakshi Ghulam Mohammad
that the rules of natural justice require that lie should have a right to cross
examine all the persons who had sworn affidavits supporting the allegations
made against him.
We will now deal with the claim to the right
to cross examine based on statutory provision. That claim is based on s. 4(c)
of the Act. The relevant part of the section is as follows:-"The
Commission shall have the power of a Civil Court. while trying a suit under the
Code of Civil Proce(1)  2 S.C.R. 165.
(2)  S.C.R. 1240.
416 dure Svt. 1977, in respect of the
following matters, namely:(a) summoning and ao enforce the attendance yof an
person and examining him on oath;
(b) (c) receiving evidence on
affidavits"' It is not in dispute that the Code of Civil Procedure of
Jammu and Kashmir State referred to in this section is in the same terms as the
Indian Code of Civil Procedure. Order 19 r. I. of the Indian Code reads as
follows:-"Any Court may at any time for sufficient reason order that any
particular fact or facts may be proved by affidavit, or that the affidavit of
any witness may be read at the hearing, on such conditions as the Court thinks
reasonable Provided that where it appears to the Court that either party bona
fide desires the production of a witness for cross-examination, and that such
witness can be produced, an order shall not be made authorising the evidence of
such witness to be given by affidavit." The contention is that the powers
of the Commission therefore to order a fact to be proved by affidavit are
subject to the proviso that power cannot be exercised when a party desires the
production of the persons swearing the affidavits for cross-examining them.
The contention was accepted by the High
Court. We take a different view of the matter. We first observe that the
inquiry before the Commission is a fact-finding inquiry.
Then we note that s. 10 which, in our
opinion, applies to a person whose conduct comes up for inquiry by the
Commission directly, has a right to cross-examine only those persons who give
viva voce evidence before the Commission against him. If S. 4(c) conferred a
right to cross-examine every one who swore an affidavit as to the facts
involved in the inquiry, then S. 10(2) would become superfluous. An
interpretation producing such a result cannot be right. It also seems to us
that O. 19 r. I has to be read with O. 18 r. 4 which states that the evidence
of the witnesses in attendance shall be taken orally in open court. It would
appear, therefore, that O. 19 r. I. is intended as a sort of exception to the
provisions contained in O. 18 r. 4. The Act contains no provision similar to O.
18 r. 4. Therefore, when S. 4(c) of the Act gave the Commission the power of
receiving evidence on affidavits, it gave that as an independent power and not
by way of an exception to the general rule of taking evidence viva voce in open
court. It would be natural in such circumstances to think that what the Act
gave was only the power 417 to take evidence by affidavit and did not intend it
to be subject to the proviso contained in O. 19 r. I. If it were not so, then
the result really would be to require all evidence before the Commission to be
given orally in open court. If that was intended, it would have been expressly
provided for in the Act. We should here refer to Khandesh Spinning etc. Co.
Ltd. v. Rashtriya Girni Kamgar Sangh(1) where this Court dealing with a
somewhat similar section like s. 4(c) observed that facts might be proved by an
affidavit subject to O. 19 r. (1). The observations appear to have been obiter
dicta. In any case that case was dealing with a statute different from the one
The observation there made cannot be of much
assistance in interpreting the Jammu and Kashmir Inquiry Act. The number of
witnesses swearing affidavits on the side of the Government may often be very
large. In fact, in this case the number of witnesses swearing affidavits on the
side of the Government is, it appears, in the region of four hundred. The
statute could not have intended that all of them had to be examined in open
court and subjected to cross-examination, for then, the proceedings of the
Commission would be interminable. We feel no doubt that the Act contemplated a
quick disposal of the business before the Commission, for, otherwise. the
object behind it might have been defeated. While on this topic, we would
impress upon the Commission the desirability of speedy disposal of the inquiry.
For these reasons, in our view, s. 4(c) of the Act does not confer a right on a
party appearing before the Commission to require a witness giving evidence by
an affidavit to be produced for his cross-examination. The Commission would, of
course, permit cross-examination in a case where it thinks that necessary. The view
that we take should not put any party in any difficulty. He can always file
affidavits of his own denying the allegations made in affidavits filed on
behalf of the other party. If the evidence on both sides is tendered by
affidavits, no one should be at any special disadvantage. We have also to
remember that s. 9 of the Act gives the Commission power to regulate its own
procedure subject to any rules made under the Act. We find that the rules
provide that evidence may be given by affidavits and the Commission may after
reading it, if it finds it necessary to do so, record the evidence of the
deponents of the affidavits and also of others; see ff. 6, 7 and 8. Rule 10
reproduces the restricted right of cross-examination given by s. 10. Rule 11
says that in all matters not provided by the rules, the Commission may decide
its own procedure. One of the matters covered by the rules is cross-examination
of witnesses. So the rules contemplate cross-examination as a matter of
procedure and the Commission is free to decide what cross-examination it will
allow provided that in doing so it cannot go behind the rules relating to
cross-examination. Section 9 of the Act has to be read in the light of these
rules. All this.
we think, supports (1) 2 S.C.R. 841.
418 the interpretation we have put on s.
4(c). We also feel that the procedure before a body like the Commission has
necessarily to be flexible. We, therefore, reject the last contention.
In our view, for these reasons, the judgment
of the High Court cannot be supported. We accordingly set it aside.
The appeal is allowed.