Kehar Singh & Ors Vs. State (Delhi Admn.) [1988] INSC 203
(3
August 1988)
Oza, G.L. (J) Oza, G.L. (J) Ray, B.C. (J)
Shetty, K.J. (J)
CITATION: 1988 AIR 1883 1988 SCR Supl. (2) 24
1988 SCC (3) 609 JT 1988 (3) 191 1988 SCALE (2)117
CITATOR INFO : RF 1989 SC 653 (1) R 1992 SC2100
(54,57)
ACT:
Constitution of India, 1950. Articles 19, 21 and l36 Criminal
trials-Right of access to-Open public trial-Right of an accused- Sessions trial
held in Tihar Jail-Whether a valid trial.
% Trial Court and appellate Court conclusion
based on appreciation of evidence binding on the Supreme Court.
Commission of Inguiry Act, 1952: Sections 3, 4-6
and 8- Sessions Case-Whether trial Court entitled to call for statements of
witnesses recorded by a Commission of Inquiry.
Criminal Procedure Code, 1952: Sections 9(6),
164, 194, 327, 354(3)--`Place of trial'-High Court-Whether has power to direct
trial of case ar place other than normal seat of the Sessions Court.
Confessions and Statements-Recording
of--Omission to record in proper form--Does not render it inadmissible-- Effect
can be cured.
Public trial--Open Court--Restrictions on
access--How far valid.
Death sentence-A warding of--`Special reasons '
to be given. Indian Evidence Act, 1872: Sections 10,145,155,157-- Conspiracy
Proof of--Relevancy of evidence--Things said or done by conspiracy with
reference to common design-- Generally conspiracy hatched in secrecy--Evidence
as to transmission of thoughts sharing the unlawful design sufficient--Credit
of witness-Impeachment of. Indian Penal Code, 1860 Sections 34, 120B, 302 and
307-- Assassination of Prime Minister Smt. Indira Gandhi-- Conviction and
sentence of death on Satwant Singh and Kehar Singh confirmed and upheld--Balbir
Singh acquitted.
Practice and Procedure Criminal trial--Access
to-Whether people can assert their right.
PG NO 24 PG NO 25 Statutory Interpretation,
`Golden rule'-How far application--`Intention' of legislature or `purpose ' of
statute-- Duty of Court to look for.
HEAD NOTE:
In June, 1984 the Indian Army mounted an
operation known as `Operation Blue Star' by which Armed Force personnel entered
the Golden Temple Complex at Amritsar to flush out the armed terrorists. That operation resulted
in loss of life and property as well as damage to the Akal Takht in the Golden
Temple Complex, which greatly offended the religious feelings of some members
of the Sikh community. Beant Singh (deceased) and Balbir Singh, Sub- Inspectors
and Satwant Singh, a constable of Delhi Police posted for security duty in the
office of the deceased Prime Minister Smt. Indira Gandhi and Kehar Singh, an
Assistant in the Directorate General of Supply and Disposal, New Delhi, who
were sikhs by faith, had been expressing their resentment openly, holding Smt.
Indira Gandhi responsible for the action taken at Amritsar. They met at various
places and at various times to discuss and to listen to inflammatory speeches
and recordings calculated to excite listeners and provoke them to retaliatary
action against the decision of the Government to take army action in Golden
Temple Complex. They thus became parties to a criminal conspiracy to commit the
murder of Smt. Indira Gandhi.
On October 31, 1984 Smt. Indira Gandhi had
an engagement with well-known actor and writer Peter Ustinov.
His crew was to record her interview for Irish
Television.
They were waiting at Bungalow No.1, Akbar Road, the home office of the
Prime Minister. Bungalow No.1, Safdarjung Road was the official residence of the Prime
Minister. The two buildings are connected by a narrow cemented pathway. They
are located practically in one campus, but seperated by a sentry gate which is
known as the "TMC Gate." Smt. Indira Gandhi at about 9.10 a.m. emerged from her house.
Immediately behind her was Head Constable
Narayan Singh (PW 9) holding an umbrella to protect her against the sun.
Rameshwar Dayal (PW 10) an Assistant
Sub-Inspector, Nathu Ram (PW 64), her personal attendant and R.K. Dhawan,Special
Assistant, were closely following Smt. Gandhi.
In pursuance of the aforesaid conspiracy Beant
Singh and Satwant Singh, who had prior knowledge that Smt. Gandhi was scheduled
to pass through the TMC Gate on the date and at the time afore-mentioned,
manipulated their duties in such a manner that the former would be present at
the TMC Gate and the latter at the TMC sentry booth on October 31.
1984 between 7.00 and 10.00 A.M. Beant Singh got
exchanged PG NO 26 his duty with S.I. Jai Narain (PW7). Satwant Singh, who
ought to be at Beat No. 4, managed to get TMC sentry booth by misrepresenting
that he was suffering from dysentry. He was given that place since it was near
the latrine. Thus they had managed to station themselves together near the TMC
gate.
Smt. Indira Gandhi was at the head of the
entourage on the cemented pathway followed by the afore-mentioned persons
approaching the TMC Gate where Beant Singh, S.I. was on the left side while
Satwant Singh, Constable was on the right side. At that time Beant Singh was
armed with his service revolver while Satwant . Singh had SAF carbine. When
Smt. Gandhi reached near the TMC Gate, Beant Singh fired five rounds and
Satwant Singh 25 shots at her from their respective weapons, as a result of
which Smt. Indira Gandhi sustained injuries and fell down. She was immediately
removed to the All India Institute of Medical Sciences (AIIMS) where she
succumbed to her injuries the same day.
The cause of death was certified upon a
post-mortem which took place on October 31, 1984 as haemorrhage and shock due to multiple
fire arm bullet injuries which were sufficient to cause death in the ordinary
course of nature. The post- mortem report also opined that injuries Nos. 1 and
2 specified in the report were sufficient to cause death in the ordinary course
of nature, as well.
At the spot of the incident both Beant Singh and
Satwant Singh are alleged to have thrown their arms which had been recovered.
Five empties of Beant Singh's revolver and 25 empties of SAF Carbine of Satwant
Singh and 6 lead pieces were recovered from the spot. 13 live cartridges. 38
bore from the person of Beant Singh and 75 live cartridges of .99 SAF carbine
from the person of Satwant Singh were also recovered. Two lead pieces were
recovered from the body of Smt. Indira Gandhi during the post-mortem and two
from her clothes and that the experts opined that the bullets recovered from
the body and found from the spot were fired through the weapons possessed by
these two accused persons.
Rameshwar Dayal ASI (PW 10), who was following
Smt. indira Gandhi, also received injuries on his left thigh as a result of
shots fired by the accused which were grieveous and dangerous to life.
Both the assassins were secured by the Indo
Tibetan Border Police Personnel, and taken to the guard room. where they
sustained gun shot injuries as a result of which Beant Singh died and Satwant
Singh suffered grievous injuries but recovered later on.
PG NO 27 The prosecution case against Kehar
Singh was that he was a religious fanatic. He had intense hate against Smt.
Indira Gandhi for causing damage to the Akal Takhat in Golden Temple, Amritsar by "Operation Blue
Star." He was in a position to influence Beant Singh, being the uncle of
Beant Singh's wife called as `Poopha'. He converted Beant Singh and through him
Satwant Singh to religious bigotry. He made them to undergo "Amrit Chakhan
Ceremony" on October 14 and 24, 1984 respectively at Gurdwara, R.K. Puram,
New Delhi. He also took Beant
Singh to Golden Temple. Amritsar on October 20.1984.
Gold `Kara' and `ring' of Beant Singh were later recovered from him.
It is alleged that Balbir Singh, like other
accused had expressed his resentment openly, holding Smt. Indira Gandhi
responsible for the "Operation Blue Star". He was planning to commit
her murder and had discussed his plans with Beant Singh (deceased). who had
similar plans to commit the murder. He also shared his intention and prompted
accused Satwant Singh to commit the murder of Smt. Indira Gandhi and finally
discussed the matter with him on October 30. 1984. In the first week of
September 1984, when a falcon (Bazz) happen to sit on a tree near the main
Reception of the Prime Minister's House st about 1.30 P.M. Balbir Singh spoted
the falcon. called Beant Singh there and pointed out the falcon. Both of them
agreed that it had brought a message of the Tenth Guru of the Sikhs and that
they should do something by way of revenge of the "Operation Blue
Star".
Therefore both of them performed `Ardas' then
and there.
Balbir Singh was posted on duty at the Prime
Minister's residence. On October 31. 1984 his duty was to commmence in the
evening. When reported for duty, in the usual course. he was asked to go to
security lines. At about 3.00 a.m. on November 1. 1984 his house was searched and a book on Sant
Bindrawala was recovered. At about 4.00 a.m. he was taken to Yamuna Velodrome and kept there
till late in the evening when he was reported to have been released. This
custody in Yamuna Velodrome was described as `de facto custody'.
Thereafter on December, 1984 he was said to have
been arrested at Najafgarh Bus Stand when his personal search was taken and
certain articles were recovered from his possession including a piece of paper
containing certain entries described as "Memorandum events" allegedly
written by him.
After the investigation the charge-sheet was
filed against appellants Satwant Singh, Balbir Singh and Kehar Singh. They were
accused of offences under ss. 120-B, 109 PG NO 28 and 34 read with s. 302 of
the IPC and also of substantive offences under ss. 302 and 307 of the IPC and
ss. 27, 54 and 59 of the Arms Act.
The accused were committed to take their trial
in the Court of Session. In the meanwhile the High Court of Delhi issued two
notifications. By one notification, the High Court directed that the trial of
the case shall be held in the Central Jail, Tihar according to law. By another
notification the High Court directed that "the case be tried by Shri
Mahesh Chandra, Additional Sessions Judge, New Delhi." In pursuance of the said notifications,
the accused were tried in Central Jail, Tihar. The trial Judge found the
accused guilty of all the charges framed against them and convicted Satwant
Singh, Beant Singh and Kehar Singh of murder under s. 302 read with s. 120-B
and 34 IPC as well as under s. 307 IPC and s. 27 of the Arms Act. The trial
Judge awarded the sentence of death on all the three accused. The trial Judge
also awarded other terms of imprisonment on Satwant Singh.
Two appeals were filed in the High Court--One by
Satwant Singh and the other by Balbir Singh and Kehar Singh jointly,
challenging their conviction and sentence. These appeals were heard alone with
the Murder Reference No. 2 of 1986. The High Court accepted the Murder
Reference and dismissed the appeals preferred by the accused and confirmed
firmed the conviction and the sentence of death on all the accused. The High
Court also confirmed the other sentence on Satwant Singh.
In the appeal to this Court, on behalf of the
appellants it was contended;
(1) that under Art. 2.1 of the Constitution
speedy, open and public trial is one of the constitutional guarantees of a fair
and just trial and by holding the trial in Tihar Jail in the instant case this
gurantee has been affected and the accused have been deprived of fair and open
trial as contemplated under s. 327 of the Code of Criminal Procedure;
(2) that in cases where the ends of justice
would be defected it the case is not heard in camera. only the trial Court. for
special reasons to be recorded, could hold the trial or a part of the trial in
cameral. Section 327 of the Code does not confer any such authority or
jurisdiction on the High Court;
(3) that the High Court has no power to direct
that trial of a criminal case at a place other than the normal seat of the
Court of Sessions. Section 9(6) of the Code empowers the High Court only to specify
the place or places at which all or any class of the cases pertaining to a
division can be heard and does not empower the High Court to specify the place
or places of hearing for individual cases;
(4) that in the instant case, the High Court
while exercising jurisdiction under s. 9(6) of the Code notified the place of
PG NO 29 trial as Tihar Jail. It indirectly did what the trial Court could have
done in respect of particular part of the proceedings. By shifting the trial to
Tihar Jail it could not be said to be open and public trial as the trial inside
the Jail premises is the very antithesis of an open trial;
(5) that the orders passed by the trial Court
providing that representatives of the Press may be permitted to attent and for
security, etc. the Jail authorities will regulate entry to the Court indicate
that the trial was not public and open and therefoe on this ground alone the
trial vitiates;
(6) that the fundamental right guaranteed under
Art. 19(1)(a) of the Constitution need not be under the mercy of the Court and
that there should not be any discrimination in the matter of public access to
judicial proceedings and first come first serve should be the principle no
matter whether one is a press person or an ordinary. citizen;
(7) that under s. 194 of the Code it was not
necessary for the High Court to have allotted the instant case to a particular
Judge;
(8) that inspite of the prayer made by the
accused during the trial and also in the High Court about the copies of the
statements of the witnesses who have been examined by the prosecution and were
also examined before the Thakkar Commission the same were not supplied. Even
the copy of the Thakkar Commission Report was not made available. Not only were
the accused entitled to the previous statements of witnesses who were examined
by the prosecution, but they were also entitled to relevant material on the
basis of which they could build their defence and raise appropriate issues at
the trial;
(9) that the High Court has misconstrued the
scope of s. 6 of the Commission of Inquiry Act, 1952 and misunderstood the
observations in Dalmia's case [1959] SCR 279;
(10) that even if the words "used
against" in s. 6 of the said Act mean preventing the use of statement for
the purposes of contradictions as required under s. 145 of the Evidence Act,
there are other provisions by which the previous statement could be looked into
for productive uses without confronting the witnesses such as first part of
145, sub-s. (1) & (2) of s. 146, s. 157 and s. 159 of the Evidence Act. The
term "used against" in s. 6 was not intended to be an absolute bar
for making use of such statements in subsequent proceedings;
(11) that the confession of Satwant Singh being
not recorded in the manner prescribed in s. 164 of the Code is inadmissible in
evidence and cannot be used for convicting the accused;
(12) that there is no evidence that Beant Singh
and his wife were deliberately taken by Kehar Singh to expose them to
provocative Bhajans in the house of Ujagar Sandhu at the time of celeberation
of the birthday of a child;
(13) that Kehar Singh being an elderly person
and a devout religious Sikh was keeping company with Beant Singh to dissuade
the latter from taking any drastic action against Smt. Gandhi;
(14) that there is no substantive evidence from
the PG NO 30 testimony of Bimla Khalsa that Beant Singh took Amrit on October
14, I9S4 at the instance of Kehar Singh;
(15) that the finger prints found on the
sten-gun of accused Satwant Singh were not tested for comparison and the two
bullets recovered from the body of Smt. Gandhi were not examined for traces of
blood or tissues;
(16) that the post-mortem examination ought to
have been full and complete.
It was further contended on behalf of Balbir
Singh:
(i) that the document Ex. PW 26/B was not
recovered from his possession;
(ii) that his arrest at Najafgarh bus-stand was
a make believe arrangment. He was not arrested there and indeed he could not
have been arrested, since he was all along under police custody right from the
day when he was taken to Yamuna Velodrome on November 1, 1984. He was not
absconding and the question of absconding did not arise when he was not
released at all. No question was put to him under Section 313 examination that
he had absconded;
(iii) that the conclusions of the High Court on
all these matters were apparently unsustainable; and
(iv) that there being no charge against the
accused under s. 109 IPC they are liable to be sentenced only for the offence
of abetment and not for murder.
On behalf of the Respondent-State it was
contended; (i) that this Court in an appeal under: Art. 136 of the Constitution
of India is not expected to interfere with the concurrent findings of facts
arrived at by the two Courts below;
(2) that there is no question-of any
constitutional right under Art. 21. Article 21 only talks of procedure
established by law and if today on the statute book there is s. 327 Cr. P.C.
tomorrow s. 327, may be so amended that it may not be necessary for a criminal
trial to be open and it does not becomes a consitutional right at all;
(3) that the premises where the trial was held
was not that part of the Jail where the prisoners are kept but was the office
block where there was an approach, people were permitted to reach. and the
trail was held as if it was held in an Ordinary place;
(4) that there is nothing to show that the
friends and relations of the accused or any other member of the public was
prevented from having access to the place where the trial was held. On the
other hand, permission was granted to the friends and relations of the accused
as well as to outsiders who wanted to have access to the Court or to see the
proceedings subject, of course, to Jail Regulations. Section 2 (p) Criminal
Procedure Code defines `place' as including a house, building, tent, vehicle
and vessel. So Court can be held in a tent, vehicle, a vessel that than in
Court. Furthermore, the provision to s.327, Cr.P.C. provides that the presiding
Judge or Magistrate may also at any stage of trial by Order restrict access of
the PG NO 31 public in general, or any particular person in particular in the
Court room or building where the trial is held;
(5) that if the confession is not recorded in
proper form as prescribed by s. 164 read with s. 281 which corresponds to
earlier s. 364, it is a mere irregularity, and it can be cured by s. 463 on
taking evidence that the statement was recorded duly and that it has not
injured the accused in his defence on merits;
(6) that if the High Court had the authority to
issue notification under s. 9(6) Cr. P.C. fixing the place of sitting it was
open to the High court also to fix the place of sitting for a particular case;
(7) that the language of s. 6 of the Commission
of Inquiry Act is clear that a witness who is examined before a Commission, is
protected and that protection is that the statement made before the Commission
could not be used against him for any other purpose in any other proceedings
either Civil or Criminal. The only exception carved out in s. 6 pertains to his
prosecution for perjury. The Commission by its regulation and notification
clearly made the enquiry a confidential affair and in addition to that there
was an amendment of the Act which even provided that if Government by
notification decided not to place the Report of the Commission before the House
of Parliament or Legislature then it was not necessary that it should be so
placed before the House and thus the report not only wast confidential but even
the Parliament had no right to see the report and. therefore, neither the
report nor the statements made before the Commission could be asked for by the
accused for the purposes of trial;
(8) that in the remand application dated December 4, 1984, it was stated that
Balbir Singh had absconded and was not available for interrogation and that he
was arrested at Najafgarh Bus stand on December 3, 1984. The Magistrate
therefore, remanded the accused to policc custody till December h and the order
of remand was signed I,S' the accused. The accused being a police officer did
not object to the allegations made against him in the remand application; and
(9) that as regards recovery of documents Ex. PW
26/B from the accused Balbir Singh, entry No. 986 in the Malkana Register of
Police Station,Tughlak Road, which contains verbatim copy of the seizure memo (Ex. PW
26/A), is indicative of the fact that Ex. PW 26/B was recovered from the
accused upon his arrest and search.
The Court unanimously dismissing the Appeals of
Kehar Singh, and Satwant Singh and allowing the Appeal of Balbir Singh,
HELD: Per Oza, J.)
1. The act of the accused not only took away the
life of a popular leader of the country but also undermines the democratic
system which has been working in the country PG NO 32 so well for the last
forty years. There is yet another serious consideration. Beant Singh (deceased)
and accused Satwant Singh were posted on the security duty of the Prime
Minister to protect her from any intruder or from any attack from outside and,
therefore, if they themselves resort to this kind of offence, there appears to
be no reason or no mitigating circumstance for consideration on the question of
sentence. Additionally, an unarmed lady was attacked by these two persons with
a series of bullets and it has been found that a number of bullets entered her
body.
The manner in which mercilessly she was attacked
by these two persons on whom confidence was reposed to give her protection
repels any consideration of reduction of sentence. In this view of the matter,
even the conspirator who inspired the persons who actually acted does not
deserve any leniency in the matter of sentence. The death sentence awarded by
the trial Court and maintained by the High Court appears to be just and proper.
[115F-ll6B]
2. The first part of s. 194 Cr. P.C. clearly
provides that the Sessions Judge of the Division by general or special order is
supposed to allot cases arising in a particular area or jurisdiction to be
tried by Additional or Assistant Sessions Judges appointed in the Division, but
the last part of this section also authorises the High Court to allot the case
to a particular Judge keeping in view the fact that in certain cases the
Sessions Judge may not like to allot and may report to the High court or either
of the parties may move an application for transfer and under these
circumstances it may become necessary for the High Court to allot a particular
care to a particular Judge. [78G-H]
3. From the language of s. 9(6) Cr.P.C. one
thing is clear that so far as the High Court is concerned it has the
jurisdiction to specify the place or places where ordinarily a Court of
Sessions may sit within the division. So far as any particular case is
concerned trial at a place other than the normal place of sitting is only
permissible under the second part of the sub-clause with the consent of parties
and that decision has to be taken by the trial Court itself.
Whatever be the terms of the notification, it is
a notification issued by the Delhi High Court under s. sub- clause (6) of
Cr.P.C. and thereunder the High Court could do nothing more or less than what
it has the authority to do.
Therefore, the High Court could be taken to have
notified that Tihar Jail is also one of the places of sitting of the Sessions
Court in the Sessions division ordi- narily. That means apart from the two
places Tis Hazari and New Delhi, the High Court by notification also notified
Tihar Jail as one of the places where ordinarily a Sessions Court could hold
its sittings.
PG NO 33 There is, therefore, no error if the
Sessions trial is held in Tihar Jail after such a notification has been issued
by the High Court. [79G-80E]
4. In fact, the High Court was right when it
referred to the concept of administration of justice under the old Hindu Law.
But apart from it even the Criminal Procedure Code as it stood before the
amendment had a provision similar to s.
327 which was s. 352 of the Old Code and in fact
it is because of this that the criminal trial is expected to he open and
public. In our Constitution phraseology difference from the United States
Constitution has been there. Art. 21 provide? that no person shall be deprived
of his life or personal liberty except according to procedure established by
law. So far as this aspect of open trial is concerned the procedure established
by law even before our Constitution was enacted was as is provided in s. 327
Cr.P.C. The language of s. 327 shows that any place where a criminal Court
holds its sitting for enquiry or trial shall be deemed to be an open Court to
which the pablic generally may have access provided the same can conveniently
contain them. The language itself' indicates that even if a trial is held in an
private house or is held inside. jail or anywhere no sooner it becomes venue of
trial of a criminal case it is demed to be in law an open place and everyone
who wants to go and attend the trial has a right to go and attend the trial
except the only restriction contemplated is number of persons which could be
contained in the premises where the Court sits. [18C-E,82D-E]
5. The only thing that is necessary for the
appellant is to point out that, in fact, it was not an open tiral. There is no
material at all to suggest that any one who wanted to attend the trail was
prevented from so doing or one who wanted to go into the Court room was not
allowed to do so.[82G]
6. it is very clear that Art. 21 contemplates
procedure established by law and the procedure established by law was as on the
day on which the Constitution was adopted and, therefore, it is not so easy to
contend that by amending the Criminal Procedure Code the effect of the
procedure established by law indicated in Art. 21 could be taken away.
The trend of decisions of this Court has clearly
indicated that the procedure must be fair and just. Even expeditious trial has been
considered to be a part of the guarantee under Art. 21. Undisputedly the
procedure established by law as indicated in Art. 21 is as provided in s. 327
and unless on facts it is established that what is provided in s.327 was
prevented or was not permitted,it could not be said that merely because trial
was held at a particular place it could be said to be a trial which was not
open to public. Merely suggesting the difficulties in reaching the Jail will
not he enough, to say that it ceased to be a public trial. It was not that part
of the Jail where the prisoners are kept but was the Office block where there
was an approach, people were permitted to reach and the trial was held as if it
was held in an ordinary place and in fact what the High Court did by issuing a
notification under s. Y(6) was not to fix place of trial of this Particular
case in Tihar Jail, but the High Court by the said notification made Tihar Jail
also as one of the places where a Sessions Court could ordinarily sit and in
this case, therefore, the trial was held at this place. As soon as a trial is
held whatever the place may be the provisions of s. 327 are attracted and it
will be an open Court and every citizen has a right to go and unless there is
evidence or material on record to suggest that on the facts in this particular
public at large was not permitted to go or some one was prevented from on the
facts in this Particular case attending the trial or that the trial was in
camera. In fact, without an appropriate order it could not be said that what is
contemplated under s. 327 or under Art. 21 was not made available to the
accused in this case and, therefore, it could not be contended that there is
any prejudice at the trial.[83B-84C] PG NO 34
7. On analysis of the provision of s. 6 of the
Commission of Inquiry Act, I952, it will be found that there are two
restrictions on the use of a statement made by a witness before the Commission.
A statement given in a Commission cannot be used to subject the witness to any
civil or criminal proceedings nor it can be used against him in any civil or
criminal proceedings and it is in the context of these restrictions the
Provisions of s.145 read with s. 155(3) and s. 157 of the Evidence Act which
permit the use of a previous statement of a witness and for what PurPose will
have to be examined. These sections clearly indicate that there are two
purposes for which a previous statement can be used. One is for
cross-examination and contradiction and the other is for corroboration. The
first PurPose is to discredit the witness by putting him the earlier statement
and contradicting him on that basis. So far as corroboration is concerned, it
could not be disputed that it is none of the PurPoses of the defence to
corroborate the evidence on the basis of the previous statement. section 145,
therefore, is the main section under which relief was sought by the accused.
The use for which the previous statement was asked for was to contradict him if
necessary and if it was a contradiction then the earlier statement was
necessary so that contradiction be put to the witness and that part of the
statement can be proved.[89E-G; 91D-E]] 8.Contradiction could be used either to
impeach the credit of a witness or discredit him or to pull down or bring down
the reliability of the witness. These purposes for which the previous
statements are required could not be said to be purposes which were not against
the witness. The two aspects of the restrictions which s. 6 contemplates are
the only two aspects which could be the result of the use of these state- .
There is no other use of such previous statements in criminal proceedings. It
is, therefore, clear that s. 6 prohibits the use of the previous statements at
the trial either for the purpose of cross- examination to contradict the
witness or to impeach his credit. Therefore, the Courts below were right in not
granting the relief to the accused. [9lF-92A]
9. The report of a Commission is a
recommendation of the Commission for the consideration of the Government. It is
the opinion of the Commission based on the statements of witnesses and other
material. It has no evidentiary value in the trial of a criminal case. In the
instant case, the Courts below were also justified in not summoning the reports
of the Thakkar Commission. Moreover, the Commission framed regulations under s.
X of the Act in regard to the procedure for enquiry and Regulation 8 provided
that in view of the sensitive nature of enquiry the proceedings will be in
camera unless the Commission directs otherwise. So far as recording of evidence
and the proceedings of the Commission are concerned they were held in camera
throughout and even the reports, interim and final were stated by the
Commission itself to be confidential. Normally, the Government was supposed to
place the report of the Commission before the House of the People, but the
Government did not do that, amended the Commisson of Inquiry Act, 1952 and
notified that the reports of the Thakkar Commission shall not be laid before
the House of the People in the interest of the security of the State and in
public interest and the said notification was also got approved by the House of
people. [86B-87Gl PG NO 35
10. Undisputedly Smt. Indira Gandhi died as a
result of the gun shot injuries inflicted by Beant Singh and Satwant Singh with
their service revolver and carbine respectively.
In view of such clear evidence about the cause
of the death, the post-mortem or a fuller postmortem examination loses all its
significance. It becomes important only in cases where the cause of death is to
be established and is a matter of controversy. [92D-F]
11. Where the High Court has reached cunclusions
based on partly inadmissible evidence and partly on circumstances which are not
justified on the basis of evidence, or partly on facts which are not borne out
from the evidence on record it cannot be contended that in an appeal under Art.
136 of the Constitution the Supreme Court will
not to into the facts of the case and come to its own conclusions. The case in
hand is one of such cases and some of the findings of fact reached by the High
Court could not be said to be such which are concurrent or conclusive. This
Court was, therefore, put to the necessity of examining the evidence wherever
it was necessary. Moreover, it was a case where the very popular elected leader
of the people, Prime Minister Of India, was assassinated, but still this Court
has all through maintained the cardinal principle of the Constitution-Equality
before law and the concept of rule of law in the system of administration of
Justice. [93G,77H- 78A] PG NO 36 Pritam Singh v. The State,[1950]AIR SC 169;
Ram Raj v. State of Ajmer,[1954]SCR 1133 and AIR 1983 SC 753, referred to.
12. Section 12O-A I.P.C. provides that when two
or more persons agree to do or cause to be done an act which is an illegal act
it is criminal conspiracy. Section 12-B provides for the Punishment for a
criminal conspiracy. To prove a conspiracy it was not easy to get direct
evidence.
Therefore, s. 10 of The Indian Evidence Act was
enacted.
first part of s- 10 talks of where there is
reasonable ground to believe that two or more persons have conspired to commit
an offence or an actionable wrong, and it is only when this condition Precedent
is satisfied that subsequent part of the Section comee into operation and it
talks of reasonable grounds to believe that two or more persons have conspired
together and this evidently has reference to s. 120-A of the I.P.C. where it is
provided "when two or more persons agree to do, or cause to be done."
This further has been safeguarded by providing a proviso that no agreement
except an agreement to commit an offence shall amount to criminal conspiracy.
Therefore, a prima facie case of conspiracy has necessarily to be established
for application of s. 10. The second part of s.10 talks of anything said, done
or written by any one of such persons in reference to the common intention
after the time when such intention was first entertained by any one of them is
relevant fact against each of the persons believed to be so conspiring as well
for the PurPose for proving the existence of the conspiracy as for the purpose
of showing that any such person was a party to it. The second port of s. 10
permits the use of evidence which otherwise could not be used against the
accused person. Act or action of one of the accused cannot be used as evidence
against the other. But an exception has been carved out in s. 10 in case of
conspiracy. The second part of s. 10 operates only when the first Part of the
section is clearly established i.e. there must be reasonable ground to believe
that two or more persons have conspired together in the light of the language
of s. 120-A. It is only then the evidence of action or statements made by one
of the accused could be used as evidence against the other.[94E-95E] PG NO 37
Sardul Singh Caveeshar v. State of Maharashtra, [1964]2 SCR 378 relied on.
13.At about 3 A.M. on November 1,1994 Balbir
Singh, appelant was awakened from his sleep and his house was searched, but
nothing except a printed book on Sant Bhindrawala was recovered. At about j
P.M. allegedly he was taken to Yamuna Velodrome, a place where police has
reserved a portion of this building to be used for interrogation and
investigation. He was kept there till late in the evening when he is reported
to had been released. The custody in Yamuna Velodrome is described as 'de facto
custody'. But there is no evidence or no police officer examined to say that he
allowed this appellant to go in the evening on November 1, 1984. The appellant is said
to have been absconding since then and thereafter he is alleged to have been
arrested on December 3. I984 at Najafgarh Bus stand.
When his personal search was taken certain
articles including a piece of paper Ex. PW 26/H were recovered from his possession.
"he appellant denied his release from Yamuna Velodrome and challenged his
arrest at Najafgarh Bus-stand and recovery of any document from his possession
as alleged by the prosecution. [97B-D]
14. The prosecution evidence itself indicates
that on Novembr 1,1984 late at night Balbir Singh's house was searched and a
printed Book-Sant Bindrawala was seized from his house, he was brought to
Yamuna Velodrome and upto the evening of the next day he was seen there.
normally when a person or a witness is brought for interrogation or
investigation at a Police station, some record has to be made as there is a
general diary, although diaries may or may not be filled in, but a duty is cast
on the Station House Officer of a Police Station to maintain the movements of
the Police Officers and also to note down the activities, especially when it is
connected with the investigation of an important case. But it appears that all
about the preliminary investigation of this case was going on at Yamuna
Vlodrom, witnesses and persons were brought here, detained or kept, and
interrogated but there is no further evidence in regard to this place.[98D-G]
15. This part of the prosecution story that this
accused was at Yamuna Velodrome upto the evening of that day and thereafter he
was allowed to go and then he absconded becomes very important in view of the
further facts alleged by the prosecution that the investigating officer got
some information through some one that this accused who was wanted would appear
at the time and place But there is no evidence as to who asked this accused to
go. He was a suspect in the criminal conspiracy. He could not have gone away of
his own accord. Some responsible officer must have taken the decision but it is
unfortunate that no office has been examined to state that "I thought that
his presence was not necessary and therefore I allowed him to go." There
is no evidence on this aspect of the matter at all and the only evidence is
that this person was arrested at midnight in the late hours on November 1,
1984, carried to Yamuna Velodrome and was seen there by some prosecution
witnesses till the evening of the next day. [98H-99C] PG NO 38
16. As regards the prosecution allegation that
this appellant was absconding from Ist or 2nd November till 3rd Dec. 1984, it is significant that
no witness has been examined to indicate that he went to find him out either at
his residence or at any other place in search of him and that he was not
available. There is also no evidence produced to indicate that inspite of the
fact that during investigation police wanted to arrest him again but he was not
available at his known address. It is perhaps of absence of evidence as to
absconding the trial Court when examined this accused under s. 313 Cr.P.C. did
not put him any question about his abscondence. It is, therefore, clear that
the abscondence as a circumstance could not be used against him. [99D-E]
17. As regards the arrest of this appellant at
Najafgarh Bus stand, it was alleged that the Investigating Officer got some
information that this accused was expected to appear at that place on December
3,1984. It was not immediately after the assassination. It was after a month.
The people could come forward to become witness. But no independent witness has
been examined in support of the arrest or seizure from the accused. In all
matters where the police wants that the story should be believed they always
get an independent witness of the locality so that that evidence may lend
support to what is alleged by the police officers.
Admittedly for this arrest Najafgarh and for the
seizure of the articles from the person of this accused there is no other
evidence except the evidence of police officers.
Independent witness in this case would be all
the more necessary, especially when his release after the earlier arrest is not
established and his abscondence is not proved. In such a controversial
situation the presence of an independent witness from the public, if not of the
locality, would have lent some support to the case of the prosecution. The
accused is said to have appeared at the Bus- stand but it has been shown where
he appeared. Whether he get down from a bus, if so from which bus-city or
outstation bus? How he appeared there is all mystery. Nobody bothered to notice
of his coming. It is said that he had a DTC bus ticket. NobodY examined it.
Perhaps there was nothing to examine. If the Police Officer had gone with prior
information to arrest the absconding accused who was involved in such an
important crime, they could have taken an independent witness with them. It is
again interesting to note instead of searching him and Performing the
formalities of arrest at the place where the accused appeared, he was taken to
a place said to be the office of the Electricity Board. The search and seizure
took place there. Some articles were recovered from his possession. Most of the
articles recovered are mere personal belongings. There was also a piece of
paper since marked as Ex. PW 26/B. The Police did not think it necessary to have
an independent witness even for the seizure memo, when particularly some
important piece of evidence was recovered from his possession The plea of the
prosecution was that nobody was available or none was prepared to be a witness
in this matter. It is unthinkable at a public place and that too at the
Bus-stand. The further plea of the prosecution was that the circumstances After
the assassination of the Prime Minister were such that no witness was prepared
to come forward. It appears that for every problem this situation is brought as
a defence by the prosecution but this would not help them go them so far as
this matter is concerned. It is very difficult to believe that more than one
month after the unrest in Delhi a citizen in this capital did not come forward to be a
witness for seizure memo. The arrest of the accused Balbir Singh in the
circumstances stances appears to be only a show and not an arrest in actuality.
If the release of this accused after his arrest on Ist November is not
established and his abscondence is not proved, then the story of his arrest on
3rd December with the recovery of the articles loses all its significance. The
arrest of the accused on 3rd December and the recovery of the alleged articles
from his person have not been proved satisfactorily and therefore could not be
of any consequence against this accused. The attempt of the prosecution lo
prove the recovery of Ex. PW 26/B on the basis of an entry in the Mslkhana
Register of Tughlak Road Police Station is an interesting situation. There is
an endorsement in the Malkhana Register stating that the DTC ticket which the
accused carried and the paper containing the dates in English Ex. PW.26/B were
not deposited. The Malkhana Register, therefore, is of no help to the
prosecution. In view of' these infirmities it cannot be accepted that the
accused was arrested on 3rd December as alleged by the prosecution So the
recovery of Ex. PW 26/B is doubtful.[99G- 101G] PG NO 40
18. The document Ex. PW 26/B is a sheet of paper
containig certain entries, and if it is considered to be a "memorandum of
events~ prepared by this accused relating to his conspiracy, why should he
carry it in an atmosphere surcharged with emotion against the Sikhs. Not only
that, this person knew that he was an accused in such an important case,
absconding and carrying in his pocket such an important piece of evidence. Was
it his intention that he should keep it readily available so that he could
oblige the prosecution whenever they needed? There is no other possible reason
why this person should keep this document with him all the time. The
prosecution could not explain this strange behaviour of the accused as to why
he could have thought of carrying such a piece of paper in his pocket.
[1O1H-102C] Except a mention of few dates and few events there is nothing in
document Ex.PW.26/B.It even does not indicate that with those events whether
this accused was connected in any manner. It is significant that this document
was not with him when his house was searched and he was arrested on the night
of November
1, 1984.
If after that arrest he was not released at all and there was no occasion for
him to go away then, one fails to understand as to how this document came in
his possession. The evidence indicates that this accused was preparing to give
a statement or a confession and, therefore, he was given the notes and he must
have recorded those dates to facilitate the statement that he was planning or
he was made to give which ultimately he choose not to give at all. [102D-F] There
is no reference after the words 'felt like killing' as to who was intended ln
be killed, and as to whose feelings were noted in this piece of paper. There
are entries in this document which refer to meetings, visits.
persons, visiting somebody's house but it is not
clear as to whom they refer and what is intended when reference is made.
Beant Singh has been referred to in this
document more than in one place. At one place, there is a reference to Beant
Singh with eagle. But there is no reference to a joint brought a message or
they should take revenge. The entry dose not suggest that the accused Balbir
Singh had anything to do with the eagle. If there is anything it is against
Beant Singh. [102G-103A] A perusal of this whole document also shows that there
is no reference at all to Beant singh and his plan to kill the Prime Minister
Nor there is any mention about the bomb or granade with which he was planning
to eliminate the Prime Minister before 15th August 1984. There is also no
reference about Beant Singh conspiring with this Accused or PG NO 41
vice-versa. Kehar Singh is not at all in the document.
Satwant Singh, however, is mentioned against
30th October, but without any indication where? [103B]
22. Under these circumstances it is very clear
that except the mention of 'Operation Blue Star' and 'felt like killing' there
is nothing in this document which is of any significance. If the document is
read as it is, there is nothing incriminating against accused Balbir Singh.
Unfortunately it appears that the High Court
read in this document what was suggested by the posecution without considering
whether it could be accepted or not in the absence of evidence on record.
Admittedly, there is no such evidence at all in this case. [103D]
23. Even if the document is accepted to have
been written by accused Balbir Singh, still there is nothing in it on the basis
of which an inference of conspiracy could be drawn. There must be evidence to
indicate that the accused was in agreement with the other accused persons to do
the act which was the ultimate object which was achieved on October 31, 1984. This document,
therefore, although described by the High Court as very important piece of
evidence, is nothing but a 'scrap of paper'. [103G]
24. Unfortunately, the High Court while coming
to the conclusion that Balbir Singh knew Beant Singh and Satwant Singh well,
has not referred to any piece of evidence which establishes that they knew each
other well. The prosecution has also not been able to point out any piece of evidence
on the basis of which this could be inferred. This accused being a Sikh also is
referred to, but there were number of Sikh Officers posted at the house of the
Prime Minister and merely because he was a Sikh it could not be said that he
became a party to the conspiracy or he was in conspiracy or he knew Beant Singh
and Satwant Singh well. Similarly as regards the observations made by the High
Court that Balbir Singh shared indignation of Beant Singh against Smt. Gandhi
was in a mood to avenge for the 'Operation Blue Star' there is no evidence to
support it. From the evidence of SI Madan Lal Sharma, PW 30 all that could be
gathered is that after the 'Operation Blue Star' Balbir Singh was in an
agitated mood and he used to say that the responsibility of damaging the Akal
Takht lies with Smt. Gandhi and it would be avenged by them. From this it
cannot be inferred that Balbir Singh wanted to take revenge against the Prime
Minister alongwith Beant Singh. If expression of anger or protest on the
'Operation Blue Star' could be used as a piece of evidence or a circumstance
against accused then all those members of the Sikh Community who felt agitated
over the 'Operation Blue Star' must be held as members of the Conspiracy.
[104E-105A] PG NO 42
25. There is no material to indicate that during
the leave taken by Balbir Singh, he met Beant Singh or anyone else or was in
any manner connected with the conspiracy or was doing something in pursuance of
the agreement of conspiracy between them. Merely because on certain dates he
was on leave no inference could be drawn. [105B]
26. So far as appearance of falcon and offering
of Ardas is concerned, admittedly appearance of a falcon is considered, by the
Sikh Community, as a sacred thing as falcon is supposed to be a representative
of the Guru and if, therefore, this accused and Beant Singh offered Ardas
nothing could be inferred from this alone. [105C]
27. The statement of Amarjit Singh PW 44 was
recorded thrice during the investigation. In the first statement there is no
involvement of Balbir Singh and had alleged against Beant Singh. According to
him, he recalled bit by bit and that was the reason, he gave the subsequent two
statements. If these statements are carefully perused it is clear that the
entire approach of the High Court appears to be erroneous. What he did later
was to improve upon his statement and indroduce Balbir Singh also or substitute
Balbir Singh in place of Beant Singh. The only other inference is that he was
himself a party to that conspiracy.
Otherwise there is no explanation why he should
keep on giving statement after statement, that too after 25 days of the
incident. It clearly shows that he was a convenient witness available to State
whatever was desired from him. He appears to have become wiser day by day and
remembered bit by bit, is certainly interesting to remember. In his first
version there is nothing against Balbir Singh. In his second statement he has
tried to introduce things against him. This apparently is a clear improvement.
[105F-107C]
28. Even delay is said to be dangerous and if a
person who is an important witness does not open his mouth for a long time his
evidence is always looked with suspicion but here is a witness who even after
15 days gave his first statement and said nothing against accused Balbir Singh
and then even waited for one more month and then he suddenly chose to come out
with the allegations against this accused.
Such a witness could not be relied upon and even
the High Court felt that it would not be safe to rely on the testimony of such
a witness alone. His claim that he had so much of close association with Beant
Singh and Balbir Singh that he used to be taken in confidence by these two
persons means that he is one of the conspirators or otherwise he would not have
kept quiet without informing his superiors as it was his duty to do when the
Prime Minister was in danger. [107D-G] PG NO 43
29. In the instant case, there is no evidence at
all to establish prima facie participation of accused Balbir Singh in conspiracy
or any evidence to indicate that he had entered into any agreement to do an
unlawful act or to commit an offence alongwith the other accused persons.
Therefore, in absence of any evidence in respect
of the first part of s. 10 of the Evidence Act which is necessary it could not
be contended that the confession of Satwant Singh could be of any avail or
could be used against this appellant. [107H-108A]
30. It is clear that where PW 44 says 'agreed'
and 'he' in his statement on November 24, 1984 he had not named Balbir Singh at all. It is
only now in his statement at trial that he grew wiser and made an attempt by
way of this explanation. It is rather unfortunate that the High Court felt that
this explanation should be accepted. [108D]
31. The Statement against Balbir Singh coming
for the first time on December, 21, 1984 itself in the light of the settled criminal
jurisprudence of this country ought to have been rejected outright. Even Bimla
Khalsa, the wife of Beant Singh does not mentioned anything against Balbir
Singh. [108E]
32. So far as accused Balbir Singh is concerned
there is no evidence at all on the basis of which his conviction could be
justified. He is, therefore, entitled to be acquitted. [108H]
33. The material evidence against accused Kehar
singh is the evidence of PW 65, Bimla Khalsa wife of Beant Singh.
Although she has been declared hostile, but her
statement could not be discarded in toto merely because on certain questions
she has chosen not to support prosecution. It is true that her statement for
the first time during investigation was recorded on January 16, 1985. She lost her husband
Beant Singh on October 31, 1985. She was placed in a situation where it would have been
very difficult for her to compose herself in a manner in which she could give
her statement immediately. It is nobody's case that she has any grudge against
anybody. Bimla Khalsa in clear terms stated that Kehar Singh and Beant Singh
had secret talks on October 17, 1984. She wanted to know it, but she was not given to
understand. This kind of secret talk with Beant Singh which Kehar Singh had, is
a very significant circumstance.
Apparently Kehar Singh being an elderly person
did not indicate her about their plan. If the attempt of Kehar Singh was to
dissuade Beant Singh then there was no occasion for him to keep the matter
secret from his wife. On the contrary he should have indicated to his wife also
what Beant Singh was planning. These talks, therefore, as proved by Bimla
Khalsa go a long way in establishing Kehar Singh being a party to the
conspiracy. [109-C, 111G-112A] PG NO 44
34. Her evidence also indicates that Beant Singh
took Amrit on 14th and Beant Singh kept his golden 'kara' and 'ring' in the
house of Kehar Singh which have been recovered from the latter. It clearly goes
to show that Kehar Singh knew why Beant Singh took Amrit and why he handed over
the golden 'kara' and 'ring' to him. It is also clear from the evidence of
Bimla Khalsa that what transpired between Beant Singh and Kehar Singh on 14th
was not conveyed to her and she was kept in dark. [112B]
35. In this background the trip to Amritsar of
Beant Singh, Kehar Singh and their families is of some significance. The
attempt of these two persons to keep themselves away from the company of their
wives and children speaks volume about their sinister designs. The way in which
these two avoided the company of the members of the family and PW 53 at whose
residence they were staying and the manner in which they remained mysterious if
looked at with the secret talks which they had in the house of Bimla Khalsa
earlier goes to establish that the two were doing something or discussing
something or planning something which they wanted to keep it as a secret even
from Bimla Khalsa. [112C- G]
36. The manner in which Amrit has been taken by
Beant Singh and even Satwant Singh and Bimla Khalsa have been made to take it
makes it significant that in all these three of Amrit taking Kehar Singh was
always with them or at least it could be said, was inspiring them to have it.
It also indicates that there was something in the mind of Beant Singh which was
known to Kehar Singh and which he even tried to keep a secret from his wife
Bimla Khalsa and wanted Beant Singh to have a full religious purification and
confidence. [113 A-B]
37. The post-crime conduct of Kehar Singh
immediately after the news of assassination spread when he mentioned to his
office colleague that ""whosoever would take confrontation with the
Panth, he would meet the same fate" shows his guilty mind with that of
Beant Singh. These circumstances by themselves indicate that Kehar Singh was a
co-conspirator to assassinate Mrs. Gandhi. [113C-E] PG NO 45
38. The main evidence against accused Satwant
Singh is evidence of eye witnesses. The testimony of Narain Singh PW 9-an eye
witness, is corroborated by the first information report and also by the two
other eye witnesses Rameshwar Dayal PW 10 and Nathu Ram PW 64, whose presence
on the spot could not be doubted. Nathu Ram was in the personal staff of the
Prime Minister and Rameshwar Dayal himself had received injuries. Apart from
it, this evidence of direct witnesses also finds corroboration from the
post-mortem report, recovery of cartridges and arms on the spot and the
evidence of the Doctor and the expert who tallied the bullets. Under these
circumstances, even if the confession of this appellant Satwant Singh is not
taken into consideration, still there is enough evidence which conclusively
establish his part in the offence and in this view of the matter there appears
to be no reason to interfere with the conclusions arrived at by the two Courts
below. Therefore, the appeal of Satwant Singh deserves to be dismissed. [114D,115C-D]
(Per Ray, J.)
1. The concurrent findings of the Trial Court as
well as of the High Court that offences under s. 302 I.P.C. read with s. 120-B,
I.P.C. and s. 34 I.P.C. were proved aginst Satwant Singh, must be upheld. It is
a gruesome murder committed by the accused who was employed as a security guard
to protect the Prime Minister Indira Gandhi. It is one of the rarest of rare cases
in which extreme penalty of death is called for. [136C]
2. The charge of conspiracy against Kehar Singh
with the accused Satwant Singh and Beant Singh since deceased has been proved
without any reasonable doubt. [136D]
3. The fixing of the place of sitting of Court
of Sessions was made prior to the enforcement of the Code of Criminal procedure
Amendment 1973 by the Executive. Under the amended Criminal Procedure Code,
1973, s. 9(6) has conferred power on the High Court to notify the place where
the Court of Sessions will ordinarily hold its sittings within the Sessions
Division in conformity with the policy of separation of Judiciary from the
executive. The High Court may notify the place or places for the sitting of the
Court where the sittings are ordinarily held if the High Court can fix a place
other than the Court where the sittings are ordinarily held if the High Court
so notifies under s. 9(6) Cr. P.C. by itself signifies that the High Court in
exercise of its powers under s. 9(6) of the Code may order the holding of Court
in a place other than the Court where sittings are ordinarily held if the High
Court thinks it expedient to do so and for other valid reasons such as security
of the accused as well as of the witnesses and also of the Court. [117C-F] PG
NO 46
4. The Order of the High Court notifying the
trial of a particular case in a place other than the Court is not a prejudicial
order but an administrative Order. In this case because of the surcharged
atmosphere and for reasons of security, the High Court ordered that the trial
be held in Tihar Jail. Therefore, it cannot be said that the trial is not an
open trial because of its having been held in Tihar Jail as there is noting to
show that the public or the friends and relations of the accused were prevented
from having access to the place of trial provided the space of the Court could
accommodate them. Various representatives of the press including
representatives of international news agency like BBC, etc. were allowed to
attend the proceedings in Court subject to the usual regulations of the jail.
[117F-G]
5. Section 327 of the Code of Criminal Procedure
provides that any place in which any criminal Court is held for the purpose of
inquiring into or trying any offence shall be deemed to be an open Court, to
which the public generally may have access. so far as the same can conveniently
contain them. The place of trial in Tihar Jail according to this provision is
to be deemed to be an open Court as the access of the public to it was not
prohibited. [117H-118A]
6. In Some cases, trial of a criminal case is
held in Court and some restrictions are imposed for security reason regarding
entry into the Court. Such restrictions do not detract from trial in open
Court. Section 327 proviso empowers the Presiding Judge or Magistrate to make
order denying entry of public in Court. No such order had been made in this
case denying access of members of public to Court. [118D-E)
7. Trial in jail does not by itself create any
prejudice to the accused and it will not be illegal. [118F]
8. In the instant case, though the trial was
held in Tihar Jail for reasons of security of the accused as well as of the
witnesses and of the Court and also because of the surcharged atmosphere, there
was no restriction on the public to attend the Court, if they so minded.
Therefore, the trial, in the instant case, in Tihar Jail is an open trial and
it does not prejudice in any manner whatsoever the accused. [120H-121A] PG NO
47
9. Though public trial or trial in open Court is
the rule yet in cases where the ends of justice would be defeated if the trial
is held in public, it is in that case the Court has got inherent jurisdiction
to hold trial in camera. Therefore, the holding of trial in jail cannot be said
to be illegal and bad and entire trial cannot be questioned as vitiated if the
High Court thinks it expedient to hold the trial in jail. [122F] Re: T.R.
Ganeshan, AIR 1950 Madras 696; Shashi Singh v. Emperor, AIR 1917 Lahore 311; Prasanta Kumar
Mukherjee v. The State, AIR 1952 Cal. 9; Kailash Nath Agarwal & Anr. v. Emperor,
AIR 1947 Allahabad 436 and Narwarsingh v.
State, AIR 1952 MB 193, approved.
C Richmond Newspapers, Inc. v. Commonwealth of
Virginia, United States, Supreme Court Reports 65 L. Ed. 2d 973; Scott and Anr.
v. Scott, [1913] AC 417; Core Lillian MC Pherson v. Oran Leo MC Pherson, AIR
1936 PC 246 and A.K. Roy, etc. v. Union of India and Anr., [1952] 2 SCR 272 at
356, referred to.
Naresh Shridhar Mirajkar v. State of Maharashtra, [1966] 3 SCR 744,
relied upon.
10. Section 164(2) of the Code of Criminal
Procedure requires that the Magistrate before recording confession shall
explain to the person making confession that he is not bound to make a
confession and if does so it may be used as evidence against him and upon
questioning the person if the Magistrate has reasons to believe that it is
being made voluntarily, then the confession will be recorded by the Magistrate.
The compliance of sub-s. (2) of s. 164 is therefore,mandatory and imperative
and non-compliance of it renders the confession inadmissible in evidence.
Section 463 (old s. 533) of the Code provides that where the questions and
answers regarding the confession have not been recorded evidence can be adduced
to prove that in fact the requirements of sub-s. (2) of s. 164 read with s. 281
have, in fact, been complied with. If the Court comes to a finding that such a
compliance had, in fact, been made the mere omission to record the same in the
proper form will not render it inadmissible in evidence and the defect is cured
under s. 463 (s. 533 of the old Code) but when there is non- compliance of the
mandatory requirement of s. 164(2) of the Code and it comes out in evidence
that no such explanation as envisaged in the aforesaid sub-section has been
given to the accused by the Magistrate, this substantial defect cannot be cured
under s. 463 of the Code. [126E- 127A] PG NO 48
11. In the instant case, accused Satwant Singh
who was in police custody was produced before the Magistrate on 29.11.1984. On
that day the accused made an application stating that he wanted to make a
statement about the facts concerning assassination of Mrs. Indira Gandhi, the
Magistrate directed the remand of the accused in judicial custody till
1.12.1984 giving the accused time to reconsider and reflect. The Magistrate
also told him that he was not bound to make any statement and if any statement
is made the same might be used against him. The Magistrate also directed the
sending of a letter to the Secretary, Legal Aid Committee to provide legal
assistance to the accused at the expenses of the State. On 1.12.1984, the
Magistrate enquired of the accused whether he wanted to make a statement
whereon the accused stated that he wanted to make a statement. He was allowed
to consult his counsel who conferred with him for about 15 minutes privately.
As the accused insisted that his statement be recorded, the application was
sent by the magistrate to the Link Magistrate for recording his statement. Before
recording his statement a doctor was called to examine the accused, who in his
report (Ext. PW 11/B) stated that in his opinion the accused is fit to make his
statement. It appears from Ext. PW 11/B-2 as well as from the questions and
answers which were put to the accused (Ext. PW 11/B-3) that the Link Magistrate
warned the accused that he was not bound to make any confessional statement and
in case he does so it may be used against him during trial. The accused in
spite of this warning wanted to make a statement and thereafter the
confessional statement Ext. PW 11/C Was recorded by the Link Magistrate. In the
certificate appended to the said confessional statement it has been stated that
there was no pressure upon the accused and there was neither any police officer
nor anybody else within the hearing or sight when the statement was recorded.
Therefore, it appears that the accused was put the necessary questions and was
given the warning that he was not bound to make any statement and in case any
statement is made, the same might be used against him by the prosecution for
his conviction. Of course, no question was put by the Magistrate to the accused
as to why he wanted to make a confessional statement. It also appears from the
evidence of the Magistrate that the confessional statement was made voluntarily
by the accused. So the defect in regarding the statement in the form prescribed
is cured by s. 463 of the Code. The defect in recording the statement in
appropriate form prescribed can be cured under section 463 of the code provided
the mandatory provisions of s. 164[2] namely explaining to the accused that he
was not bound to make a statement and if a statement is made the same might be
used against him, have been complied with and the same is established on an
examination of the Magistrate that the mandatory provisions have been complied
with. [128D-129D] PG NO 49 Hem Raj Devi Lal v. State of Ajmer, A.I.R. 1954 S.C.
462, followed.
Ram Chandra and Anr. v. State of Uttar Pradesh, A.I.R. 1957 S.C. 381;
Nazir Ahmed v. King Emperor, A.I.R. 1936 P.C. 253 [2]; Taylor v. Taylor, [1876] 1 Chancery
Division 426; State of U.P. v. Singhara Singh, A.I.R. 1964 S.C. 358; Ranbir Singh v. Emperor,
[1932] Cr. L.J. 242; Partap Singh v. The Crown, I.L.R. [1925] 6 Lah. 415; Prag
v. Emperor, [1931] Cr. L.J. 97; Ambai Majhi v. State, [1966] Cr. L.J. 851;
Abdul Rajak Murtaja v. State of Maharashtra, [1970] 1 S.C.R. 551; Dagdu and Ors. v. State
of Maharashtra, A.I.R. 1977 S.C. 1579
and Ram Parkash v. State of Punjab, [1959] S.C.R. 1219, considered.
On a consideration and appraisement of the
evidence of the eye-witnesses, it is clear and apparent that the accused
Satwant Singh and Beant Singh fired at Smt. Indira Gandhi while she was
approaching the TMC gate accompanied by her Private Secretary Shri R.K. Dhawan,
Narain Singh, H.C., PW- 9 holding an umbrella on her head to protect her from
sun accompanying her on the right side and Nathu Ram following behind Shri R.K.
Dhawan. It also appears that Beant Singh first started firing from his service
revolver and simultaneously the accused Satwant Singh also cocked his SAF
Carbine towards the Prime Minister whereon the Prime Minister fell on the
ground on her right side. The eye- witnesses have specifically stated that the
accused Satwant Singh and Beant Singh shot on the Prime Minister while she was
approaching the TMC gate and she was about 8-10 steps away from the TMC gate.
The eye-witnesses have denied that there was any firing from all the sides and
it has been specifically stated in cross-examination that the firing was caused
by Beant Singh and Satwant Singh from their respective service revolver and SAF
carbine. It also appears that Beant Singh and accused Satwant Singh were
apprehended by PW-9 Narain Singh, HC and by the ITBP people. PW-9 in his
cross-examination specifically stated that Satwant Singh did not sustain bullet
injuries before Smt. Indira Gandhi had been fired at. The suggestion on behalf
of the defence that there was firing from all the sides and accused Satwant
Singh was injured seriously and Beant Singh died by this firing has got no
basis and it is unsustainable. It is obvious from the deposition of PW-49 that
when he and other ITBP took Beant Singh and Satwant Singh to the guard room
they were not at all in injured condition. [132F-133C]
13. The evidence clearly show that Satwant Singh
accused No. 1 manipulated his duty from beat No. 4 to TMC gate in P.M. House
and so there is no-doubt about his presence at the TMC gate on 31.10.1984 from
7.30 A.M. [135C] PG NO 50
14. A confession made by an accused cannot be
used to convict his co-accused unless there is corroborative evidence against
the co-accused but a person can be convicted solely upon his own confession
even if retracted if the Court believed it to be true. The deposition of the
independent witnesses is corroborated by the confessional statement PW 11/C
made by the accused Satwant Singh. Though the said confession was retracted
subsequently by the accused, the same can be used by the Court against the
accused in convicting him. In the instant case the confessional statements were
corroborated by independent evidences which clearly prove the guilt of the
accused. [135C-E] Per Shetty, J.
1. Section 354(3) of the Code of Criminal
Procedure, 1973 marks a significant shift in the legislative policy of awarding
death sentence. Now the normal sentence for murder is imprisonment for life and
not sentence of death. The Court is required to give special reasons for
awarding death sentence. Special reasons mean specific facts and circumstances
obtained in the case justifying the extreme penalty. [202D] Bachan Singh v.
State of Punjab, [1980] 2 S.C.C. 684
and Machhi Singh v. State of Punjab, [1983] 3 S.C.R. 413, referred to.
2. In the instant case, the crime charged was
not simply the murdering of the human being, but it was the crime of
assassination of the duly elected Prime Minister of the country. The motive for
the crime was not personal, but the consequences of the action taken by the
Government in the exercise of constitutional powers and duties. In our
democratic republic, no person who is duly constituted shall be eliminated by
privy conspiracies. The 'Operation Blue Star' was not directed to cause damage
to Akal Takht. Nor it was intended to hurt the religious feelings of Sikhs. The
decision was taken by the responsible and responsive Government in the national
interest. The late Prime Minister Smt. Indira Gandhi was, however, made the
target for the consequences of the decision. The security guards who were
duty-bound to protect the Prime Minister at the cost of their lives, themselves
became the assassins. All values and all ideals in life; all norms and
obligations were thrown to the winds. It was a betrayal of the worst order. It
was the most foul and senseless assassination. The preparations for and the
execution of this egregious crime do deserve the dread sentence of the law. PG
NO 51
3. Sub-s. (6) of s. 9 of the Code of Criminal
Procedure can be divided into two parts. The first part provides power to the
High Court to notify the place or places for the Court of Session to hold its
sittings for disposal of cases.
The second part deals with the power of the
Court of Sessions in any particular case to hold its sittings at a place not
notified by the High Court. [142D-E]
4. The words "place or places" used in
S. 9(6) indicate that there could be more than one place for the sitting of the
Court of session. The different places may be notified by different
notifications. There may be a general notification as well as a special
notification. The general notification may specify the place for the class of
cases where Court of Session shall sit for disposal. The special notification
may specify the same place or a different place in respect of a particular
case. [143C]
5. The words and sections like men do not have
their full significance when standing alone. Like man, they are better
understood by the company they keep. [143D]
6. Section 9(4) and s. 194 of the Code are the
closely related sections and they may also be examined to understand the true
meaning of the words "place or places" in the first part of s. 9(4).
Section 9(4) empowers the High Court to appoint a Sessions Judge of one
division to sit at such place or places in another division for disposal of
cases.
The High Court while so appointing need not
direct him to sit only at the ordinary place of sittings of the Court of
Sessions. There is no such constraint in s. 9(4). The High Court may also issue
a separate notification under s. 9(6) specifying the place or places where that
Sessions Judge should sit for disposal of cases. Section 194 provides power to
the High Court to make a special order directing an Additional or Assistant
Session Judge of the same division to try certain specified cases or a particular
case. If the High Court thinks that the Additional or Assistant Sessions Judge
should hold the Court at a specified place, a separate notification could be
issued under s. 9(6). [143E-144C]
7. The power provided by the first part of the
High Court is an administrative power, intended to further the administration
of justice. The power provided by the second part is a judicial power of the
Court of Session intended to avoid hardship to the parties and witnesses in a
particular case. One is independent of and unconnected with the other.
So, the first part of s. 9(6) cannot be read
with second part thereof. The Judicial power of the Court of Session is of
limited operation, the exercise of which is conditioned by mutual consent of
the parties in the first place.
Secondly, the exercise of that power has to be
narrowly tailored to the convenience of all concerned. It cannot be made use of
for any other purpose. This limited judicial power of the Court of Session
cannot be put across to curtial the vast administrative power of the High
Court.
[144D-E] PG NO 52
8. Section 9(6) is similar to s. 9(2) of the Old
Code (Act 5 of 1898). The only difference being that s. 9(2) conferred power on
the State Government to specify the "place or places'' where the Court of
Session should sit for the purpose of disposal of cases. That power is now
vested in the High Court. The change of authorities was made to keep in tune
with the separation of judiciary from the executive. The scope of the sections,
however, remains the same. [144G]
9. It is unnecessary for the High Court to hear
the accused or anybody else before exercising the Power under s. 9(6). Such a
hearing, however, is required to be given by the Court of Session, if it wants
to change the normal place of sitting,in any particular case, for the general
convenience of parties and witnesses. Therefore, the impugned notification of
the High Court, in the instant case, directing that the trial of the case shall
be held at Tihar is not ultra vires of s. 9(6) of the code. [146G-H] Lakshman
v. Emperor, A.I.R. 1931 Bom. 313 and Ranjit Singh v. Chief Justice & Ors.,
[1985] Vol. 28 DLT 153, affirmed.
10. The Sixth Amendment to the United states
Constitution provides "In all criminal prosecution, the accused shall
enjoy the right to a speedy and public trial by an impartial jury.....".
No such right has been guaranteed to the accused under the Indian Constitution.
The right of an accused to have a public trial in India has been expressly,
provided in the Code. [147F]
11. The jail trial is not an innovation. It has
been there since long back. The practice of having trials inside jails, Seems
to have persisted even after the coming into force of the Indian Constitution.
[147G]
12. Jail is not a Prohibited place for trial of
criminal cases. Nor the jail trial can be regarded as an illegitimate trial.
There can be trial in jail premises for reasons of security to the parties,
witnesses and for other valid reasons. The enquiry or trial, however, must be
conducted in open Court. There should not be any veil of secrecy in the
proceedings. There should not even be an impression that it is a secret trial.
The dynamics of judicial process should be thrown open to the public at every
stage. The public must have reasonable access to the place of trial. The
Presiding Judge must have full control of the Court house. The accused must
have all facilities to have a fair trial and all safeguards to avoid prejudice.
[149F] PG NO 53
13. In the instant case, there is no decision of
the High Court to have the trial in Tihar Jail. The records show that the
situation then was imperative. It is said that the assessination of Smt. Indira
Gandhi had provoked widespread violence threatening the security of the State
and the maintenance of law and order. The remand and the committal proceedings
had to be taken in Tihar Jail since the Magistrate and Prosecutor were
threatend with dire consequence. Such circumstances continued to exist when the
case came up for trial. The Government requested the High Court to have the
trial of the case in Tihar Jail for the security of the Judge, witnesses,
Police Officers and also for the safety of the accused themselves. The High
Court also had taken note of the events that immediately followed the
assassination of Smt. Indira Gandhi, Beant Singh one of the assassins was shot
dead and Satwant Singh accused received near fatal gun shot injury. There was
unprecedented violence aftermath in the national capital and other places.
Frenzied mobs armed with whatever they could lay
their hands were seen besieging passing Sikhs and Burning their vehicles, as
doctors in the hospital fought their vain battle to save the life of Smt.
Indira Gandhi. Even President Zail Singh's cavalcade, making its way from the
Airport to the hospital was not spared. The reaction of outrage went on
unabated followed by reprisal killings and destruction of properties. The local
police force was Badly shaken. They could do little even to contain the
violence.
The Army had to be deployed to stem the tide of
deluge. The new Prime minister, made an unscheduled broadcast to the Nation
pleading for sanity and protection to the Sikhs.
Nevertheless three days passed on with murder
and loot leaving behind a horrendous toll of more than two thousand dead and
countless property destroyed. It is a tragedy frightening even to think of.
These unprecedented events and circumstances would amply justify the decision
of the High Court to direct that the trial of the case should take place in
Tihar Jail. [149G-151C] Sahai Singh v. Emperor, A.I.R. 1917 Lahore 311; Kailash Nath v.
Emperor, A.I.R. 1947 All. 436; Re: M.R. Venkataraman, A.I.R. 1950 Madras 441; Re: T.R. Ganeshan,
A.I.R. 1950 Madras 696; Prasanta Kumar v. The
State, A.I.R. 1952 Calcutta 91 and Narwar Singh & Ors.v. State, [1952] MP 193 at 195,
referred to. PG NO 54
14. The main part of sub-s. (1) of s. 3Z7
embodies the principle of public trial. It declares that the place of enquiry
and trial of any offence shall be deemed to be an open Court. It significantly use
the words "open Court". It means that all justice shall be done
openly and the Courts shall be open to public. It means that the accused is
entitled to a public trial and the public may claim access to the trial. The
sub- section, however, goes on to state that "the public generally may
have access so far as the place can conveniently contain them". It is
implicit in the concept of a public trial. The public trial does not mean that
every person shall be allowed to attend the Court. Nor the Court room shall be
large enough to accommodate all persons. The Court may restrict the public
access for valid reasons depending upon the particular case and situation.
[151G-152B]
15. The proviso to sub-s. (1) of s. 327
specifically provides power to the Presiding Judge to impose necessary
constraint on the public access depending upon the nature of the case. It also
confers power on the Presiding Judge to remove any person from the Court house.
The public trial is not disorderly trial. It is an orderly trial. The presiding
Officer may, therefore, remove any person from the Court premises if his
conduct is undesirable. If exigencies of a situation require, the person
desiring to attend the trial may be asked to obtain a pass from the authorised
person.
Such visitors may be also security checks. These
and other like restrictions will not impair the right of the accused or that of
the public. They are essential to ensure fairness of the proceedings and safety
to all concerned. [152F-153A]
16. "There are yet other fundamental
principles justifying the public access to criminal trials. The crime is a
wrong done more to the society than to the individual.
It involves a serious invasion of rights and
liberties of some other person or persons. The people are, therefore, entitled
to know whether the justice delivery system is adequate or inadequate. Whether
it responds appropriately to the situation or it presents a pathetic picture.
This is one aspect. The other aspect is still more fundamental. When the State
representing the society seeks to prosecute a person, the State must do it
openly. [153B] Cooley's Constitutional Law, Vol. I. 8th Ed. at 647 and Scott v.
Scott, 1913, A.C. 417 at 477, referred to. PG NO 55
17. In open dispensation of justice, the people
may see that the State is not misusing the State machinery like the Police, the
Prosecutors and other public servants. The people may see that the accused is
fairly dealt with and not unjustly condemned. There is yet another aspect. The
Courts like other institutions also Belong to people. They are as much human
institutions as any other. The other instruments and institutions of the State
may survive by the power of the purse or might of the sword. But not the
Courts. The Courts have no such means or power. The Courts could survive only
by the strength of public confidence. The public confidence can be fostered by
exposing Courts more and more to public gaze. [153H-154B] "First Amendment
Right of Access to Pretrial Proceedings in Criminal Cases" By Beth
Hornbuckle Fleming (Emory Law Journal, V. 32 (1983) p. 618 to 688, referred to.
18. In the instant case, the Office Block of the
Jail Staff was used as the Court House. It is an independent building located
at some distance from the main jail complex. In between there is a court-yard.
This court-yard has direct access from outside. A visitor after entering the
court-yard can straight go to the Court House. He need not get into the Jail
Complex. This is evident from the sketch of the premises produced before this
Court. It appears the person who visits the Court House does not get any idea
of the Jail Complex in which there are Jail Wards and Cells.
From the sketch, it will be also seen that the
building comprises of a Court-hall, bar room and Chamber for the Judge. The
Court hall can be said to be of ordinary size. It has seating capacity for
about fifty with some space for those who could afford to stand. The accused as
undertrial prisoners were lodged at Jail No. 1 inside the Jail Complex.
It was at a distance of about 1 Km. from the
Court House.
For trial purposes, the accused were transported
by van. In the Court hall, they were provided with bullet proof enclosure.
[155D-G]
19. For security reasons, the public access to
trial was regulated. Those who desired to witness the trial were required to
intimate the Court in advance. The trial Judge used to accord permission to
such persons subject to usual security checks. Before commencement of the trial
of the case, the representatives of the Press and News Agencies, national or
international, approached the trial Judge for permission to cover the Court
proceedings. The trial Judge allowed their request. The trial Judge did permit
access to the members of the public also. He permitted even the Law Students in
batches to witness the trial. There is hardly any instance brought to the
attention of this Court where a person who sought permissions was denied access
to the Court. The observations of the High Court that the "trial Judge has
given access to the place of trial for all members of the public who may be
minded to attend the same save for certain reasonable restriction imposed in
public interest" have not been shown to be incorrect. The accused were
represented by leading members of the Bar. Some of the close relatives of the
accused were allowed to be present at the trial. All press representatives and
news agencies whoever sought permission have been allowed to cover the day to
day Court proceedings. There can, therefore, be no doubt or dispute as to the
adequacy of safeguards provided to constitute an open trial. Indeed, the steps
taken by learned trial Judge were more than adequate to ensure fair trial as
well as public trial. There is no member of the public or press before this
Court making grievance that his constitutional right of access to the trial has
been denied in this case. [155H, 158C-F,H] PG NO 56
20. What the Judicial decision purports to do is
to decide the controversy between the parties brought the Court and nothing
more. The Judicial verdict pronounced by Court in or in relation to a matter
brought before it for its decision cannot be said to affect the fundamental
rights of citizens under Art. 19(1) of the Constitution of India. [159E-F] Naresh
Shridhar Mirajkar v. State of Maharashtra, [1966] 3 S.C.R. 744, referred to.
21. Under the American Constitution the
mandatory exclusion of the press and public to criminal trials in all cases
violates the First Amendment to the United States Constitution. But if such
exclusion is made by the trial Judge in the best interest of fairness to make
that exclusion, it would not violate that constitutional right. [161C-D] Gannet
Co. v. De Pasquale, 433 U.S. 368 (1979); Richmond Newspaper Inc. v.Virginia,
448 U.S. 555 (1980) and Globe Newspapers v. Superior Court, 457 U.S. 596
(1982), referred to.
22. Soon after the assassination of Smt. Indira
Gandhi the Government of India by notification dated November 20, 1984, constituted a
Commission under the Commission of Inquiry Act, 1952 presided over by Mr.
Justice M.P. Thakkar the sitting Judge of the Supreme Court. The Commission
inter-alia was asked to make recommendations as to the corrective remedies and
measures that need to be taken for the future with respect to the matters
specified in clause (d) of the terms of reference. The Commission framed
regulations under s. 8 of the Act in regard to the procedure for enquiry.
Regulation 8 framed thereon provided that "in view of the sensitive nature
of the enquiry, the proceedings will be in camera unless the Commission directs
otherwise".
Accordingly, the Commission had its sittings in
camera, and the Commission submitted an interim report, followed by the final
report. [161G, 162E-F] PG NO 57
23. The Government of India did not lay the said
reports before the House of People on the ground of expediency in the interest
of the security of the State and in the public interest and for that purpose
amended the Commissions of Inquiry Act. [162G,163G]
24. The trial Court while rejecting the
application of the accused held that the statements recorded by the Commission
are inadmissible in evidence in any subsequent proceedings and cannot,
therefore, be used for the purpose of contradicting the same witnesses under s.
145 of the Evidence Act. The High Court also rejected such applications and
held that it was not proper to compel production of the proceedings or the
report of the Commission in view of the privilege of non-disclosure provided by
the Act of Parliament and that the evidence before the Commission is wholly
inadmissible in any other Civil or Criminal proceedings except for prosecuting
the person for prejury. [164B-G] Ramkrishna Dalmia v. Justice Tandolkar, [1959]
S.C.R. 279, followed.
25. The accused in criminal trials should be
given equal opportunity to lay evidence fully, freely and fairly before the
Court. The Government which prosecutes an accused will lay bare the evidence in
its possession. If the accused asks for summoning any specific document or
thing for preparing his case, it should normally be allowed by the Court if
there is no legal bar. But "the demand must be for production of ..... specific
documents and should not purpose any broad or blind fishing expedition."
These principles are broadly incorporated for the guidance of Courts under s.
91 and s. 233 of the Code of Criminal procedure. [165G-166C] Clinton E. Jencks v. United States, 353 U.S. 657-1 L.Ed. 1103 at
1111 and Nizam of Hyderabad v. A.M. Jacob, ILR XIX Cal. 52 at 64, referred to.
26. Dissecting s. 6 of the Commission of Inquiry
Act, 1952 it will be clear that the statement made by a person before the
Commission, in the first place shall not be the basis to proceed against him.
Secondly, it shall not be used against him in any subsequent civil or criminal
proceedings except for the purpose set out in the section itself. The single
exception provided thereunder is a prosecution for giving false evidence by
such statement. [l66Fl PG NO 58
27. From the provisions of ss. 3, 4, 5, 5(a), G
and 8 of the Commission of the Inquiry Act, it will be clear that the Act was
intended to cover matters of public important. In matters of public importance
it may be necessary for the Government to fix the responsibility on individuals
or to kill harmful rumours. The ordinary law of the land may not fit in such
cases apart from it is time consuming. The Commission under the Act is given
the power to regulate its own procedure and also to decide whether to sit in
camera or in public. A Commission appointed under the Act does not decide any
dispute. There are no parties before the Commission. There is no lis. The
Commission is not a Court except for a limited purpose. The procedure of the
Commission is inquisitorial rather than accusatorial. The Commission more of
ten may have to give assurance to persons giving evidence before it that their
statements will not he used in any subsequent proceedings except for perjury.
Without such an assurance, the persons may not
come forward to give statements. If persons have got lurking fear that their
statements given before the Commission are likely to be used against them or
utilised for productive use on them in any other proceeding, they may be
reluctant to expose themselves before the Commission. Then the Commission would
not be able perform its task. The Commission would not be able to reach the
nuggets of truth from the obscure horizon.
The purpose for which the Commission is
constituted may be defeated. [169-170B]
28. The Court should avoid such construction to
s. 6 of the said Act which may stultify the purpose of the Act.
Section 6 must receive liberal construction so
that person deposing before the Commission may get complete immunity except in
a case of prosecution for perjury. That is possible if the word
"against" used in s. 6 is properly understood. [170C]
29. Section 6 contains only one exception. That
is a prosecution for giving false evidence by such statement.
When the Legislature has expressly provided a
singular exception to the provisions, it has to be normally understood that
other exceptions are ruled out. Therefore, the statement given before a
Commission shall not be admissible against the person in any subsequent civil
or criminal proceedings save for perjury. [170E] PG NO 59 Sohan Lal v. State,
A.I.R. 1965 Bom. 1; State of Maharashtra v. Ibrahim Mohd., [19781 Crl. L.J.
1157 and State of Assam v. Suparbhat Bhadra, [1982] Crl. L.J. 1672, overruled.
Puhupram & Ors., v. State of M.P., [19681 M.P. L.J. 629,
affirmed.
Royal Commission on Tribunals of Inquiry,
(1966); The Special Commission Act, 1888 and The Tribunal of Inquiry (Evidence)
Act. 1921 referred to.
Ramakrishnu Dalmia v. Justice Tandolkar. [1959]S.C.R.
279. upheld.
30. There is vital difference between the two
crimes;
(i) abetment in any conspiracy, and
(ii) criminal conspiracy.
The former is defined under the second clause of
s. 107 and the latter is under s. 120-A of the Indian Penal Code. The gist of
the offence of criminal conspiracy created under s. 120-A is a bare agreement
to commit an offence. It has been made punishable under s. 120-B. The offence
of abetment created under the second clause of s. 107 requires that there must
be something more than a mere conspiracy.. There must be some act or illegal
omission in pursuance of that conspiracy. That would be evident by the wordings
of s. 107 (Secondly): "engages in any conspiracy omission takes place in
pursuance of that conspiracy ....." The punishments for these two
categories of crimes are also quite different. Section 109 IPC is concerned
only with the punishment of abetments for which no express provision is made
under the Indian
Penal Code; A charge under s. 109 should, therefore, be along with some other
substantive offence committed in consequence of abetment. The offence of
criminal conspiracy is, on the other hand, an independent offence. It is made
punishable under s. 120-B for which a Charge under s. 109 IPC is unnecessary
and indeed inappropriate. [l75G_l77C]
31. The genuineness of the document Ex. PW 26/B
is inextricably connected with the arrest and search of the accused Balbir
Singh at Najafgarh Bus Stand. The document was recovered from the accused upon
arrest and search made under s. 51 of the Code. If the arrest cannot carry
conviction then the recovery automatically falls to the ground. Not merely
that, even the allegation that the accused had absconded vanishes to thin air.
The case of the prosecution is that Balbir Singh was released from his 'de
facto custody ' at Yamuna Velodrome in the evening of November 1, 1984 and thereafter he was
absconding till he was arrested on December 3, 1984 at Najafgarh Bus
Station.
The accused has challenged this version. [177H-
I78C] PG NO 60
32. The Courts do not interfere in the
discretion of the police in matters of arrest, search and release of persons
suspected in criminal cases. But the Courts do insist that it should be done
according to law. If the prosecution say that the accused was released from
custody and the accused denies it, it will be for the prosecution to place
material on record in support of the version. In the instant case, there is no
record indicating the release op Balbir Singh from Yamuna Velodrome. The
explanaTion gIven is that Yamuna Velodrome being not a Police Station,
registers were not maintained to account for the incoming and outgoing
suspects. It is hardly an explanation where life and death questions are
involved. [178D-E]
33. The question of absconding by the accused
Balbir Singh remains unanswered. First, there is no material to lend credence
to this serious allegation. Nobody has been asked to search him. No police
party has been sent to track him. No procedure contemplated under law has been
taken.
Second. there is no evidence from which place
the accused came and landed at Najafgarh Bus stand. There is no independent
witness for the seizure memo (PW. 35/a) vide which the police is said to have
recovered certain articles including Ex. PW 26/B described as "memorandum
of events." Third, no question as to absconding was put to the accused in
the examination under s. 313 of the Code. So far as the reliance placed by the
prosecution upon the averments in the remand application is concerned, the
averments in the remand application are only self-serving. The silence of the
accused cannot be construed as his admission of those allegations. Further, the
reliance placed by the prosecution on the Malkana Register is of little
assistance to the prosecution as there is an endorsement in the Malkana
Register stating that the D.T.C. ticket which the accused carried and the paper
containing the dates in English (Ex. PW. 26/B) were not deposited. In view of
these infirmities, the arrest of the accused at Najafgarh Bus Stand does not
inspire confidence. This by itself is sufficient to discard the document Ex.
PW. 26/B. [178F-180A]
34. The document Ex. Pw. 26/B is a sheet of
paper which contains certain entries. If this document is an incriminating
piece of evidence, it is rather baffling why the accused, who was suspected to
be a conspirator to murder the Prime Minister of the country, should carry the
document wherever he goes that too at a place where there were reprisal
killings. The accused is not a rustic person. He is a Sub-Inspector of Police
with several years of service to his credit. He must have investigated so many
crimes. He must have anticipated the danger of carrying incriminating document
when he was already suspected to be a party to the deadly conspiracy. Indeed,
nobody could offer even a plausible explanation for this unusual conduct
attributed to the accused. To say that the absconding accused-Sub- Inspector
was found at a public place in the national capital with an incriminating
document which may take him to gallows is to insult the understanding, if not
the intelligence of police force of this country. [180-181G] PG NO 61
35. A bare reading of the document Ex. PW. 26/B
shows that this is a document composed at one time with the same ink and same
writing instrument. The corrections. the fixing of months and dates with the
nature of entries therein apparently indicate that the document was not kept as
a contemporaneous record of events relating to Balbir Singh.
The fact that it was not in the possession of
the accused when his house was searched in the early hours of November 1. 1984
also confirms this conclusion. [181-182A]
36. In the document, there is no reference to
killing of the Prime Minister. In fact, except for a "felt like
killing" in early June as an immediate reaction the "Operation Blue
Star" even the manifestation of this feeling does not exist anywhere in
subsequent part of the document.
The document refers to bare meetings, visits of
persons, or visiting somebody's house. It is, however, nor possible to find out
to whom the document was intended to be used.
There is no reference to a joint 'Ardas' or a
message for revenge associated with the appearance of the eagle. The entry does
not suggest that the author had anything to do with the eagle. It is something
between Beant Singh alone and the eagle. It is significant that there is no
reference to Beant Singh and his plans to murder the Prime Minister.
There is no reference to bombs or grenades
associated with the plan to eliminate the Prime Minister before the 15th August, 1984. There is no reference
to any commission of any offence. There is no reference about Beant Singh
conspiring with Balbir Singh. There is no reference to Kehar Singh at all. If
Balbir Singh was a party to the conspiracy with Beant Singh, the date on which
Beant Singh has planned the murder of Smt. Indira Gandhi, that is, October 25, 1984 as written in Ex. P. 39
ought to have been noted in Ex. PW. 26/B, but there is no reference to that.
There is a cryptic reference to Satwant Singh
against 30th October. The only one entry which makes a reference to killing is
the second entry. It refers to "felt like killing". But one does not know
who "felt like killing" and killing whom? It may be somebody's
reaction to the "Operation Blue Star". If the document is read as a
whole, it does not reveal anything incriminating against Balbir Singh,
[182B-183A] PG NO 62
37. Entering into an agreement by two or more
persons to do an illegal act or legal act by illegal means is the very
quintessence of the offence of conspiracy. The illegal act may or may not be
done in pursuance of agreement, but the very agreement is an offence and is
punishable. Reference to ss. l20A and l20R I.P.C. would make these aspects
clear beyond doubt. These provisions have brought the law of conspiracy in India in line with the
English Law by making the overt act unessential when the conspiracy is to
commit any punishable offence. [l84C]
38. Generally, a conspiracy is hatched in
secrecy and it may be difficult to adduce direct evidence of the same. The
prosecution will often rely on evidence of acts of various parties to infer
that they were done in reference to their common intention. The prosecution
will also more often rely upon circumstantial evidence. The conspiracy can be
undoubtedly proved by such evidence direct or circumstantial. But the Court
must enquiry whether the two persons are independently pursuing the same end or
they.
have come together to the pursuit of the
unlawful object.
The former does not render them conspirators,
but the latter does. It is, however, essential that the offence of conspiracy
requires some kind of physical manifestation of agreement. The express
agreement, however, need not be proved. Nor actual meeting of two persons is
necessary. Not it is necessary to prove the actual words of communication.
The evidence as to transmission of thoughts
sharing the unlawful design may be sufficient. [184D-E]
39. The relative acts or conduct of the parties
must be conscientious and clear to mark their concurrence as to what should be
done. The concurrence cannot be inferred by a group of irrelevant facts
artfully arranged so as to give an appearance of coherence. The innocuous. innocent
or inadvertent events and incidents should not enter the judicial verdict.
40. Section 10 of the Evidence Act introduced
the doctrine of agency and if the conditions laid down therein are satisfied,
the acts done by one are admissible against the co-conspirators. [l85D] PG NO
63
41. Section 10 will come into play only when the
Court is satisfied that there is reasonable ground to believe that two or more
persons have conspired together to commit an offence. There should be a prima
facie that the person was a party to the conspiracy before his acts prima facie
against his co-conspirator. Once such prime facie evidence exists, anything
said, done or written by one of the conspirators in reference to the common
intention, after the said intention was first entertained is relevant against
the others. It is relevant not only for the purpose of proving the existence of
conspiracy, but also for proving that the other person was a party to it. [185G-H]
Russell on Crime, 12 Ed. Vol. I, 202; Glanville Williams in the "Criminal
Law" (Second Ed. 382); Regina v. Murphy, 173 England Reports 508; Gerald Orchard. University of
Canterbury,
New
Zealand,
(Criminal Law Review 1974, 297 at 299 and Sardar Sardul Singh Caveeshar v.
State of Maharashtra, [1964] 2 SCR 378. Mirza
Akbar v. King Emperor, AIR 1940 P.C. 176 at 180.
Sardul Singh Caveeshar v. State of Maharashtra, [1958] SCR 161 at 193.
42. The HIgh Court was unjustified in attaching
importance to any one of the aforesaid circumstances in proof of the
conspiracy. Like Balbir Singh there were several Sikh officers on security duty
at the PM's house.
There is no evidence to show intimacy between
Balbir Singh and Beant Singh or between Balbir Singh and Satwant Singh.
There is no acceptable evidence that Balbir
Singh shared the indignation of Beant Singh against Smt. Gandhi and was in a
mood to avenge for the "Operation Blue Star." From the evidence of
P.W. 13 all that could be gathered is that after the "Operation Blue Star",
Balbir Singh was in agitated mood and he used to say that the responsibility of
damaging 'Akal Takhat' lies with Smt. Gandhi and it would be avenged by them.
This is not to say that Balbir Singh wanted to take revenge against the Prime
Minister along with Beant Singh.
It would not be proper to take notice of such
general dissatisfaction. It is not an offence to form one's own opinion on
governmental action. It is on record that some members of the Sikh community
felt agitated over the "Operation Blue Star." The resentment was also
expressed by some of the sikh employees of the Delhi police posted for PM's security. In
fact, the chargesheet against all the accused is founded on those averments.
Resentment of the accused on "Operation Blue Star" should, therefore,
be excluded from consideration. There is no material that Balbir Singh took
earned leave for any sinister purpose or design. There is no evidence that
during the said period, he met Beant Singh or anybody else connected with the
conspiracy. It is, therefore, totally an innocuous circumstance. Assuming that
falcon did appear and sat on a tree in the PM's house and that Beant Singh and
Balbir Singh did offer 'Ardas' on the occasion, there is "nothing unusual
or abnormal about the incident." The sanctity of the falcon as associated
with the Tenth Guru is not denied. The evidence of Satish Chander Singh (PW Sl)
about the meeting of Balbir Singh with Satwant Singh on October 30, 1984 has got only to be
referred to be rejected. To place reliance on the testimony of Amarjit Singh
(PW 44) would be to put a premium on his irresponsibility. The discrepancies
between the first version and his evidence in the Court are not immaterial.
They are substantial and on material points. The witness is putting the words
of Beant Singh into the mouth of Balbir Singh and thereby creating
circumstances against the latter. All the facts and circumstances above recited
are either irrelevant or explainable. No guilty knowledge of the contemplated
assassination of the Prime Minister could be attributed to Balbir Singh on
those facts and circumstances. [187-188] PG NO 64
41. The confession of a co-accused could be used
only to lend assurance to the conclusion on the acceptable evidence against the
accused. When by all the testimony in the case, Balbir Singh's involvement in
the conspiracy is not established, the confession of Satwant Singh cannot
advance the prosecution case. Even otherwise, the reference in the confession
as to the conspiracy between Balbir Singh and Beant Singh was not within the
personal knowledge of Satwant Singh. He refers to Beant Singh consulting Balbir
Singh and "advising" to kill P.M. It is not clear who told him and
when? such a vague statement is of little use even to lend assurance to any
acceptable case against Balbir Singh. [191B]
42. The evidence produced by the prosecution
against Balbir Singh is defective as well as deficient. It is safer, to err in
acquitting than in convicting him. [191C]
43. The evidence of Bimla Khalsa wife of Beant
Singh indicates that on October 17, 1984 Beant Singh and Kehar Singh were combined and conspiring
together. Kehar Singh was closeted with Beant Singh on the roof of her house
for about 15/18 minutes. There was hush hush talk between them which could not
be over-heard by her as she was in the kitchen. That evoked suspicion in her
mind. She did consider "their talk as something secret". She enquired
from Kehar Singh "as to what they were talking thereupon?" Kehar
Singh replied that the talks were "with regard to making somebody to take
Amrit". Dimla Khalsa remarked: "that taking Amrit was not such a
thing as to talk secretly". She was perfectly right in her remark. There
cannot be a secret talk about Amrit taking ceremony. It is a religious
function. Kehar Singh might have realised that it would be difficult to explain
his conduct without exposing himself.
He came with cryptic reply: "There was
nothing particular".
The said conversation, as the High Court has
observed, could be only to further the prosecution of the conspiracy.
Satwant Singh later joining them for meals lends
credence to this conclusion. [193-l94C, F] PG NO 65
44. Merely because Bimla Khalsa turned hostile,
her evidence cannot be discarded. That is a well accepted proposition. She had
no axe to grind against any person. She gains nothing by telling falsehood or
incorrect things against Kehar Singh. She has revealed what she was told and
what she had witnessed on October 17, 1984 in her own house.
There is, therefore. no reason to discard that
part of her testimony. It is true that the police did not record her statement
after the incident. That is understandable. she had lost her husband. She was
in immeasurable grief. She ought to be allowed time to compose herself. Both
the objections raised against her testimony are, therefore. not sound. [l94G-l95AI
45. The visit of Kehar Singh and Beant Singh
along with their family members to Amritsar on October 20. 1984 assumes importance and it
is significant to note about The relative character of Kehar Singh and Beant
Singh. Even at the most sacred place they remained isolated from their wives
and children. [195 E-196A]
46. Kehar Singh had the opportunity to bring
Beant Singh back to the royal path, by dissuading him from taking any drastic
action against Smt Gandhi, but unfortunately, he did nothing of that kind. If
he had not approved the assassination of the Prime Minister. Beant Singh would
not have grafted Satwant Singh to the conspiracy. Secondly, if Kehar Singh was
really interested in reading Beant Singh, he would have taken the assistance of
Bimla Khalsa. He did not do that even. She was deliberately not taken into
confidence. She was in fact kept in darkness even though she was inquisitive to
know their secret talk. [196B-C]
47. It is true that there is no substantive
evidence from the testimony of Bimla Khalsa that Beant Singh took Amrit on October 14, 1984 at the instance of
Kehar Singh.
Undisputedly he was present at the ceremony in
which Bimla Khalsa took Amrit. It may not be, therefore, unreasonable to state that
he must have been present when Beant Singh also took Amrit. The recovery made
from his house supports this inference. It is said that while taking Amrit or
thereafter, the person is not expected to wear gold ornaments. Beant Singh had
gold 'kara'(Ex. p. 27) and ring (Ex. p. 28). These two articles were recovered
by the investigating agency from the house of Kehar Singh. That is not disputed
before this Court. Beant Sign must have entrusted the articles to Kehar Singh
at the time of his taking Amrit. It also shows the significant part played by
Kehar Singh in taking. Amrit by Beant Singh. [196D-F] PG NO 66
48. It is true that taking Amrit by itself may
not have any sinister significance. It is a religious ceremony and 'Amrit' is
taken only to 'lead a life of spartan purity giving up all worldly pleasures
and evil habits.' But, unfortunately, the assassins have misused that sacred
religious ceremony for ulterior purpose. [196G]
49. The post crime conduct of Kehar Singh is
conclusive of his guilt. He was cognizant of all the details of the coming
tragedy and waiting to receive the news on that fateful day. That would be
clear from the testimony of Nand Lal Mehta (PW 59) who was an office colleague
of Kehar Singh. He has deposed that Kehar Singh had met him in the third floor
corridor of the office at about 10-45 A.M. on October 31, 1984. By that time the news
of the murderous attack on the Nation's Prime Minister came like a thunder-
blot from a clear sky. The messenger had told that 'some- body' had shot at
Smt. Gandhi. PW 59 then enquired from Kehar Singh as to what had happened.
Kehar Singh replied that "whosoever would take confrontation with the
Panth, he would meet the same fate." So stating, he went away. It may be
noted that at that time, there was no specific information to the outside world
whether any Sikh had shot the Prime Minister or anybody else. Unless Kehar
Singh had prior knowledge, he could not have reacted with those words.
[196H-197C]
50. To sum up: Kehar Singh's close and continued
association with Beant Singh; his deliberate attempt to exclude Mrs. Bimla
Khalsa from their company and conversation; his secret talk with Beant Singh
followed by taking meals together with Satwant Singh; his keeping the gold
'kara' and 'ring' of Beant Singh; and his post crime conduct taken together
along with other material on record are stronger as evidence of guilt than even
direct testimony. Kehar Singh was one of the conspirators to murder Smt.
Gandhi, though not for all the reasons stated. [197D] PG NO 67
51. Satwant Singh, a constable in the Delhi
Police was on security duty at the Prime Minister's house since July 2, 1983. On October 31, 1984, in the usual course,
he was put on security at Heat No. 4 in the Akbar Road House (not at the TMC
Gate). This has been confirmed by R the daily diary maintained at Teen Murti
(Ex. PW I4/C)-Entry No. 85). He was issued SAF Carbine (Sten-gun) having Butt
No. 8() along with 5 magazines and 100 live rounds of 9 mm ammunition. In
acknowledgement thereof, he had signed the register (Ex. PW 3/A). He got
exchanged his place of duty to carry out the conspiracy he had with Beant Singh
to murder Smt. Gandhi on the pretext that he was suffering from loose motions
and got himself posted as TMC Gate being C nearer to a latrine. [197F-l98E]
52. Three eye witnesses to the occurrence,
namely, Narain singh. Rameshwar Dayal and Nethu Ram corroborate with each other
on all material particulars. They had accompanied the Prime Minister on the
fateful day. They were able to see vividly, describe correctly and indentify
properly the persons who gunned down Smt. Gandhi. Both the Courts below have
accepted them as natural and trustworthy witnesses.
Such a conclusion based on appreciation of
evidence is binding on this Court in the appeals under Article 136 of the
Constitution of India. [198F-G] Pritam Singh v. The State, A.l.R. 1950 SC 169;
Hem Raj v. State of Ajmer, [l954] S.C.R. 1133 and Bhoqinbhai Hirjibhai v. State
of Gujarat, A.l.R. 1983 SC 753;
relied upon.
53. There can be little doubt as to the presence
of Narain singh at the spot. His evidence receives full corroboration from the
other two eye witnesses. The umbrella (Ex. p. 19) which he was holding has been
recovered from the place under the seizure memo (Ex. PW 5/H). Rameshwar Dayal
(PW 10) is an A.S.I. of Police. He was on security duty at the PM's residence.
He was also the water attendant in the pilot car of the Prime Minister. On
material particulars his evidence is identical in terms with that of Narain
Singh (PW 9). Undisputedly, he had suffered bullet injuries. He was admitted to
the AIIMS for treatment. The Medico-legal Certificate issued by the AIIMS (Ex.
10/DA) supports his version. No further corroboration is necessary to accept
his evidence. [l99E-200A] PG NO 68
54. Nathu Ram (PW 64) is also an eye witness. He
was a dedicated servant of Smt. (Gandhi. His evidence as to the relative acts
of the two assassins is consistent with the version of PW 9 of PW 10. His
presence at the spot was most natural. His evidence is simple and
straight-forward. [200B-D]
55. The presence of Satwant Singh at TMC Gate is
also not in dispute and indeed it was admitted by his while answering question
No. 51(A) in the examination under s. 313 of the (code. What is important to
notice from the testimony of Ganga Singh (PW 49) is that Satwant Singh when
apprehended by him was not injured. He was taken safely to the guard room. He
did not receive any bullet injury in the incident with which this Court is
concerned. He must have been shot evidently inside the guard room where he was
taken for safe custody by the ITBP personnel. The defence put forward by
Satwant Singh that he was decoyed to the TMC gate where he received bullet
injury is. therefore. patently false. 200G-H]
56. The eye witnesses are not strangers to the
assassins. They were familiar faces in the security ring of the Prime Minister.
Their presence with Smt. Gandhi at the spot was not accidental, but consistent
with their duties.
There was no scope for mistaken identity since
everything happened in the broad day light. Therefore, the evidence thus far
discussed itself is sufficient to bring, home the guilt to Satwant Singh on all
the charges levelled against him. [201A-B] The records contain evidence as to
the identification of arms and ammunition entrusted to the assassins. The
stengun issued to Satwant Singh along with 25 empties of the sten- gun were
recovered from the place of incident under the seizure memo (Ex. PW 5/H). The
revolver (Ex. P.1) delivered to Beant Singh and 5 empties of the revolver were
also collected at the spot. Dr. T.D. Dogra (PW 5) while conducting limited
post-mortem examination had taken two bullets from the body of Smt. (Gandhi;
one from injury No. 1 and the other from injury No 2. These bullets along with
the arms recovered from the spot were sent for the opinion of the Principle
Scientific Officer, Ballistic Division, GFSL, New Delhi. P.W. 12 has testified that the bullets
recovered from the body of Smt. Gandhi are traceable to the sten-gun and the
revolver.Similar is the evidence with regard to the other bullets recovered
from the place of incident. The record also contains evidence about the total
tally of the bullets fired and empties collected. It is not necessary to
confirm the finger prints on the sten-gun, as that of the accused when it is
proved that sten-gun was delivered to him. The examination of the bullets
recovered from the body of Smt. Gandhi for the traces of blood or tissues is
also unnecessary, since one of the bullets taken by the Doctor tallied with the
sten-gun (Ex. P. 4). Equally, limited post- mortem examination would not affect
the merits of the case.
It is not always necessary to have a complete
post-mortem in every case. Section 174 of the Code confers discretion to the
Police Officer not to send the body for post-mortem examination if there is no
doubt as to the cause of death.
If the cause of death is absolutely certain and
beyond the pale of doubt or controversy, it is unnecessary to have the
post-mortem done by Medical Officer.
In the instant case, there was no controversy
about the cause of death of Smt. Gandhi. A complete post-mortem of the body was
therefore uncalled for. [201F-202A] PG NO 69
57. From the aforesaid direct testimony coupled
with the other clinching circumstances available on record, there is not even
an iota of doubt about the crime committed by Satwant Singh. He is guilty of
all the charges. I202B]
58. In the past, the Judges and lawyers spoke of
a 'golden rule' by which statutes were to he interpreted according to
grammatical and ordinary sense of the word.
During the last several years, the 'golden rule'
has been given a go bye. [167H]
59. The Courts now look for the 'intention' of
the legislature or the 'purpose' of the statute. First, it examines the words, oF
the statute. If the words are precise and cover the situation in hand it does
not go further. It expounds those words in the natural and ordinary sense of
the words. But if the words are ambiguous, uncertain or any doubt arises at to
the terms employed, the Court deems it as its paramount duty to put upon the
language of the legislature rational meaning. It then examines every word,
every section and every provision. It examines the Act. It looks at the
mischiefs which the legislature intended to redress. It looks at the whole
situation and not just one relation. It will not consider any provisions out of
the frame work of the statute. It will not view the provisions as abstract
principles separated from the motive force behind. It will consider the provisions
in the circumstances to which they owe their origin. It will consider the
provisions to ensure coherence and consistency within the law as a whole and to
avoid undesirable consequences. [168B- D] Colin Cherry, (On human communication
at 10) and Reserve Bank of India v. Peerless G.F. & I. Co., A.I.R. 1987 S.C. 1023 at
1042; referred to.
PG NO 70
CRIMINAL APPELLATE JURlSDICTION: Criminal Appeal
Nos. 180 to 182 of 1987.
From the Judgment and Order dated 3.12.1986 of
the Delhi High Court in Murder Reference No. 2 of 1986 and Criminal Appeal Nos.
28 and 29 of 1986.
Ram Jethmalani, R.S. Sodhi, Ms. Rani Jethmalani,
R.M. Tewari, Ashok Sharma and Sanjeev Kumar for the Appellants.
G. Ramaswamy, Additional Solicitor (General, S.
Madhusudhan Rao, P. Parmeshwaran, Ms. A. Subhashini, M.V. Chelapathi Rao, S.P.
Manocha and A.P. Ahluwalia for the Respondent.
The following judgments of the Court were
delivered:
OZA,J. These appeals by leave are directed
against the conviction of the three appellants Kehar Singh. Balbir Singh
Satwant Singh under Section 302 read with Section 120-B IPC and the appellant
Satwant Singh under Section 302 read with Sec. 120-B, Sec. 34 & Sec. 307
IPC and also under Sec. 27 of the Arms Act. All the three were sentenced to
death under Section 302 read with Sec. 120-B. The conviction and sentence of
these appellants were confirmed by the High Court of Delhi by its judgment in
Criminal Appeal Nos. 28- 29/ 1986 and Confirmation Case No. 2/86. The case
relates to a very unfortunate incident where the Prime Minister Smt. Indira
Gandhi was assassinated by persons posted for her security at her residence.
The facts brought out during investigation are
that Smt. Indira Gandhi had her residence in New Delhi at No. 1, Safdarjung Road. Her office was at No.
1, Akbar
Road
which was a bungalow adjoining her residence. In fact the two bungalows had
been rolled into one by a campus with a cemented pathway about 8 ft. wide
leading from the residence to the office and separated by a Sentry gate which
has been referred to as the TMC Gate and a sentry booth nearby. Smt. Indira
Gandhi had gone on a tour to Orissa and returned to New Delhi on the night of 30th October, 1984. At about 9 A.M. On the fateful day i.e.
3Ist October, 1984 Smt. Gandhi left her residence and proceeded towards the
office along the cemented path. When she approached the TMC Gate and was about
10 or 11 ft. away therefrom she was riddled with a spray of bullets and she
fell immediately. She was removed to All India Institute of Medical Sciences
('AllMS' for short) but to no avail. A wireless message about the occurrence
was received at 9.23 A.M. by the Wireless Operator Head Constable Ram Kumar PW 38 at Tuglak
Road Police Station having jurisdiction over the place of occurrence. The Duty
Officer PW 1 deputed Sub Inspector' Vir Singh PW 20 and Constable Mulak Raj to
visit the spot at once. They were soon joined by the Station House Officer
Inspector Baldev Singh Gill PW 21. These persons roped off the area of
occurrence to isolate it, placed it in charge of Constable and then proceeded
to AllMS.
PG NO 71 In the meanwhile it was decided to
entrust this investigation to Rajendra Prasad Kochhar PW 73 then Inspector in
the Homicide squad of the Crime Branch of Delhi Police. However, as is only to
be expected having regard to the circumstances, the Government soon decided to
constitute a Special Investigation Team (SIT) to pursue the investigation. On
9.11.84 the Delhi Administration issued two notifications. By one of these in
exercise of powers under Section 7(1) of Delhi Police Act, S. Anandram, IPS was
appointed as an Additional Commissioner of Police and was declared for the
purpose of Section 36 Cr. P.C. to be a Police Officer superior in rank to an
Officer-in-charge of a Police Station. By the other notification issued in
exercise of the powers conferred under Sec. 7(2)(b) of the Police Act, Anandram
was authorised to exercise all the powers and perform all the duties of
Commissioner of Police in relation to this case and any other offences connected
thereto. The notification shows that copy of them is forwarded for puhlication
to the Delhi Gazette. Sometime later on 22nd December, 1984 the Administration in
exercise of powers under Section 8(1) of the Police Act appointed Des Raj
Kakkar and M.S. Sharma as Deputy Commissioner of Police and was declared for
the purpose of Section 36 Cr. P.C. to be a Police Officer superior in rank to
an Officer-in-charge of a Police Station. By the other notification issued in
exercise of the powers conferred under Sec. 7(2)(b) of the Police Act, Anandram
was authorised to exercise all the powers and perform all the duties of
Commissioner of Police in relation to this case and any other offences
connected thereto. The notification shows that copy of each of them is forwarded
for publication to the Delhi Gazette. Sometime later on 22nd December, 1984 the
Administration in exercise of powers under Section 8(1) of the Police Act
appointed Des Raj Kakkar and M.S. Sharma as Deputy Commissioner of Police and
Assistant Commissioneer of Police respectively designating them as officers
superior to an officer-in-charge of a Police Station and placed their services
at the disposal of Shri Anandram. We understand that Shri R.P. Kapoor was named
as the Chief Investigative Officer but it was Mr. Kochhar who was closely
associated with the investigation throughout except for a short period between
15.11.84 when the SIT assumed charge and 27.11.84 when his services were lent
to SIT and he is an important witness of the prosecution so far as
investigation is concerned.
Shri Kochhar reached AIIMS at about 10 A.M. and
at 11.25 A.M. on 31.10.84 he sent at the Tuglak Road Police Station through
Shri Vir Singh, PW 20 A report on the basis of which First Information Report
(FIR) for a cognizable offence punishable under Sections 307, 120-B IPC and
Sections 25,27,54 & 59 of the Arms Act was registered at the Police
Station. The report was based on the statement of Narain Singh, PW 9, a Head
Constable deputed on duty at Smt.
Indira Gandhi's residence, recorded by Shri
Kochhar at AIIMS. Narain Singh who was accompanying Smt. Gandhi at the time of
shooting and claimed to be a witness of occurrence had stated as follows: This
statement made by Narain Singh in the First Information Report brings out the
important facts leading to the offence and this part of the Statement as quoted
by the High Court reads:
PG NO 72 "When we were about 10-11 ft. away
from the gate of 1, Safdarjung Road and 1, Akbar Road, I noticed Beant Singh SI
on duty at TMC Gate and in the adjoining Sentry booth Constable Satwant Singh,
2nd Bn. in uniform armed with a Stengun was on duty. When Smt. Indira Gandhi
reached near the Sentry booth, Beant Singh, SI took out his service revolver
from his right dub and immediately started firing bullets at Smt. Indira
Gandhi. At the same time Constable Satwant Singh also fired shots at Smt.
Indira Gandhi with his Stengun. As a result of firing of bullets at the hands
of the aforesaid two persons Smt. Indira Gandhi sustained injuries on her front
and fell down on the ground. Sh. Rameshwar Dayal ASl has also received bullet
injuries due to the firing made by the aforesaid two persons. I threw the
umbrella. Shri Beant Singh SI and Constable Satwant Singh were secured with the
assistance of Shri B.K. Bhatt AGP PSO in ITBP personnel. The arms of these two
persons fell down on the spot itself. Thereafter I went to call Dr. R. Obey.
In the officials reached the place of occurrence
and Smt. Indira Gandhi was removed to AIIMS and was got admitted there. Shri
B.K. Bhatt, Shri R.K. Dhawan, Shri Nathu Ram, Sh, Lavang Sherpa and Shri
Rameshwar Dayal ASI had witnessed the occurrence. Beant Singh SI and Constable
Satwant Singh in furtherance of their common objects have fired shots at Smt.
Indira Gandhi and have caused injuries on her person with an intention to kill
her. It is learnt that Beant Singh SI and Constable Satwant Singh had also
sustained bullet injuries at the hands of ITBP personnel. Legal action may
please be taken against them." Upon receiving the news about the death of
Smt. Indira Gandhi, the offence in the FIR was converted from Section 307 to
Section 302 and investigation proceeded ahead.
PG NO 73 According to the prosecution Satwant
Singh was arrested on15. 11.84 at Red Fort where he had been taken after his
discharge from the Hospital in early hours of the same day.
The Chief Justice and the Judges of the Delhi
High Court on a request made by Delhi Administration decided to depute and
designate Shri S.L. Khanna, Additional Chief Metropolitan Magistrate, Tis
Hazari to deal with the remand matter of Satwant Singh in Red Fort, Delhi. Satwant Singh was
produced before Shri S.L. Khanna, PW 67 on the same day and remanded to the
police custody till 29.11.84. On 29.11.84 it was said that Satwant Singh wanted
to make a confession and he was produced before Shri Khanna. Shri Khanna,
however, gave him time to think over till1.12.84 and remanded him to judicial
custody in Tihar Jail. It appears that thereafter the Delhi Administration
again made a request to the Delhi High Court and the Delhi High Court
authorised Sh. S.L.Khanna by Order dated 1.12.84 to hold remand proceedings in
Tihar Jail on 1.12.84 and on subsequent dates. It also appears that Shri
G.P.Tareja who was the link Magistrate of Shri S.L. Khanna had gone on long
leave and by an order dated 1.12.84, Shri Bharat Bhushan Gupta,PW 1 was
appointed as a link Magistrate in this case. In the light of these orders
Satwant Singh was produced before Shri Khanna on1.12.84 in the Jail. He passed
on the papers to Shri Bharat Bhushan Gupta and later recorded a confession from
Satwant Singh on the same day which is Ex. 11-G. .
One Kehar Singh said to be an Uncle (Phoopha) of
Beant Singh working as an Assistant in the Office of the Director General of
Supplies & Disposals was claimed to have been arrested on 30.11.84. He was
produced before Shri Khanna on 1.12.84 who remanded him to police custody till
5.12.84. He is said to have made a statement on3. 12.84 in pursuance of which
some incriminating articles were seizedat his house and from a place pointed
out by him. He was again produced on 5.12.84 before Shri S.L. Khanna who
remanded him to judicial custody till 15.12.84 pending further investigation.
Balbir Singh, a Sub-Inspector posted for
security duty at Smt.Gandhi's office is said to have been arrested on 3.12.84.
It is said that certain is said that certain incriminating material was found
on his person when searched at the time of his arrest. On 4.12.84 at the
request of Delhi Adminis-tration the High
Court empowered Shri S.L. Khanna to deal with the remand matter of these
persons accused in the assassination case of Prime Minister. Balbir Singh was
therefore produced before Shri S.L.Khanna on 4.12.84 and was remanded to the
police custody till6.12.84.
On 6.12.84 an application was filed before Shri
S.L. Khanna which stated that Balbir Singh wanted to make a confession.
The matter was sent by Sh. S.L. Khanna to Sh.
Bharat Bhushan Gupta. After two appearances before Shri Bharat Bhushan, Balbir
Singh finally refused to make statement confessional or otherwise.
PG NO 74 In the meantime the Police had recorded
certain statements one of Amarjit Singh PW 44 who was also a Police Officer ASI
on duty at the PM's residence. These statements have been recorded on 24.11.84
and 19.12.84. The Police requested the Magistrate Shri Bharat Bhushan to record
a statement of Amarjit under Section 164 Cr. P.C. That was accordingly recorded
as PW 44-A.
Beant Singh had died as a result of injuries
sustained by him and referred to by Narain Singh in his statement in the FIR
itself. A report under Section 173 Cr. P.C. hereto referred to as the
charge-sheet was filed on 11.12.1985 in the Court of Shri S.L. Khanna against
Satwant Singh who had survived after a period of critical illness from his
injuries and the two other persons referred to above namely Balbir Singh and
Kehar Singh. These three persons were accused of an offence under Sections
120-B, 109 and 34 read with 302 IPC and also of substantive offences under
Sections 302, 307 IPC and Sections 27, 54 & 59 of the Arms Act. This report
also mentions Beant Singh as one of the accused persons but since he had died
the charges against him were said to have abetted.
The prosecution case at the trial was that in
June 1984 the armed forces of the Indian Union took action which is described
generally as 'Operation Bluestar' under which armed forces personnel entered
the Golden Temple complex at Amritsar and cleared it off the terrorists. In
this operation it is alleged that there was loss of life and properties as well
as damage amongst other things to the Akal Takht in the Golden Temple complex. As a result of
this Operation the religious feelings of the members of the Sikh community were
greatly offended. According to the prosecution, all the four accused persons
mentioned in the charge-sheet who were sikhs by faith have been expressing
their resentment openly and holding Smt. Indira Gandhi responsible for the
action taken at Amritsar. They had met at various places and at various times to discuss
and to listen inflammatory speeches and recording calculated to excite
listeners and provoke them to retaliatory action against the decision of the
Government to take army action in Golden Temple complex. The resentment led
them ultimately to the incident of 31.10.84 and to become parties to a criminal
conspiracy to commit an illegal act namely to commit the murder of Smt. Indira
Gandhi. In pursuance of the above conspiracy accused has committed the
following acts.
This report (charge-sheet) stated facts against
each of the accused persons which have been quoted by the High Court in its
judgment:
PG NO 75 "(i) Accused Kehar Singh, a
religious fanatic, after the 'Bluestar Operation' converted Beant Singh and
through him Satwant Singh to religious bigotry and made them undergo 'Amrit
Chhakna ceremony' on 14.10.1984 and 24. 10.1984 respectively at Gurudwara
Sector V1, R.K. Puram, New Delhi.
He also took Beant Singh to Golden Temple on 29.10.1984 where
Satwant Singh was to join them as part of the mission.
(ii) Since the 'Bluestar Operation' Balbir Singh
was planning to commit the murder of Smt. Indira Gandhi and discussed his plans
with Beant Singh, who had similar plans to commit the offence. Balbir Singh
also shared his intention and prompted Satwant Singh to commit the murder of
Smt. Indira Gandhi and finally discussed this matter with him on 30th October, 1984.
(iii) In the first week of September, 1984, When
a falcon (baaz) happened to sit on a tree near the main reception of PM's house,
at about 1.30
P.M.
Balbir Singh spotted the falcon. called Beant Singh there and pointed out th
falcon. Both of them agreed that it had brought the message of the Tenth Guru
of the Sikhs and that they should do something by way of revenge of the 'Bluestar
Oeration'.Both of the above accused performed ardas then and there.
(iv) In pursuance of the aforesaid conspiracy.
Beant Singh and Satwant Singh, who had prior knowledge that Smt. Indira Gandhi
was scheduled to pass through the T.M.C. Gate on 31.10.1984 at about 9 A.M. for
an interview with an Irish television team, manipulated their duties in such a
manner that Beant Singh would be present at the T.M.C. Gate and Satwant Singh
would be present at the T.M.C.Gate and Satwant Singh at the T.M.C. Sentry booth
on 31.10.1984 between 7.00 and 10.00 A.M. Beant Singh Managed to exchange his
duty with SI Jai Narain (PW 7) and Satwant Singh arranged to get his duty with
SI Jai Narain (PW 7) and Satwant Singh arranged to get his duty changed from
Beat No.4 at PM's house to T.M.C. Sentry Booth situated near the latrine by
misrepresenting that he was suffering from dysentery. Beant Singh was armed
with a revolver (No. J- 296754, Butt No. 140) which had 18 cartridges of.38
bore and Satwant Singh was armed with a SAF Carbine (No. WW-l3980 with Butt No.
80) and 100 cartridges of 9 mm. Both having managed to station themselves
together near the T.M.C. Gate on 31.10. 1984, at about 9.10 A.M., Beant Singh opened
fire from his revolver and Satwant Singh from his carbine at Smt. Indira Gandhi
as she was approaching the T.M.C. Gate. Beant Singh fired five rounds and
Satwant Singh 25 shots at her from their respective weapons. Smt. Indira Gandhi
sustained injuries and fell down. She was immediately taken to the AllMS where
she succumbed to her injuries the same day. The cause of death was certified
upon a post-mortem which took place on 31.10.1984, as haemorrhage and shock due
to multiple fire arm bullet injuries which were sufficient to cause death in
the ordinary course of nature. The post- mortem report No. 1340/84 of the AIIMS
also opined that injuries Nos. 1 and 2, specified in the report, were
sufficient to cause death in the ordinary course of nature, as well.'' PG NO 76
IN this report (charge-sheet) it was also mentioned that Beant Singh and
Satwant Singh laid down their weapons on the spot which had been recovered.
About five empties of Beant Singh's revolver were recovered and 13 live
cartridgcs .38 bore from his person, 25 empties of SAF carbine and 6 led pieces
were recovered from the spot. About 75 live cartridges of .99 SAF carbine were
recovered from the person of Satwant Singh. That too led pieces were recovered
from the person of Satwant Singh. That too led pieces were recovered from the
body of Smt. Indira Gandhi during the post-mortem and two from her cloths and
that the experts have opined that the bullets recovered from the body and found
from the spot were fired through the weapons possessed by these two accused
persons. The report also mentioned that Rameshwar Dayal ASI who was following
Smt. Indira Gandhi, PW 10 also received grievous and dangerous injuries on his
left thigh as a result of shots fired by the accused which according to the
medical opinion were grievous and dangerous to life.
It is significant that in this case the
Addtional Sessions Judge who tried the case was nominated by the High Court for
trial of this case and on this count some arguments were advanced by the
learned counsel for the appellants. I will examine the contentions a little
later.
Learned counsel appearing for appellants Kehar
Singh and Balbir Singh first raised some preliminary objections about the
procedure at the trial. First contention raised by him was about the venue of
the trial and the manner in which this venue was fixed by the Delhi High Court
by a notification Under Section 9(6) Cr. P.C.
PG NO 77 The second objection was about the
trial held in jail and it Was contended that under Article 21 of the
Constitution of India, open and public trial is one of the constitutional
guarantees of a fair and just trial and by holding the trial in the Tihar Jail
this guarantee has been affected and accused have been deprived of a fair and
open trial as contemplated under Section 327 Cr. P.C. The other objection
raised was that under Sec. 327 Cr. P.C. it is only the trial Judge, the
Sessions Judge who could for any special reasons hold the trial in camera or a
part of the trial in camera but there is no authority conferred under that
Section on the High Court to shift the trial in a place where it ultimately
ceases to be an open trial. Learned counsel on this ground referred to series
of decisions from United States, England and also from our own courts and contended that the open trial is
a part of the fair trial which an accused is always entitled to.
The other question raised by the learned counsel
for the appellants was that by preventing the accused from getting the papers
of the Thakkar Commission, its report and statements of persons recorded; who
are prosecution witnesses at the trial the accused have been deprived of
substantial material which could be used for their defence.
These main questions were raised by the counsel
appearing for Kehar Singh and Balbir Singh and counsel for Satwant Singh
adopted these arguments and in addition raised certain preliminary objections
pertaining to the evidence of post-mortem, ballastic expert and similar
matters.
Learned Additional Solicitor General appearing
for the respondent replied to some of the legal arguments and also the other
arguments on facts. One of the preliminary objections sought to be raised by
the learned Additional Solicitor General was that this Court in an appeal under
Article 136 of the Constitution of India is not expected to interfere with the
findings of facts arrived by the two courts below. He also relied on some
decisions of this Court to support his contention.
On the preliminary objection raised by the
Additional Solicitor General that in this appeal under Article 136, we are not
expected to go into the facts of the case, we will like to observe that we are
dealing with a case where the elected leader of our people, the Prime Minister
of India was assassinated and who was not only an elected leader of the
majority but was very popular with the people, as observed also by the High
Court in its judgment but still we have all through maintained the cardinal
principle of our Constitution-Equality before law and the concept of rule of
law in the system of administration of justice.
Although these accused persons indicated at some
stage that they are not able to engage counsel but still they could get the
services of counsel of their choice at the State expense, it must be said to
the credit of the learned counsel Shri Ram Jethmalani and Shri R.S. Sodhi that
they have done an excellent job for the appellants and therefore we will like
to thank these counsel and also the additional Solicitor General, who all have
rendered valuable assistance to this Court.
PG NO 78 In view of the importance of the case,
we have heard the matter at some length both on questions of law and also on
facts.
The first objection raised by the learned
counsel is on the basis of Sec. 194 that it was not necessary for the High
Court to have allotted the case to a particular Judge. The learned Judges of
the High Court in their judgment have come to the conclusion that the last part
of the Section refers to "The High Court may by special order direct him
to try" and on the basis of this phrase the High Court in the impugned
judgment, has observed that it was even open to the accused to make an
application and to get the case transferred or allotted to a Judge. Sec. 194
Cr. P.C. Reads:
"Additional and Assistant Sessions Judge to
try cases made over to them-An Additional Sessions Judge or Assistant Sessions
Judge shall try such cases as the Sessions Judge of the division may, by
general or special order, make over to him for trial or as the High Court may,
by special order, direct him to try." The first part of the Section
clearly provides that the Sessions Judge of the Division by general or special
order is supposed to allot cases arising in a particular area or jurisdiction
to be tries by Additional or Assistant Sessions Judges appointed in the
division but the last part of this Section also authorised the High Court to
allot the case to a particular Judge keeping in view in fact that in certain
cases the Sessions Judge may not like to allot and may report to the High Court
or either of the parties may move an application for transfer and under these
circumstances if may become necessary for the High Court to allot a particular
case to a particular Judge. This, this objection is of no consequence. The
other objection which has been raised by the learned counsel is about the
issuance of a notification by the High court under Sec. 9(6) Cr.P.C. and by
this notification the High Court purported to direct that the trial in this
case shall be held in Tihar Jail. Learned counsel appearing for the Delhi
Administration on the other hand attempted to justify such an order passed by
the High Court by contending that if the High Court had the authority to issue
notification fixing the place of sitting it was open to the High Court also to
fix the place of sitting for a particular case whereas emphasis by learned
counsel for the appellants was that Sec. 9(6) only authorises the High Court to
fix the place of sitting generally. So far as in any particular case is
concerned, the second part of sub- clause 6 permits the trial court with the
consent the parties to sit at any other place than the ordinary place of
sitting.
PG NO 79 The High Court in the impugned judgment
have attempted to draw from proviso which has been a local amendment of Uttar
Pradesh. Unfortunately nothing could be drawn from that proviso as admittedly
that is not a State amendment applicable to Delhi. Section 9(6) Cr.P.C. nowhere permits the High
Court to fix the venue of a trial of a particular case at any place other than
the place which is notified as the ordinary place of sitting. It reads thus:
"Sec. 9(6): The Court of Session shall
ordinarily hold its sitting at such place or places, as the High Court may, by
notification, specify but if, in any particular case, court of Session is of
opinion that it will tend to the general convenience of the parties and
witnesses to hold its sittings at any other place in the sessions division, it
may, with the consent of the prosecution and the accused, sit at that place for
the disposal of the case or the examination of any witness or witnesses
therein." On the basis of this language one thing is clear that so far as
the High Court is concerned it has the jurisdiction to specify the place or
places where ordinarily a Court of Sessions may sit within the division. So far
as any particular case is to be taken at a place other than the normal place of
sitting it is only permissible under the second part of sub-clause with the
consent of parties and that decision has to be taken by the trial court itself.
It appears that seeing the difficulty the Uttar Pradesh amended the provision
further by adding a proviso which reads:
PG NO 80 "Provided that the court of
Sessions may hold, or the High Court may direct the Court of Session to hold,
its sitting in any particular case at any place in the sessions division, where
it appears expedient to do so for considerations of internal security or public
order, and in such cases, the consent of the prosecution and accused shall not
be necessary." But it is certain that if this proviso is not on the
statute book applicable to Delhi, it can not be used as the High Court has used to interpret
it. That apart, if we look at the notification from a different angle the
contention advanced by the learned counsel for the appellants ceases to have
any force. Whatever be the terms of the notification, it is not disputed that
it is a notification issued by the Delhi High Court under Sec. 9 sub-clause (6)
Cr. P.C. and there under the High Court could do nothing more or less than what
it has the authority to do. Therefore, the said notification of the High Court
could he taken to have notified that Tihar Jail is also one of the places of
sitting of the Sessions Court in the Sessions division ordinarily. That means
apart from the two places Tis Hazari and the New Delhi, the High Court by notification also
notified Tihar Jail as one of the places where ordinarily a Sessions Court
could hold its sittings. IN this view of the matter, there is no error if the
Sessions trial is held in Tihar Jail after such a notification has been issued
by the High Court.
The next main contention advanced by the counsel
for the appellants is about the nature of the trial. It was contended that
under Article 21 of the Constitution a citizen has a right to an open public
trial and as by changing the venue the trial was shifted to Tihar Jail, it
could not be said to be an open public trial. Learned counsel also referred to
certain orders passed by the trial court wherein it has been provided that
representatives of the Press may be permitted to attend and while passing those
orders the learned trial Judge had indicated that for security and other
regulations it will be open to Jail authorities to regulate the entry or issue
passes necessary for coming to the Court and on the basis of these
circumstances and the situation as it was in Tihar jail it was contended that
the trial was not public and open and therefore on this ground the trial
vitiates. It was also contended that provisions contained in Sec. 327 Cr. P.C.
clearly provides that a trial in a criminal case has to be public and open
except if any part of the proceedings for some special reasons to be recorded
by the trial court, could be in camera. It was contended that the High Court
while exercising jurisdiction under Sec. 9(6) notified the place of trial as
Tihar Jail, it indirectly did what the trial court could have done in respect
of particular part of the proceedings and the High Court has no jurisdiction
under Section 327 to order trial to be held in camera or private and in fact as
the trial was shifted to Tihar Jail it ceased to be open and public trial.
Learned counsel on this part of the contention referred to decisions from
American Supreme Court and also from House of Lords. In fact, the argument
advanced has been on the basis of the American decisions where the concept of
open trial has developed in due course of time whereas so far as India is concerned here even
before the 1973 Code of Criminal Procedure and even before the Constitution our
criminal practice always contemplated a trial which is open to public.
PG NO 81 In fact, the High Court in the impugned
judgment was right when it referred to the concept of administration of justice
under the old Hindu Law. But apart from it even the Criminal Procedure Code as
it stood before the amendment had a provision similar to Sec. 327 which was
Sec. 352 of the Old Code and in fact it is public of this that the criminal
trial is expected to be open and public that in our Constitution phraseology
difference from the United States has been there. Article 21 provides:
"No person shall be deprived of his life or
personal liberty except according to procedure established by law." It is
not disputed that so far as this aspect of open trial is concerned the
procedure established by law even before our Constitution was enacted was as is
provided in Sec. 327 Cr. P.C. (Sec. 352 of the old Code):
"Court to be open (1) The place in which
any criminal Court is held for the purpose of inquiring into or trying any
offence shall be deemed to be an open Court, to which the public generally may
have access, so far as the same can conveniently contain them:
Provided that the Presiding Judge or Magistrate
may, if he thinks fit, order at any stage of any inquiry into, or trial of, any
particular case, that the public generally, or any particular person, shall not
have access to, or be or remain in, the room or building used by the Court.
(2) Notwithstanding anything contained in
sub-section (1), the inquiry into and trial of rape or an offence under section
376, section 376A, Section 376B, section 376C or section 376D of the Indian
Penal Code shall be conducted in Camera ;
PG NO 82 Provided that the presiding judge may,
if he thinks fit, or on an application made by either of the parties, allow any
particular person to have access to, or be or remains in, the room or building
used by the Court.
(3) Where any proceedings are held under
sub-section (2) it shall not be lawful for any person to print or publish any
matter in relation to any such proceedings, except with the previous permission
of the court." This was Section 352 in the Code of Criminal Procedure
which was Act of 1898. It will be interesting to notice the language of Sec.
327. It speaks that any place where a criminal court holds its sitting for
enquiry or trial shall be deemed to be an open court to which the public
generally may have access.
So far as the same can conveniently contain
them. The language itself indicates that even if a trial is held in a private
house or is held inside Jail or anywhere no sooner it becomes a venue of trial
of a criminal case it is deemed to be in law an open place and everyone who
wants to go and attend the trial has a right to go and attend the trial except
the only restriction contemplated is number of persons which could be contained
in the premises where the Court sits. It appears that the whole argument
advanced on behalf of the appellants is on the basis of an assumption in Spite
of the provisions of Sec. 327 that as the trial Was shifted from the ordinary
place where the Sessions Court are sitting to Tihar Jail it automatically
became a trial which was not open to public but in our opinion in view of
Section 327 this assumption, the basis of the argument itself is without any
foundation and can not be accepted and argument on the basis of the foreign
decisions loses all its significance. So far as this country is concerned the
law is very clear that as soon as a trial of a criminal case is held whatever
may be the place it will be an open trial. The only thing that it is necessary
for the appellant is to point out that in fact that it was not an open trial.
It is not disputed that there is no material at all to suggest that any one who
wanted to attend the trial was prevented from so doing or one who wanted to go
into the Court room was not allowed to do so and in absence of any such
material on actual facts all these legal arguments loses its significance. The
authorities on which reliance were placed are being dealt with elsewhere in the
judgment.
PG NO 83 Learned Additional Solicitor General
attempted to contend that this is not a question of any constitutional right
under Article 21 and the basis of his argument was that Article 21 only talks
of procedure established by law and if today on the statute book there is
Section 327, tomorrow Section 327 may be so amended that it may not be
necessary for a criminal trial to be open and on this basis, learned Additional
Solicitor General attempted to contend that it does not become a constitutional
right at all. It is very clear that Article 21 contemplates procedure
established by law and in my opinion the procedure established by law was as on
the day on which the Constitution was adopted and therefore it is not so easy
to contend that by amending the Criminal Procedure Code the effect of the procedure
established by law indicated in Article 21 could be taken away. The trend of
decisions of this Court has clearly indicated that the procedure must be fair
and just. Even expeditious trial has been considered to be a part of guarantee
under Article 21 but in my opinion so far as the present case is concerned it
is not necessary to go so far. At present no one could dispute that the
procedure established by law as indicated in Article 21 is as provided in
Section 327 and unless on facts it is established that what is provided in Sec.
327 was prevented or was not permitted, it could not be said that merely
because trial was held at a particular place it could be said to be a trial
which was not open to public. As indicated earlier on facts there is nothing to
indicate although learned counsel also attempted to some extent to suggest that
there were restrictions. A person has to pass through two gates, a person has
to sign on the gate and had to have a pass or a clearance but in the modern
times especially in the context of the circumstances as they exist. On this
basis it could not be said that it ceased to be a public trial. It could not be
doubted that at one time in this Court the highest Court of the land, any one
could freely walk in and sit and attend the Court but today even in this Court
there are restrictions and one has to pass through those restrictions but still
it could not be said that any one is prevented from attending the Court and
therefore merely suggesting the difficulties in reaching the Jail will not be
enough. On the other hand, learned Additional Solicitor General drew our
attention to the plan of the Jail and the situation of the premises where the
trial was held and it is not dispute that it was not that part of the Jail
where the prisoners are kept but was the Office block where there was an
approach, people were permitted to reach and the trial was held as if it was
held in an ordinary place and it is in this view that as I observed earlier
that in fact what the High Court did by issuing a notification under Sec. 9(6)
was not to fix place of trial of this particular case in Tihar Jail. But what
could be understood is that High Court by notification made Tihar Jail also as
one of the places where a Sessions Court could ordinarily sit and in this case
therefore the trial was held at this place. As soon as a trial is held whatever
the place may be the provisions of Sec. 327 are attracted and it will be an
open Court and every citizen has a right to go and unless there is evidence or
material on record to suggest that on the facts in this particular case public
at large was not permitted to go or some one was prevented from attending the
trial or that the trial was in camera. In fact without an appropriate order it
could not be said that what is contemplated under Section 327 or under Article
21 was not made available to the accused in this case and therefore it could
not be contended that there is any prejudice at the trial.
PG NO 84 There remains however one more question
which was raised by the counsel for the appellants that in spite of the prayer
made by the accused person during the trial and also in the High Court about
the copies of the statement of witnesses who have been examined by the
prosecution and were also examined before the Commission (Thakkar Commission)
to be provided to the accused so that they may he in a position to use these
statements for purposes of contradiction or for other purposes. They had also
prayed for the copy of the Thakkar Commission report as the Thakkar Commission
Was inquiring into the events which led to the assassination of the Prime
Minister. In fact. it was contended that the terms of reference which were
notified for the enquiry of the Thakkar Commission were more or Less the same
questions which fell for determination in this case and thus the appellants
have been prejudiced and they could not avail of the material which they could
use to build up their defence.
According to learned counsel not only the
accused are entitled to previous statements of witnesses who are examined by
the prosecution but they are also entitled to any material on the basis of
which they could build up their defence and raise appropriate issues at the
trial. Learned counsel relied on number of decisions and also said that the
decision of the Supreme Court in Dalmia's case is not binding as in that case
the scope of Sec. 6 of the Commission of Enquiry Act was not in question.
Whereas learned counsel for the respondent, the
Additional Solicitor General vehemently contended that the language of Sec. 6
is clear that a witness who is examined before a Commission, is protected and
that protection is such which clearly indicates that this statement made before
the Commission could not be used against him for any other purpose in any other
proceeding either civil or criminal. The only exception carved out in Sec. 6
pertains to his prosecution for perjury and therefore when the language is
clear and the exception carved out is clear enough, no other exception could be
carved out nor the Section could be interpreted in any manner. According to the
Additional Solicitor General the Commission by its regulation and notification
clearly made the enquiry a confidential affair and in addition to that there
was an amendment of the Act by Ordinance which even provided that if Government
by notification decided not to place the Report of the Commission before the
House of Parliament or Legislature then it was not necessary that it should be
so placed before the House and thus the report not only was confidential but
even the Parliament had no right to see the report and therefore neither the
report nor the statements made before the Commission could be asked for by the
accused for the purposes of trial.
PG NO 85 Soon after the assassination of Smt.
Indira Gandhi, the Government of India by notification dated 20.11.84
constituted a Commission under the Commission of Enquiry Act, 1952 (the Act).
The Commissioner was presided over by Mr. Justice M.P. Thakkar, a sitting Judge
of this Court. The terms of enquiry notified for the Committee reads:
"(a) the sequence of events leading and all
the facts relating to, the assassination of late Prime Minister;
(b) Whether the crime could have been averted
and whether there were any lefts or dereliction of duty in this regard on the
part of any one of the commission of the crime and other individuals
responsible for the security of the late Prime Minister;
(c) the deficiencies, if any, in the security
system and arrangements as prescribed or as operated to impractice which might
have facilitated the commission of the crime;
(d) the deficiencies, if any, in the procedure
and measures as prescribed, or as operated in practice in attending to any
providing medical attention to the late Prime Minister after the commission of
the crime; and whether was any lapse or dereliction of duty in this regard on
the part of the individuals responsible for providing such medical attention;
(e) whether any person or persons or agencies
were responsible for conniving, preparing and planning the assassination or
whether there was any conspiracy in this behalf, and if so, all its
ramifications''.
PG NO 86 The Commission was also asked to make
recommendations as to corrective remedies and measures that need to be taken
for future.
It is therefore clear that out of these terms of
reference the first term (a) and the last one (e) are such that the evidence
collected by the Commission could be said to be relevant for the purposes of
this trial.
It is significant that the Commission framed
regulations under Section 8 of the Act in regard to the procedure for enquiry
and regulation 8 framed therein reads:
"In view of the sensitive nature of enquiry
the proceedings will be in camera unless the Commission directs
otherwise." The Regulation made it clear that the proceedings of the
Commission will be ordinarily in camera. It would only be in public if the
Commission so directs and it is not disputed that so far as recording of
evidence is concerned and the proceedings of the Commission it has gone on in
camera throughout and even the report, interim and the final report. And then
also it was stated by the Commission itself to be confidential. In this
perspective the prayer of the appellants has to be considered.
Under the Act as it stood before the amendment
which was done by Ordinance No. 6 of I986 normally the Government was supposed
to place the report of the Commission under Section 3 sub-clause 4 of the Act
before the House of the Commission but the Government did not do that. The
steps were taken to amend the commission of Enquiry Act and on May 14, I986 the
President of India promulgated an Ordinance No. 6 of 1986 namely Commission of
Enquiry (Amendment) Ordinance. 1986 by which sub-sections 5 and 6 were
introduced to section 3 as follows:
"Sub-clause 5: The provisions of
sub-section 4 shall not apply if the appropriate Govt. is satisfied then in the
interest of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign states or in public interest, it is not
expedient to lay before the House of People, or as the case may be, the
Legislative Assembly of the State, the report, or any part thereof, of the
Commission. On the enquiry made by the Commission under sub-sec. (1) and issue
a notification to that effect in the official gazette.
PG NO 87 (6) Every notification issued under
sub-section (5) shall be laid before the House of the People, as the case may
be, the Legislative Assembly of the State, if it is sitting as soon as may be
after the issue of the notification, and if it is not sitting, within seven
days of its resuming and the appropriate Govt. shall seek the approval of the
House of People, or as the case may be, the Legislative Assembly of the State
to the notification by a resolution moved within a period of 15 days beginning
with the day on which the notification is so laid before the House of People or
as the case may be the Legislative Assembly of the State makes any modification
in the notification or directs that the notification should cease to have
effect. The notification shall thereafter have effect as the case may be."
In pursuance of this amendment on May 15, l986 the Central Government issued a
notification under sub-section (5) of Section 3 stating "The Central
Government, being satisfied that it is not expedient in the interest of the
security of the State and in public interest to lay before the House of People,
the report submitted to the Government on 19.11.85, and 27.2.86, by justice
M.P. Thakkar, a sitting Judge of the Supreme Court of lndia appointed under the
notification of the Government of India, in the Ministry of Home Affairs No. So.
867(B), dated the 20th November, 1984 thereby notifies that the said report shall not
be laid before the House of People." It is interesting that on 20.8.86,
Ordinance No. 6 was replaced by Commission of Enquiry (Amendment) Act. I986
(Act No. 36 of I986) with retrospective effect. The said notification dated May
15, l986 was also got approved by the House of People is required under
sub-section 6 of Section 3 and therefore after the approval of the notification
by the House of the People there remains no question of placing the report of
the Commission before the House.
So far as the steps taken by the appellants are
concerned, it is no doubt true that an appropriate application in the manner in
which it was moved in the High Court was not moved in the trial court but it
could not be doubted that one of the accused persons had even sought these
copies in the trial court and the same prayer has been appropriately made
during the hearing in the High Court. The proper time for awarding the prayer
was in the trial court during the pendency of the trial as the accused wanted
the copies of the previous statements of some of the prosecution witnesses
which were recorded during the enquiry before the Thakkar Commission but such a
prayer was made and rejected.
PG NO 88 The High Court rejected this prayer by
the impugned judgment against which the present appeal is before us. The High
Court relied on the decision of this Court in the case of Ram Krishan Dalmia v.
Justice Tendulkar, [1959] SCR 279 which is referred to henceforth as Dalmia's
case. It was contended by learned counsel for the appellants that this case
could not be accepted as an authority on interpretation of Sec. 6 as in that
case the scope of Sec. 6 was not before the Court but it was the validity of
the provisions which were challenged. Das, C.J. in Dalmia's case while
examining the challenge to the validity of the Act and the notification issued
thereunder made the following observations:
"The whole purpose of setting up of a
Commission of Enquiry consisting of experts will be frustrated and the
elaborate process of enquiry will be deprived of its utility if the opinion and
the advice of the expert body as to the measures and situation disclosed calls
for can not be placed before the Government for consideration not withstanding
that doing so can not be to the prejudice of anybody because it has no force of
its own. In our view, the recommendations of a Commission of Enquiry are of
great importance to the Government in order to enable it to make up its mind as
to what Legislative or administrative measures should be adopted to eradicate
the evil found or to implement the beneficial objects it has in view. From this
point of view, there can be no objection even to the Commission of Enquiry
recommending the imposition of some form of punishment which will, in its
opinion, be sufficiently deterrent to deliquent in future. But seeing that the
Commission of Enquiry has no judicial powers and its report will purely be
recommendatory and not effective propro vigro." The statement made by any
person before the Commission of Enquiry under Sec. 6 of the Act is wholly
inadmissible in evidence in any future proceedings civil or criminal.
PG NO 89 According to learned counsel, in that
case it was not the scope of Section 6 but the validity of the provisions were
in question and the observations were only incidental and it can not be
regarded as a binding precedent. The High Court has accepted these observations
of this Court in the judgment quoted above and in our opinion rightly. But
apart from it, we shall try to examine Sec. 6 itself and other provisions
relevant for the purpose as to whether the appellants i.e. the accused before
the trial court were entitled to use the copies of the statements of those
prosecution witnesses who were examined before the Thakkar Commission for
purposes of cross examination or to use the report of the Commission or whether
it could be handed over or given over to the accused for whatever purpose they
intended to use. The learned counsel for the parties on this aspect of the
matter have referred to number of decisions of various High Courts and also
some of the decisions of the English Courts. They are being dealt with in the
Judgment elsewhere as in my opinion it is not necessary to go into all of them
except examining the provisions of the Act itself.
Sec. 6 of the Commission of Enquiries Act reads:
"No statement made by any person in the
course of giving evidence before the Commission shall subject him to, or be
used against him in any civil or criminal proceedings except a prosecution for
giving false evidence by such statement." On analysis of the provision, it
will be found that there are restrictions on the use of a statement made by a
witness before the Commission. First is "shall subject him to,
................any civil or Criminal proceedings except a prosecution for
giving false evidence by such statement." This, in my opinion, is the
first restriction. The second restriction, according to me, is spelt out from
the words "or be used against him in any civil or criminal
proceedings." Thus if we examine the two restrictions stated above it
appears that a statement given in a Commission can not used to subject the
witness to any civil or criminal proceedings and in my opinion it is in the
context of these restrictions that we will have to examine the provisions of
the Evidence Act which permit the use of a previous statement of a witness and
for what purpose. Sec. 145 read with Sec. 155(3) and Sec. I57 are the relevant
provisions of the Evidence Act. Sec. 145 reads:
"Cross-examination as to previous
statements in writing.
A witness may be cross examined as to previous
statements made by him in writing or reduced into writing and relevant to
matters in question, without such writing being shown to him, or being proved;
but if it is intended to contradict him by the writing, his attention must,
before the writing can be proved, be called to these parts of it which are to
be used for the purpose of contradicting him." PG NO 90 This provision
permits that a witness may be cross- examined as to the previous statement made
by him in writing or reduced to writing relevant to the matters in question
without such writing being shown to him or being proved. But if it is intended
to contradict him by the writing his attention must be drawn to these parts of
the writing; and it can be proved. A witness could be cross examined on his
previous statement but if a contradiction is sought to be proved then that
portion of the previous statement must be shown to him and proved in due
course.
Sec. 155 of the Evidence Act provides for the
use of a previous statement to impeach the credit of a witness. Sec. 155 reads:
"155. Impeaching credit of witness-The
credit of a witness may be impeached in the following ways by the adverse party
or, with the consent of the Court, by the party who calls him- (1) by the
evidence of persons who testify that they, from their knowledge of the witness,
believe to be unworthy of credit;
(2) by proof that the witness has been bribed,
or has (accepted) the offer of a tribe, or has received any other corrupt
inducement to give his evidence;
(3) by proof of former statements inconsistent
with any part of this evidence which is liable to be contradicted;
(4) When a man is prosecuted for rape or an
attempt to ravish, it may be shown that the prosecutrix was of generally
immoral character." This section provides that the credit of a witness may
be impeached in the following ways by an adverse party with the consent of the
Court by the party who calls him and the third sub-clause refers to a former
statement which is inconsistent with the statement made by the witness in
evidence in the case and it is permissible that the witness be contradicted
about that statement. The third provision is Sec. 157 which provides for the
use of a previous statement for corroboration. it reads:
PG NO 91 "157. Former statements of witness
may be proved to corroborate later testimony as to same fact. In order to
corroborate the testimony of a witness, any former statement made by such
witness relating to the same fact, at or about the time when the fact took
place, or before any authority legally competent to investigate the fact, may
be proved." A perusal of these three Sections clearly indicate that there
are two purposes for which a previous statement can be used. One is for cross
examination and contradiction and the other is for corroboration. The first
purpose is to discredit the witness by putting to him the earlier statement and
contradicting him on that basis. So far as corroboration is concerned it could
not be disputed that it is none of the purposes of the defence to corroborate
the evidence on the basis of the previous statement. Sec. 145 therefore is the
main section under which relief was sought by the accused. The use for which
the previous statement was asked for was to contradict him if necessary so that
that contradiction be put to the witness and that part of the statement can be
proved.
To my mind, there could be no other purpose for
which the appellants could use the previous statements of those witnesses.
Contradiction could be used either to impeach his credit or discredit him or to
pull down or bring down the reliability of the witness. These purposes for
which the previous statements are required could not be said to be purposes
which were not against the witness. The two aspects of the restrictions which
Sec. 6 contemplates and have been discussed earlier are the only two aspects
which could be the result of the use of these statements. I cannot find any
other use Of such previous statements in criminal proceedings. It is therefore
clear that without going into the wider questions even a plain reading of Sec.
6 as discussed above will prohibit the use of the previous statements at the
trial either for the purposes of cross examination to contradict the witness or
to impeach his credit. The only permissible use which has been provided under
Sec. 6 is which has been discussed earlier and therefore the Courts below were
right in not granting the relief to the accused.
PG NO 92 The report of the Commission was also
prayed for although learned counsel could not clearly suggest as to what use
report of the Thakkar Commission could be to the accused in his defence. The
report is a recommendation of the Commission for consideration of the
Government. It is the opinion of the Commission based on the previous statements
of witnesses and other material. It has no evidentiary value in the trial of
the criminal case. The courts below were also justified in not summoning the
reports.
Learned counsel for parties referred to number
of decisions, Indian and foreign and are being dealt with by my learned
colleague in this judgment. But in view of the discussions above I do not find
it necessary to go further into the matter.
Learned counsel for Appellant No. I Satwant
Singh also made a reference to some of the question which were raised before
the High Court in respect of the post-mortem, although learned counsel
appearing for the other two appellants did not seriously raise those questions.
It is apparent that in the facts of the case as the evidence stands the
question of post-mortem or a fuller post-mortem was necessary or not loses all
its significance. There is no dispute that she died as a result of the gun shot
injuries which was inflicted by Beant Singh and Satwant Singh, one who shot
from his service revolver and other from the carbine. In view of such clear
evidence about the cause of the death, the post-mortem examination loses all
its significance. It becomes important only in cases where the cause of death
is to be established and is a matter of controversy.
Before I go to the merits and deal with the
evidence in the case, I will dispose of the preliminary objection raised by the
Learned Additional Solicitor General as to the scope of the appeals before us.
He urged that under Article 136 of the Constitution this Court is not expected
to go into the questions of fact when there are concurrent findings of fact
recorded by the courts below. The learned counsel apart from Art. I36 relied
upon a decision reported in the case of Pritam Singh v. The State, [1950] AIR
SC 169 Where Fazal Ali, J said:
"It would be opposed to al] principles and
precedents if we were to constitute ourselves into a third court of fact and
after re-weighing the evidence come to the conclusion different from that
arrived at by the trial Judge and the High Court." PG NO 93 Similarly in
Ram Raj v. State of Ajmer, [1954] SCR p. 1133. Justice Mahajan, Chief Justice observed at
page 1134:
"Unless it is shown that exceptional and
special circumstances exist that substantial and grave injustice have been done
and the case in question presents features of sufficient gravity to warrant a
review of decision appealed against this Court does not exercise its overriding
powers under Art. 136( 1) of the Constitution and the circumstances that
because the appeal have been admitted by special leave does not entitle the
appellant to open out the whole case and contest all the findings of fact and
raise every point which should have been raised in the High Court. Even in the
final hearing only those points can he urged which are fit to be urged stage
and preliminary stage at the preliminary when the leave to appeal is asked
for." Even in a recent decision AlR 1983 SC 753. Justice Thakkar stated:
"A concurrent finding of fact can not be
reopened in an appeal unless it is established; (i) that the finding is based
on no evidence or record, that the finding is perverse, it being such as no
reasonable person would have arrived at even if the evidence was taken at its
face value or thirdly, the finding is based and built on inadmissible evidence
which evidence if excluded from the vision would negate the prosecution case or
substantially discredit or impair it or; fourthly some vital piece of evidence
which would tilt the balance in favour of the convict has been overlooked,
disregarded or wrongly discarded." These are the principles laid down by
this court and keeping these in view I will attempt to examine the High Court
judgment. I may however, mention that where the High Court has reached
conclusions which are not justified on the basis of evidence on record it can
not be contended that in an appeal under Art. 136 this Court will not go into
the facts of the case and come to its own conclusions. The case on hand is one
of such cases and some of the findings of fact reached by the High Court could
not be said to be such which are concurrent or conclusive. We were therefore
put to the necessity of examining the evidence wherever it was necessary.
PG NO 94 The other ground urged on behalf of the
appellants relates to the relevancy of evidence on conspiracy in view of
Section 10 of the Evidence Act. It will be worth-while to deal with this
question of law at this stage. Sec. 12-A and 120-B of the Indian Penal Code which
deal with the question of conspiracy. Sec. 120-A reads:
"When two or more persons agree to do, or
cause to be done.- (1) an illegal act, or (2) an act which is not illegal by
illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement
to commit an offence shall amount to a criminal conspiracy unless some act
besides the agreement is done by one or more parties to such agreement in
pursuance thereof." Sec. 120-A provides for the definition of criminal
conspiracy and it speaks of that when two or more persons agree to do or cause
to be done an act which is an illegal act and Sec. 120-B provides for the
punishment for a criminal conspiracy and it is interesting to note that in
order to prove a conspiracy it has always been felt that it was not easy to get
direct evidence. It appears that considering this experience about the proof of
conspiracy that Sec. 10 of the Indian Evidence Act was enacted. Sec. 10 reads:
"Things said or done by conspirator in
reference to common design--Where there is reasonable ground to believe that
two or more persons have conspired together to commit an offence or an
actionable wrong, anything said, done or written by any one of such persons in
reference to their common intention. after the time when such intention was
first entertained by any one of them, is a relevant fact as against each of the
person believed to be so conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose of showing that any such person
was a party to it." PG NO 95 This Section mainly could be divided into
two: the first part talks of where there is reasonable ground to believe that
two or more persons have conspired to commit an offence or an actionable wrong,
and it is only when this condition precedent is satisfied that the subsequent
part of the Section comes into operation and it is material to note that this
part of the Section talks of reasonable grounds to believe that two or more
persons have conspired together and this evidently has reference to Sec. 120-A
where it is provided "When two or more persons agree to do, or cause to be
done." This further has been safeguarded by providing a proviso that no
agreement except an agreement to commit an offence shall amount to criminal
conspiracy. It will be therefore necessary that a prima facie case of
conspiracy has to be established for application of Sec. 10.
The second part of Section talks of anything
said, done or written by any one of such persons in reference to the common
intention after the time when such intention was first entertained by any one
of them is relevant fact against each of the persons believed to be so
conspiring as well for the purpose for proving the existence of the conspiracy
as for the purpose of showing that any such person was a party to it. It is
clear that this second part permits the use of evidence which otherwise could
not be used against the accused person. It is well settled that act or action
of one of the accused could not be used as evidence against the other. But an
exception has been carved out in Sec. 10 in cases of conspiracy. The second
part operates only when the first part of the Section is clearly established
i.e. there must be reasonable ground to believe that two or more persons have
conspired together in the light of the language of Sec. 120-A. It is only then
the evidence of action or statements madeby one of the accused could be used as
evidence against the other. In Sardar Sardul Singh Caveeshar v. State of Maharashtra, [1964] 2 SCR 378 Subba
Rao, J. (as he then was) analysed the provision of Sec. 10 and made the
following observations:
"This section, as the opening words
indicate will come into play only when the Court is satisfied that there is
reasonable ground to believe that two or more persons have conspired together
to commit an offence or an actionable wrong, that is to say, there should be a
prima facie evidence that a person was a party to the conspiracy before his
acts can be used against his co-conspirators. Once such a reasonable ground
exists, anything said, done or written by one of the conspirators in reference
to the common intention, after the said intention was entertained, is relevant
against the others, not only for the purpose of proving the existence of the
conspiracy but also for providing that the other person was a party to it. The
evidentiary value of the said acts is limited by two circumstances, namely,
that the acts shall be reference to their common intention and in respect of a
period after such intention was entertained by any one of them. The expression
'in reference to their common intention' is very comprehensive and it appears
to have been designedly used to give it a wider scope than the words 'in
furtherance of' in the English law; with the result, anything said, done or
written by a co-conspirator, after the conspiracy was formed, will be evidence
against the other before he entered the field of conspiracy or after he Left
it.
Another important limitation implicit in the
language is indicated by the expressed scope of its relevancy. Anything so
said, done or written is a relevant fact only 'as against each of the persons
believed to be so conspiring as well for the purpose of proving the existence
of he conspiracy as for the purpose of showing that any such person was a party
to it.' It can be used only for the purpose of proving the existence of the
conspiracy or that the other person was a party to it. It cannot be used in
favour of the other party or for the purpose of showing that such a person was
not a party to the conspiracy. In short, the Section can be analysed as
follows:
(1) There shall be a prima facie evidence
affording a reasonable ground for a Court to believe that two or more persons
are members of a conspiracy;
(2) if the said condition is fulfilled, anything
said, done or written by any one of them in reference to their common intention
will be evidence against the other;
(3) anything said, done or written by him should
have been said, done or written by him after the intention was formed by any
one of them;
(4) it would also be relevant for the said
purpose against another who entered the conspiracy whether it was said, done or
written before he entered the conspiracy or after he left it;
(5) it can only be used against a conspirator
and not in his favour."
PG NO 96 In the light of these observations and
the analysis of Sec. 10 we will have to examine the evidence led by prosecution
in respect of conspiracy.
We first take the case of Balbir Singh. Balbir
singh was an officer of the Delhi Police in the cadre of Sub Inspector. He was
posted on duty at the PM's residence on security. On 31.10.84 in the morning he
was not on duty but his duty was to commence in the evening and on that day at
Akbar Road gate it appears that when he reported for duty in the normal course he
was asked to go to the Security Police Lines and at about 3 A.M. on November 1,
1984 he was awakened from his sleep and his house was searched by SI Mahipal
Singh, PW 50, Constable Hari Chand, PW 17 and Inspector- Shamsheer Singh.
Nothing except a printed book on Sant Bhindrawale Ex. PW l7A was recovered. It
is alleged that about 4 A.M. he was taken to Yamuna Velodrome. He was kept
there till late in the evening when he is reported to have been released. This
custody in Yamuna Velodrome is described by Sh. Kochhar, PW 75 as 'de facto
custody.' But there is no evidence or no police officer examined to say that he
allowed this accused to go in the evening on November 1, 1984. Thereafter he is
alleged to have been arrested on December 3, 1984 at Nagafgarh Bus-stand. When
his personal search was taken and certain articles were recovered from his
possession including a piece of paper which is Ex. PW 26B. On December 4, 1984
he was produced before the Magistrate who remanded him to police custody.
Thereafter it is alleged that he expressed his
desire to make a confession but when produced before the Magistrate he refused
to make any statement.
PG NO 97 The allegations in the charge-sheet
against this accused if summarised are: that Balbir Singh like the other accused
persons has expressed his resentment openly holding Smt. Indira Gandhi
responsible for the 'Bluestar Operation'. He was planning to commit the murder
of Smt. Gandhi and he discussed these matters with Beant Singh deceased who had
similar plan to commit the murder. He also shared his intention and prompted
accused Satwant Singh to commit the murder of Smt. Gandhi and finally discussed
the matter with him on Oct. 30, 1984. In the first week of September, 1984 a
falcon (baaz) happened to sit on the tree near the Reception gate of the Prime
Minister's house in the afternoon at about 1.30 P.M. Balbir Singh spotted the
falcon and called Beant Singh there. Both of them agreed that it has brought a
message of the Tenth Guru of Sikhs that they should do something by way of
revenge of the 'Bluestar Operation'.
Thereafter they offered 'Ardas'.
These allegations, the prosecution has attempted
to prove by the evidence of the following witnesses:
(i) SI Madan Lal Sharma, PW 13
(ii) Constable Satish Chandra Singh, PW 52 PG NO
98
(iii) Sub Inspector Amarjit Singh. PW 44 and
(iv) Confession of Satwant Singh, PW 11C.
The prosecution also strongly relied upon the
document Ex. PW 26B which was recovered from the possession of the accused when
he was arrested at Najafgarh Bus-stand. His leave applications which are Ex. PW
26 E1 to E5 along with his post crime conduct of absconding are also relied
upon.
According to the accused, the document Ex. PW
26B was not recovered from his possession as alleged by the prosecution. He
also contests his arrest at Najafgarh Bus- stand and says that it is just a
make-believe arrangement.
According to him, he was all along under police
custody right from the day when he was taken to Yamuna Velodrome on November 1,
1984. In fact he Was all along under police custody right from the day when he
was taken to Yamuna Velodrome on November 1, 1984. In fact he was not allowed
to go out and the question of his abscondence does not arise.
He was also not put any question on abscondence
under Sec. 313 examination. Now, we will take first, the arrest of this accused
on 1st November, It is not disputed that on 1st November late at night his
house was searched and a printed book-Sant Bhindrawale was seized from his
house and he was brought to Yamuna Velodrome. It is also not in dispute that
the prosecution evidence itself indicates that upto the evening the next day he
was seen in the Yamuna Velodrome.
It will be better here to describe what this
Yamuna Velodrome is? From the prosecution evidence what has emerged is that
this is a place where there are number of offices but Police has reserved a
portion of this building to be used for interrogation and investigation.
Normally when a person or a witness is brought for interrogation or
investigation at a Police Station, some record has to be made as there is a
general diary although diaries may or may or may not be filled in but a duty is
cast on the Station House Officer of a Police Station to maintain the movements
of the Police Officers and also to note down the activities especially when it
is connected with the investigation of an important case. But it appears that
all about the preliminary investigation of this case was going on at Yamuna
Velodrome, witnesses and persons were brought here, detained or kept, and
interrogated. We do not have any further evidence in regard to this place.
According to the prosecution, this accused was
at Yamuna Velodrome upto the evening of that day and thereafter he was allowed
to go and then he absconded. As a matter of fact this part of the story .RM60
becomes very important in view of the further facts alleged by the prosecution
that the investigating officer got some information through some one that this
accused who was wanted would appear at the time and place indicated.
But there is no evidence as to who asked this
accused to go. He was a suspect in the criminal conspiracy. He could not have
gone away of his own accord. Some responsible officer must have taken the
decision but it is unfortunate that no officer has been examined to state that
"1 thought that his presence was not necessary and therefore 1 allowed him
to go." Learned Additional Solicitor General appearing for the State
before us also was asked if he could lay his hands at any part of the evidence
of any one of the witnesses who could say that before him this person was
allowed to go from the Yamuna Velodrome. There is no evidence on this aspect of
the matter at all and therefore we are left with the only evidence that this
person was arrested at midnight in the late hours on Ist November and was
carried to Yamuna Velodrome and was seen there by some prosecution witness till
the evening of the next day.
PG NO 99 Then the other aspect of the matter
which is of some importance is about the prosecution allegation that he was
absconding from Ist or IInd November till 3rd Dec. 1984. It is significant that
no witness has been examined to indicate that he went to find him but either at
his residence or at any other place' in search of him and that he was not available.
There is also no evidence produced to indicate that in spite of the fact that
during investigation police wanted to arrest him again but he was not available
at his known address. It is perhaps of absence of evidence as to absconding the
trial court when examined this accused under Sec.313 did not put him any
question about his abscondence. it is therefore clear that the abscondence as
circumstance could not be used against him.
Let us now examine the story of the prosection
that accused was arrested at Najafgarh Bus-stand. It is alleged that Sh.
Kochhar, the Investigating Officer got some information that accused was
expected to appear at that place on 3rd December, 1984. It was not immediately
after the assassination. It was after a month. The people could come forward to
become witness. But no independent witness has been examined in support of the
arrest or seizure from the accused. It may be as technically argued by the
learned Additional Solicitor General that the presence of public witness under
the scheme of Code of Criminal Procedure is required when there is search and
seizure from the house or property of the accused but not when a person is
arrested and something is recovered from the personal Search. But it is
well-known that in all matters where the police wants that the story should be
believed they always get an independent witness of the locality so that that
evidence may lend support to what is alleged by the police officers. Admittedly
for this arrest at Najafgarh and for the seizure of the articles from the
person of this accused is no other evidence except the evidence of police
officers. Independent witness in this case would be all the more necessary
especially in view of what has been ofund above as his release after the earlier
arrest is not established, and his abscondence is not proved. In such a
controversial situation the presence of an indep-endent witness from the
public, if not of the locality, would have lent some support to the case of the
prosecution. It may also be noted that according to Mr Kochhar, than the
accused appeared at the Bus-stand but they have not been able to disclose from
where he appeared. Whether he got down from a bus, it so from which bus/city or
outstation bus? How he appeared there is all mystery. Nobody bothered to notice
of his coming. It is said that he had a DTC bus ticket. Nobody examined it
Perhaps there was nothing to examine If the Police Officers had gone with prior
information to arrest the absconding accused who was involved in such an important
crime, they could have taken an independent witness with them. It is again
interesting to note that instead of searching him and performing the
formalities of arrest at the place where the appeared, he was taken to a place
said to be the office of the Board.
The search and seizure took place there. Some
articles were recovered from his possession. Most of the articles recovered are
mere personal belongings. There was also a piece of paper since marked as Ex.
PW 26/B. The Police did not think it necessary to have an independent witness
even for the seizure memo, when particularly some important piece of evidence
was recovered from his possession. The reply of the learned Additional
Solicitor General was that in law it was not necessary. The Investigating
Officer when questioned in cross-examination answered that nobody, was
available or none was prepared to be a witness in this matter. It is
unthinkable at a public place and that too at the Bus - stand. Learned
Additional Solicitor General also attempted to contend that the c in Delhi after the assassination
of the. Prime Minister were such that no witness was prepared to come forward.
It appears that for every problem this situation is brought as a defence but in
our opinion, this would not help so far as this matter is concerned. We are
talking of 3rd December which was more than a month after the unrest in Delhi. It is very difficult
to believe that a citizen in this capital did not come forward to be a witness
form seizure memo. The arrest of-the accused in the circumstances appears to be
only a show and not an arrest in actuality. Learned Additional Solicitor
General appearing for the State frankly conceded that if the release of this
accused after his arrest on Ist November is not established and his abscondence
is not proved, then the story of his arrest on 3rd December with the recovery
of the articles loses all its significance. It is indeed so.
PG NO 100 In the context of what has been
discussed above it is apparent that the arrest of the accused on 3rd December
and the recovery of these articles from his person have not been proved
satisfactorily and therefore could not be of any consequence against this
accused.
The prosecution attempted to prove the recovery
of Ex. PW 26/B on the basis of an entry in the Malkhana Register of Tuglak Road
Police Station. Entry 986 in the Malkhana Register which is made on December 3, 1984 according to the
learned Additional Solicitor General, contains a verbatim copy of the seizure
memo Ex. PW 35A and it indicates the fact of recovery of PW-26/B and therefore
proves that it was recovered from the appellant upon his arrest and search on
that day. Here again there is an interesting situation.
There is an endorsement in the Malkhana Register
stating that the DTC ticket which the accused carried and the paper containing
the dates in English Ex. PW 26/B were not deposited. the Malkhana Register
therefore is of no help to the prosecution. If they were taken back for any
further investigation they could have made an entry to that effect in the
general diary. The nature of entry in the Malkhana Register only shows the
recovery of certain articles and a note that the two document although are said
to be recovered but they were not brought and deposited at the Tuglak Road
Police Station. It is therefore clear that although in the seizure memo the
mention of the two documents including Ex. PW 26:B is there, they in fact did
not reach the Police Station or see the light of the day.
In view of these infirmities we can not accept
that the accused was arrested on 3rd December as alleged by the prosecution. So
the recovery of Ex. PW 36/B is doubtful.
However, we may refer to the said documents as
it has been said to be one of the most important pieces of evidence as the High
Court has described it. The document can be taken to have been written in the
handwriting of Balbir Singh as that is not seriously contested before us. The
document is a sheet of paper in which we find certain entries. The document is
reproduced at Pages Nos 57-58 of the judgment prepared by my learned brother
Shetty, J.
PG NO 102 If this document is considered to be a
memorandum of events prepared by this accused relating to his conspiracy, why
should he carry it in an atmosphere surcharged with emotion against the Sikhs.
Not only that, this person knew that he was an accused in such an important
case where whole public opinion is against him. He also knew that he was
absconding and he also knew that he was carrying in his pocket such an
important piece of evidence. Was it his intention that he should keep it
readily available so that h could oblige the prosecution whenever they needed?
There is no other possible reason why this person should keep this document
with him all the time. On our questioning the learned Additional Solicitor
General about this strange behavior of the accused, he also could not explain
as to way the accused could have thought of carrying such a piece of paper in
his pocket.
Apart from it. if the document is looked at as
it we see nothing in it except a mention of few dates and events. It even does
not indicate that with those whether this accused was connected in any manner.
It is also significant that document was not with this accused when his house
was search and he was arrested on the night of Ist November, 1984. If the
accused after that arrest was not released at all and there was no occasion for
him to go away then, one fails to understand as to how this document came in
his possession ? The explanation suggested by the learned counsel for accused
appears to be the most probable. As indicate from other evidence, the accused
was preparing to give a statement or a confession and therefore fore he was
given the notes and he must have recorded those dates to facilitate the statement
that he was planning or he made to made to give which ultimately he chose not
to give at all.
Looking to this document the only material which
could be said to be of some significance is the words `felt like killings. But
there is no reference after those words was intended to be killed. There is
also no indication as to whose feeling are noted in this piece of paper. There
are entries in this document which refer to meeting visits.
persons, visiting somebody's house but it is not
clear as to whom they refer and what intended when this reference is made.
Beant Singh has been referred to in this document more than in one place. At
one place, there is a reference to beant Singh with eagle. But there is no
reference to a joint Ardas or this accused or Beant Singh telling that it had
brought a message or they should take revenge. The entry does not suggest that
the accused has anything to do with the eagle. If there is anything, it is
against Beant Singh.
PG NO 103 A perusal of this whole document also
shows that there is no reference at all to Beant Singh and his plan to kill the
Prime Minister. Nowhere it is mentioned about the bomb or grenade with which
the accused was planning to eliminate the Prime Minister before 15th August,
1984. There is also no reference about Beant Singh conspiring with this accused
or vice-versa. Kehar Singh is not at all in the document.
Satwant Singh, however, is mentioned against
30th October.But it does not give an indication where? The prosecution has
connected it with the evidence of PW 52 who was the Sentry in the Prime
Minister's security. We will consider the evidence of this witness a little
later.
Under these circumstances it is very clear that
except the mention of `Bluestar Operation' and `felt like killing' there is nothing
in this document which is of any significance. If the document is read as it
is, we see nothing incriminating against this accused unfortunately it appears
that the High Court read in this document what was suggested by the prosecution
without considering whether it would be accepted or not in the absence of
evidence on record. Admittedly, there is no such evidence at all in this case.
Satish Chandra Singh, PW 52, who has been
produced to prove the meeting of Balbir Singh with Satwant Singh Was for the
first time examined during the investigation on 7.2.85 that is after the trial
and commenced. He has stated that when he was on duty on October 30, 1984
Satwant singh came and talked to Balbir Singh. But he frankly admitted that he
could not follow what they talked as he did not know Punjabi. What value we
could attach to the testimony of this witness.It is impossible to believe him.
In view of what we have noticed, even if the
document is accepted to have been written by the accused, still there is nothing
is on the basis of which an inference of conspiracy could be drawn. There must
be evidence to indicate that the accused was in agreement with the other
accused person to do the act which was the ultimate object which was achieved
on 31.10.1984. This document therefore although described by the learned judges
of the High Court as very important piece of evidence is nothing hut a scrap of
paper.
PG NO 104 Excluding from consideration this
recovery of a piece of paper Ex.PW 26/B, what remains has been analysed by the
High Court in the judgment in the following words :
"Summing up then the evidence against
Balbir Singh leaving out of account for the time being the confession of
Satwant Singh and the evidence of Amarjit Singh the position is as follows:
He was an Officer on security duty at the PM's
house.
He knew Beant Singh and Satwant Singh as well.
He shared the indignation of Beant Singh against Smt.Gandhi for 'Operation
Bluestar', and was in a mood to avenge the same.He went on leave on 25.6.84 to 26.7.84.
On his return he met Beant Singh and Amarjit Singh. He was present on the
occasion of the appearance of eagle and their association on that date is borne
out by Ex. PW 26/B. He is known to have talked to Satwant Singh on 30th October, 1984." Unfortunately,
the learned Judges of the High Court when they came to the conclusion that
Balbir Singh knew Beant Singh and Satwant Singh well, have not referred to any
piece of evidence in this case which establishes that they knew each other
well. The learned Additional Solicitor General appearing for the State also has
not been able to point out any piece of evidence on the basis of which this
could be inferred. This accused being a Sikh also is referred to but there were
number of Sikh officers posted at the house of the Prime Minister and merely
because he was a Sikh it could not be said that he became a party to the
conspiracy or he was in conspiracy or he knew Beant Singh and Satwant Singh
well. Similarly as regards the observations made by the High Court that Balbir
Singh shared indignation of Beant Singh against Smt. Gandhi and was in a mood
to avenge for the 'Bluestar Operation', there is no evidence to support it.
From the testimony of SH Madan Lal Sharma, PW 30 all that we could gather is
that after the `Bluestar Operation' Balbir Singh was in an agitated mood and he
used to say that the responsibility of damaging the Akal Takht lies with Smt.
Gandhi and it would be avenged by them. From this it cannot be inferred that
Balbir Singh wanted to take revenge against the Prime Minister along with Beant
Singh. This is not what is said by the witness. If expression of anger or
protest on the `Bluestar Operation' could be used as a piece of evidence or a
circumstance against accused then all that members of the Sikh community who
felt agitated over the `Bluestar Operation' must be held as members of the
conspiracy.
PG NO 105 So far as taking leave is concerned
there is nothing on the basis of which any significance could be attached to
it.
There is no material to indicate that during the
leave Balbir Singh met Beant Singh or any one else or was in any manner
connected with the conspiracy or was doing something in pursuance of the
agreement of conspiracy between them.
Merely because on certain dates he was on leave
no inference could be drawn. The High Court relied on the fact that after
returning from leave this accused met Beant Singh and Amarjit Singh but on this
meeting also there is no other evidence except the evidence of Amarjit Singh PW
44 which we will deal with a little later.
So far as appearance of falcon and offering of
ardas is concerned it is admitted that appearance of falcon is considered, by
the Sikh community, as a sacred thing as falcon is supposed to be a
representative of the Guru and if therefore this accused and Beant Singh
offered ardas nothing could be inferred from this alone. As even the High Court
observed that:
"Nothing unusual or abnormal about the
incident as any religious Sikh seeing the appearance of a falcon could offer
the Ardas." So far as meeting with Satwant Singh is concerned on October,
30, i984 the only evidence of that fact is the evidence of Satish Chandra Singh
PW 52 about whom I have discussed little earlier and nothing more need be
stated here.
With this we are now left with the evidence of
Amarjit Singh who is an important witness as per the prosecution. It has come
on record that his statement during investigation was recorded thrice; twice by
Police under Section 161 and then under Sec. 164 Cr. P.C. The first statement
is Ex. PW 44 which was recorded on November 24, l984,after 25 days of the
incident and the second statement PW 44 DB was recorded on December l9, 1984.
On December 2l, 1984 the third statement PW 44A under Sec. 164 of the Code came
to be recorded. In the first statement there is no involvement of Balbir Singh.
The second statement according to the witness was recorded at his own instance.
He states that it did not occur to him that assassination was the hand-work of
Balbir Singh and Kehar Singh. After he had learnt about the firing and death of
Smt. Indira Gandhi he recalled certain things and went to Shri R.P. Sharma who
recorded his statement on 24.11.84.
PG NO 106 According to him, he recalled bit by
bit and that was the reason, he gave the subsequent two statements. If we
carefully peruse these statements it is clear that the entire approach of the
High Court appears to be erroneous.
Amarjit Singh PW 44 states before the Court as
follows:
"In the first week of August 1984 1 had a
talk with Beant Singh. Then he told me that he would not let Mrs. Indira Gandhi
unfurled the flag on 15th August. Shri Balbir Singh also used to tell me that
if he could get a remote control bomb and his children are sent outside India
then he also could finish Mrs. Indira Gandhi. 1 used to think that he was angry
and 1 used to tell him that he should not think In these terms. In the third
Week of October, 1984, Balbir Singh told me that Beant Singh and his family
have been to the Golden Temple along with Kehar Singh his Phoopha. He further
told that Beant Singh and Constable Satwant Singh had taken Amrit in Sector 6,
R.K. Puram, New Delhi at the instance of' Kehar Singh." In his first
statement PW 44 DA which has been exhibited during his cross examination
admittedly there is no reference to Balbir Singh at all. No reference to Balbir
Singh telling the witness that if he could get a remote control bomb and his
children are sent outside India. he could also finish Mrs. Indira Gandhi there
he has stated "In the end of September, I984 SI Balbir Singh met me once
in the Prime Minister's house and told me that Beant Singh wanted to kill the
Prime Minister before 15th August, he (Beant Singh) agreed to kill her a
grenade and remote control but this task was to be put off because the same
could not he arranged. Actual words being In do cheeson ka intezam nahin ho
saka isliye baat gayi.' Similarly in his earlier statement Ex. PW 44DA what
this witness said Was:
"In the third week of October, 1984 Beant
Singh SI met me and told me that he had procured one Constable.
Actual words being `October 1984 ke tisare hafte
main Beant Singh mujhe mila usne bataya ki usne ek sipahi pataya hai' and that
now both of them would put an end Smt. Indira Gandhi's life very soon.'' PG NO
107 These portions of the statement which were put and proved from Amarjit
Singh as his first statement recorded by the police clearly go to show that he
had only alleged these things against Beant Singh. What he did later was to
improve upon his statement and introduce Balbir Singh also or substitute Balbir
Singh in place of Beant Singh. The only other inference is that he was himself
a party to that conspiracy. Otherwise there is no explanation why he should
keep on giving statement after statement, that too after 25 days of the
incident. The second statement was recorded on December 19 and a third
statement on December 21, 1984. It clearly shows that he was a convenient
witness available to State whatever was desired from him. He appears to have
become wiser day by day and remembered bit by bit, is certainly interesting to
remember.
It could not be doubted that the two versions
given out by this witness are not such which could easily be reconciled. In
fact in his first version there is nothing against Balbir Singh. In his second
statement he has tried to introduce things against him. This apparently is a
clear improvement. It is well-settled that even delay is said to be dangerous
and if a person who is an important witness does not open his mouth for a long
time his evidence is always looked with suspicion but here we have a witness
who even after 25 days gave his first statement and said nothing against the
present accused and then even waited for one more month and then he suddenly
chose to come out with the allegation against this accused. In our opinion,
therefore, such a witness could not be relied upon and even the High Court felt
that it would not be safe to rely on the testimony of such a witness alone.
Apart from it, the evidence which he has given
is rather interesting According to him Beant Singh and Balbir Singh were so
close to him that they used to keep him informed about their plans to
assassinate the Prime Minister of India. But relation with Balbir was such that
he was not even invited when Balbir Singh was married and therefore it was
nothing but casual but still he claims that he had so much of chose association
that he used to be taken in confidence by these two persons. That means that he
is one of the conspirators or otherwise he would not have kept quiet without
informing his superiors as it was his duty to do when the Prime Minister was in
danger.
In view of this, it is clear that there is no
evidence at all to establish prime facie participation of this accused in
conspiracy or any evidence to indicate that he had entered into any agreement
to do an unlawful act or to commit an offence alongwith the other accused
persons.
Therefore, in absence of any evidence in respect
of the first part of Sec. 10 which is necessary it could not be contended hat the
confession of Satwant Singh could be of any avail or could be used against this
appellant.
PG NO 108 Before parting with this witness, one
more thing may be noted. The High Court, in order to explain that this witness
Amarjit Singh did not refer to Balbir Singh in his first statement on 24.11.84
stated something thing out of imagination. The High Court has quoted his
statement on 24.11.84 in these words:
"He is also reported to have said that
Beant Singh had wanted to kill Smt. Gandhi before 15th of August and that he
had agreed to do so if grenade and remote control were available." In this
context, the use of the word `agreed'and word `he' the High Court felt that
they refer to Balbir Singh and none else. This appears to be an explanation
given by Amarjit Singh in his statement in Court and the High Court felt that
it could accept it. It is clear that where he says 'agreed' and 'he' in his
statement on November 24, 1984 he had not named Balbir at all. It is only now
in his statement at trial that he grew wiser and made an attempt by way of this
explanation. It is rather unfortunate that the High Court felt that this
explanation should be accepted. The statement against Balbir coming for the
first time on 2lst December, 1984 itself in the light of the settled criminal
jurisprudence of this country ought to have been rejected outright. Secondly,
the High Court found corroboration from the confession of Satwant Singh. So far
as the statement of the c of Satwant Singh is concerned, it could not be used
against this accused as we have earlier indicated.
Thirdly so far as falcon incident is concerned,
we do not know how the High Court felt that that incident corroborates the
evidence of Amarjit Singh when Amarjit Singh alone talks of the falcon
incident. There is no basis for this conclusion of the High Court.
Lastly, it may be noted that so far as this
accused is concerned, even Bimla Khalsa, the wife of Beant Singh does not
mention anything.
In the light of the discussion above, in our
opinion, so far as this accused is concerned there is no evidence at all on the
basis of which his conviction could be justified. He is therefore entitled to
be acquitted.
PG NO 109 Kehar Singh The finding of guilt
recorded by the High Court against Kehar Singh is a mixture of both relevant
and irrelevant evidence adduced by the prosecution. We will consider only those
that are most important and relevant. Material evidence against Kehar Singh is
the evidence of PW 65, Bimla Khalsa wife of Beant Singh. She was examined by the
Police on 16th January, and l9th january, 1985. This although has been declared
but her statement could not be discarded in toto merely because on certain
questions she has chosen not to support . It is true that her statement for the
first time during investigation was recorded on 16th January, 1985 but it not
be disputed that after all she is the wife of the main accused in this case.
She has lost her husband on 3 lst October. She was placed in a situation where
it would have been difficult for her to compose herself in a manner in which
she could give her statement immediately. It is nobody's case that she has any
grudge against anybody.
Important circumstances which emerge from the
testimony of this witness are:
(i) She was married to Beant Singh in 1976
through the good offices of her maternal uncle Gurdeep Singh.
(ii) Kehar Singh's wife Jagir Kaur hailed from
Matloya and she (Bimla) used to call Kehar Singh and Jagir Kaur Phoophi and
Phoopha and there was close friendship between the two families. Rajendra singh
son of Kehar Singh who was a friend of Beant Singh and often used to have
drinks with him. In her statement in Court later she also stated that the wives
of Rajendra Singh and Shamsher Singh, brother of Beant Singh belonged to the
same `biradari'.
(iii) Kehar Singh started visiting their house
more often after the `Operation Bluestar'. Beant Singh and Kehar Singh had
talked about the destruction of the Akal Takht in the Golden Temple complex on
two or three occasions but became silent when she came.
(iv) In the last week of July, Beant Singh told
her that he had gone to the Gurudwara at Moti Bagh at the instance of Kehar
Singh and that they heard highly provocative and inciting speeches there. Beant
Singh has told her that he would become a "Shaheed" and that she
should look after the children or God will look after them but he never told
her that he wanted to kill Smt. Indira Gandhi. PG NO 110
(v) In the middle of September, 1984 the
birthday of the grandson of Ujagar Singh Sandhu was celebrated at his residence
at Moti Bagh. Though they had not received any invitation, at Kehar Singh's
instance they attended the party where many inciting speeches were delivered.
(vi) On 13.10.84 her husband told her that he
would be taking Amrit on 14.10.84 and when she asked for the reason, he told
her that it was in order go give up drinking.
(vii) On 17.10.84 she was sent to Gurudwara Sis
Ganj alongwith Kehar Singh and Jagir Kaur to take Amrit there which she did.
(viii) On the evening of 17.10.84 Kehar Singh
came and was closeted together with Beant Singh on the roof of the house for 15
to minutes. Satwant Singh who had come to their house on the two earlier
occasions in the first week of October, also came. First two talked in low tone
and later all the three had meals together. She asked Kehar Singh what they
were talking about on the roof. He said it was about asking to take Amrit. When
she said why it needed to be kept secret from her, he became silent but he
complained to her husband later about her having questioned him.
(ix) On 20th October, 1984 Beant Singh's family
went to Amritsar with Kehar Singh and his wife. Originally Beant Singh Kehar
Singh had intended to go alone. She has said that she would also like to go
there and that all of them could go in , 1985. Then he insisted that she should
also go with. it was decided that Jagir Kaur should also go. At Amritsar they
stayed with one M.R. Singh that evening while Bimla Khalsa and children and
Jagir Kaur were listening to Kirtan, Beant Singh and Kehar Singh went to see
the Takht. She also wanted to go but she was told she could see it next
morning. Next morning also, Beant Singh and Kehar Singh left for Akal Takht
early in the morning leaving them to follow later. When they were all there
again Beant Singh and Kehar Singh went away somewhere and returned 3 to 4 hours
later. On their way back again the two went away alone to some place for a few
minutes. They purchased a cassette and a photo of Bhindrawale. Beant Singh
stayed behind saying that the meet some one and join them at the railway
station.
They returned to Delhi on 2 lst October, 1984.
(x) On 24.10.84 Beant Singh insisted on her
Taking Amrit again at R.K. Puram Gurudwara but she refused. After he returned
from the A night duty he went alongwith Satwant Singh on a Scooter.
PG NO 111 There is only one variation between
the previous statement and evidence in Court. That relates to identification of
Satwant Singh. In the Court she attempted to say that he was a boy and later
explained that at that time he had no beard but the manner in which the boy has
been described and the occasions when the boy had come to their house, there is
hardly any doubt left. Apart from it, so far as Satwant Singh is concerned even
if we omit the of Bimla Khalsa, IT IS not material. But it could not be doubted
that from her evidence that the above circumstances have been established.
Next important circumstance is the 'Vak'. It is
alleged that when early morning the worship starts in a Gurudwara, the Granth
Sahib, is opened at random and some message from a page which is so opened is
written on the blackboard as a `Vak' for the day. It proved by Bimla Khalsa
that Ex. P 55A was written. in the handwriting of Beant Singh. It was a `Vak'
of a particular day which was in the following terms:
"One gets comfort on serving the Guru. Then
miseries do not come near. Birth and death come to an end and the black
(wicked) do not have effect.
About this `Vak' having been taken out in the
Gurudwara, there is. some controversy as the witness produced for that purpose
Surenda Singh, PW 55 was not in a position produce the diary but so far as
Beant Singh is concerned. the 'Vak' written by him on a piece of paper in
Yellow ink in Gurmuukhi with date 13.10.84 was put on it has been proved by the
evidence of Bimla Khalsa. This was admittedly found from the quarters of Beant
Singh on 31.10.84 and it was lying inside the book `Sant Bhindrawale'.
As far as the incident on 17th October is
concerned.
Bimla Khalsa in clear terms stated that Kehar
Singh and Beant singh had secret talks. She wanted to know it, but she was not
given to understand This kind of secret talk with Beant Singh which Kehar Singh
had, is a very significant circumstance. Apparently Kehar Singh began elderly
person did not indicate to her about their plan. If the attempt of Kehar Singh
was to dissuade Beant Singh then there was occasion for him to keep the matter
secret from his wife. On the contrary he should have indicated to his wife also
what Beant Singh was planning. These talks therefore as proved by Bimla Khalsa
go a long way in establishing Kehar Singh being a party to the conspiracy.
PG NO 112 Her evidence also indicates that Beant
Singh took Amrit on 14th and Beant Singh kept his golden `kara' and ring in the
house of Kehar Singh which has been recovered from the latter. It clearly goes
to show that Kehar Singh knew why Beant Singh took Amrit and why he handed over
the golden 'kara' and ring to him. It is also clear from the evidence of Bimla
Khalsa that between Beant Singh and Kehar Singh on Z4th was not conveyed to her
and she was kept in dark.
In this background, the trip to Amritsar of
Beant Singh, Kehar Singh and their families is of some significance. On October 20, 1984 Beant Singh and Kehar
Singh alongwith their family members went to Amritsar. There is evidence indicated by Bimla
Khalsa that originally Kehar Singh and Beant Singh wanted to go alone but
ultimately they agreed that the families also could accompany. According to the
evidence of Bimla Khalsa they reached at Amritsar at about 2 to 3 P.M. and went to Darbar Sahib Gurudwara in the
evening of 20th October. While ladies and children were listening to kirtan,
Beant Singh and Kehar Singh went to see the Akal Takht. Bimla Khalsa wanted to
accompany them to see the Akal Takht but she was told to see the same on the
next morning. On the next morning i.e. on 2 lst October, pW 53 was woken up by
Kehar Singh and told that he would attend `Asaki War Kirtan' in Darbar Sahib.
He went alongwith Beant Singh. The ladies and children went to Darbar Sahib at 8 A.M. alongwith PW 53. They
returned home at 11 A.M. Beant Singh and Kehar Singh did not return alongwith
them. After lunch, PW 53 took the ladies and children to the railway station.
Beant Singh and Kehar Singh did came to the railway station from where they
caught the train to New Delhi. The attempt of these two persons to keep themselves away from
the company of their wives and children speaks volume about their sinister
designs. The way in which these two avoided the company of the members of the
family and PW 53 at whose residence they were staying and the manner in which
they remained mysterious if looked at with the secret talks which 'they had in
the house of Bimla Khalsa earlier goes to establish that the two were doing
something or discussing something or planning something which they wanted to
keep it as a secret even from Bimla Khalsa.
PG NO 113 So far as `Amrit Chhakna' ceremony is
concerned or taking Amrit is concerned, ordinarily it may not be significant.
It is only a ceremony where in a Sikh takes a vow to lead the life of purity
and giving up all wordly pleasures and evil habits but this unfortunately is a
situation which could be understood in different ways. The manner in which
Amrit has been taken by Beant Singh and even Satwant Singh has been made to
take it and even Bimla Khalsa made to take it makes it significant that in all
these three of Amrit taking Kehar Singh was always with them or at least it
could be said, was inspiring them to have it. It also indicates that there was
something in the mind of Beant Singh which was known to Kehar Singh and which
he even tried to keep a secret from Bimla Khalsa, wife of Beant Singh and
wanted Beant Singh to have a full religious purification and confidence.
There is yet another circumstance. Post-crime
condUct of Kehar Singh. It is in the evidence that on the day i.e. 3lst
October, 1984 although Kehar Singh claims to be on leave, he goes to the office
at10.45 A.M. and at that time when the news reached in the Office about the
assassination PW 59 inquired from Kehar Singh as to what had happened? Kehar
Singh replied in these words:
"Whosoever would take confrontation with
the Panth, he would meet the same fate.
"This remark shows his guilty mind with
that of Beant Singh.
We have discussed some of the main features of
the case and it is not necessary for us to go into other details which the High
Court has discussed. These circumstances by themselves indicate that Kehar
Singh was a co-conspirator to assassinate Mrs. Gandhi.
Satwant Singh He was a Constable on security
duty at the residence of the Prime Minister.
He was charged under Sec. 302 read with Sec.
120-B and Sec. 34 for murdering the Prime Minister Smt. Indira Gandhi, secondly
under Sec. 307 for attempting to murder one Rameshwar Dayal, PW 10 and under
Sec. 27 of the Arms Act. To prove these charges, prosecution has examined
Narain Singh, PW 9, Rameshwar Dayal PW 10 and Nathu Ram PW 64 besides Sukhvir
Singh PW 3 and Raj Singh PW 15.pW Z7 has deposed about the history as to how
this person was in the Police in 1982 and how he happened to come to be Posted
at Teen Murti Lines and there after in the security duty with the prime
Minister. PW Duty Officer at the Teen Murti Lines has PG NO 114 deposed that
DAP personnel was placed on duty at various duty points at the PM's house on
weekly basis from Friday to Friday by Head Constable Dayal Singh the Company
Havaldar. The daily duty maintained at Teen Murti Ex. PW 4-C shows that Entry
No. 85 that on the morning of 31.10.84 Satwant Singh was put on duty at Gate
No. 4 in the Akbar Road House and not the TMC Gate and this entry is continue
firmed by Ex. PW 15 Daily Diary Clerk at that time. The arms and ammunition
register Ex. PW 3A at Teen Murti Lines also shows that Satwant Singh was issued
an SAF Carbine having But No. 80 along with five magazines and hundred live
rounds of .99 of ammunition. He signed the register in token of the receipt. PW
3, the Armory Incharge confirms this.
There is also evidence to indicate that this
person manipulated his duty and was put on the TMC gate where ultimately the
incident took place on the morning of 31. 10.84.
The main evidence against him is evidence of eye
witnesses. The first eye witness which I would like to refer is Narain Singh PW
9. This witness stated that he was on duty at about 7.30 A.M. in the porch of the Prime Minister's
house. According to him at 8.45 A.M. he with an umbrella took up his position near the entry
gate as he came to know that Smt. Gandhi had to go to No. 1, Akbar Road to meet certain foreign
TV representatives and he was to go alongwith her holding an umbrella to
protect her from the sun. At 9.10. A.M. Smt. Gandhi came out of the house
followed by Nathu Ram PW 6 and her Private Secretary Shri R.K. Dhawan. There he
moved over to the right side and held the umbrella Ex. P 19. They approached
the TMC Gate and when they were about 10 ft. therefrom he saw that the gate was
open and he also saw Beant Singh on the left side and Satwant Singh on the
right side. the former in a Safari Suit and the later in the uniform and with a
Carbine stengun in his hands. At that time Beant Singh took out his revolver
from the right dub and fired at Smt. Gandhi and immediately thereafter Satwant
Singh also started firing at her. Smt. Gandhi was hit by these bullets and
injured.
She fell down on the right side. Seeing this he
threw the umbrella on the left side, took cut his revolver and jumped on Beant
Singh. As a result of which revolver fell from the hands. He saw Satwant Singh
throwing his Carbine to the ground on his right side. At that time Shri Bhatt,
the personal guard of Smt. Gandhi and ITBP personnel arrived there and secured
Satwant Singh. Some other persons also came and secured Beant Singh. He then ran
to summon the doctor and while going, he noticed that Rameshwar Dayal PW 10 had
also sustained bullet injuries. The doctor himself came running by then. He,
Bhatt, the doctor and Nathu Ram took her to the escort car which had arrived
near and placed her in the rear seat.
PG NO 115 By this time, Smt. Sonia Gandhi had
also arrived and Smt. Gandhi was taken to AIIMS accompanied by Bhatt, Dhawan
and Fotedar on the seat and the doctor and Sonia Gandhi on the back seat. He
went to the Hospital in a staff car and PW 10 was taken to AIIMS in another .
There she was taken to the eighth floor and he was given the duty controlling
the crowd. At about 10 or 10.15 A.M. R.P. Kochhar, PW 73 arrived and this
witness gave a statement to Kochhar in the doctors' room which was recorded by
him and sent to Tuglak Road Police Station which is the FlR in this case.
His testimony is corroborated by the First
Information Report and also by the two other eye witnesses Rameshwar Dayal and
Nathu Ram whose presence on the spot could not be doubted. Nathu was in the
personal staff of the Prime Minister and Rameshwar Dayal himself received
injuries.
Apart from it, this evidence of direct witnesses
finds corroboration from the post-mortem report, recovery of cartridges and
arms on the spot and the evidence of the Doctor and the expert who tallied the
bullets. Under these circumstances even if the confession of this appelant
Satwant Singh is not taken into consideration, still there is enough evidence
which conclusively establish his part the offence and in this view of the
matter there appears to be no reason to interfere with the conclusions arrived
at by the two courts below. In our opinion, therefore, the appeal of Satwant
Singh deserves to be dismissed.
Then is the question of sentence which was
argued to some extent. But it must be clearly understood that it is not a case
where X is killed by Y on some personal ground or personal vendatta. The person
killed is a lady and no less than the Prime Minister of this Country who was
the elected leader of the people. In our country we have adopted accepted a
system wherein change of the leader is permissible by and not by bullet. The
act of the accused not only takes away the life of popular leader but also
undermines our system which has been working so well for the last forty years.
There is yet another serious consideration. Beant Singh and Satwant Singh are
persons who were posted on the security duty of the Prime Minister. They are
posted there to protect her from any intruder or from any attack from outside
and therefore if they themselves resort to this kind of offence. there appears
to be no reason or no mitigating circumstance for consideration on the question
of sentence. Additionally, an unarmed lady was attacked by these two persons with
a series of bullets and it has been found that a number of bullets entered her
body.
The manner in which mercilessly she was attacked
by these two persons on whom the confidence was reposed to give her PG NO 116
protection repels any consideration of reduction of sentence. In this view of
the matter, even the conspirator who inspired the persons who actually acted
does not deserves any leniency in the matter of sentence. In our opinion, the
sentence awarded by the trial court and maintained by the High Court appears to
be just and proper.
In the light of the discussions above Criminal
Appeal No. 180/87 filed by accused Kehar Singh and Criminal Appeal No. 182/87
filed by accused Satwant Singh are dismissed.
Conviction and sentence passed against them are
maintained whereas Criminal Appeal No. 181/87 filed by Balbir Singh is allowed.
Conviction and sentence passed against him are set aside. He is in custody. He be
set at liberty forthwith, if not wanted in connection with any other case.
RAY, J. I have perused the judgments prepared by
my learned brothers Hon'ble Oza, J and Hon'ble Shetty, J. I fully concur with
the views expressed in these judgments.
However since the matter is important I like to
deal with two aspects of the case i.e. whether trial in Tihar Jail is vitiated
as it infringes the right of the accused to have open public trial and
secondly, whether the confession of accused Satwant Singh being not made in the
manner prescribed under Section 164 of the Code of Criminal Procedure is admissible
in evidence and whether the same can be relied upon.
A Gazette Notification dated 10.5.1985 was
issued under section 9 (6) of the Code of Criminal Procedure mentioning that
the High Court of Delhi have directed that the trial of this assassination case
shall be held in the Central Jail Tihar. Another Notification of the same date
was issued whereby the High Court was pleased to order that this case will be
tried by Shri Mahesh Chandra, Addl. Sessions Judge, New Delhi. This order was
made under Section 194 of the Code of Criminal Procedure, 1973. It was
contended on behalf of the appellant that Section 9(6) empowers the High Court
to specify the place where the Sessions Court shall hold its sittings
ordinarily. It does not empower the High Court to direct the holding of a court
in a place other than the usual place of sitting in court for trial of a
particular case. It is only in a particular case if the Court of Sessions is of
opinion that it will be for the general convenience of the parties and witnesses
to hold its sittings at any other place in the Sessions Division, it may, with
the consent of the prosecution and the accused, sit at that place for the
disposal of the case. The High Court has not been given any such power to order
holding of court at any other place than the court where generally PG NO 117
the sittings of the Court of Sessions are held or where usually the Court of
Sessions sit. It was therefore, urged that the impugned order is wholly bad and
arbitrary. It has also been urged in this connection that speedy trial and
trial in an open court is fundamental right guaranteed by Article 21 of the
Constitution of India. The holding of trial in Tihar Jail as directed by the
High Court is a clear breach of this fundamental right and as such the entire
trial is vitiated. It has also been urged in this connection that an
application was filed on behalf of the accused, Kehar Singh before the Court on
17.5.1985 objecting to the holding of trial in jail. This application, of
course, was rejected by order dated 5.6.1985 by the Magistrate by holding that
the trial in Tihar Jail was an open trial and there was no restriction for the
public so minded to go to the place of trial to witness the same. As regards
the first objection the fixing of the place of sitting of Court of Sessions was
trade prior to the enforcement of the Code of Criminal Procedure Code
Amendment, 1973 by the executives.
Under the amended Criminal Procedure Code, 1973,
Section 9(6) has conferred power on the High Court to notify the place where
the Court of Sessions will ordinarily hold its sittings within the Sessions
Division in conformity with the policy of separation of judiciary from the
executive. It is also to be noticed that the High Court may notify the place or
places for the sitting of the Court of Sessions. Thus, the High Court can fix a
place other than the Court where the sittings are ordinarily held if the High
Court so notifies for the ends of justice. Moreover. the use of the words
"ordinarily" by itself signifies that the High Court in exercise of
its powers under Section 9(6) of the said Act may order the holding of court in
a place other than the court where sittings are ordinarily held if the High
Court thinks it expedient to do so and for other valid reasons such as security
of the accused as well as of the witnesses and also of the Court. The order of
High Court notifying the trial of a particular case in a place other than the
Court is not a judicial order but an administrative order. In this case because
of the surcharged atmosphere and for reasons of security, the High Court
ordered that the trial be held in Tihar Jail. Therefore, it cannot be said that
the trial is not an open trial because of its having been held in Tihar Jail as
there is nothing to show that the public or the friends and relations of 'the
accused were prevented from having access to the place of trial provided the
space of the court could accommodate them. It is also to be noted in this
connection that various representatives of the press including representatives
of international news agency like BBC etc. were allowed to attend the
proceedings in court subject to the usual regulations of the jail. It is
pertinent to mention that scction 327 of the Code of Criminal Procedure
provides that any place in which any criminal court is held for the purpose of
enquiring into or trying any offence shall be deemed to be an open court, to
which the public generally may have access, so far as the same can conveniently
contain them. The place of trial in Tihar Jail according to this provision is
to be deemed to be an open court as the access of the public to it was not
prohibited. However, it has been submitted on behalf of the prosecution that
there is nothing to show that the friends and relations of the accused or any
other member of the public was prevented from having access to the place where
trial was held. On the other hand, it has been stated that permission was
granted to the friends and relations of the accused as well as to outsiders who
wanted to have access to the court to see the proceedings subject, of course,
to jail regulations. Section 2(p) Criminal Procedure Code defines place as
including a house, building, tent, vehicle and vessel. So court can be held in
a tent, vehicle, a vessel other than in court. Furthermore, the proviso to
Section 327 Criminal Procedure Code provides that the Presiding Judge or PG NO
118 Magistrate may also at any stage of trial by order restrict access of the
public in general, or any particular person in particular in the room or
building where the trial is held.
In some cases trial of criminal case is held in
court and some restrictions are imposed for security reason regarding entry
into the court. Such restrictions do not detract from trial in open court.
Section 327 proviso empowers the Presiding Judge or Magistrate to make order
denying entry of public in court. No such order had been made in this case
denying access of members of public to court.
Trial in jail does not by itself create any
preJudice to the accused and it will not be illegal. In re T. R,. Ganeshan, AIR
1950 (Madras) 696 at 699 it has been
held that:- "Section 352 empowers the Magistrate to hold his court in any
place, provided it is done publicly and the Court premises is made accessible
to the public. there can be no objection to the holding of the trial within the
jail compound in the recreation room which is strictly outside the jail
premises proper.
Where the public have access to the court-room
and the trial is conducted in open view. the holding of the trial within the
jail compound will not cause prejudice to the accussed and will not be illegal,
merely because it relates to an offence committed within the jail premises,
where the trying Magistrate is in no way connected with the jail department."
PG NO 119 In the case of Sahai Singh and Others v. Emperor, AIR 1917 (Lahore)
311 the trial of the criminal case was held in jail. It was contended that the
whole trial was vitiated. It has been held that:- "There is nothing to
show that admittance was refused to any one who desired it, or that the
prisoners were unable to communicate with their friends Counsel. No doubt, it
is difficult to get Counsel to appear in jail and for that reason, if for no
other, such trials are undesirable, but in this case the Executive Authorities
were of the opinion that it would be unsafe to hold the trial elsewhere."
The trial was therefore, held to be not vitiated.
In Prasanta Kumar Mukherjee v. The State, AIR
1952 (Calcutta) 91 at 92 the
petitioner was tried along with several others on a charge under section 147
I.P.C. and the trial took place inside the Hooghly Jail. In accordance with the
order made by the Magistrate who was posted at Serampore. It was contended by
the learned Counsel on behalf of the accused that the trial inside the Hooghly
Jail was improper and prejudiced the accused in his defence. It was observed
that:
"The ordinary rule is that the trials are
to be held in open Court. While there is nothing in law to prevent a Magistrate
by S. 352, Criminal P.C., the very nature of a jail building and the
restrictions which are necessarily imposed on any one visiting jail, would make
it ordinarily impossible for a Magistrate to hold open Court in Jail.
There may be circumstances in which for reasons
of security for the accused or for the witnesses or for the Magistrate himself
or for other valid reason the Magistrate may think, it proper to hold Court
inside Jail building or same other building and restrict the free access of the
public. There is however nothing in the record of this case to show that there
was any such reason which made the Magistrate decide in favour of of holding
the trial in a jail." Similar observation has been made in the case of
Kailash Nath AgarwaI and another v. Emperor., AIR 1947 (Allahabad) 436.
This decision has been relied upon in the case
of Narwar singh and Ors. v. State, AIR 1953 (Madhya Bharat) 1932.
PG NO 120 In the case of Richmond Newspapers,
Inc. v. Common Wealth of Virginia, United States Supreme Court Reports 65 L.Ed.
2nd 973 before the commencement of fourth trial on murder charges, counsel for
the defendant moved that the trial be closed to the public. The prosecutor
stated that he had no objection, and the trial court-apparently relying on a
Virginia statute providing that in the trial of all criminal cases, "the
court may, in its discretion, exclude from the trial any persons whose presence
would impair the conduct of a fair trial, provided that the right of the
accused to a public trial shall not be violated"-ordered that the
courtroom be kept clear of all parties except the witnesses when they
testified. Later that day a newspaper and its two reporters, who had been
present at the time the order was issued but who made no objection, sought a
hearing on a motion to vacate the closure order. After a closed hearing on the
motion at which counsel for the newspaper argued that constitutional
considerations mandated that before ordering closure, the court should first
decide that the right of the defendant could be protected in no other way, the
court denied the motion to vacate and ordered the trial to continue with the
press and public excluded, expressing his inclination to go along with the
defendant's motion so long as it did not completely override all rights of
everyone else. Subsequently the Judge granted a defense motion to strike the
prosecution's evidence and found the defendant not guilty of murder, and the
court granted the newspaper's motion to intervene nunc pro tunc in the case.
The newspaper then petitioned the Virginia
Supreme court for writs of mandamus and prohibition and filed an appeal from
the trial court's closure order, but the Virginia Supreme Court dismissed the
mandamus and prohibition petitions and, finding no reversible error, denied the
petition for appeal.
On certiorari, the United States Supreme Court
reversed the order. Virginia Chief Justice who delivered the majority judgment
of the Court expressed the view that there is a guaranteed right of the public
under the First and Fourteenth Amendments to attend criminal trials and that
absent an overriding interest articulated in findings, the trial of a criminal
case must be open to the public, and emphasized that in that case at bar the
trial judge made no findings to support closure, no inquiry was made as to
whether alternative solutions would have met the need to insure fairness, and
there was no recognition of any right under the Constitution for the public or
press to attend the trial.
It has already been stated hereinbefore that in
the instant case though the trial was held in Tihar Jail for reasons of
security of the accused as well as of the witnesses and of the court and also
because of the surcharged atmosphere, there was no restriction on the public to
attend the Court, if they so minded. Therefore, this trial in the instant case
in Tihar Jail is an open trial and it does not prejudice in any manner
whatsoever the accused.
PG NO 121 It has been urged referring to the
case Scott & Anr. v. Scott, 1911-13 AI E.R. Rep. 1 that the broad principle
is that the administration of justice should take place in open court except in
three cases such as suits affecting wards, lunacy proceedings and thirdly cases
where secrecy, as for instance, the secrecy of a process of manufacture or
discovery or invention-trade secrets is of the essence of the cause. Therefore,
it recognises that in cases where the ends of justice would be defeated if the
case is not heard in camera the court may pass order for hearing the case in
camera.
In the case of Cora Lillian Mc. Pherson v. Oran
Leo Mc. Pherson AIR 1936 (PC) 246 a divorce suit was heard in "the Judge's
Library. Public access to the court-rooms was provided from a public corridor.
There was no direct access to the library, which was approached through a
double swing door in the wall of the same corridor. One wig of the door was
always fixed. A brass plate with the word "private" on it was
attached to it. Both the counsel and the Judge were not in robes, and when the
Judge took his seat he announced that he was sitting in open Court, and that
the library, as the place of trial there was no intention of shutting out
anybody though a regular court-room was available. It was held that:
"Every Court of Justice is open to every
subject of the King. Publicity is the authentic hall-mark of judicial as
distinct from administrative procedure and a divorce suit is not within any
exception. The actual presence of the public is never of course necessary. The
Court must be open to any who may present themselves for admission." These
observations were made following the judgment in the case of Scott v. Scott,
(supra).
All these cases have been considered by this
Court in Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Ar.,[ 1966] 3 SCR
744 wherein it has been observed that:
PG NO 122 " . . . . . . . While emphasising
the importance of public trial, we cannot overlook the fact that the primary
function of the Judiciary is to do justice between the parties who bring their
causes before it. If a Judge trying a cause is satisfied that the very purpose
of finding truth in the case would be retarded, or even defeated if witnesses
are required to give evidence subject to public gaze, is it or is it not open
to him in exercise of his inherent power to hold the trial in camera either
partly or fully? If the primary function of the trial is to do justice in
causes brought before it, then on principle, it is difficult to accede to the
proposition that there can be no exception to the rule that all causes must he
tried in open court. If the principle that all trial before courts must be held
in public was treated as inflexible and universal and it is held that it admits
of no exceptions whatever, cases may arise where by following the principle,
justice itself may be defeated. That is why we feel no hesitation in holding
that the High Court has inherent jurisdiction to hold a trial in camera if the
ends of justice clearly and necessarily require the adoption of such a
course." ".. ...... In this connection it is essential to remember
that public trial of causes is a means, though important and valuable, to
ensure fair administration of justice; it is a means. not an end. It is the
fair administration of justice which is the end of judicial process, and so, if
ever a real conflict arises between fair administration of justice itself on
the one hand, and public trial on the other, inevitably, public trial may have
to be regulated or controlled in the interest of administration of
justice." Though public trial or trial in open court is the rule yet in
cases where the ends of justice would be defeated if the trial is held in
public, it is in that the Court has got inherent jurisdiction to hold trial in
camera. Therefore, the holding of trial in jail cannot be said to be illegal
and bad and entire trial cannot be questioned as vitiated if the High Court
thinks it expedient to hold the trial in jail. The submission of the learned
counsel on behalf of the appellant on this issue is not sustainable.
This Court while considering the plea made on
behalf of the detenu that the proceedings of the Advisory Board should be
thrown open to the public in the case of A.K. Roy, etc. v. Union of India and Anr, [1982] 2 SCR
272 at 354 held that:
PG NO 123 "The right to a public trial is
not one of the guaranteed rights under our Constitution as it is under the 6th
Amendment of the American Constitution which secures to persons charged with
crimes a public, as well as a speedy, trial. Even under the American
Constitution, the right guaranteed by the 6th Amendment is held to be personal
to the accused, which the public in general cannot share.
Considering the nature of the inquiry which the
Advisory Board has to undertake, we do not think that the interest of justice
will be served better by giving access to the public to the proceedings of the
Advisory Board." I do not think it expedient to consider this aspect of
the matter at this juncture in view of the explicit provision made in Section
327 of Code of Criminal Procedure.
1973 corresponding lo Section 351 of the old
Criminal Procedure Code which enjoins that the place in which any criminal
court is held for the purpose of inquiring into or trying any offence shall he
deemed to be an open court.
The confession of accused No. 1. Satwant Singh
which was recorded in Tihar Jail by the Link Magistrate, Shri Bharat Bhushan
has been vehemently criticised by the learned counsel Mr. Ram Jethmalani on the
ground that the confession being nor recorded in open court as required under
the provision of Section 164 of the Criminal Procedure Code, is inadmissible in
evidence and it cannot be adhered to for convicting the accused. This
submission does not hold good in view of the pronouncement of this Court in Hem
Raj Devilal v. The State of Ajmer, AIR 1954 (SC) 462 wherein it has been held
that:
"No doubt the confession was recorded in
jail though ordinarily it should have been recorded in the Court House, but
that irregularly seems to have been made because nobody seems to have realized
that that was the appropriate place to record it but this circumstances does
not affect in this case the voluntary character of the confession." In Ram
Chandra and Anr. v. State of Uttar Pradesh, AIR 1957 (SC) 381 the appellant was sent to
Naini Jail on 13th July. He was brought before a Magistrate on 17th July but he
refused to make any confession. On 7th October a letter signed by the appellant
was sent to the District Magistrate, Allahabad, through the Superintendent of the Jail to the
effect he wanted to make a confession. As about this time he was kept in
solitary confinement and that the police officer who was investigating this
case went to the Naini Jail on 8th and 9th October. The District Magistrate
deputed Smt.
PG NO 124 Madhuri Sbrivastava to record the
confession. She went to Jail on 10th October and recorded the confession in
jail.
Before recording the confession the Magistrate
did not attempt to ascertain why he was making the confession after such a long
lapse of time. She in her cross-examination said that she thought it improper
to record his statement in Court and during court hours. She was not aware of
the rules framed by the Government that confession is to be recorded ordinarily
in open court and during court hours unless for exceptional reasons it is not
feasible to do so. She also did not apprise the accused that he is not bound to
make any statement and such statement if made may be used against him. She gave
the usual certificate that the accused made the statement voluntarily. In these
circumstances it was held that the confession was not recorded in accordance
with law and the accused was not explained that he was not bound to make any
statement and if any statement is made, the same will be used against him. It
was therefore, held that the confession was not a voluntary one and the same
cannot be used in convicting the accused.
Thus the reason for not taking into
consideration the confession was that the mandatory requirement of explaining
to the accused as provided in Section 164(3) of Criminal Procedure Code, was
not observed before the recording of confession and as such the confession was
not a voluntary one. The recording of confession in jail by itself was not held
to invalidate the confession by this Court. It has been urged by Mr. Jethmalani
that a confession not recorded in the manner prescribed in Section 164 Cr. P.C.
and if a certificate as required to be appended below the confession is not
made in accordance with the prescribed terms, is inadmissible in evidence. in
support of this submission reference was made to Nazir Ahmed v. King Emperor,
AIR P 1936 (PC) 253(2). In this case the Judicial Committee observed that the
principle applied in Taylor v. Taylor, [18761 I Chancery Division 426 to a
court, namely, that where a power is given to do a certain thing in a certain
way, the thing must be done in that way or not at all and that other methods of
performance are necessarily forbidden, applied to judicial officers making a
record under Section 164 and, therefore, held that the Magistrate could not
give oral evidence of the confession made to him which he had purported to
record under Section 164 of the Code. Otherwise all the precautions and
safeguards laid down in Ss. 164 and 3h4. both of which had to be read together,
would become of such triffing value as to be almost idle.
PG NO 125 It has been urged on behalf of the
respondent that if the confession is not recorded in proper from as prescribed
by Section 164 read with Section 281 which corresponds to earlier Section 364,
it is a mere irregularity and it can be cured by Section 463 on taking evidence
that statement was recorded duly and it has not injured the accused in on
merits. This question came up for consideration in this in the case of State of
Uttar Pradesh v. Singhara Singh and Others, AIR 1964 (SC) 358. It has been
observed-that:
"What Section 533 therefore, does is to
permit oral evidence to be given to prove that the procedure laid down in S.
164 had in fact been followed when the Court finds that the record produced
before it does not show that that was so. If the oral evidence establishes that
the procedure had been followed, then only can the record be admitted.
Therefore, far from showing that the procedure
laid down in S. 164 is not intended to be obligatory, S. 533 really emphasises
that that procedure has to be followed. The section only permits oral evidence
to prove that the procedure had actually been followed in certain cases where
the record which ought to show that does not on the face of it do so." In
Ranhir Singh and Ors. v. Emperor, [1932] Cr. L.J. 732 the accused was taken
into the thana compound and the
Magistrate who is a retired District Judge recorded his statement in the open
at 9 p.m. The Magistrate did not
tell him that he was a Magistrate and he did not satisfy himself by questioning
him whether he was making the confession voluntarily, although he states quite
definitely that he was satisfied by observation that the man was making a
voluntary statement. It was observed that the failure of the Magistrate to
question the accused as to his making the confession voluntarily is a radical
and fatal defect, which cannot be cured by Section 533 of the Criminal
Procedure Code. The confession was held inadmissible.
In the case of Partap Singh v. The Crown, [1935]
I.L.R. (Lahore Series) 415 it does not appear from the confession that the
provisions of Section 164(3) i.e. to explain to the person who is to make it
that he is not bound to make a confession at all and that if he does so, it may
be as evidence against him. were not applied by the Magistrate.
Question arose whether such a defect in the
confession can be cured by Section 533 Criminal Procedure Code. It was held
that a defect in form is curable and a defect in substance is not. It was
further held that "If as a matter of fact the statement was duly recorded,
that is to say, after the PG NO 126 required explanation had been given, but
the Magistrate had failed to embody that fact in the certificate such a defect
would be curable. If the explanation had not in fact been made the statement
could not be held to have been 'duly made' and section 533 could not be
appealed to." In Prag v. Emperor. [1933] Cr. L.J. 87 it has been held that
in recording a confession it is the duty of the Magistrate to satisfy himself
in every reasonable way that the confession is made voluntarily and further it
is the imperative duty of the Magistrate to record those questions and answers
by means of which he has satisfied himself that the confession is in fact
valuntary. Omission to warn the accused that he was making a confession before
a Magistrate and to record the steps taken by the Magistrate to see that the
confession was made voluntarily is a substantial defect not cnrable by section
533 Criminal Procedure Code.
The High Court of Orissa in the case of Ambai
Majhi v. The State [1966] Cr. L.J. 651 has held that Section 533 can care
errors of forms and not of substance.
On a consideration of the above decision it is
manifest that if the provisions of Section 164 (2) which require that the Magistrate
before recording confession shall explain to the person making confession that
he is not bound to make confession and if he does so it may be used as evidence
against him and upon questioning the person if the Magistrate has reasons to
believe that it is being mad voluntarily then the confession will be recorded
by the Magistrate. The compliance of the sub-section (2) of Section 164 is
therefore, mandatory and imperative and non- compliance of it renders the
confession inadmissible in evidence. Section 463 (old Section 533) of the Code
of Criminal Procedure provides that where the questions and answer regarding
the confession have not been recorded evidence can be adduced to prove that in
fact the requirements of sub-section (2) of Section 164 read with Section 281
have in fact been complied with. If the Court comes to a finding that such a
compliance had in fact been made the mere omission to record the same in the
proper from will not render it inadmissible evidence and the defect is cured
under Section 463 (Section 533 of the old Criminal Code) but when there is
non-compliance of th mandatory requirement of Section 164 (2) Criminal
Procedure Code and it comes out in evidence that no such explanation as
envisaged in the aforesaid sub-section has been given to the accused by the
Magistrate, this substantial defect cannot be cured under Section 463 Criminal
Procedure Code.
PG NO 127 In Abdul Rajak Murtaja Dafedar v.
State of Maharashtra, [1970] 1 SCR 551 it was observed that the appellant
himself never said that he made the confession on account of any inducement or
coercion on the part of the police. The appellant was kept in jail custody for
3 days from October 25 to October 28, 1966 and on October 28, 1966 the
Executive Magistrate made the preliminary questioning of the appellant, gave
him a warning and sent him back to District Jail at Sangli. On the next day the
appellant was produced before the Magistrate and the confession was recorded.
The appellant had thus spent four days in judicial custody and he was not under
the influence of the investigating agency for at least four days. Again he had
24 hours to think after he was told by the Magistrate that he was not bound to
make any confession and if he made one it would be used against him. It was held
that the confession could not be said to be not voluntary.
In Dagdu and Ors. etc. v. State of Maharashtra,
AIR 1977 (SC) l573 eight confessions were recorded by a Sub- Divisional
Magistrate, Devidas Sakharam Pawar (PW 23) without complying with the mandatory
provisions of Section 164 of the Code of Criminal Procedure. He made no effort
to ascertain from any of the accused whether he or she was making the
confessional voluntarily. Nor did he ask any of the accused whether the police
had offered or promised any incentive for making the confessional statement. He
also did not try to ascertain for how long the confessing accused were in jail
custody prior to his production for recording the confession. There was no
record to show whether the accused were sent after they were given time for
reflection.
In none of these confessional statements there
was a memorandum as required by Section 164 of the Code of Criminal Procedure
that the Magistrate believed "that the confession was voluntarily
made". It was observed by this Court that:
"The failure to observe the safeguards
prescribed therein are in practice calculated to impair the evidentiary value
of the confessional statements." It was further observed that:
"Considering the circumstances leading to
the processional recording of the eight confessions and the object disregard,
by the Magistrate, of the provisions contained in Section 164 of the Code and
of the instructions issued by the High Court, We are of the opinion that no
reliance can be placed on any of the confessions." PG NO 128 In Ram
Prakash v. The State of Punjab, [l959] SCR 1219 it was held that:
"A voluntary and true confession made by an
accused thought it was subsequently retracted by him, can be taken into
consideration against a co-accused by virtue of Section 30 of theIndian
Evidence Act, but as a matter of prudence and practice the Court should not act
upon it to sustain a conviction of the co-accused without full and strong
corroboration in material particulars both as to the crime and as to his
connection with that crime." In the instant case the accused Satwant Singh
who was in police custody was produced before the Magistrate Shri S.L. Khanna
on 29.11.1984. On that day the accused made an application (Ext. PW II/A)
stating that he wanted to make a statement about the facts concerning Indira
Gandhi Assassination Case. The Magistrate directed the remand of the accused in
judicial custody till 1.11.1984 giving the accused time to reconsider and
reflect. The Magistrate also told him that he was not bound to make any
statement and if any statement is made the same might be used against him.
The Magistrate also directed to send a letter to
the Secretary, Legal Aid Committee to provide legal assistance to the accused
at the expense of the State. On 1.12.1984, the Magistrate enquired of the
accused whether he expense of the State. On to make a statement whereon the
accused stated that he wanted to make a statement. He was allowed to consult
his counsel, Shri I.J. Khan, Advocate who conferred with him for about 15
minutes privately. As the accused insisted that his statement be recorded, the
application was sent by the Magistrate, Shri S.K. Khanna to the Link
Magistrate, Shri Bharat Bhushan for recording his statement.
Before recording his statement Dr. Vijay Kumar
was called to examine the accused. Dr. Vijay Kumar stated in his report (Ext.
pW 11/B) that in his opinion the accused is fit to make his statement. it
appears from Ext. PW 11/B-2 as well as from the questions and answers which
were put to the (Ext. PW 11/B-3) that the Link Magistrate, Shri Bharat Bhushan
warned the accused that he was not bound to make any confessional statement and
in case he does so it may be used against him during trial. The accused in
spite of this warning wanted to make a statement and thereafter the
confessional statement Ext. PW 11/C was recorded by the Link Magistrate. In the
certificate appended to the said PG NO 129 confessional statement it has been
stated that there was no pressure upon the accused and there was neither any
police officer nor any body else within the hearing or sight when the statement
was recorded. Therefore, it appears that the accused was put the necessary
questions and was given the warning that he was not bound to make any statement
and in case any statement is made, the same might be used against him by the
prosecution for his conviction. Of course, no question was put by the
Magistrate to the accused as to why he wanted to make a confessional statement.
It also appears from the evidence of the Magistrate, Shri Bharat Bhushan (Ext.
PW 11) that the confes-sional statement was made voluntarily by the accused. So
the defect in recording the statement in the form Prescribed is cured by
Section 463 of the Code of Criminal Procedure. It is indeed appropriate to
mention in this connection that the defect in recording the statement in
appropriate form prescribed can be cured under section 463 of the Code of
Criminal Procedure provided the mandatory provisions of l64(2) namely
explaining to the accused that he was not bound to make a statement and if a
statement is made the same might be used against him, have been complied with
and the same is established on an examination of the magistrate that the
mandatory provisions have been complied with.
The accused No. 1, Satwant Singh has been
charged with the murder of Smt. Indira Gandhi, Prime Minister of India U/s 302
I.P.C. read with Section l20-B and 34 I.P.C. He has also been charged U/s 307
I.P.C. for attempt to murder Rameshwar Dayal. He has further been charged U/s
27 of the Arms Act.
The prosecution has examined three eye witnesses
namely PW-9 Narain Singh, PW-10 Rameshwar Dayal and PW-64 Nathu Ram.
Prosecution has also examined PW-49 Ganga Singh, Member of ITBP who immediately
after the firing apprehended Satwant Singh.
PW-9 Narain Singh, deposed that he was on duty
at 1, Safdarjang Road from 7.30 A.M. on 31.10.1984 and the place of duty was
isolation cordon near the porch. He stated that at 8.45 A.M. he took hold of
the umbrella and took his position near the pantary gate as he came to know
that the Prime Minister, Smt. Indira Gandhi had to meet the foreign T.V.
representatives in No. 1, Akbar Road. At 9.10 A.M., Prime Minister emerged out
of her house No. 1, Safdarjang Road followed by Nathu Ram (PW-64) and her
Private Secretary, R.K. Dhawan. At that time the deponant was holding the
umbrella over the head of Prime Minister to save her from sun and was moving on
her right side. They PG NO 130 approached the TMC gate and when they were about
10 feet from there, he saw that the gate was open. He also saw Beant Singh on
the left side and Satwant Singh on the right side.
The former was in a safari suit and the latter
i.e. Satwant Singh was in his uniform. Satwant Singh had a stengun in his
hands. At that time, Beant Singh took out his revolver from the right dub and
fired at the Prime Minister and immediately thereafter Satwant Singh also
started firing upon the Prime Minister. The Prime Minister was hit by those
bullets and injured and fell down on the right side. Seeing them firing on the
Prime Minister, he threw the umbrella and took out his revolver and jumped upon
Beant Singh whereupon his (Beant Singh) revolver fell from his hands. He
secured Beant Singh. He further stated that he noticed Rameshwar Dayal, ASI
sustained bullet injuries. The doctor himself came running by then and at his
direction he, Dr. Bhatt, ACP, Dr. Opey and Nathu Ram took her to the escort car
which had arrived and placed her in the rear seat. He further said that he went
to the hospital in staff car. ASI, Rameshwar Dayal was taken in another escort
car to AIIMS. In his cross-examination he further stated that except for the
accused Satwant Singh he did not find any constable of D.A.P. on duty on
31.10.1984 in the P.M. house on the portion through which he passed. He also
stated that it was incorrect to suggest that Satwant Singh had sustained bullet
injuries before Mrs Indira Gandhi had been fired at. He also denied the
suggestion that he was not present on the spot or that bullet were coming from
all the four sides rather bullets were coming from the front side of Mrs.
Indira Gandhi. He also stated that he was stunned when he saw the bullets
coming from Beant Singh and Satwant Singh. He also stated that as Mrs. Indira
Gandhi approached towards TMC gate within its ten feet, Beant Singh took out
his revolver and immediately shot at Mrs. Indira Gandhi.
PW-10 ASI Rameshwar Dayal deposed to the
following effect:
I was on duty on 31.10.1984 at P.M. house at No.
1, Safdarjang
Road from
7.30 A.M. to 1.30 P.M. It was a security duty.
I was on duty of water attendant in the Pilot's car of the Prime Minister. I
enquired about the P.M. Programme. I learnt that the Prime Minister was to
attend a film shooting VCR in No. 1, Akbar Road at 9 A.M. As I was going from No. 1, Safdarjang Road to No. 1, Akbar Road and had reached the
concrete road from the nursery, I saw Prime Minister, Mrs. Indira Gandhi coming
from No. 1, Safdarjang
Road to
No. 1,Akbar
Road. At
that time, Shri R.K. Dhawan, H.C. Narain Singh with an umbrella on the right
side a little behind her and Nathu Ram following R.K. Dhawan were PG NO 131
also seen by me going towards No. 1, Akbar Road from No. 1, Safdarjang Road. I also started moving behind them. As
the Prime Minister reached near the Sentry booth link gate i.e. the TMC Gate or
Akbar Road front gate, I saw Beant
Singh, SI and Satwant Singh constable with a sten-gun on duty. Satwant Singh,
constable was in uniform. All of a sudden Beant Singh fired at the Prime
Minister with his revolver by raising his right hand and immediately thereafter
Satwant Singh also fired at the Prime Minister with his sten-gun. I saw the
Prime Minister falling. I ran to shield the Prime Minister and I was also
injured with the bullets. I fell down and I got up. By that time, Narain Singh
H.C. had thrown his umbrella and had run to seize and secure Beant Singh and
one Lawang Sherpa ran to secure them from Akbar Road side. They i.e. Beant Singh and Satwant Singh
threw their arms. In the meanwhile, ITBP staff secured Beant Singh and Satwant
Singh.
At that time Beant Singh said, "whatever
was to be done had been done".
In his cross-examination, he stated that the
bullet had come from Satwant Singh side and it was that bullet which hit him.
He also stated, "In fact, I could not have so stated since I had already
told in my statement dated 2.11.1984 that Satwant and Beant Singh had fired at
the Prime Minister, Smt. Indira Gandhi and injured her." He denied the
suggestion that he was at a destance of 60-65 feet away from the Prime Minister
when she was fired at and stated that he was at a distance of only 10/15 steps.
PW-64 Nathu Ram, Ex-Library Asstt. and Personnel
Attendant to Smt. Indira Gandhi stated in his deposition to the following
effect:
On 31.10.1984 I had come on my duty at 7 A.M. to No. 1, Safdarjang Road as Library Asstt. and
Personnel Attendant of late P.M., Smt. Indira Gandhi. I was required to come in
the morning, open the library-cum-bed room of the late Prime Minister and get
it cleaned and dusted and then be in attendance upon the late P.M. to do what
she wanted me to do. On 31.10.1984 as well, after performing the above duties
by about 9.05
A.M., the
Prime Minister, Smt. Indira Gandhi was ready to go out with Mr. R.K. Dhawan.
The Prime Minister thereupon left the room at 9.05 A.M. followed by Shri R.K.
Dhawan and then followed by me. She reached the
pantry gate where Shri Narain Singh was waiting with an umbrella in his hand.
As the Prime Minister emerged out of the pantry gate, Shri Narain Singh opened
the umbrella over her and held the said umbrella in his right hand while the
Prime Minister was moving towards No. 1, Akbar Road. At that time, when P.M.
PG NO 132 was moving towards No. 1, Akbar Road, Narain Singh was with
her on the right side holding the umbrella over her while on the left side Shri
R.K. Dhawan was moving besides her talking to her. I was following Shri R.K.
Dhawan at that time. I was about two steps behind Shri R.K. Dhawan. As all of
us came out of the jafri gate, I noticed that the TMC gate was lying open and
Beant Singh SI in Safari suit was standing on our left side while Satwant Singh
constable in uniform was standing on the right side of ours near the TMC gate.
As we reached within about 10-11 feet of the TMC gate, Beant Singh took out his
revolver and started firing on the Prime Minister. Immediately, thereafter
Satwant Singh also started firing from his sten-gun upon the Prime Minister.
Then the Prime Minister, Mrs. Indira Gandhi fell
towards her right side. We were startled. At that very moment, Narain Singh
threw umbrella and jumped upon Beant Singh and took out his (Narain Singh's)
revolver, and secured Beant Singh.
Simultaneously, Mr. Bhatt and Lawang Sherpa and
other uniformed persons also arrived there and they secured Satwant Singh
accused. Beant Singh and Satwant Singh threw their arms on the ground. When
Narain Singh got up for bringing the doctor, Dr. Opey arrived on the spot. When
myself, Shri Bhatt, Dr. Opey were in the process of removing the Prime Minister,
Smt. Indira Gandhi to the car along with Shri R.K. Dhawan and Narain Singh at
that time I noticed that Rameshwar Dayal was also holding his leg in injured
state on the spot.
In his cross-examination in answer to a question
he stated "I saw two persons namely Beant Singh and Satwant Singh with
arms. Shri Narain Singh also had arm with him and none else had the arms."
On a consideration and appraisement of the evidence of the eye-witnesses, it is
clear and apparent that the accused Satwant Singh and Beant Singh fired at Smt.
Indira Gandhi while she was approaching the TMC gate accompanied by her Private
Secretary Shri R.K. Dhawan, Narain Singh, H.C., PW-9 holding an umbrella on her
head to protect her from sun accompanying her on the right side and Nathu Ram
following behind Shri R.K. Dhawan. It also appears that Beant Singh first
started firing from his service revolver and simultaneously the accused No. 1,
Satwant Singh also cocked his SAF Carbine towards the Prime Minister whereon
the Prime Minister fell on the ground on her right side. It has been tried to
suggest that the bullets were coming from all the sides and accused Satwant
Singh was seriousy injured by such bullets and Beant Singh died. This
suggestion was however, denied by the eye-witnesses and they specifically
stated PG NO 133 that the accused Satwant Singh and Beant Singh shot on the
Prime Minister while she was approaching the TMC gate and she was about 8-10
steps away from the TMC gate. It has been denied that there was any firing from
all the sides and it has been specifically stated in cross-examination that the
firing was from the front side which hit the Prime Minister and the said firing
was caused by Beant Singh and Satwant Singh from their respectively service
revolver and SAF Carbine. It also appears that Beant Singh and accused Satwant
Singh were apprehended by PW-9 Narain Singh HC and by the ITBP people. It has
also been specifically stated by PW-9 in cross-examination that Satwant Singh
did not sustain bullet injuries before Smt. Indira had been fired at. The
suggestion on behalf of the defence that there was firing from all sides and
accused Satwant Singh was1 injured seriously and Beant Singh died by this
firing has got no basis and it is unsustainable.
PW-49 Ganga Singh, L/Naik of lTBP stated in his
deposition to the following effect:
On 31.10. 1984 I was posted on duty at No. 1, Safdarjang Road from 6 A.M. to 2. P.M. near the
main gate in guard room. At 9.15 A.M. I heard sound of firing of bullets from the TMC gate. I
along with Shri Tersem Singh, Padam Singh, Jai Chand, Daya Nand thereupon took
our carbines and went towards TMC gate running. We found Prime Minister Madam
lying in injured condition on the floor. Near the gate there were two Sardars
in white cloths, again said one was in civil dress and the other was in
uniform. The uniformed Sardar is present in the court i.e. Satwant Singh. He
had a carbine in his hand. The other Sardar had a small weapon.
Inspector Tersem Singh made them hands-up. I
secured them. I and Padam Singh secured the uniformed sardar. The sardar was
secured by Jai Chand and Daya Nand. I took into possession a ruck-sack from the
shoulder of the uniformed sardar.
Thereupon, Inspector "Tersem Singh asked us
to take the two sardars to the guard room. The carbine and the small weapon
were thrown on the ground. We then took both of them to the guard room. We left
them there and Inspector Tersem Singh asked us to go to our point of duty. I
heard some fire-shots from the guard room side and the accused No. 1 and Beant
Singh were Iying injured there.
In cross-examination he stated that "The
revolver and sten-gun were in the hands of the sardars before Shri Tersem Singh
made them hands-up. It is incorrect to suggest that Satwant Singh had already
been hit by a bullet when I reached the TMC gate. I secured Satwant Singh from
the right PG NO 134 side. Ruck-sack was on the left shoulder. It is obvious
from the deposition of PW-49 that when he and other ITBP men took Beant Singh
and Satwant Singh to the guard room they were not at all in injured condition.
It has also been stated by this witness that the revolver and SAF carbine were
in the hands of two sardars before Shri Tersem Singh made them hands-up. This
witness also denied the suggestion that Satwant Singh had already been hit by a
bullet when he reached the TMC gate. The evidence of this witness therefore,
contradicts and falsifies the suggestion tried to be made on behalf of the
defence, i.e. the accused Satwant Singh was injured already by bullets coming
from all sides.
It is pertinent to mention in this connection to
the evidence of PW-27 ASI Mangat Ram who was posted as ASI personnel in 2nd
Battalion D.A.P. He brought the record relating to Satwant Singh constable No.
1614 in 2nd Battalion DAP who was posted on 31.10.1984 in C & D at Teen
Murti Line. He also deposed that on 27.6.1983 vide order No. 2362-67/ASIP-22nd
Battalion DAP he was posted in C Company of Teen Murti Line. Daily diary
maintained at Teen Murti 2nd Battalion DAP (Ex. PW l4/C) shows from entry No.
85 dated 30/31.10.1984 that on the morning on 31.10.1984, Satwant Singh
constable No. 1614 was put on duty at Beat No. 4 in the Akbar Road House and
not at the TMC gate and this entry is confirmed by PW-15, the daily diary clerk
at Teen Murti Line. He deposed that entry No. 85 in Ex. PW l4/A is in his hand
and is correct. He also stated that the accused Satwant Singh was put on duty
at Beat No. 4, Akbar Road in the P.M.
House and not at TMC gate and he was given arms
as per Koth register. The arms and ammunitions register (Ex. PW 3/A) at Teen
Murti Line shows that Satwant Singh was issued a SAF Carbine (sten-gun) having
Butt No. 80 along with 5 magazines and 100 live rounds of 9mm ammunition and
that he signed the register in token of its receipt. Therefore this goes to
show the presence of the accused Satwant Singh at the TMC gate in the P.M.
house at I, Akbar
Road on
duty from 7.30
A.M. on
31.10.1984 with a SAF Carbine Butt No. 80. There is therefore no iota of doubt
that the accused No. 1,Satwant Singh was present at the TMC gate at No. 1, Akbar Road on the fateful morning
i.e on 31.10.1984. It is to be noted in this connection that the duty of
accused Satwant Singh constable was placed at beat No. 4, Akbar Road House on
31.10.1984 as is evident from entry No. 85 in the Rojnamcha i.e. daily diary
kept at Teen Murti Line but he in conspiracy with Beant Singh manipulated his
duty at TMC gate on the plea that he was suffering from dysentery and having
loose motions. This will be obvious from the deposition of PW-43 Constable
Deshpal Singh No. 1157 who deposed that he PG NO 135 was posted at TMC gate 1, Safdarjang Road, P.M. House w.e.f. 28th
October, l984 from 7 p.m. to 10 p.m. and also from 7 a.m. to 10 a.m. He further stated that he was on duty on 29th, 30th and 3Ist
October, l984 at these hours. On 31.10.1984 he reported in the the Line Teen
Murti and then took his arm and proceeded toward his duty in P.M. House.
When he reached the P.M. House, the H.C. Kishan
Lal No. 1109 told him that Satwant Singh who was on duty on beat No. 4 was
suffering from loose motions and therefore he should give duty at beat No.. 4
while Satwant Singh would take his position duty at TMC gate, as there was
laterine near TMC gate.
This clearly shows that Satwant Singh, accused
No. 1 manipulated his duty from beat No. 4 to TMC gate in P.M. House and so
there is no doubt about his presence at the TMC gate on 31.10.1984 from 7.30
a.m.
PW-l2 G.R. Prasad, Principal Scientific Officer
Incharge Ballistic Division, C.F.S.L., New Delhi has deposed to the effect that
the bullet (marked BC/7) recovered from injury No. 1 described in the
post-martem report was fired from the 9mm sten-gun (marked W/l). He further
deposed that the bullet recovered from injury No. 2 was fired from the .38"
special revolver (marked W/2). This affirms the prosecution case that the
accused Satwant Singh and deceased Beant Singh fired shots at Smt. Indira
Gandhi from their respective weapons. The deposition of these independent
witnesses is corroborated by the confessional statement PW II/C made by the
accused Satwant Singh. Though the said confession was retracted subsequently by
the accused, the same can be used by the Court against the accused in
convicting him. In Manohar Singh v. Emperor, AIR 1946 (Allahabad) 15 it has been held
that a confession made by an accused can not be used to convict his co-accused
unless there is corroborative evidence against the co-accused but a person can
be convicted solely upon his own confession even if retracted if the Court believes
it to be true.
The law has been well settled in a decision of
this Court in Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 (SC) 637
wherein it has been observed that:
"In law it is always open to the court to
convict and accused on his confession itself though he has retracted it at a
later stage. Nevertheless usually Courts require some corroboration to the
confessional statement before convicting an accused person on such a statement.
What PG NO 136 amount of corroboration would be necessary in such a case would
always be a question of fact to be determined in the light of the circumstances
of each case." In the instant case the confessional statements were
corroborated by independent evidences which clearly prove the guilt of the accused.
Therefore the charges against the accused
Satwant Singh have been duly proved. The concurrent findings of the Trial Court
as well as of the High Court that offences under Section 302 I.P.C. read with
Section l2O-B, I.P.C. and Section 34 I.P.C. were proved, must be upheld. It is
a gruesome murder committed by the accused who was employed as a security guard
to protect the Prime Minister Indira Gandhi. It is one of the rarest of rare cases
in which extreme penalty of death is called for.
The charge of conspiracy has been elaborately
dealt with in the judgments rendered by my learned brothers. It appears
therefrom that the charge of conspiracy against Kehar Singh with the accused
Satwant Singh and Beant Singh since deceased who are the constable and S.l. respectively
posted ar the P.M.'s House to look after the security of Smt. Indira Gandhi has
been proved without any reasonable doubt.
Therefore, the appeal Nos. 180 and 182 of 1987
are dismissed and the conviction and sentence of death as confirmed by the High
Court are upheld. The charge of conspiracy against accused No. 2. Balbir Singh
has not been proved and as such the appeal filed by him i.e. Criminal Appeal
No. 181 of 1987 is allowed and the judgment of the High Court is set aside.
The appellant should be set free forthwith.
K.JAGANNATHA SHETTY, J. I agree respectfully
with the conclusion reached by my learned brother, Mr. G.L. Oza, J., in these
appeals. I wish, however, in view of the importance of the questions involved,
to give my own reasons, and to which I attach importance.
These appeals by special leave are directed
against the conviction and sentence awarded against the appellants by the High
Court of Delhi in Criminal Appeals Nos. 28 and 29 of 1986 and Murder Reference
No. 2 of l986.
The crime charged is not simply the murdering of
a human being, but it is the crime of assassination of the duly elected Prime
Minister of the Country. The motive for the PG NO 137 crime was not personal,but
the consequences of the action taken by the Government in the exercise of
constitutional powers and duties. In our democratic republic, if the Government
becomes subversive of the purpose of its creation, the people will have the
right and duty to change it by their irresistible power of ballot and have the
Government of their own choice wisely administered. But no person who is duly
constituted shall be eliminated by privy conspiracies. Indian citizens are
committed to the Constitution. They have faith in the ballot box. They have
confidence in the democratic institutions. They have respect for constitutional
authorities. The assassination of Mrs. Indira Gandhi, the third Prime Minister
of India, has, therefore, come as a rude shock. It has sent shudder through the
civilised world. The issues joined in these appeals involve the highest
interest of the whole people of this country. It is a matter of great
importance to the people of this Country that the accused be lawfully tried and
lawfully convicted or acquitted. A wrongful conviction or a wrongful acquittal may
shake the confidence of the people in our justice delivery system. The matter,
therefore, requires utmost concern.
Trial of the assassin and conspirators for the
murder of Mrs. Indira Gandhi has resulted in the conviction. Satwant Singh
(A.1), Balbir (A-2) and Kehar Singh (A-3) are convicted of murder under section
302 read with Sectioin l20-B IPC. Satwant Singh is also convicted of murder
under Section 302 read with Section 120-B and 34 IPC,as well as under Section
307 IPC and Section 27 of the Arms Act. The trial judge has awarded the
sentence of death on all the three accused. The trial judge has also awarded
other terms of imprisonment on Satwant Singh. The Delhi High Court has
confirmed the conviction and sentence.
The prosecution version of the assassination may
be briefly told:
That in June, 1984, the Indian Army mounted an
operation known as "Blue Star Operation" by which the Armed Force
personnel entered the Golden Temple Complex at Amritsar to flush out the armed terrorists. That
operation resulted in loss of life and property as well as damage to the Akal
Takht at the Golden Temple. It has offended the
religious feelings of some members of the Sikh community. Resentment was
expressed even by some of the Sikh employees of the Delhi Police posted for
Prime Minister's security. The accused persons are Sikhs by faith. They had
been expressing their resentment openly, holding the Prime Minister responsible
for the action taken at Amritsar. They became PG NO 138 parties to a criminal conspiracy to murder
Mrs. Indira Gandhi.
Mrs. Indira Gandhi,the Prime Minister, had
returned from an official tour of Orissa in the evening of October 30, 1984. The day followed was
Wednesday. In the early hours of every Wednesday, Mrs. Indira Gandhi used to
meet people in groups. So it was called "Darshan Day". Unfortunately,
she did not adhere to that usual programme. The "Darshan" was
cancelled because of another engagement. That engagement was with well-known
actor and writer Peter Ustinov. His crew was to record an interview with Mrs.
Indira Gandhi for Irish Television. They were waiting at Bungalow No. 1, Akbar Road, the home office of the
Prime Minister. Bungalow No.1, Safdarjung Road was the official residence of the Prime
Minister. The two buildings are connected by a narrow cemented pathway. They
are located practically in one campus, but separated by a sentry gate which is
known as the "TMC Gate". This is the place where hidden hands sent
shock waves to the Nation. Mrs. Indira Gandhi at about 9.10 a.m.
emerged from her house with her loyal assistants
and a faithful servant. Immediately) behind her was Head Constablc Narayan
Singh (PW-9) holding an umbrella to protect her against the Sun. Rameshwar
Dayal (PW- 10) an Assistant Sub- Inspector, Nathu Ram (PW-64), her personal
attendant and R.K. Dhawan, Special Assistant were closely following Mrs.
Gandhi. All were on the cemented pathway. Mrs.
Gandhi was at the head of the entourage. She was approaching the TMC gate where
Beant Singh, SI was on the left side while Satwant Singh, Constable was on the
right side. They had managed to exchanged his duty with S.I. Jai Narain (PW-7).
Satwant Singh ought to be at Beat No. 4. He, however, managed to get TMC sentry
booth by misrepresenting that he was suffering from dysentry. He was given that
place since it was near the latrine. Beant Singh was armed with his service
revolver while Satwant Singh had SAF Carbine. When Mrs. Gandhi reached near the
TMC gate, Beant Singh opened fire from his carbine. Beant Singh Fired five
rounds and Satwant Singh released 25 bullets at Mrs. Gandhi. Then and there
Mrs. Gandhi fell down never to get up. She was immediately rushed to the All
India Institute of Medical Science (AIIMS). There a team of doctors fought
their losing battle of save the life of the slain Prime Minister.
Rameshwar Dayal (PW-10) who was following Mrs.
Gandhi also received bullet injuries as a result of the shots fired by the
accused. At the spot of the incident, the two assains PG NO 139 are alleged to
have thrown their arms and said "I have done what I have to do. Now you do
what you have to do." The personnel of the Indo Tibetan Boarder Police
(ITBP) pounced on them and took them off to the guard room. What happened
inside the guard room is not on the record. The fact, however, remains that
both the assassins had been shot by the ITBP personnel. They were soon removed
to the hospital where Beant Singh was pronounced dead and Satwant Singh was
found to be critically injured. Satwant Singh survived after 15 days'
treatment. He is accused No. 1 in this case. Balbir Singh and Kehar Singh are
the other two accused. They are said to be parties to the conspiracy to
eliminate Mrs. Indira Gandhi. Balbir Singh was an S.I. posted in the security
at the residence of the Prime Minister. Kehar Singh was an Assistant in the
Directorate General of Supply and Disposal, New Delhi. He is related to S.I. Beant Singh.
After the investigation, the charge-sheet was
filed against the three appellants. They were accused of offences under Section
120-B, 109 and 34 read with Section 302 of the IPC and also of substantive
offances under Sections 302 and 307 of the IPC and Section 27, 54 and 59 of the
Arms Act. It may be mentioned that the report also names Beant Singh as one of
the accused but since he had died, the charges against him were said to have
abated.
In due course, the accused were committed to
take their trial in the Court of Session. In the meanwhile, the High Court of
Delhi issued two notifications. By one notification, the High Court directed
the trial of the case shall he held in the Central Jail, Tihar according to
law.
By another notification, the High Court directed
that "the case be tried by Shri Mahesh Chandra, Additional Sessions Judge,
New Delhi." In pursuance of
the above notifications, the accused were tried in Central Jail, Tihar. The
learned trial Judge found the accused guilty of all the charges framed against
them and sentenced them as earlier stated.
There were two appeals before the High Court of
Delhi challenging the conviction and sentence. Satwant Singh preferred Criminal
Appeal No. 28 of 1986. Balbir Singh and Kehar Singh together preferred Criminal
Appeal No. 29 of 1986. These appeals were listed along with the Murder
Reference No.2 of 1986, before a Bench consisting of three Judges. The learned
Judges, in the course of hearing, also paid a visit to the scene of the crime
to get acquainted with the topography of the place of incident. After
considering the material on record, the High Court accepted PG NO 140 Murder
Reference 2/86 and confirmed the conviction and the sentence of death on all
the accused. The High Court also confirmed the other sentences on Satwant
Singh.
Consequently, the appeals preferred by the
accused were dismissed.
In these appeals, the accused are challenging
the validity of their trial and the legality of their conviction and sentence.
The contentions raised as to legality of the trial admit of being summarised
and formulated thus:
(i) Whether the High Court has power to direct
the trial of the case at a place other than the normal seat of the Court of
Session?
(ii) Whether the trial inside the jail premises
is the very antethesis of an open trial?
(iii) Whether the trial proceedings were devoid
of sufficient safeguards to constitute a public trial? And
(iv) Whether the Court's refusal to call for the
statements made by certain prosecution witnesses before the Thakkar Commission
was justified? I will deal with these questions in turn.
Mr. R.S. Sodhi (amicus curiae) appeared for
accused No. 1 and Mr. Ram Jethmalani, Senior Advocate, (amicus curiae) appeared
for accused Nos. 2 and 3. Mr. G. Ramaswamy, Additional solicitor General
appeared for the State. Both sides of the case have been placed before us with
care and skill.
Re: Question (i):
Patiala House is the place where the Court of
Session at Delhi shall ordinarily hold
its sittings. On May 10, 1985, the Delhi High Court, however, issued a notification in
exercise of the powers conferred by Section 9(6) of the Code of Criminal
Procedure 1973 ("Code") directing that the session case relating
State v. Satwant Singh and Ors., FIR, No. 241 of 1984 shall be held in the
Central Jail, Tihar.
The notification reads:
"In exercise of the power conferred by
Section 9(6) of the Code of Criminal Procedure, 1973 the Hon'ble the Chief
Justice and Judges of this Court have been pleased to order that the trial of
the Sessions Case relating to F.I.R. No. 241/84 of the Arms Act-State v.
Satwant Singh & Ors., shall be held in the Central Jail, Tihar, according
to law.
PG NO 141 BY ORDER OF THE COURT Sd/-(USHA MEHRA)
REGISTRAR" On the same day, the High Court passed another order under
Section 194 of the Code designating Shri Mahesh Chandra, Additional Sessions
Judge as the Judge to try the said case. Shri Mahesh Chandra was a Senior
District and Sessions Judge at the Courts in New Delhi within the jurisdiction of which the
offence was committed. The case of the appellants is that the High Court has no
jurisdiction to issue the first notification directing the trial at Tihar Jail.
It is argued that Section 9(6) confers power on the High Court to specify by
notification a place or places at which criminal trials can be held by the
Court of Session in the Union Territory of Delhi. The requirement of a
notification of the High Court of the place or places where the Court of
Session will function is intended to facilitate the process of public
participation. Such a notification, it is submitted, has already been issued by
the High Court of Delhi. The whole of the Union Territory, it is pointed out, comprises of one division
or district. Originally, the trials in cases pertaining to the entire territory
were conducted only at the District Court Complex in Tis Hazari.
With the increase of Sessions Cases, the Court
of Session was also authorised to hold its sittings at the Parliament Street
Courts (now shifted to Patiala house) in New Delhi and the District Court Complex at Shahdra. It is pointed out that
Shri Mahesh Chandra himself was holding court at Patiala House in relation to
certain other cases, and therefore, he can ordinarily hold his sittings only at
Patiala House even for the present case. It is also submitted that Section 9(6)
empowers the High Court only to specify the place or places at which all, or
any class of the cases pertaining to a division can be heard and does not
empower the High Court to specify the place or places of hearing for individual
cases. The choice of any other place for holding the sittings, wholly or
partly, in any particular case lies within the power of the trial Judge.
The trial Judge may exercise that power for the
general convenience of parties and witnesses when agreed to by both the
parties.
The High Court did not accept these submissions.
In substance, it was held that the actual location of a Court can be decided by
the High Court either generally or with reference to a particular court or even
with reference to a particular case if there is compelling reason. The High
Court also said that the fact that it is done with reference to a particular
case impairs nobody's fundamental right and is also not discriminatory, as no
offender has a vested right to be tried at the usual seat of the Court of
Session.
PG NO 142 The High Court, in my judgment, is
right in reaching the above conclusion.
Section 9(6) provides:
"Section 9. Court of Session:
(6) The Court of Session shall ordinarily hold
its sitting at such place or places as the High Court may, by notification
specify but, if, in any particular case, the Court of Session is of opinion
that it will tend to the general convenience of the parties and witnesses to
hold its sitting at any other place in the Sessions division, it may, with the
consent of the prosecution and the accused, sit at that place for the disposal
of the case or the examination of any witness or witnesses therein."
Sub-section (6) can be conveniently divided into two parts. The first part
provides power to the High Court to notify the place or places for the Court of
Session to hold its sittings for disposal of cases. The second part deals with
the power of the Court of Session in any particular case to hold its sittings
st a place not notified by the High Court.
The real question which we have to determine is,
what do the words 'place or places' mean in the context in which we find it in
the first part of sub-section (6), and in the legal landscape of other allied
provisions in the Code? There is a great deal of juristic writing on the
subject of statutory interpretation, and I make no attempt here to summaris it
all. I will do it elsewhere in this judgment when dealing with question No.(iv).
Here I do not want to spend more of my time since I need not search for the
includes a house, building, tent, vehicle, and vessel.
"The words, too, are empirical signs, not
copies or models of anything ..... The words are slippery customers
interpretation of a PG NO 143 word must, therefore, depend upon the text and
the context.
As O. Chinnappa Reddy, J., said: "If the
text is the texture, the context is what gives the colour. Neither can be
ignored. Both are important. That interpretation is best which makes the
textual interpretation match the contextual. A Statute is best interpreted when
we know why it was enacted." (Reserve Bank of India v. Peerless G. F. &
I Co.. AIR 1987 SC 1023 at
1042).
The words "place or places" 'used in
Section 9(6) apparently indicates that there could be more than one place for
the sitting of the Court of Session. The different places may be notified by
different notifications. There may be a general notification as well as a
special notification.
The general notification may specify the place
for the class of cases where Court of Session shall sit for disposal. The
special notification may specify the same place or a different place in respect
of a particular case.
Adroitly, it is said that the words and sections
like men do not have their full significance when standing alone.
Like men, they are better understood by the
company they keep. Section 9(4) and Section 194 of the Code are the closely related
sections. They may also be examined in order to understand the true meaning of
the word "place or places" in the first part of Section 9(4).
Section 9(4) reads:
"The Session Judge of the Session division,
may be appointed by the High Court to be also an additional Sessions Judge of
another division, and in such case he may sit for the disposal of cases at such
place or places in the other division as the High Court may direct."
Section 9(4) empowers the High Court to appoint a Sessions Judge of one division
to sit at such place or places in another division for disposal of cases. The
High Court while so appointing need not direct him to sit only at the ordinary
place of sittings of the Court of Session.
There is no such constraint in Section 9(4). The
High Court may also issue a separate notification under Section 9(6) specifying
the place or places where that Session Judge should sit for disposal of cases.
Section 194 provides:
PG NO 144 "Additional and Assistant
Sessions Judges to try cases made over to them. -An Additional Session Judge or
Assistant Sessions Judge shall try such cases as the Sessions Judge of the
division may, by general or special order, make over to him for trial or as the
High Court may, by special order, direct him to try." (Emphasis supplied)
Section 194 provides power to the High Court to make a special order directing
an Additional or Assistant Sessions Judge of the same division to try certain
specified cases or a particular case. If the High Court thinks that the Additional
or Assistant Sessions Judge should hold the Court at a specified place, a
separate notification could be issued under Section 9(6).
The argument that the first part of Section 9(6)
should be read along with the second part thereof has, in the context, no
place. The first part provides power to the High Court. It is an administrative
power, intended to further the administration of justice. The second part deals
with the power of the Court of Session. It is a judicial power of the Court
intended to avoid hardship to the parties and witnesses in a particular case.
One is independent of and unconnected with the other. So, one should not be
confused with the other. The judicial power of the Court of Session is of
limited operation, the exercise of which is conditioned by mutual consent of
the parties in the first place. Secondly, the exercise of that power has to be
narrowly tailored to the convenience of all concerned. It cannot be made use of
for any other purpose. This limited judicial power of the Court of Session
should not be put across to curtail the vast administrative power of the High
Court.
Section 9(6) is similar to Section 9(2) of the
Old Code (Act 5 of 1898). The only difference being that Section 9(2) conferred
power on the State Government to specify the place or places where the Court of
Session should sit for the purpose of disposal of cases. That power is now
vested in the High Court. The change of authorities was made to keep in tune
with the separation of judiciary from the executive.
The scope of the sections, however, remains the
same. In Lakshman v. Emperor, AIR 1931 Bom 313, a Special Bench of the Bombay
High Court sustained the validity of a similar notification issued under
section 9(2). Patkar, J., expressed his view (at 320):
PG NO 145 "Under S. 9, sub-section (2),
Criminal P.C. the Local Government may, by general or special order, in the
official gazette, direct at what place or places the Court of Session shall
hold its sittings, but until such order is made the Court of Session shall hold
its sittings as heretofore.
It is contended on behalf of the accused that
the Local Government has already issued a notification directing the Court of
Session to be held at Alibag in certain months commencing on dates to be fixed
by the Sessions Judge of Thana, and that the notification dated 5th February,
1931 does not direct any new place where the Court of Session should hold its
sitting, and further that the notification does not order the Court of Session
to hold its sitting at Alibag, but has directed a particular Additional
Sessions Judge to hold the sitting of his Court at Alibag. Under s. 193(2) the
Local Government had power to direct Mr. Gundil, the Additional Sessions Judge,
to try this particular case.
The previous orders of the Local Government were
general orders under s. 9(2) and there is nothing in Sec. 9(2), to prevent a
special order being passed directing at what place a Court of Session should
hold its sitting. If by reason of an outbreak of plague or any other cause it becomes
necessary or expedient that a Court of Session hold its sittings in respect of
all the cases at a different place or should try a particular case at a
particular place, the words of s. 9(2) are wide enough to cover such an order.
An order passed under s. 9(2) is an administrative order, passed by the Local
Government, and the special order of the Local Government in the present case
directing the Additional Sessions Judge to try this particular case at Alibag
does not appear to contravene the provisions of Section 9(2)." This
appears to be the correct view to be taken having regard to the scheme and
object of Section 9(2) of the Old Code.
In Ranjit Singh v. Chief Justice and others,
[l985] (Vol. 28) Delhi Law Times 153 the Delhi High Court while considering the
validity of a like notification proclaimed more boldly (at 157):
"Section 9(6) recognises that the Court of
Session if it wishes to hold its sitting at another place can only do so with The
consent of prosecution and the accused. As to the PG NO 146 specifying of
places of sitting of Court of Session no such restriction is there and it is
left to the best judgment of the High Court. Of course, this does not mean that
such a power can be exercised arbitrarily. But then it must be noted that Courts
have consistently held that where power is vested in a High Official it must
ordinarily be presumed that the power is exercised in a bona fide and
reasonable manner. Surely, it is a reasonable presumption to hold that when the
Full Court exercised its power, like in the present case, directing that the
Court of Session may hold its sitting at a place other than its ordinary place
of sitting considerations of the interest of justice, expeditious hearing of
the trial and the requirement of a fair and open trial are considerations which
have weighed with the High Court in issuing the impugned notification. It
should be borne in mind that very rarely does the High Court exercises its
power to direct any particular case to be tried in jail.
When it does so it is done only because of
overwhelming consideration of public order, internal security and a realisation
that holding of trial outside jail may be held in such a surcharged atmosphere
as to completely spoil and vitiate the court atmosphere where it will not be
possible to have a calm, detached and fair trial. It is these considerations
which necessitated the High Court to issue the impugned notification. Decision
is taken on these policy considerations and the question of giving a hearing to
the accused before issuing the notification is totally out of place in such
matters. These are matters which evidently have to be left to the good sense
and to the impartiality to the Full Court in taking a decision in a particular case.'' It seems to me
that the High Court of Delhi is also right in observing that it is unnecessary
to hear the accused or any body else before exercising the power under Section
9(6). Such a hearing, however, is required to be given by the Court of Session
if it wants to change the normal place of sitting, in any particular case, for
the general convenience of parties and witnesses.
From the foregoing discussion and the decision,
it will be clear that the impugned notification of the High Court of Delhi
directing that the trial of the case shall be held at Tihar Jail is not
ultravires of Section 9(6) of the Code. PG NO 147
Re: Question (ii):
It is argued that public trial is a fundamental
requirement of the Constitution and is a part of the Constitutional guarantee
under Article 21. A public trial in jail in the very nature of things is
neither desirable nor possible. The massive walls, high gates, armed sentries
at every entrance and the register maintained for noting the names of the
visitors are said to be the inhibiting factors to keep away the potential
visitors. People generally will not venture to go to jail and it is said, that
jail is notionally and psychologically a forbidden place and can never be
regarded as a proper place for public trial.
The High Court rejected these contentions. The
High Court, however, proceeded on the assumption that "a public trial is a
part of the Constitutional guarantee under Article 21 of our Constitution. It
is unnecessary to deal with that aspect in this case. In A. K. Roy v. Union of
India, [1982] 2 SCR 272 Chandrachud, C.J., speaking for the Constitutional
Bench said (at 354) :
"The right to public trial is not one of
the guaranteed rights under our Constitution as it is under the Sixth Amendment
of the American Constitution which secures to persons charged with crimes a
public, as well as speedy trial. Even under the American Constitution. the
right guaranteed by the Sixth Amendment is held to be personal to the accused
which the public in general cannot share." The right of an accused to have
a public trial in our country has been expressly provided in the Code, and I
will have an occasion to consider that question a little later.
The Sixth Amendment to the United States
Constitution provides "In all criminal prosecution, the accused shall
enjoy the right to a speedy and public trial by an impartial jury .....".
No such right has been guaranteed to the accused under our Constitution.
The argument that jail can never be regarded as
proper place for a public trial appears to be too general. The jail trial is
not an innovation. It has been there before we were born. The validity of jail
trial with reference to Section 352 of the Code of 1898 since re-enacted as
Section 327(l) has been the subject matter of several decisions of different
High Courts. The High Court in this case has examined almost all those
decisions. I will refer to some of them with laconic details. Before that, it
is better to have before us Section 352 of the Code of 1898. It reads:
PG NO 148 "352. Courts to be open-The place
in which any Criminal Court is held for the purpose of inquiring into or trying
any offence shall be deemed an open Court, to which the public generally may
have access, so far as the same can conveniently contain them.
Provided that the presiding Judge or Magistrate
may, if he thinks fit, order at any stage of any inquiry into, or trial or, any
particular case, that the public generally, or any particular person, shall not
have access or be or remain in, the room or building used by the Court."
In Sahai Singh v. Emperor, AIR 1917 Lahore 311, the accused were convicted and sentenced
in the trial held in a jail. Their conviction was challenged before the High
Court at Lahore on the ground, amongst
others, that the trial was vitiated because it was held in the jail. The High
Court rejected the contention stating:
"It is necessary that I should first
mention a contention that the whole trial is vitiated because it was held in
the jail. Counsel for some of the appellants has referred to s. 352, Criminal
Procedure Code, but there is nothing to show that admittance was refused to any
one who desired it, or that the prisoners were unable to communicate with their
friends or Counsel. No doubt it is difficult to get Counsel to appear in the
jail and for that reason, if for no other, such trials are usually undesirable,
but in this case the Executive Authorities were of the opinion that it would be
unsafe to hold the trial elsewhere." In Kailash Nath v. Emperor, AIR 1947
All. 436. the Allahabad High Court said that there is no inherent illegality in
jail trials if the Magistrate follows the rules of Section 352 and the place
becomes Something like an open Court.
The practice of having trials inside jails, as
the High Court has rightly pointed out, seems to have persisted even after the
coming into force of the Constitution. ln re: M.R. Venkataraman, AIR 1950 Madras 441 the High Court of
Madras after referring to the decisions in Kailash Nath's case and Sahai's
case, observed (at 442): PG NO 149 "
Again, if the conveyance of prisoners, and the
accused to and from the court house or other buildings, will be attended with
serious danger of attack, and the rescue of the accused or the prisoners, or
with heavy cost to the Government in providing an armed escort, it may well be
within the powers of the Judge or Magistrate, after due consideration of the
public interests and after writing down the reasons in each case, to hold the
trials even inside the jail premises, where the accused are confined." In
re: T.R. Ganeshan, AIR 1950 Madras 696, the Madras High Court was again called
upon to consider the validity of a jail trial. In this case, the trial was held
in recreation room which was within the jail compound. The building consisted
of a hall and varandah on two sides. It was situated at some distance from the
prison walls proper. It was accessible to the public. The press reporters, some
members of the Bar and public also attended the trial proceedings. The High
Court upheld the validity of that trial. The High Court also said that in the
interest of justice and fair trial of the case itself that, in certain
circumstances and in some cases, the public may be excluded.
The Calcutta High Court in Prasanta Kumar v. The State, AIR
1952 Calcutta 91 and Madhya Pradesh
High Court in Narwar Singh & Ors. v. State, [1952] MB 193 at 195 recognised
the right of the Magistrate to hold Court in jail for reasons of security for
accused, for witnesses or for the Magistrate himself or for other valid
reasons.
It may now be stated without contradiction that
jail is not a prohibited place for trial of criminal cases. Nor the jail trial
can be regarded as an illegitimate trial. There can be trial in jail premises
for reasons of security to the parties, witnesses and for other valid reasons.
The enquiry or trial, however, must be conducted in open Court. There should
not be any veil of secrecy in the proceedings. There should not even be an
impression that it is a secret trial.
The dynamics of judicial process should be
thrown open to the public at every stage. The public must have reasonable
access to the place of trial. The Presiding Judge must have full control of the
Court house. The accused must have all facilities to have a fair trial and all
safe-guards to avoid prejudice.
ln the present case there is no reason to find
fault with the decision of the High Court to have the trial in Tihar jail. The
records show that the situation then was imperative. The circumstances which
weighed with the High Court may be gathered from a letter dated May 8, 1985, addressed by the Home
Secretary to the Registrar of the High PG NO 150 Court. The relevant portion of
the letter reads:
"The case is of very special nature and of
utmost importance. The assassination of the late Prime Minister had provoked
violence and secutiry of State besides the maintenance of law and order had
become vital problems for Administration. There is every risk of breach of
public peace and disturbance of law and order, if the trial is held in an open
place. The lives of the trial Judge, prosecutor and those otherwise involved in
the prosecution of the case may be jeopardised. It is on record that during
committal proceeding the Magistrate and Prosecutor concerned were threatened
with dire consequences as they were working for a successful prosecution. The
circumstances in which the Hon'ble High Court was pleased to accept the prayer
of the Administration for conducting remand and committal proceedings in
Central Jail, Tihar continue to exist. It is only for the security of the
Judge, witnesses, Police Officers and others but also for the safety of the
accused themselves that the trial of the case may be held in Central Jail,
Tihar." The letter reveals a grim picture of the then existing situation.
It is said that the assassination of Smt. Indira Gandhi had provoked widespread
voilence threatening the security of the State and the maintenance of law and
order.
The remand and the committal proceedings had to
be taken in Tihar Jail since the Magistrate and Prosecutor were threatened with
dire consequences. lt is also said that such circumstances continued to exist
when the case came up for trial. The letter ends with a request to have the
trial of the case in Tihar Jail for the security of the Judge, witnesses,
Police Officers and also for the safety of the accused themselves. The High
Court also has taken note of the events that immediately followed the
assassination of Smt. Gandhi. Beant Singh one of the assassins was shot dead
and Satwant Singh who is the accused herein received near fatal gun shot
injury.
That is not all. There was unprecedented
violence aftermath in the national capital and other places. Frenzied mob armed
with whatever they could lay their hands were seen besieging passing sikhs and
burning their vehicles, as doctors in the hospital fought their vain battle to
save the life of Mrs. lndira Gandhi. Even President Zail Singh's cavalcade,
making its way from the Airport to the hospital was not spared. The reaction of
outrage went on unabated followed by reprisal killings and destruction of
properties.
PG NO 151 The local police force was badly
shaken. They could do little even to contain the violence. The Army had to be
deployed to stem the tide of deluge. The new Prime Minister, Mr. Rajiv Gandhi
made an unscheduled broadcast to the Nation pleading for sanity and protection
to the Sikhs.
Nevertheless three days passed on with murder
and loot leaving behind a horrendous toll of more than two thousand dead and
countless property destroyed. It is a tragedy frightening even to think of. This
has been referred to in the report (at 11 to 15) of Justice Ranganatha Misra
Commission of lnquiry. These unprecedented events and circumstances, in my
judgment, would amply justify the decision of the High Court to direct that the
trial of the case should take place in Tihar Jail.
Re: Question (iii):
The question herein for consideration is whether
the trial held in Tihar Jail was devoid of sufficient safeguards to constitute
an open trial? As a preliminary to the consideration of this question, it is
necessary to understand the scope of sec. 327(1) of the Code. The section
provides:
"Sec. 327. Court to be open:
(1) The place in which any criminal court is
held for the purpose of inquiring into or trying any offence shall be deemed to
be an open Court, to which the public generally may have access, so far as the
same can conveniently contain them:
Provided that the Presiding Judge or Magistrate
may, if he thinks fit, order at any stage of any inquiry into, or trial of, any
particular case, that the public generally, or any particular person, shall not
have access, to or be or remain in, the room or building used by the
Court." The main part of sub-sec. (1) embodies the principle of public
trial. lt declares that the place of inquiry and trial of any offence shall be
deemed to be an Open Court. lt significantly uses the words "open Court". lt means
that all justice shall be done openly and the Courts shall be open to public.
It means that the accused is entitled to a public trial and the public may claim
access to the trial. The sub- section however, goes on to state that "the
public PG NO 152 generally may have access so far as the place can conveniently
contain them". What has been stated here is nothing new. It is implicit in
the concept of a public trial. The public trial does not mean that every person
shall be allowed to attend the court. Nor the court room shall be large enough
to accommodate all persons. The Court may restrict the public access for valid
reasons depending upon the particular case and situation. As Judge Cooley
states (Cooley's Constitutional Law, Vol. I, 8th Ed. at 647):
"It is also requisite that the trial be
public. By this is not meant that every person who seeks fit shall in all cases
be permitted to attend criminal trials; because there are many cases where,
from the character of the charge and the nature of the evidence by which it is
to be supported, the motives to attend the trial on the part of portions of the
community would be of the worst character, and where regard for public morals
and public decency would require that at least the young be excluded from
hearing and witnessing the evidences of human depravity which the trial must
necessarily bring to light. The requirement of a trial is for the benefit of
the accused; that the public may see he is fairly dealt with and not unjustify
condemned, and that the presence of interested spectators may keep his triers
keenly alive to a sense of their responsibility into the importance of their
functions and the requirement is fairly observed if, without partiality or
favouritism, a reasonable proportion of the public is suffered to attend,
notwithstanding that those persons whose Presence could be of no service to the
accused, and who would only be drawn thither by a prurient curiosity, are
excluded altogether." The proviso to sub-sec. (1) of sec. 327 specifically
provides power to the Presiding Judge to impose necessary constraint on the
public access depending upon the nature of the case. lt also confers power on
the Presiding Judge to remove any person from the court house. The public trial
is not a disorderly trial. It is an ordinarily trial. The Presiding Officer
may, therefore, remove any person from the Court premises if his conduct is
undesirable. If exigencies of a situation require, the person desiring to
attend the trial may be asked to obtain a pass from the authorised person. Such
visitors may be even asked to disclose their names and sign registers. There
may be also securty checks.
These and other like restrictions will not
impair the right of the accused or that of the public. They are essential to
ensure fairness of the proceedings and safety to all concerned.
PG NO 153 So much as regards the scope of public
trial envisaged under sec. 327(1) of the Code. There are yet other fundamental
principles justifying the public access to criminal trials: The crime is a
wrong done more to the society than to the individual. It involves a serious
invasion of rights and liberties of some other person or persons. The people are,
therefore, entitled to know whether the justice delivery system is adequate or
inadequate.
Whether it responds appropriately to the
situation or it presents a pathetic picture. This is one aspect. The other
aspect is still more fundamental. When the State representing the society seeks
to prosecute a person, the State must do it openly. As Lord Shaw said with most
outspoken words (Scott v. Scott, [1913] A.C. 417 at 477):
"It is needless to quote authority on this
topic from legal, philosophical, or historical writers. It moves Bentham over
and over again. `ln the darkness of secrecy, sinister interest and evil in
every shape have full swing.
Only in proportion as publicity has place can
any of the checks applicable to judicial injustice operate. Where there is no
publicity there is no justice.' 'Publicity is the very soul of justice. It is
the keenest spur to exertion and the surest of all guards against improbity. It
keeps the judge himself while trying under trial.' `The security of securities
is publicity.' But amongst historians the grave and enlightened verdict of
Hallam, in which he ranks the publicity of judicial proceedings even higher
than the rights of Parliament as a guarantee of public security, is not likely
to be forgotten: `Civil liberty in this kingdom has two direct guarantees; the
open administration of justice according to known laws truly interpreted, and
fair constructions of evidence; and the right of Parliament, without let or
interruption, to inquire into, and obtain redress of, public grievances. Of
these, the first is by far the most indispensable; nor can the subjects of any
State be reckoned to enjoy a real freedom, where this condition is not found
both in its judicial institutions and in their constant exercise . . . . .' "
In open dispensation of justice, the people may see that the State is not
misusing the State machinary like the Police, the Prosecutors and other public
servants. The people may see that the accused is fairly dealt with and not
unjustly condemned. There is yet another aspect.
PG NO 154 The courts like other institutions
also belong to people. They are as much human institutions as any other.
The other instruments and institutions of the
State may survive by the power of the purse or might of the sword. But not the
Courts. The Court have no such means or power. The Courts could survive only by
the strength of public confidence. The public confidence can be fostered by
exposing Courts more and more to public gaze.
There are numerous benefits accruing from the public
access to criminal trials. Beth Hornbuckle Fleming in his article "First
Amendment Right of Access to Pretrial Proceedings in Criminal Cases"
(Emory Law Journal, V. 32 (1983) p. 618 to 688) neatly recounts the benefits
identified by the Supreme Court of the United States in some of the leading decisions. He
categorizes the benefits as the "fairness" and "testimonial
improvement" effects on the trial itself, and the "educative"
and "sunshine" effects beyond the trial. He then proceeds to state:
"Public access to a criminal trial helps to
ensure the fairness of the proceeding. The presence of public and press
encourages all Participants to perform their duties conscientiously and
discourages misconduct and abuse of power by judges, prosecutors and other
participants.
Decisions based on partiality and bias are
discouraged, thus protecting the integrity of the trial Process. Public access
helps to ensure that procedural rights are respected and that justice is
applied equally.
Closely related to the fairness function is the
role of public access in assuring accurate fact finding through the improvement
of witness testimony. This occurs in three ways.
First, witnesses are discouraged from committing
perjury by the presence of members of the public who may be aware of the truth.
Second, witnesses like other participants, may be encouraged to perform more
conscientiously by the presence of the public, thus improving the overall
quality of testimony, Third, unknown witnesses may be inducted to come forward
and testify if they learn of the proceedings through publicity. Public access
to trials also plays a significant role in educating the public about the
criminal justice process. Public awareness of the functioning of judicial
proceedings is essential to informed citizen debate and decision making about
issues with significant effects beyond PG NO 155 the outcome of the particular
proceeding. Public debate about controversial topics, such as, exclusionary
evidentiary rules, is enhanced by public observation of the effect of such
rules on actual trials. Attendance at criminal trials is a key means by which
the public can learn about the activities of police, prosecutors, attorneys and
other public servants, and thus make educated decisions about how to remedy abuses
within the criminal justice system.
Finally, public access to trials serves an
important "sunshine" function. Closed proceedings, especially when
they are the only judicial proceedings in a particular case or when they
determine the outcome of subsequent proceedings, may foster distruct of the
judicial system.
Open proceedings enhance the appearance of
justice and thus help to maintain public confidence in the judicial
system." With these observations, let us now hark back to the safeguards
provided to ensure an open trial in this case.
First, let us have an idea of the building in
which the trial took place. The Office Block of the Jail Staff was used as the
Court House,. It is an independent building located at some distance from the
main Jail complex. In between there is a Court-yard. This court-yard has direct
access from outside. A visitor after entering the court-yard can straight go to
the Court House. He need not get into the Jail Complex. This is evident from
the sketch of the premises produced before us. It appears the person who visits
the Court House does not get any idea of the Jail complex in which there are
Jail Wards and Cells. From the sketch, it will be also seen that the building
comprises of a Court-hall, Bar room and chamber for the Judge. The Court hall
can be said to be of ordinary size. It has seating capacity for about fifty
with some more space for those who could afford to stand. The accused as
undertrial prisoners were lodged at Jail No. 1 inside the Jail complex. It was
at a distance of about 1 km from the Court House. For trial purposes, the
accused were transported by van. In the Court hall, they were provided with
bullet proof enclosure.
This is a rough picture of the Court House where
the accused had their trial. For security reasons, the public access to trial
was regulated. Those who desired to witness the trial were required to intimate
the Court in advance.
The trial Judge used to accord permission to
such persons subject to usual security checks. Before commencement of the PG NO
156 trial of the case, the representatives of the Press and News Agencies,
national and international, approached the trial Judge for permission to cover
the Court proceedings. The representatives of BBC, London Times, New York Times
and Associated Press were some of them. The trial Judge allowed their request
by his order dated May 15, 1985 in the following terms:
"I do feel that in the best traditions of
the trial, the press is permitted to cover the proceedings of the trial in the
case. In view thereof think it just and proper to allow the press to cover the
proceedings. Without exception the news agencies would have a right to cover
the proceedings through a representative. So far as individual papers are
concerned, efforts would be made to accommodate as many of them as security and
space would permit. In view thereof, it is directed that a letter be addressed
to the Supdt. Jail, Tihar with the request that the press representatives may
be allowed to enter and have access to the Court room where the proceedings
would be held in the jail. It would be open to the Supdt. Jail to put such
restrictions as regards security check-up or production of accredition cards or
identity cards as he considers necessary." On May 20, 1985, Kehar Singh (A-3)
filed an application before the trial court contending that the trial should be
held in open Court at Patiala House, New Delhi and not in Central Jail, Tihar. The State filed
an objection contending inter-alia :
"That regulated entry has been made for the
safety of the accused and for the general safety of the others concerned with
the trial. Every specific request of the accused and others to attend the trial
has been allowed by the Court. The entry of the Court room is merely regulated
in the interest of safety. A blanket charter to permit every person known or
unknown or whose antecedents are not proper can very much defeat the ends of
justice. Not only it has to be ensured that a fair trial is given, but it has
also to be kept in view that the prevailing peculiar situation, the security is
not jeopardized at any cost. The members and the relatives of the accused have
been permitted by the Court to be present at the time of hearing. It was,
therefore, not a closed or a secret trial.
xx xx xx xx xx xx xx xx xx xx xx xx PG NO 157 ln
view of the prevailing situation and peculiar circumstances, the hon'ble High
Court has vide its order chosen the venue of trial. The only proper venue for a
trial like this is jail. Even this learned Court would have opted for the same
in view of the security risk nature of the crime, persons involved and keeping
in view the other allied circumstances of the case. It was also stated, "that
the case as is and product of misguided fundamentalism and terrorism. ln the
prevailing atmosphere in the country, the accused as well as the witnesses are
in grave danger of outside terrorists attacks and this has to be safeguarded.
Transport of accused persons at set times from
and to the jail is fraught with danger." The application of the accused
and the objections thereof were considered and disposed of by order dated June 5, 1985. The relevant portion
of the order reads:
".....There can be no dispute that public
has a right to know but it is precisely for this purpose that National and International
Press has been allowed to be present in the Court during the entire trial. The
press is the most powerful watch dog of the public interest and, certainly, we
in India have not only free but
also a very responsible press and interest of general public are quite safe in
their hands. It is not merely lndian press representatives and the news
agencies which have been allowed to come to attend the trial but the
International agency like BBC, London Times, New York Times and Associated
Press have also been allowed and admitted and are, in fact, present.
xx xx xx xx xx xx xx xx xx xx xx xx It can be
categorically declared and placed on record by this Court that all press
representatives and news agencies whosoever have sought permission have been
without exception granted necessary permission by this Court. I am sure right
of public to known about the trial has been more than assured by the presence
of the Press in the Court. The suggestion of learned defence counsel that
presence of Press is not sufficient guarantee is not a fair comment on a free,
fair and responsible Press of India. It would be proper to mention here that to
ensure fair trial and judicious PG NO 158 administration of justice the
presence of defence counsel, the Press and the relations of the accused persons
has been allowed ....." With reference to the people in general, it was
pertinently observed:
"Nonetheless, space permitting, this Court
would not be averse or disinclined to allow public men also to attend the
proceedings subject to usual security chehk-up." The learned trial Judge
did not make the aforesaid observation as an empty formality. True to his
words, he did permit access to the members of the public also. He permitted
even the Law Students in batches to witness the trial. This we could see from
the extract of the visitors' book maintained by the authorities. There is
hardly any instance brought to our attention where a person who sought
permission was denied access to the Court. The High Court has also considered
this aspect carefully. The High Court has observed that the "trial Judge
has given access to the place of trial for all members of the public who may be
minded to attend the same save for certain reasonable restriction imposed in
public interest." This statement has not been shown to be incorrect. The
fact also remains that the accused were represented by leading members of the
Bar.
Some of the close relatives of the accused were
allowed to be present at the trial. All press representatives and news agencies
whoever sought permission have been allowed to cover the day to day Court
proceedings. The trial Judge in his order dated June 5, 1985 has specifically stated
this.
There can, therefore, be no doubt or dispute as
to the adequacy of safeguards provided to constitute an open trial.
Indeed, the steps taken by learned trial Judge
are more than adequate to ensure fair trial as well as public trial.
For the accused, it is argued that the people
can assert their right of access to criminal trials in the exercise of their
fundamental right guaranteed under Art. l9(1)(a) of the Constitution and they
need not be under the mercy of the Court. It is also urgued that there shall
not be any discrimination in the matter of public access to judicial
proceedings and first come first served should be the principle no matter
whether one is a press person or an ordinary citizen. The contentions though
attractive need not be considered since no member of the public or press is
before us making grievance that his constitutional right of access to the trial
has been denied in this case. This Court PG NO 159 has frequently emphasized
that the decision of the Court should be confined to the narrow points directly
raised before it. There should not be any exposition of the law at large and
outside the range of facts of the case. There should not be even obiter
observations in regard to questions not directly involved in the case. These
principles are more relevant particularly when we are dealing with
constitutional questions. I should not transgress these limits. However, the
decisions referred to us may be briefly touched upon here.
In Naresh Shridhar Mirajkar v. State of
Maharashtra, [1963] SCR 744, this Court had an occasion to consider the
validity of a judicial verdict of the High Court of Bombay made under the
inherent powers. There the learned Judge made an oral order directing the Press
not to publish the evidence of a witness given in the course of proceedings.
That order was challenged by a journalist and
others before this Court on the ground that their fundamental rights guaranteed
under Art. 19(1) (a) and (g) have been violated.
Repelling the contention, Gajendragadkar, CJ,
speaking for the majority view said (at 760-61) :
"The argument that the impugned order
affects the fundamental rights of the petitioners under Art. 19(1), is based on
a complete misconception about the true nature and character of judicial
process and of judicial decisions.
But it is singularly inappropriate to assume
that a judicial decision pronounced by a Judge of competent jurisdiction in or
in relation to a matter brought before him for adjudication can effect the
fundamental rights of the citizens under Art. 19(1). What the judicial decision
purports to do is to decide the controversy between the parties brought before
the Court and nothing more. If this basic and essential aspect of the judicial
process is borne in mind, it would be plain that the judicial verdict
pronounced by Court in or in relation to a matter brought before it for its
decisions cannot be said to affect the fundamental rights of citizens under
Art. 19(1).'' There is triology of decisions of the Supreme Court of United
States dealing with the constitutional right of the public access to criminal
trials.
In Gannet Co. v. De Pasquale, 443 U.S. 368
(1979), the defendants were charged with murder and requested closure of PG NO
160 the hearing of their motion to suppress allegedly involuntary confessions
and physical evidence. The prosecution and the trial Judge agreed and said that
closure was necessary. The public and the press were denied access to avoid
adverse publicity. The closure was also to ensure that the defendants' right to
a fair trial was not jeopardized. The Supreme Court addressed to the question
whether the public has an independent constitutional right of access to a
pretrial judicial proceedings, even though the defendant, the prosecution, and
the trial Judge had agreed that closure was necessary. Explaining that the
right to a public trial is personal to the defendant, the Court held that the
public and press do not have an independent right of access to pretrial
proceedings under the Sixth Amendment.
Although the Court in Gannett held that no right
of public access emanated from the Sixth Amendment it did not decide whether a
constitutional right of public access is guaranteed by the first amendment.
This issue was discussed in Richmond Newspaper Inc. v. Vir- ginia, 448 US 555 (1980).
This case involved the closure of the court-
room during the fourth attempt to try the accused for murder. The United States
Supreme Court considered whether the public and press have a constitutional
right of access to criminal trials under the first amendment. The Court held
that the first and fourteenth amendments guarantee the public and press the
right to attend criminal trials. But the Richmond Newspapers case still left
the question as to whether the press and public could be excluded from trial
when it may be in the the best interest of fairness to make such an exclusion.
That question was considered in the Globe
Newspapers v. Superior Court, 4.57 U.S. 596 ( l982) (73 L.Ed. Z48). There the
trial Judge excluded the press and public from the courtroom pursuant to a Massachusetts statute making closure
mandatory in cases involving minor victims of sex crimes.
The Court considered the constitutionality of
the Massachusetts statute and held that
the statute violated the first amendment because of its mandatory nature. But
it was held that it would be open to the Court in any given case to deny public
access to criminal trials on the ground of state's interest. Brennan, J., who
delivered the opinion of the Court said (at 258-59):
"We agree with appellee that the first
interest safeguarding the physical and psychological well-being of a minor is a
compelling one. But as compelling as that interest is, it does not justify a
mandatory closure rule, for it is clear that the circumstances of the
particular case may determine on a case by case basis whether closure PG NO 161
is necessary to protect the welfare of a minor victim. Among the factors to be
weighed are the minor victim's age, psychological maturity and understanding,
the nature of the crime, the desires of the victims, and the interests of
parents and relatives.
xx xx xx xx xx .... Such an approach ensures
that the constitutional right of the press and public to gain access to
criminal trials will not be restricted except where necessary to protect the
State's interest. " It will be clear from these decisions that the
mandatory exclusion of the press and public to criminal trials in all cases
violates the First Amendment to the United States Constitution. But if such
exclusion is made by the trial Judge in the best interest of fairness to make
that exclusion, it would not violate that constitutional rights.
It is interesting to note that the view taken by
the American Supreme Court in the last case, runs parallel to the principles
laid down by this Court in Naresh Shridhar Mirajkar case.
Re: Question (iv):
There remains, however, the last question
formulated earlier in this judgment, namely, whether the trial Court was
justified in refusing to call for the statements of witnesses recorded by the
Thakar Commission? For a proper consideration of the question, it will be
necessary to have a brief outline of certain facts.
Soon after the assassination of Mrs. lndira
Gandhi, the Government of India, by Notification dated November 2O, 1984,
constituted a Commission under the Commission of Inquiry Act, 1952 (the
"Act"). The Commission was presided over by Mr. Justice M.P. Thakkar,
the sitting Judge of this Court. The Commission was asked to make an inquiry
with respect to the matters:
(a) the sequence of events leading, and all the
facts relating to, the assassination of the late Prime Minister;
PG NO 162 (b) whether the crime could have been
averted and whether there were any lapses of dereliction of duty in this regard
on the part of any of the commission of the crime and other individuals
responsible for the security of the late Prime Minister;
(c) the deficiencies, if any, in the security
system and arrangements as prescribed or as operated in practice which night
have facilitated the commission of the crime ;
(d) the deficiencies, if any, in the procedures
and measures as prescribed, or as operated in practice in attending to any
providing medical attention to the late Prime Minister after the commission of
the crime; and whether there was any lapse or dereliction of duty in this
regard on the part of the individuals responsible for providing such medical
attention ;
(e) whether any person or persons or agencies
were responsible for conceiving, preparing and planning the assassination and
whether there was any conspiracy in this behalf, and if so, all its
ramifications.
The Commission was also asked to make
recommendations as to the corrective remedies- and measures that need to be
taken for the future with respect to the matters specified in clause (d) above.
On December 5, 1984,the Commission framed
regulations under sec. 8 of the Act in regard to the procedure for enquiry.
Regulation 8 framed thereon reads: "In view of the sensitive nature of the
enquiry, the proceedings will be in camera unless the Commission directs
otherwise." Accordingly, the Commission had its sittings in camera. On November 19, 1985, the Commission
submitted an interim report to the Government followed by the final report on February 27, 1986.
In the normal course, the Government ought to
have placed the report of the Commission under sec. 3(4) of the Act before the
House of the People within six months of the submission of the report. But the
Government did not do that. The steps were taken to amend the Commissions of
Inquiry Act. On May 14, 1986, the President of lndia promulgated Ordinance No. 6 of 1986
called the Commissions of Inquiry (Amendment) Ordinance 1986 by which
sub-sections (5) and were introduced to sec. 3 as follows:
PG NO 163 "(5) The provisions of sub-sec.
(4) shall not apply if the appropriate Government is satisfied that in the
interests of the sovereignty and integrity of India, the security of the State
friendly relations with foreign State or in the public interest, it is not
expedient to lay before the House of the people or, as the case may be, the
Legislative Assembly of the State, the report, or any part thereof, of the
Commission on the Inquiry made by the Commission under sub-sec. (1) and issues
a notification to that effect in the Official Gazette.
(6) Every notification issued under sub-sec. (5)
shall be laid before the House of the People or. as the case may be, the
Legislative Assembly of the State, if it is sitting as soon as may be after the
issue of the notification, and if it is not sitting, within seven days of its
reassembly and the appropriate Government shall seek the approval of the House
of the People or, as the case may be, the Legislative Assembly of the State to
the notification by a resolution moved within a period of fifteen days
beginning with the day on which the notification is so laid before the House of
the People or as the case may be, the Legislative Assembly of the State makes
any modification in the notification or directs that the notification should
cease to have effect, the notification shall thereafter have effect, as the
case may be." On May 15, I986, the Central Government issued a
notification under sub-sec. (5) of sec. 3 stating:
"The Central Government, being satisfied
that it is not expedient in the interest of the security of the State and in
the public interest to lay before the House of the People the report submitted
to the Government on the 19th November, l98S, and the 27th February, ]986, by
Justice M.P. Thakkar, a sitting Judge of the Supreme Court of India appointed
under the notification of the Government of India in the Ministry of Home Affairs
No. S.O. 867(B) dated the 20th November, 1984, hereby notifies that the said reports shall
not be laid before the House of the People. '' PG NO 164 On August 20,1986,Ordinance No. (6) was
replaced by the Commission of Inquiry (Amendment) Act, 1986 (Act 36 of 1986)
with retrospective effect. The said notification dated May 15, 1996 was also got approved
by the House of the People as required under sub-sec.(6) of sec. 3.
We may now revert to the steps taken by the
accused before the trial court. After the Prosecution examined some of the
witnesses,accused No. 1 moved the Court with an application dated August 5, 1985 praying for summoning
true copies of statements of all persons recorded by the Thakkar Commission and
who happened to be the Prosecution witnesses in the case. It was stated in the
application that the statements should be summoned for the purpose of sec. 145
of the Evidence Act. The trial court rejected that application following the
decision of this Court in Ramakrishna Dalmia v. Justice Tandolkar, 1959] SCR
Z79. The trial court said that the statements recorded by the Commission are
inadmissible in evidence by any subsequent proceedings and cannot therefore be
used for the purpose of contradicting the same witnesses under sec. 145 of the
Evidence Act.
Before the High Court, the accused made two
applications under sec. 391 of the Criminal Procedure Code. On July 16, 1986 accused nos. 2 and 3
made an application for additional evidence. Accused No. 1 also made a similar
application dated July 17, 1986. They wanted the depositions recorded and the documentary
evidence received by the Thakkar Commission as additional evidence in the case.
They also wanted the High Court to summon the two reports of the Thakkar
Commission.
The High Court rejected both the applications in
the course of the judgment which is now under appeal. The High Court has stated
that it is not proper to compel production of the proceedings or the report of
the Commission in view of the privilege of non-disclosure provided by the Act
of Parliament. The High Court also depended upon the decision of this Court in
Dalmia's case. The decision therein was he]d to be an authoritative
pronouncement on the scope of sec. 6 of the Act and as to the utilisation of
statement made by any person before the Commission. The High Court held that
the evidence before the Commission is wholly inadmissible in any other Civil or
Criminal Proceedings except for Prosecuting the person far perjury.
The principal submission before us is that the
High Court has misconstrued the scope of sec. 6 of the Act and misunderstood
the obrervationsin Dalmia's case. It is also contended that the observation in
Dalmia's case cannot be PG NO 165 regarded as a binding precedent since this
Court was not called upon therein to examine the true scope of sec. 6.
It is true that the scope of section as such did
not come up for consideration in Dalmia's case. Das, CJ., while examining the
challenge to the validity of the Act and a notification issued there-under made
some observations as to matters of principle (294-295):
"The whole purpose of setting up of a
Commission of Inquiry consisting of experts will be frustrated and the
elaborate process of inquiry will be deprived of its utility if the opinion and
the advice of the expert body as to the measures the situation disclosed calls
for cannot be placed before the Government for consideration notwithstanding
that doing so cannot be to the prejudice of anybody because it has no force of
its own. In our view, the recom mendations of a Commission of Inquiry are of
great importance to the Government in order to enable it to make up its mind as
to what legislative or administrative measures should be adopted to eradicate
the evil found or the beneficial objects it has in view. From to implement'the
beneficil in of view, there can be no objection even to the Commission of
Inquiry, recommending the imposition of some form of Dunishment which will, in
its opinion, be sufficiently deterrent to delinquents in future. But seeing that
the Commission of Inquiry has no judicial power and its report will purely be
recommendatory and not effective proprio vigore and the staement made by any
person before the Commission of Inquiry is under sec. 6 of the Act wholly
inadmissible in evidence in any future proceedings, civil criminal."
(Emphasis supplied ) Since the argument in the above case did not traverse the
scope of sec.6 of the Act,it is now necessary to call attention to the same
atlength. Before examining the Act, it is now necessary to all attention to the
same atlength.
Before examining the matter, it may not be
inappropriate to state that the accused in criminal trials should be given
equal opportuinty to lay evidence fully, freely and fairly before the Court.
The Government which prosecutes an accused will lay bare the evidence in its
possession. if the accused asks for summoning any specific document or thing
for preparing his case, it should normally be allowed by the Court if there is
no legal bar. But "the demand", as Brennan, J.,of the Supreme Court
of the United
States,
observed, "must be for production of ...... specific PG NO 166 documents
and should not propose any broad or blind fishing expedition." (Clinton E. Jencks v. United State 353 U.S. 657 = 1 L.Ed. 1103 at
1111). Ameer Ali, J. in Nizam of Hyderabad v. A.M. Jacob, ILR XIX Cal. 52 at 64
made similar observations:
"...he cannot call for anything and
everything from anybody everybody. The thing called for must have some relation
to, or connection with: the subject-matter of the investigation or equiry, or
throw some light on the proceedings, or supply some link in the chain of
evidence. " These principles are broadly incorporated for the guidance of
Courts under Section 91 and 233 of the Code.
Let us turn to consider in detail the language
of the Critical section. Section 6 provides:
"No statement made by a person in the
course of giving evidence before the Commission shall subject him to, or be
used against him in any civil or criminal proceedings except a prosecution for
giving false evidence by such statement .
xx xx xx xx xx xx xx.
Dissecting the section, it will be clear that
the statement made by a person before the: Commission, in the- first place
shall not be the basis to proceed against him.
Secondly, it shall not be 'used against him' in
any subsequent civil or criminal proceedings except for the purpose set out in
the section itself. The single exception provided thereunder is a prosecution
for giving false evidence by such statement.
The term "used against" has given rise
to controversy.
the Bombay High Court in (i).Sohan Lal v.State,
AIR I966 Bom I and (ii) State of Maharashtra v. Ibrahim Mohd., [1978] Criminal L.J. 1157 has
regarded the observations in Dalmia's case as an obiter. It was held:
"Whether a particular statement made by a
witness before the Commission is used "against him" will depend on
the prejudice or detriment caused or likely to cause to the person in civil or
criminal proceedings or otherwise. It must, therefore, necessarily depend on the
facts and PG NO 167 circumstances relating to the use or intended use. Whether
any particular prejudice or detriment can be said to result from the use of the
statements will also depend on facts.
Mere cross-examination under s. 145 can at the
most expose his statement. That does not render the use of the statement
"against him" in law because law requires him to tell the truth, the
whole truth and nothing but the truth before the Commission also and implies
that he will prosecuted for perjury if he tells lies." Maharashtra v. Ibrahim Mohd.,
[1978] Cr. Law Journal 1157 at 1160.
This line of reasoning also found with the Assam
High Court in State of Assam v. Suprbhat Bhadra, [1982] Cal. L.J. 1672. But
Madhya Pradesh High Court in Puhupram & Ors. v. State of M. P., [1968] MP L.J. 629 has
taken a contrary view. That High Court said that the language of section 6 is
plain enough to show that the statement made by a person before the Commission
of Inquiry cannot be used against him for the purpose (of cross-examination.
It is urged that even if the words "used
against" mean preventing the use of the statement for the purpose of
contradiction as required under section 145 of the Evidence Act, there are
other provisions by which the previous statement could be looked into for
productive use without confronting the same to the witness. Reference is made'
to the first part of Section 145, sub-sections (1) and (2) of Section I46 as
well as Sections 157 and 159 of the Evidence Act. It is also said that the term
"used against" in Section 6 was not intended to be an absolute bar
for making use of such statement in subsequent proceedings. The learned
Additional Solicitor General, on the other hand, states that Section 6 was
intended lo be a complete protection to persons against the use or utility of
their statements in any proceedings except in case of prosecution for perjury.
Such protection is necessary for persons to come
and depose before the Commission without any hesitation. Any dilution of that
protection, it is said, would defeat the purpose of the Act itself.
Before 1 come to consider the arguments put
forward by each side, I venture to refer to some general observations by way of
approach to the questions of construction of statutes. In the past, the Judges
and lawyers spoke of a 'golden rule' by which statutes were to be interpreted
according to grammatical and ordinary sense of the word.
They took the grammatical or literal meaning
unmindful of the consequences. Even if such a meaning gave rise to unjust results
which legislature never intended, the PG NO 168 grammatical meaning alone was
kept to prevail. They said that it would be for the legislature to amend the
Act and not for the Court to intervene by its innovation.
During the last several years, the 'golden rule'
has been given a go bye. We now look for the 'intention' of the legislature of
the 'purpose'of the statute. First, we examine the words of the statute. If the
words are precise and cover the situation in hand, we do not go further. We
expound those words in the natural and ordinary sense of the words. But, if the
words are ambiguous, uncertain or any doubt arises as to the terms employed, we
deem it as our Paramount duty to put upon the language of the legislature rational
meaning. We then examine every word, every section and every provision. We
examine the Act as a whole. We examine the necessity which gave rise to the
Act. We look at the mischiefs which the legislature intended to redress. We
look at the whole situation and not just one-to-one relation. We will not
consider any provision out of the framework of the statute. We will not view
the provisions as abstract principles separated from the motive force behind.
We will consider the provisions in the circumstances to which they owe their origin.
We will consider the provisions to ensure coherence and consistency within the
law as a whole and to avoid undesirable consequeces.
Let me here add a word of caution. This
adventure, no doubt, enlarges our discretion as to interpretation. But it does
not imply Power to us or substitute our own notions of legislative intention.
It implies only a power of choice where differing constructions are possible
and different meanings are available.
For this purpose, we call in external and
internal aids.
External aids are: The statement of Objects and
Reasons when the Bill was presented to Parliament, the reports of the,
Committee, i any, preceded the l3ill. legislative history. other statutes in
parimateria and legislation in other States which pertain to the same sub-ject
matter.
Persons, things or relations.
Internal aids are: Preamble, Scheme. enacting
parts of the statutes, rules of languages and other provisions in the statutes.
The Act may now be analysed. The Act is a short
one consisting of 12 Sections. Section 3 provides power to the appropriate
Government to appoint a Commission of Inquiry for the purposes of making an
inquiry into any definite PG NO 169 matter of public importance. Section 4
confers upon a Commission of Inquiry certain powers of a Civil Court (for
example, summoning and enforcing the attendance of witnesses and examining them
on oath, etc.). Section 5 empowers the appropriate Government to confer some
additional powers on a Commission of Inquiry. Section 5(a) authorises the Commission
to utilise the service of any officer or investigating agency for the purpose
of conducting any investigation pertaining to inquiry entrusted to the
Commission. Section 6 confers upon persons giving evidence before the
Commission protection from prosecution except for perjury. The other sections
are not important for our purpose except Section 8. Section 8 provides
procedure to be followed by the Commission. The Commission is given power to
regulate its own procedure and also to decide whether to sit in public or in
private.
The Statement of Objects and Reasons of the
original Act reads:
"It is felt that there should be a general
law authorising Government to appoint an inquiring authority on any matter of
public importance, whenever considered necessary, or when a demand to that
effect is made by the legislature and that such law should enable to inquiring
authority to exercise certain specific powers including the powers to summon
witnesses, to take evidence on oath, and to compel person to furnish
information. The bill is designed to achieve this object It will be clear from
these provisions that the Act was intended cover matters of public importance.
In matters of public importance it may be necessary for the Government to fix
the responsibility on individuals or to kill harmful rumours. The ordinary law
of the land may not fit in such cases apart from it is time consuming.
The Commission under our Act is given the power
to regulate its own procedure and also to decide whether to sit in camera or in
public. A Commission appointed under the Act does not decide any dispute. There
are no parties before the Commission. There is no list. The Commission is not a
Court except for a limited purpose. The procedure of the Commission is
inquisitorial rather than accusatorial. The Commission more often may have to
give assurance to persons giving evidence before it that their statements will
not be used in any subsequent proceedings except for perjury.
Without such an assurance, the may not come
forward to give statements. If persons have got lurking fear that their PG NO
170 statements given before' the Commission are likely to be used against them
or utilised for productive use on them any other proceeding, they may be
reluctant to expose themselves before the Commission. Then the Commission would
not be able to perform its task. The Commission would not be able to reach the
nuggests of truth from the obscure horizon. The purpose for which the
Commission is constituted may be defeated.
The Court should avoid such construction to
Section 6 which may stultify the purpose of the Act. Section 6 must on the
other hand receive liberal construction so that the person deposing before the
Commission may get complete immunity except in a case of prosecution for perjury.
That is possible if the word "against" used in sec. 6 is properly
understood. The meaning given in Black's Law Dictionary supports such
construction (at 57):
"Against-Adverse to, contrary ......
Sometimes meaning "Upon", which is almost, synonymous with word
"on"..." Apart from that, it may also be noted that Section 6
contains only one exception. That is a prosecution for giving false evidence b
such statement. When the Legislature has expressly provided a singular
exception to the provisions, it has to be normally understood that other
exceptions are ruled out.
The view that I have taken gets confirmation
from the report of the Royal Commission on Tribunals of Inquiry ( ]966). Before
referring to the report, it will be useful to have before us, the relevant
provisions of the English statutes which are not materially dissimilar to our
Act.
There are two English statutes which may be
looked into: (i) The Special Commission Act, 1888; and (ii) The Tribunals of
Inquiry (Evidence) Act, 1921. Section 9 of the Special Commission Act, 1988
provides:
"9- - - - - - A witness examined under this
Act shall n of be excused from answering any question put to him no the ground
of any privilege or on the ground that the answer thereto may criminate or tend
to criminate himself.
Provided that no evidence taken under this Act
shall this Act shall be admissible against any person in any civil or criminal
proceeding except in the case of u witness accused of having given false
evidence in any inquiry under this Act . . . . . " (Emphasis supplied) PG
NO 171 Section 1(3) of the Tribunals of Inquiry (Evidence) Act, 1921, provides:
"A witness before any such tribunal shall
be entitled to the same immunities and privileges as if he were a witness
before the High Court or the Court of Session.'' Section 9 of the Special
Commission Act, 1888 protects the witness in every respect except in a
prosecution for giving false evidence by such statement. It provides that the
evidence given by him shall be inadmissible in any civil or criminal
proceedings. Section 1(3) of the Tribunals of Inquiry (Evidence) Act, 1921
provides only a limited or partial immunity to a witness. It is similar to the
immunity afforded to a witness before the High Court or the Court of Session.
In 1966, the Royal Commission on Tribunals of
Inquiry was constituted under the Chairmanship of the Rt. Hon. Lord Justice
Salmon. The Commission was appointed to review the working of the Tribunals of
Inquiry (Evidence) Act, 1921, and to consider whether it should be retained or
replaced by some other provision. The Commission was also authorised to suggest
any changes in the Act as are necessary or desirable; and to make
recommendations. The Royal Commission in its report at para 63 recommended:
(vii): Further Immunity:
63. "Section 1(3) of the Act of 1921
provides that a witness before any Tribunal shall be entitled to the same
immunities and privileges as if he were a witness before the High Court or the
Court of Session. This means that he cannot be sued for anything he says in
evidence e.g. if he says "A is a liar. His evidence is untrue." A
cannot sue him for defamation. It does not mean however that his answer as a
witness cannot be used in evidence against him in any subsequent civil or
criminal proceedings. We consider the witness's immunity should be extended so
that neither his evidence before the Tribunal nor his statement to the Treasury
Solicitor, nor any documents he is required to produce to the Tribunal, shall
be used against him in any subsequent civil or criminal proceedings except in
criminal proceedings in which he is charged with having given false evidence
before the Tribunal or conspired with or procured others to do so. This
extension of the witness's immunity would bring the law in this country into line
in this respect with similar provision in the legislation of Canada, Australia and India and indeed with sec. 9
of the Special Commission Act, 1888.
PG NO 172 It would also, in our view, be of
considerable assistance in obtaining relevant evidence, for persons may be
chary of coming forward for fear of exposing themselves to the risk of
prosecution or an action in the civil courts.
Moreover, the suggested extension of the
immunity would make it difficult for a witness to refuse to answer a question on
that ground that his answer might tend to incriminate him. Thus not only would
the witness be afforded a further measure of protection but the Tribunal would
also be helped in arriving at the truth." The Royal Commission appears to
have thoroughly examined the provisions as to immunity to witnesses in the
legislations of Canda. Australia and India and sec. 9 of the Special Commission Act, l988 The Commission has
stated that the immunity provided to witnesses under sec. 1(3) of the Act, l92l
is insufficient for the purpose of advancing the object of the Act. It should
be extended so that the statement of a witness before the Tribunal shall not be
used against him in any subsequent civil or criminal proceedings except in a
prosecution for perjury by giving false evidence before the Tribunal. The
extension of such immunity, according to the Royal Commission, would bring sec l(B)
of the Act, 1921 into line with the similar provisions in the legislations of Canada, Australia and lndia. The
legislation in India is the Commission of Inquiry Act. 1952 with which we are
concerned. It is apparent that the Royal Commission was of opinion that sec. 6
our Act provides complete Protection to witnesses in terms of sec. 9 of the-
Special Commission Act,. 1888. It means that the statement given before a
Commission shall not be admissible against the person in any subsequent civil
or criminal proceeding save for perjury.
There is. therefore, much to be said for the
observation made in Dalmia's case and indeed that is the proper construction to
be attributed to the language of sec. 6 of the Act. I respectfully affirm and
re-emphasise that view.
It is needless to State that the said decisions
of the High Court of Bombay and Assam are incorrect and they stand overruled.
Having reached this conclusion. it is strictly
unnecessary to fall back on the other contention raised by counsel the
appellants.
Let us now move on to the merits of the case
against each of the accused. But, before proceeding to consideration of the
merits, it will be appropriate to have regard to principles and precedents
followed by this Court while PG NO 173 dealing with an appeal under Art. 136 of
the Constitution.
There is a string of decisions laying down those
principles right from I95O. In Pritam Singn v. The State, AIR 1950 SC 169,
Fazal Ali.J. said (at 170).
"It would be opposed to all principles and
precedents if we were to constitute ourselves into a third Court of fact and.
after reweighing the evidence. come to a conclusion different from that arrived
at by the trial Judge and the High Court." In Hem Raj v. State of Ajmer, [1954l] SCR 113. M.C. Mahajan.CJ,
had this to say (at 1134):
Unless it is shown that exceptional and special
circumstances exist that substantial and grave injustice has been done and the
case in question presents features c,f sufficient gravity to warrant a review
of the decision appealed against, this Court does not exercise its overriding
powers under Art. 136(1) of the Constitution and the circumstance that because
the appeal has been admitted by special leave does not entitle the appellant to
open out whole case and contest all the findings of fact and raise every point
which could be raised in the High Court. Even at the final hearing only those
points call be urged which are fit to be urged at the preliminary stage when
the leave to appeal is asked for." More recently. in Bhoginohai Hirjibhai
v. State of Gujarat, AIR 1983 SC: 753
Thakkar,J., recounted (at 755):
"A concurrent finding of fact cannot be
reopened in an appeal, unless it is established: first that the finding is
based on no evidence or; second, that the finding is perverse, it being such as
no reasonable person could have arrived at even if the evidence was taken at
its face value or thirdly the finding is based and built on inadmissible
evidence, which evidence if excluded from vision, would negate the prosecution
case or substantially discredit or impair it or; fourthly, some vital piece of
evidence which would tilt the balance in favour of the convict has been overlooked,
disregarded or wrongly discarded. Bearing in mind these principles, let me take
up the case of Balbir Singh (A-2) first for consideration:
PG NO 174 Balbir Singh.
He was an officer of the Delhi Police in the
cadre of Sub-Inspectors. He was posted on duty at the PM's residence.
He was not on duty in the morning of October 31, 1984. His duty was to
commence in the evening on that day at the in- gate of Akbar Road. When reported for
duty, in the usual course, he was asked or go to the security police lines. At
about 3
a.m. on November 1, 1984, he was awakened from
his sleep and his house was searched by SI, Mahipal Singh (PW 50), Constable
Hari Chand (PW 17) and Inspector Shamshir Singh. Nothing except a printed book
on Sant Bhindrawala (Ex. PW l7/A) was recovered. At about 4 a.m., he was taken to Yamuna
Velodrome. He was kept there till late in the evening when he was released
from. what Kochar (PW 73) says. 'de facto custody'. On December 3, l984, he was
said to have been arrested at Najafgarh bus-stand. On December 4, 1984, he was produced before
the Magistrate, who remanded him to police custody. Thereafter, he expressed
his desire to make a confession. But when produced before the Magistrate, he
refused to make a statement confessional or otherwise. He was tried along with
the other accused for having entered into a criminal conspiracy to commit the
murder of the Prime Minister, Mrs. Indira Gandhi. He was convicted under sec.
302 read with sec. 17()-13 IPC and sentenced to death.
The charge-sheet contains the following
accusations against Balbir Singh:
That Balbir Singh, like other accused. had
expressed his resentment openly, holding Smt. Indira Gandhi responsible for the
"Blue Star Operation". He was planning to commit the murder of Smt.
Indira Gandhi. He discussed his plans with Beant Singh (deceased). who had
similar plans to commit the murder. He also shared his intention and prompted
accused Satwant Singh to commit the murder of Smt. Indira Gandhi and finally
discussed the matter with him on October 30,1984.
In the first week of September 1984, a falcon
(Baaj) happened to sit on a tree near the main Reception of the Prime
Minister's house at about 1.30 pm. Balbir Singh spotted the falcon. He called
Beant Singh there. Both of them agreed that it had brought a message of the
Tenth Guru of the Sikhs and they should do something by way of revenge PG NO
175 of the "Blue Star Operation". Thereafter, they performed 'Ardas'
then and there.
These accusations are sought to be established
by the testimony of SI, Madan Lal Sharma (PW 13), Constable Satish Chander
Singh (PW 52), SI Amarjit Singh (PW 44) and the confession of Satwant Singh
(Ex. PW ll/C). The prosecution also strongly rely upon a document described as
"memorandum of events" (Ex. PW 26/B) said to have been recovered upon
the arrest of Balbir Singh on December 3. 1984. His leave applications (Ex. PW
26/E-I to E-5) and his post crime conduct as to absconding are also relied
upon.
The case of Balbir Singh is that the document
Ex. PW 26/B was not recovered from his possession as made out by the
prosecution. His arrest at Najafgarh bus-stand was a make believe arrangement.
He was not arrested there and indeed he could not have been arrested, since he
was all along under police custody right from the day when he was taken to
Yamuna Velodrome on November 1, l984. He was not absconding and the question of
absconding did not arise when he was not released at all. No question was put
to him under sec. 313 examination that he had absconded. It is argued that the
conclusions of the High Court on all these matters are apparently
unsustainable.
Before examining these contentions, it will be
better to dispose of the point common to this accused and Kehar Singh (A-3)
relating to the validity of sentence of death awarded to them.
It is urged that there was no charge against the
accused under sec 109 of the IPC and without such a charge, they are liable to
be sentenced only for the offence of abetment and not for the murder. Reliance
is placed on the provisions of sec. 120-B IPC which provides, inter alia that a
party to a criminal conspiracy shall be punished in the same manner as if he
had abetted such offence. The contention. is really ill-founded. It overlooks
the vital difference between the two crimes; (i) abetment in any conspiracy,
(ii) criminal conspiracy. The former is defined under the second clause of sec.
107 and the latter is under sec. 120-A. Section 107, so far as it is relevant, provides:
"107. A person abets the doing of a thing,
Firstly .............................
PG NO 176 Secondly-Engages with one or more
other person or persons in any conspiracy for the doing of that thing. if an
act or illegal omission takes place in pursuance of that conspiracy, and in
order to the doing of that thing; or Thirdly .......................
Section l09 provides:
"Whoever abets any offence, shall, if the
act abetted is committed in consequence of the abetment and no express
provision is made by this Code for the Punishment such abetment, be punished
with the punishment provided for the offence." Criminal conspiracy is
defined under sec. 120-A :
"120-A. When two or more persons agree to
do, or cause to be done- (1) an illegal act, or (2) an act, which is not
illegal by illegal means, such agreement is designated a criminal conspiracy-:
xx xx xx xx xx Punishment for criminal
conspiracy is provided under sec. 120-B:
"120-B (1) Whoever is a party to a criminal
conspiracy to commit an offence punishable with death. imprisonment for life or
regorous imprisonment for a term of two years or upwards, shall, where no
express provision is made in this Code for the Punishment of such conspiracy,
be punished in the same manner as if he had abetted such offence.
(2) xx xx xx xx xx" The concept of criminal
conspiracy will be death with in detail a little later. For the present, it may
be sufficient to state that the gist of the offence of criminal conspiracy
created under sec. 120-A is a bare agreement to commit an offence. It has been
made punishable under sec. 120-B. The offence of abetment created under the
second clause of sec.
PG NO 177 107 requires that there must be
something more than a mere conspiracy. There must be some act or illegal
omission in pursuance of that conspiracy. That would be evident by the wordings
of sec. 107 (Secondly): "engages in any conspiracy omission takes place in
pursuance of that conspiracy are also quite different. Section 109 IPC is
concerned only with the punishment of abetments for which no express provision
is made under theIndian Penal Code. A charge under sec. 109 should, therefore,
be along with some other substantive offence committed in consequence of
abetment.
The offence of criminal conspiracy is, on the
other hand, an independent offence. It is made punishable under sec. 120-B for
which a charge under sec. 109 IPC is unnecessary and indeed, inappropriate. The
following observation of Das, J., in Pramatha Nath Taluqdur v. Saroj Ranjan
Sarkar. [1962] (Supp) 2 SCR 297 at 320 also supports my view:
"Put very briefly, the distinction between
the offence of abetment under the second clause of s. 107 and that of criminal
conspiracy under s. 120-A is this. In the former offence a mere combination of
persons or agreement between them is no enough. An act or illegal omission must
take place in pursuance of the conspiracy and in order to the doing of the
thing conspired for: in the latter offence the mere agreement is enough, if the
agreement is to commit an offence.
So far as abetment by conspiracy is concerned
the abettor will be liable to punishment under varying circumstances detailed
in ss. 108 to 117. It is unnecessary to detail those circumstances for the
present case. For the offence of criminal conspiracy it is punishable under s.
120-B." This takes me back to the other contentions specifically urged on
behalf of Balbir Singh. Of the evidence relied upon by the prosecution, the
document Ex. PW 26/B is said to be the most important. The High Court has
accepted it "as revealing a coherent story of participation of the accused
in the conspiracy. " The High Court also said: "the document shows
beyond doubt that Balbir Singh was all along in the picture and associated with
Beant Singh and Satwant Singh".
Before us, the criticisms against this document
are various and varied. It may be stated and indeed cannot be disputed that the
genuineness of the document is inextricably connected with the arrest and
search of the accused at PG NO 178 Najafgarh Bus Stand. The document was
recovered from the accused upon arrest and search made under sec. 51 of the
Code. If the arrest cannot carry conviction then the recovery automatically
falls to the ground. Not merely that, even the allegation that the accused had
absconded vanishes to thin air.
The police at the earliest moment suspected
Balbir Singh as a person involved in the conspiracy to murder the Prime
Minister. After midnight, they arrived at his residence.
They knocked on the door and made him to get up
from his bed. They searched his house and found nothing incriminating against
him. They took him to Yamuna Velodrome doubtless upon arrest. The plain fact is
that Balbir Singh was kept under custody throughout the day. At 6 PM, he was seen at the
Yamuna Velodrome by Rameshwara Singh (PW 51). The case of the prosecution
however, is that Balbir Singh was released thereafter and he was absconding
till he was arrested on December 3, 1984 at Najafgarh Bus Station. The accused challenges this
version. The Courts do not interfere in the discretion of the police in matters
of arrest, search and release of persons suspected in criminal cases. But the
courts do insist that it should be done according to law. If the prosecution
say that the accused was released from custody and the accused denies it, it
will be for the prosecution to place material on record in support of the
version. Admittely, there is no record indicating the release of Balbir Singh
from Yamuna Velodrome. The explanation given is that Yamuna Velodrome being not
a Police Station. registers were not maintained to account for the incoming and
outgoing suspects. It is hardly an explanation where life and death questions
are involved.
Again, the question of absconding by the accused
remains unanswered. First, there is no material to lend credence to this
serious allegation. Nobody has been asked to search him. No police party has
been sent to track him. No procedure contemplated under law has been taken.
Second, there is no evidence from which place the accused came and landed at
Najafgarh Bus Stand. Kochar (PW 73) has deposed that he had secret information
at 2PM on December 3, 1984 that the accused was
likely to visit Najafgarh Bus Stand. He went along with Sant Ram (PW 35),
Sub-Inspector of Crime Branch. There they saw the accused at the Bus Stand.
Before he was arrested, Kochar personally interrogated him at the electricity
office near the Najafgarh Bus Stand. The interrogation went on for more than
one hour. Yet, Kochar could not locate the place from where the accused came to
Najafgarh Bus Stand. Upon arrest, it is said that the police have recovered
certain articles including Ex. PW 26/B under the seizure memo (Ex. PW 35/A).
But there is no independent PG NO 179 witness for the seizure memo. Third, no
question as to absconding was put to the accused in the examination under sec.
313 of the Code. What was put to him under question No. 52 was that he had
remained absent from duty from November 4, 1984 till December 3, 1984. That is not the same
thing to ask that the accused had absconded during that period. For that
question, the accused replied that he was under police detention from November 1, 1984 till December 3, 1984 and there was no
question of his attending the duty during that period. He was also stated that
he was formally arrested on December 3, 1984 and till then he was under Police detention.
Realising the weakness in this part of the case,
learned Additional Solicitor General relied upon the averments in the
application moved by the police for remanding the accused to police custody. lt
was stated in the remand application dated December 4, l9d4 that Balbir Singh
had absconded and was not available: for interrogation. It was also stated
therein that Balbir Singh was arrested at Najafgarh Bus stand on December 3, 1984. Shri S.L. Khanna,
Additional C.M.M., remanded the accused to police custody till December 6. The
order of remand was signed by the accused. It is argued that the accused being
a police officer did not object to the allegations made against him in the
remand application. I do not think that this contention requires serious
consideration. The averments in the remand application are only self-serving.
The silence of the accused cannot he construed his admission of those
allegations.
There is yet another feature to which I should
draw attention. The prosecution want to establish the recovery of Ex. PW 26/B
from the accused by other contemporaneous document. Reference in this context
is made to the Malkana Register of the Tughlak Road Police Station. Entry 986
in the Malkana Register, according to the learned Additional Solicitor General,
contains verbatim copy of the seizure memo (Ex. PW 35/A) and it is indicative
of the fact that Ex. PW 26/B was recovered from the accused upon his arrest and
search. Here again there is some difficulty. There is an endorsement in the Malkana
Register stating that the DTC ticket which the accused carried and the paper
containing the dates in English (Ex. PW 26/B) were not deposited.
Malkana Register, therefore, is of little
assistance to the prosecution.
In view of these infirmities, the arrest of the
accused at Najafgarh Bus Stand does not inspire confidence. This by itself is
sufficient to discard the document Ex. PW. 26/B.
PG NO 180 Let me also examine the contents of
the document which has been highlighted by the High Court. The document can be
taken to be in the handwriting of Balbir Singh to avoid reference to
unnecessary evidence. But that in my opinion, does not advance the case of
prosecution. The document is a sheet of paper in which we find the following
entries:
"June 1984 - Army operation - felt like
killing - Put on duty outside No. 1 S.J. Road against at - Dalip Singh No. 1 S.J. Road - Proceeded
on leave for 30 days July 1984 - Dalip & Varinder Singh visited my house, -
Dalip took me to Gurbaksh's house where Santa Singh also met.
- Dalip Singh 8r Gurbaksh visited my house
Mavalankar Hall - Went to Ghaziabad - I visited Gurbaksh Singh's house-for
Hemkunt - I visited Gurbaksh Singh's house.-" - Back from leave August
1984 - Met Amarjit Singh & Beant Singh - Dalip Singh Virender Singh etc.
met at Bangala Sahib - Mavalankar Hall/Gurupurab at Bangla Sahib 3rd Week -
Harpal Singh/Virender - Beant Singh/Eagle meeting at - Beant Singh decision to
start constructive work PG NO 181 September 1984 - Visited Gurbaksh Singh's
house-Dalip & a boy Narinder Singh/Virender - Leave for 4/5 days 26 - 1000
Visited Gurbaksh's house & learned about the boy October 1984 - Narinder
Singh - Leave for 4/5 days 22nd - Beant Singh - Leave for 4 days-Dalip Singh
& Mohinder Singh visited 28 30 - Satwant - 31 - " The accused is not a
rustic person. He is a Sub- Inspector of Police with several years of service
to his credit. He must have investigated so many crimes. He must have
anticipated the danger of carrying incriminating document when he was already suspected
to be a party to the deadly conspiracy. Unable to compromise myself with any
reason. I sought the assistance of learned Additional Solicitor General. He too
could not give any explanation.
Indeed, nobody could offer even a plausible
explanation for this unusual conduct attributed to the accused. To my mind, to
say that the absconding accused-Sub Inspector was found at a public place in
the national capital with an incriminating document which may take him to
gallows is to insult the understanding, if not the intelligence, of police
force of this country.
That is one aspect. The other aspect relates to
the assessment of inherent value of the document. A bare reading of the
document, as rightly urged for the accused, shows that this is a document composed
at one time with the same ink and same writing instrument. The corrections, the
fixing of months and dates with the nature of entries therein PG NO 182
apparently indicate that the document was not kept as a contemporaneous record
of events relating to Balbir Singh.
The fact that it was not in the possession of
the accused when his house was searched in the early hours of November 1, 1984 also confirms this
conclusion.
In the document, there is no reference to
killing of the Prime Minister. In fact, except for a "felt like
killing" in early June as an immediate reaction to the "Blue Star
Operation", even the manifestation of this feeling does not exist anywhere
in subsequent out of the document. The document refers to bare meetings, visits
of persons, or visiting somebody's house. It is, however, not possible to find
out to whom the document was intended to be used.
In the document, Beant Singh is referred to at
four places. At one place, there is a reference to Beant Singh with eagle (not
falcon). The cross mark of X closely followed by long arrow mark in the
document indicates the indecision of the author or somebody is straining his
memory. There is no reference to a joint 'Ardas' or a message for revenge
associated with the appearance of eagle.
The entry does not suggest that the author had
anything to do with the eagle. It is something between Beant Singh alone and
the eagle. It is significant that there is no reference to Beant Singh and his
plans to murder the Prime Minister.
There is no reference to bombs or grenades
associated with the plans to eliminate the Prime Minister before the 15th August, 1984. There is no reference
to any commission of any offence. There is no reference about Beant Singh
conspiring with Balbir Singh. There is no reference to Kehar Singh at all. If
Balbir Singh was a party to the conspiracy with Beant Singh, the date on which
Beant Singh had placed the murder of Mrs. Gandhi, that is, 25 October, I984 as
written in Ex.P.39 ought to have been noted in Ex. PW Z6/B. We do not find any
reference to that date. There is a cryptic reference to Satwant Singh against
30th October and it must be with reference to the evidence of Constable Satish
Chander Singh (PW 52) whose evidence no Court of law could believe. PW 52 was a
Sentry in the Prime Minister's security. According to him, Balbir Singh was on
duty on October
30, 1984
at a distance of about 5-7 steps from his point of duty. He states that Satwant
Singh came to meet Balbir Singh at 8 PM on that day. He further states that they talked
something in Punjabi which he could not follow, as he did not know Punjabi. The
only one entry which makes a reference to killing is the second entry. It
refers to "felt like killing". But one does not know who "felt
like killing" and killing whom? It may be somebody's reaction to the
"Blue Star Operation". If the document is read as a whole, it does
not reveal anything incriminating against Balbir Singh.
PG NO 183 Before considering the other matters
against Balbir Singh, it will be useful to consider the concept of criminal
conspiracy under secs. 120-A and 120-B of IPC. These provisions have brought
the Law of Conspiracy in India in line with the English law by making the overtact unessential
when the conspiracy is to commit any punishable offence. The English Law on
this matter is well-settled. The following passage from Russell on Crime (12
Ed. Vol. I, 202) may be usefully noted:
"The gist of the offence of conspiracy then
lies, not in doing the act, or effecting the purpose for which the conspiracy
is formed, nor in attempting to do them, nor in inciting others to do them, but
in the forming of the scheme or agreement between the parties. Agreement is
essential.
Mere knowledge, or even discussion, of the plan
is not, per se, enough. " Glanville Williams in the "Criminal
Law" (Second Ed. 382) explains the proposition with an illustration :
"The question arose in an Iowa case, but it was
discussed in terms of conspiracy rather than of accessoryship. D, who had a
grievance against P, told E that if he would whip P someone would pay his fine.
E replied that he did not want anyone to pay his fine, that he had a grievance
of his own against P and that he would whip him at the first opportunity. E
whipped P. D was acquired of conspiracy because there was no agreement for
"concert of action". no agreement to "co-operate"."
Coleridge, J., while summing up the case to Jury in Regina v. Murphy, (173 Eng. Reports 508)
pertinently states:
"I am bound to tell you, that although the
common design is the root of the charge, it is not necessary to prove that
these two parties came together and actually agreed in terms to have this
common design and to pursue it by common means, and so to carry it into
execution. This is not necessary, because in many cases of the most clearly
established conspiracies there are no means or proving any such thing, and
neither law nor common sense requires that it should be PG NO 184 proved. If
you find that these two person pursued by their acts the same object, often by
the same means, one performing one part of an act, so as to complete it, with a
view to the attainment of the object which they were pursuing, you will be at
liberty to draw the conclusion that they have been engaged in a conspiracy to
effect that object. The question you have to ask yourselves is, "Had they
this common design, and did they pursue it by these common means-the design
being unlawful?" It will be thus seen that the most important ingredient
of the offence of conspiracy is the agreement between two or more persons to do
an illegal act. The illegal act may or may not be done in pursuance of
agreement, but the very agreement is an offence and is punishable. Reference to
secs-120-A and 120-B IPC would make these aspects clear beyond doubt. Entering
into an agreement by two or more persons to do an illegal act or legal act by
illegal means is the very quintessence of the offence of conspiracy.
Generally, a conspiracy is hatched in secrecy
and it may be difficult to adduce direct evidence of the same. The prosecution
will of ten rely on evidence of acts of various parties to infer that they were
done in reference to their common intention. The prosecution will also more
often rely upon circumstantial evidence. The conspiracy can be undoubtedly
proved by such evidence direct or circumstantial. But the Court must enquire
whether the two persons are independently pursuing the same end or they have
come together to the pursuit of the unlawful object. The former does not render
them conspirators, but the latter is.
It is however, essential that the offence of
conspiracy requires some kind of physical manifestation of agreement.
The express agreement, however, need not be
proved. Nor actual meeting of two persons is necessary. Nor it is necessary to Prove
the actual words of communication. The evidence as to transmission of thoughts
sharing the unlawful design may be sufficient. Gerald Orchard of University of
Canterbury,
New
Zealand
(Criminal Law Review I974, 297 at 299 explains the limited nature of this
proposition:
"Although it is not in doubt that the
offence requires some physical manifestation of agreement, it is important to
note the limited nature of this proposition. The law does not require that the
act of agreement take any particular form and the fact of agreement may be
communicated by words or conduct. Thus, it has been said that it is unnecessary
to PG NO 185 prove that the parties "actually came together and agreed in
terms" to pursue the unlawful object; there need never have been in express
verbal agreement, it being sufficient that there was "a tacit
understanding between conspirators as to what should be done." I share
this opinion, but hasten to add that the relative acts of conduct of the
parties must be conscientious and clear to mark their concurrence as to what
should be done. The concurrence cannot be inferred by a group of irrelevant
facts artfully arranged so as to give an appearance of coherence. The
innocuous, innocent or inadvertent events and incidents should not enter the
judicial verdict. We must thus be strictly on our guard.
It is suggested that in view of sec. 10 of the
Evidence Act, the relevancy of evidence in proof of conspiracy in India is wider in scope than
that in English Law. Section 10 of the Evidence Act introduced the doctrine of
agency and if the conditions laid down therein are satisfied, the acts done by
one are admissible against the co-conspirators.
Section 10 reads:
"10. Where there is reasonable ground to
believe that two or more persons have conspired together to commit an offence
or an actionable wrong, anything said, done or written by any one of such
persons in reference to their common intention, after the time when such
intention was first entertained by any one of them, is a relevant fact as
against each of the persons believed to be so conspiring, as well for the
purpose of proving the existence of the conspiracy as for the purpose of
showing that any such person was a party to it." From an analysis of the
section, it will be seen that sec. 10 will come into play only when the court
is satisfied that there is reasonable ground to believe that two or more
persons have conspired together to commit an offence. There should be, in other
words. a prima facie evidence that the person was a party to the conspiracy
before his acts can be used against his co-conspirator. Once such prima facie
evidence exists, anything said, done or written by one of the conspirators in
reference to the common intention, after the said intention was first
entertained, is relevant against the others. It is relevant not only for the
purpose of proving the existence of conspiracy, but also for proving that the
other person was a party to it. It is true that the observaions of Subba Rao,
J., in Sardar Sardul Singh PG NO 186 Caveeshar v. State of Maharashtra, [1964] 2 SCR 378 lend
support to the contention that the admissibility of evidence as between
co-conspirators would be liberal than in English Law. The learned Judge said
(at 390) :
"The evidentiary value of the said acts is
limited by two circumstances, namely, that the acts shall be in reference to
their common intention and in respect of a period after such intention was
entertained by any one of them. The expression "in reference to their
common intention" is very comprehensive and it appears to have been
designedly used to give it a wider scope than the words "in furtherance
of" in the English Law; with the result, anything said, done or written by
a co-conspirator, after the conspiracy was formed, will be evidence against the
other before he entered the field of conspiracy or after he left it . . . . . .
." But, with respect, the above observations that the words of sec. 10
have been designedly used to give a wider scope than the concept of conspiracy
in English Law, may not be accurate. This particular aspect of the law has been
considered by the Privy Council in Mirza Akbar v. king Emperor, AIR 1940 PC 176
at 180, where Lord Wright said that there is no difference in principle in
Indian Law in view of sec. 10 of the Evidence Act.
The decision of the Privy Council in Mirza
Akbar's care has been reterred to with approval in Sardul Singh Caveeshar v.
The State of Bombay, [1958] SCR 161 at where Jagannadhadas, J., said:
"The limits of the admissibiliy of evidence
in conspiracy case under s.10 of the Evidence Act have been authoritatively
laid down by the Privy Council in Mirza Akbar v. The KIng Emperor, (supra). In
that case, their Evidence Act must be construed in accordance with the
principle that the thing done. written or spoken, was something done in
carrying out the conspiracy and was receivable as a step in the proof of the
conspiracy. They notice that evidence receivable under s. 10 of the Evidence
Act of "anything said done or written, by one of such persons" (i.e.,
conspirators) must he "in reference to their common intention." But
their Lordships held that in the context (notwithstanding the amplitude of the
above phrase) PG NO 187 the words therein are not capable of being widely
construed having regard to the well-known principle above enunciated." In
the light of these principles, the other evidence against Balbir Singh may now
be considered. The High Court has summarised that evidence (leaving out of
account the confession of Satwant Singh and the evidence of Amarjit Singh) as
follows:
"Summing up, then. the evidence against
Balbir Singh, leaving out of account for the time being the confession of
Satwant Singh and the evidence of Amarjit Singh, the position is as follows :
He was an officer on security duty at the PM's house. He knew Beant Singh and
Satwant Singh well. He shared the indignation of Beant Singh against Smt.
Chandni for 'Operation Blue Star' and was in a
mood to avenge the same. He went on leave from 25.6.84 to 26.7.84.
On his return he met Beant Singh and Amarjit
Singh. He was present at the occasion of the appearance of the eagle and their
association on that date is horne out by Ex. PW 26/8.
He is known to have talked to Satwant Singh on
30th October. 1984......" I do not think that the High Court was justified
in attaching importance to any on of th aforesaid circumstances in proof of the
conspiracy. The High Court first said, Balbir Singh was an officer on security
duty at the PM's house. But like him, there were several sikh officers on
security duty at the PM's house. It was next stated, Balbir Singh knew Beant
Singh and Satwant Singh well. Our attention has not been drawn to any evidence
to show intimacy between Balbir Singh and Beant Singh or between Balbir Singh
and Satwant Sing. The High Court next said that Balbir Singh shared the
indignation of Beant Singh against Smt. Gandhi and was in a mood to average for
the "Blue Star Operation".
There is no acceptable evidence in this regard. From
the testimony of SI, Madan Lal Sharma (PW 13). all that we could gather is that
after the "Blue Star Operation" Balbir Singh was in agitated mood and
he used to say that thee responsibility of damaging 'Akal Takhat' lies with
Smt. Gandhi and it would be avenged of by them. This is not to say that Balbir Singh
wanted to take revenge against the Prime Minister along with Beant Singh. The
High Court said not take into consideration such resentment expressed by Kehar
Singh (A-3) and indeed it would be proper not to take notice of such general
dissatisfaction. It is not an offence to form one's own opinion on government
action. It is on PG NO 188 record that some members of the sikh community felt
agitated over the "Blue Star Operation". The resentment was also
expressed by some of the Sikh employees of the Delhi Police posted for PM's
security. In fact, the chargesheet against all the accused is founded on those
averments. Amarjit Singh (PW 44) specifically refers to this in the course of
his evidence. Resentment of the accused on "Blue Star Operation"
should, therefore, be excluded from consideration. The High Court next depended
upon the earned leave taken by Balbir Singh for the period from June 15 to July
76. 1984. The High Court rightly did not give significance to casual leave
applications of Balbir Singh (Ex. PW Z6/E-I to E-5). I fail to see why taking
of earned leave should assume importance.
There is no material that Balbir Singh took
earned leave for any sinister purpose or design. There is no evidence that
during the said period, he met Beant Singh or anybody else connected with the
conspiracy. It is, therefore, totally an innocuous circumstance. The High Court
next said that Balbir Singh, on his return from leave, met Beant Singh and
Amarjit Singh. No other specific meeting has come to light except the meeting referred
to by Amarjit Singh (PW 44) which I will presently consider. The High Court
lastly relied upon the act of offering 'Ardas' to falcon on its appearance at
the PM's house in the first week of September, 1984. This is also from the
evidence of Amarjit Singh (PW-44). Assuming that falcon did appear and sat on a
tree ia the PM's house and that Beant Singh and Balbir Singh did offer 'Ardas'
on the occasion. there is, as the High Court has observed.
"nothing unusual or abnormal about the
incident". The sanctity of the falcon as associated with the Tenth Guru is
not denied. They offered 'Ardas' in the presence of so many class IV employees
in the PM's house. The last act of Balbir Singh, referred to by the High Court,
was his meeting with Satwant Singh on October 30, 1984. That has been referred
to by Satish Chander Singh (PW 52), whose evidence as earlier seen has got only
to be referred to he rejected. In my opinion, all the facts and circumstances
above recited are either irrelevant or explainable. No guilty knowledge of the
contemplated assassination of the Prime Minister could be attributed to Balbir
Singh on those facts and circumstances.
It now remains to be seen whether the evidence
of Amarjit Singh (PW 44) is acceptable or whether it is inherently infirm and
insufficient. There are grave criticisms against this witness. [ will only
examine some of them. The relationship between him and Balbir Singh was
anything but cordial. It was indeed casual. They were not on visiting terms.
Amarjit Singh was not even invited to attend the marriage of Balbir Singh. That
was the type of connection that existed between them. Yet, Amarjit Singh PG NO
189 deposes that Balbir Singh and Beant Singh used to keep him informed
regularly about their plan of action to murder the Minister. He wants the court
to believe that he was in a position to advise the conspirators against any
such move.
It is too difficult to accept this self styled
advisor. As a faithful security officer, he was duty bound to alert his
superiors about any danger to the Prime Minister. He knew that responsibility
as he admits in his evidence, but failed to perform his duty. To place reliance
on his testimony would be to put a premium on his irresponsibility.
The police have recorded three statements from
Amarjit Singh on three different dates. The first statement (Ex. PW 44/DA) was
recorded on November
24, 1984.
After 25 days, the second statement (Ex. PW 44/DB) was recorded on December 19, 1984. Both were under sec.
161 of the Code. Again on December 21, 1984, the third statement (Ex. PW 44/A) under sec.
164 of the Code came to be recorded. In the first statement, there is no
express involvement of Balbir Singh.
The second statement, according to the witness,
was recorded at his own instance. He deposes before the Court:
"It did not occur to me that assassination
was the handywork of Balbir Singh and Kehar Singh after i Had learnt about the
firing and death of Smt. Indira Gandhi. I on recalling earlier talk realised on
24.11.I983 that the assassination of Mrs. Gandhi was the handywork of Shri
Balbir Singh and Shri Kehar Singh. Then I went to Shri R. P Sharma who recorded
my statement on 24.11.1984. It is correct that I recall things bit th bit. It
is correct that there is a difference in my statement PW 44/DA and PW 44/DB.
It is because many question were not put to me
earlier and, therefore, I did not mention them in my first statement." He
thus admits that there is difference between the first and second statements.
But the High Court said that there is no improvement or after thought so as to
implicate Balbir Singh. The approach of the High Court appears to be incorrect.
Amarjit Singh (PW 44) states before the Court;
".... In the first week of August 1984, I
had a talk with Beant Singh. Then he told me that he would not let Mrs.
Indira Gandhi unfuri the flag on 15th August.
Shri Balbir Singh also used to tell me that if he could get remote control bomb
and his children are sent outside India, then he also could finish Mrs. Indira Gandhi.
I used to think that he was angry and I used to tell him that he should not
think in these terms ........
xx xx xx xx xx In the third week of October,
1984, Balbir Singh told me that Beant Singh and his family have been to Golden Temple along with Kehar Singh,
her Phoopha. He further told that SI Beant Singh and Constable Satwant Singh
had taken Amrit in Sector V1, R.K. Puram, New Delhi at the instance of Shri Kehar Singh." In
the first statement (Ex. PW 44/DA), there is no reference to Balbir Singh
telling the witness that if he could get remote control bomb and his children
are Sent outside India, he could also finish Mrs. Indira Gandhi.
There he has stated:
"In the end of September, 1984, SI Balbir
Singh met me once in the Prime Minister's house and told me that Beant Singh
wanted to kill the Prime Minister before 15th of August. He (Beant Singh) had
agreed to kill her Prime Minister) with a grenade and remote control but this
task was to be put off because the same could not bee arranged Actual words
being `IN DONO CHEEZON KA INTEZAMNAHIN HO SAKA IS LIYE BATTAL GAYE'."
Again in the first statement (Ex. PW 44/DA) what he stated was:
"In the third week of October. 1984, Beant
Singh, SI met me and told me that he had procured one constable, actual words
being 'October, 1984 KE TEESRE HAFTE MEIN BEANT SINGH MUJHE MILA AUR USNE
BATAYA KE USNE EK SIPAHI PATAYA HAI' and that now both of them would put an end
to Smt. Indira Gandhi's life very soon." The discrepancies between the
first version and the evidence in Court are not immaterial. They are
substantial and on material points. The witness is putting the words of Beant
Singh into the mouth of Balbir Singh and thereby creating circumstances against
the latter.
PG NO 191 Lastly, the reference is made to the
confession of Satwant Singh (Ex. PW ll/C) to support the prosecution version.
But it is as much a bad step as others in this case. The confession of a
co-accused could be used only to lend assurance to the conclusion on the
acceptable evidence against the accused. When by all the testimony in the case,
Balbir Singh's involvement in the conspiracy is not established, the confession
of Satwant Singh cannot advance the prosecution case. Even otherwise, the
reference in the confession as to the conspiracy between Balbir Singh and Beant
Singh was not within the personal knowledge of Satwant Singh. He refers to
Beant Singh consulting Balbir Singh and "advising, to kill PM. It is not
clear who told him and when? Such a vague statement is of little use even to
lend assurance to any acceptable case against Balbir Singh.
In my judgment, the evidence produced by the
prosecution against Balbir Singh is defective as well as deficient. It is
safer, there-fore, to err in acquitting than in convicting him.
Kehar Singh (A-3):
Kehar Singh was an Assistant in the Directorate
General of Supply and Disposal, New Delhi. The case against him is:
That he was a religious tanatic. He had intense
hate against. Mrs. Indira Gandhi for causing damage to the Akal Takhat by the
"Blue Star Operation". He was in a position to influence Beant Singh.
since he was the uncle of Beant Singh's wife called as `Poopha'. He converted
Beant Singh and through him satwant Singh to religious bigotry. He made them to
undergo "Amrit Chakhan Ceremony" on October 14, 1984 and October 24, 1984 respectively at
Gurudwara, R.K. Puram, New Delhi. He also took Beant Singh to Golden Temple.
Amritsar on October 20, 1984.
The prosecution, in support of the case that he
was a party to the conspiracy to murder Mrs. Indira Gandhi, relied on the
following:
(1) Ujagar Sandhu incident;
(2) Darshan Singh incident
(3) Amrit Chakhan ceremony; and
(4) Amritsar trip.
Besides, the prosecution relied upon his
reaction to "Blue Star Operation", attendance in office, post crime
conduct, and a pamphlet in "Gurumukhi, captioned "Indira De
Sikh". The recovery of gold ring belonging to Beant Singh from the
residence of this accused was also depended upon.
PG NO 192 Both the courts have generally
accepted the prosecution version and held that the conspiracy to assassinate
Mrs. Indira Gandhi was hatched out by all the three persons, that is, Kehar
Singh, Beant Singh, and Satwant Singh.
I will first try to eliminate the irrelevant
evidence against the accused. The prosecution examined three witnesses to prove
the reaction of the accused to "Blue Star Operation": O.P. Sharma (PW
3 ), Darshan Singh Jaggi (PW 32), and Krishan Lal Uppal (PW 33). The witnesses
have testified that Kehar Singh was very uphappy at the consequences of
"Blue Star Operation" and he considered that Smt. Gandhi was
responsible for the same. In fairness to the accused, shall be kept out of
account for the reasons given by me while discussing the case of Balbir Singh.
I shall also exclude from consideration the pamphlet captioned ,,lndira De
Sikh" (Ex. P. 53) and the connected evidence of Raj Bir Singh (PW 54), Bal
Kishan Tanwar, ACP (PW 63) and Daya Nand (PW 66). That pamphlet in
"Gurumukhi" no doubt, contains vitriolic attack on Mrs. Indira
Gandhi. But it was recovered from an open drawer of the office table to Kehar
Singh when he was not in office. It is a printed matter. lt does not show that
Kehar Singh was the author of it. Nor there is any evidence to indicate that
Kehar Singh has had anything to do with it.
I shalI not take notice of "Darshan Singh
incident" either. It was alleged to have occured in the Gurudwara, Moti
Bagh. New
Delhi,
couple of days before Raksha Bandhan day (August 18, 1984). It appears that there
was a kirtan of Prof. Darshan Singh, who spoke very movingly about the
consequences of "Blue Star Operation". Kehar Singh and Beant Singh
were said to be present on the occasion. After hearing the speech of Prof.
Darshan Singh, Beant Singh was found to be sobbing. Thereupon, Kehar Singh told
him that he should not weep, but take revenge. This has been spoken to by Inder
Bir Singh (PW 68). This incident has a story behind. In the newspaper `Tribune'
dated November
25, 1994,
there was an article (Ex.D.62/ X) written by certain Prabhojot Singh. The
article goes by the headline `Profile of an Assassin'. It was written therein:
"There was a sudden transformation in the
thinking of Beant Singh after the Army action. He started accompanying his
uncle Kehar Singh, an Assistant in the office of the Director General Supplies
and Disposal to Gurudwara Moti Bagh. In July, a noted Ragi from Punjab performed "virag
katha" at the Gurudwara. Beant Singh was moved and reportedly starting
crying. It was at this stage, Kehar Singh him not to cry, but to take
revenge"," PG NO 193 The investing agency has admittedly secured that
Newspaper well time. It was preserved i their office file. K. P. Sharma (PW 70)
has deposed to this. But he examined PW 68 only on July 3, 1985, that is after the
accused were committed to take their trial. It is said that the news item in
Tribune is very vague and despite the best efforts, none except PW 68 could be
secured till july 3.
This is unacceptable. The said article furnished
sufficient leads: like "Vrag Katha" noted Ragi Moti Bagh Gurudwara,
the month of july Kehar Singh and Beant Singh together attending the function,
etc. The author of the article is Prabhojot Sig. The investigating officer
could have got some more particulars if Probhojot Singh had been approached. But
nobody approaced im. Nor anybody from the said Gurudwara has been examined. The
function in which the noted Prof. Darshan Singh ragi participated could not
have been an insignificant function. A large number of local people, if not
from far off places would have attended the function. No attempt appears to
have been made in these directions to ascertain the truth of the version given
in the "Tribune, PW 68 is a solitary witness to speak about the matter. He
claims to know Kehar Singh but not Beant Singh. It is not safe to accept his
version without corroboration.
Let me now descend to the relevant material
against the accused. Ujagar Sandhu' incident is relevant and may be taken note
of. The incident is in connection with celebration of the birthday of a child
in Sandhu's house to which Kehar Singh alone was invited but not Beant Singh.
Kehar Singh, however, persuaded Beant Singh and
Mrs. Bimla Khalsa (PW 65) to accompany him. They went together and participated
in the function. Bimla Khalsa swears to this.
It is common ground that there were inciting ad
provocating Bhajans i that function. The provocating Bhajans were in the
context of destruction of Akal Takhat by the "Blue Star Operation".
But it is argued that there is no evidence that Beant Singh and his wife were
deliberately taken by Kehar Singh to expose them to provocative Bhajans. There
may not be any such evidence, but it ma not be non sequitur when on takes and
uninvited guest of such function in the circumstances of this case.
The incident on October 17, 19084 in the house of
Beant Singh, to which Bimla Khalsa testifies, is more positive. It plainly
indicates that Kehar Singh and Beant Singh were combined and conspiring
together. She has deposed that Kehar Singh came to her house and was closeted
with Beant Singh on PG NO 194 the roof for about 18/15 minutes. There was hush
trust talk between them which could not be over-heard by Bimla Khalsa, as she
was in the kitchen. That evoked suspicion in her mind. She did consider if I
may use her own words "their talk as something secret". There, then,
she enquired from Kehar Singh ,,as to what they were talking thereupon'?"
Kehar Singh replied that the talks were ''with regard to making somebody to
take Amrit". Bimla Khalsa remarked: "that taking Amrit was not such a
thing as to talk secretly." She was perfectly right in her remark. There
cannot be a secret talk about Amrit taking ceremony. It is a religious
function. Kehar Singh might have realised that it would be difficult to explain
his conduct without exposing himself.
He came with cryptic reply: "There was
nothing particular".
Bimla khalsa further deposed that in the same
evening Kehar Singh took meals in her house alongwith her husband and Satwant
Singh who later joined them.
Apparently, Beant Singh did not like his wife
enquiring about the exchange of secret information between him and Kehar Singh.
On October
30, 1984,
when they were in Amritsar, Beant Singh has asked his wife why she had questioned Kehar
Singh as to what they were talking on the roof on October 17, 1984.
It may be pertinently asked: Why did Kehar Singh
and Beant Singh suppress the conversation? Why did Kehar Singh give such reply
to Bimla Khalsa If the conversation related to taking of Amrit by Beant Singh
or his wife, there was no necessity to have a secret talk. since Beant Singh
and Bimla Khalsa had already taken Amrit by then. Kehar Singh knew it and in
fact he had accompanied Bimla Khalsa for that ceremony. The said conversation
as the High Court has observed could be only to further the prosecution of the
conspiracy. Satwant Singh later joining them for meals lends credence to this
conclusion.
An endeavour is made to impeach Bimla Khalsa. first,
on the ground that she turned hostile, and second, that she was examined
belatedly. 1 must state that merely because she turned hostile. her evidence
cannot be discarded. That is a well accepted proposition. She had no, axe to
grind against any person. She gains nothing by telling falsehood or incorrect
things against Kehar Singh. She has revealed what she was told and what she had
witnessed on October
13, 1984
in her own house. There is, therefore, no reason to discard that part of her
testimony. As to the second complaint, it is true that the police did not
record her statement PG NO 195 immediately atter the incident. That is
under-standable. She has lost her husband. She was in immeasurable grief.She
ought to be allowed time to compose herself. Both the objections raised against
her testimony are, therefore, not sound.
Beant Singh appears to have planned to murder
Mrs. Gandhi on October 25, 1984. It has been indicated by his own writing on the text Bof
the `Vak' recovered on search of his house at 3 AM on November 1,1984. Balraj Nanda (PW 16)
who searched his house along with others recovered a book under the title
"Bhindrawala Sant" (Ex. P. 36). Inside the book, a copy of
`Hukamnama' (Vak) dated October 13. 1984 written in saffron ink was found (Ex.
P. 3c)). On the reverse of Ex. P. 39, the following two dates are written:
"25. 10, 1984- 1 Yes. 26, 10, 1984-Yes 8 AM to 10AM." This writing has
been proved to be that of Beant Singh.
It has been established by the evidence of Bimla
Khalsa and the testimony of other witnesses. Bimla Khalsa has stated that Ex.
P. 39 is in the handwriting of Beant Singh on both sides there of. The evidence
of P.C. Maiti (PW 24), Additional Director, Institute of Criminology and Forensic Science, New Delhi and S.K. Sharma (PW
35), Assistant Director (Documents) in the same lnstitute also confirms that
fact.
Against this background, the visit to Amritsar assumes importance. On October 20, 1984, Kehar Singh and Kehar
Singh and Beant Singh along with their family members went to Amritsar. There they stayed in
the house of one Mr. M. R. Singh (PW 53). Bimla Khalsa states that they reached
Amritsar at 2-3 YM and went to
Darbar Sahib Gurudwara in the same evening. While ladies and children were
listening to, kirtan, Beant Singh and Kehar Singh went to see the Akal Takhat.
Bimla Khalsa wanted to accompany them to see the Akal Takhat, but she was told
to see the same on the next morning. What Happened on the next day is still
more curious. In the early hours. PW 53 was woken up by Kehar Singh and told
that he would attend "Asa ki War-Kirtan" in Darbar Sahib. So stating,
he went along with Beant Singh.
The ladies and children were left behind. They
went to Darbar Sahib, at 8 AM along with PW 53. They returned home at 11 AM and had lunch with PW
53. Beant Singh and Kehar Singh did not join them for lunch. nor they returned
to that: house of PW 53. PW 53 took the ladies and children to, Railway Station
to catch the train for the return journey.
Beant Singh and Kehar Singh appeared there and
all of them left by the same train. What is significant to note herein is about
the relative character ofKehar Singh and Beant Singh. Even at the most sacred
place they remained isolated from their wives and children. No wonder, birds of
the same feather fly together.
PG NO 196 It is suggested that Kehar Singh being
an elderly person and a devout religious Sikh was keeping company with Beant
Singh to dissuade the latter from taking any drastic action against Mrs.
Gandhi. J wish that Kehar Singh had done that and given good advice to Beant
Singh. He had the opportunity to bring Beant Singh back to the royal path, but
unfortunately, he did nothing of that kind. lf he had not approved the
assassination of the Prime Minister, Beant Singh would not have grafted Satwant
Singh to the conspiracy. Secondly, if.Kehar Singh was really interested in
redeeming Beant Singh, he would have taken the assistance of Bimla Khalsa. He
did not do that even. She was deliberately not taken into confidence. She was
in fact kept in darkness even though she was inqnisitive to know their secret
talk.
It is true that there is no substantive evidence
from the testimony of Bimla Khalsa that Beant Singh took Amrit on October 14, 1984 at the instance of
Kehar Singh. Bimla Khalsa has only stated "1 cannot say if on the 14th
October, 1984, Beant Singh had taken Amrit at the instance of Kehar Singh in
Sector V1 , Gurudwara, R.K. Puram, but on the 13th October he was telling me
that he was going to take Amrit.''The fact, however, remains that Beant Singh
took Amrit on October. 14, 1984. Kehar Singh was undisputedly present at the
ceremony in which Bimla Khalsa took Amrit. It may not be, therefore,
unreasonable to state that he must have been present when Beant Singh also took
Amrit. The recovery made from his house supports this inference. It is said
that while taking Amrit or thereafter, the person is not expected to wear gold
ornaments. Beant Singh had gold `kara' (Ex. P. 27) and ring (Ex. P. 28). These
two articles were recovered by the investigating agency from the house of Kehar
Singh. That is not disputed before us. Beant Singh must have entrusted the
articles to Kehar Singh at the time of his taking Amrit. It also shows the
significant part played by Kehar Singh in taking Amrit by Beant Singh.
It is true that taking Amrit by itself may not
have any sinister significance. lt is a religious ceremony and `Amrit' is taken
only to `lead a life of spartan purity giving up all worldly pleasures and evil
habits'. But, unfortunately, the assassins have misused that sacred religious
ceremony for ulterior purposes.
The post crime conduct of Kehar Singh is conclusive
of his guilt.He was cognizant of all the details of the coming tragedy and
waiting to receive the news on that fateful day.
PG NO 197 That would be clear from the testimony
of Nand Lal Mehta (PW 59) who was an office colleague of Kehar Singh. He has
deposed that Kehar Singh had met him in the third floor corridor of the office
at about 10.45
AM on October 31,1984.
By that time, the news of the murderous attack
on the Nation's Prime Minister came like a thunderbolt from a clear sky. The
messenger had told that `somebody' had shot at Mrs. Gandhi. PW 59 then enquired
from Kehar Singh' as to what had happened. Kehar Singh replied that
"whosover would take confrontation with the panth, he would meet the same
fate. " So stating, he went away. It may be noted that at that time, there
was no specific information to the outside world whether any Sikh had shot the
Prime Minister or anybody else. Unless Kehar Singh had prior knowledge, he
could not have reacted with those words.
To sum up: His close and continued association
with Beant Singh; his deliberate attempt to exclude Mrs. Bimla Khalsa from
their company and conversation; his secret talk with Beant Singh followed by
taking meals together with Satwant Singh; his keeping the gold `Kara' and
'ring' of Beant Singh; and his post crime conduct taken together along with
other material on record are stronger as evidence of guilt then even direct
testimony. I agree with the conclusion of the High Court that Kehar Singh was
one of the conspirators to murder Mrs. Gandhi, though not for all the reasons
stated.
Satwant Singh (A - 1).- He was a constable in
the Delhi Police recruited on January 11, 1982 After training, he was posted in
the Fifth Batallion of the Delhi Armed Police (DAP). After further commando
training. he was posted in the Second Batallion of the DAP. Thereafter, he was
posted in the `C' company of the Batallion at the lines on Teen Murti Lane where he reported for
security duty at the Prime Minister's house on July 2, 1983.
There are three charges against Satwant Singh:
(i) Section 302 read with 120-B and 34 PC
Murdering the Prime Minister Mrs. Indira Gandhi; (ii) Section 307 IPC for the
attempted murder of Rameshwar Dayal (PW 10 ): and (ii) Section 37 of the Arms
Act.
PG NO 198 In proof of these charges, the
prosecution have examined three eye witnesses to the occurrence. Narain Singh
(PW 9), Rameshwar Dayal (PW 10) and Nathu Ram (PW 64). Besides, Sukhvir Singh
(PW 3) Raj Singh (PW 15), Deshpal Singh (PW 43) and Ganga Singh (PW 49) also
been examined.
On October 31, 1984, in the usual course.
Satwant Singh was put on security at Best No. 4 in the Akbar Road House (not at
the TMC Gate). This has been confirmed by the daily diary maintained at Teen
Murti (Ex. PW l4/C)-(Entry No. 85).
Raj Singh (PW 15) has testified to this entry.
Satwant Singh was given arm and ammunition. He was issued SAF Carbine
(Sten-gun) having Butt No. 80 along with 5 magazines and 100 live rounds of 9
mm ammunition. In acknowledgment thereof, he has signed the register (Ex. PW
3/A). Sukhvir Singh (PW 3) had deposed to this. With the said arm and
ammunition, Satwant Singh left Teen Murti Lines at about 6.45 AM to take up his
duty at Beat No. 4. But he did not go to that spot.
The case of the prosecution is that Satwant
Singh had got exchanged his place of duty to carry out the conspiracy he had
with Beant Singh to murder Mrs. Gandhi. But, on the other hand, the accused
states that he had been `decoyed" to the TMC Gate by certain persons ;
that he was injured by the cross firing; that the felI down and was not in a
position to shoot the Prime Minister or anybody. The fact. however, remains
that Satwant Singh got exchanged his place of duty with that of Deshpal Singh (
PW 43). It appears that one Head Constable Kishan Lal No. 1109 allowed the
sentries to exchange their places since Singh was suffering from loose motions
and TMC Gate being nearer to a latrine. So, Deshpal Singh took up position at
Beat No. 4 while Satwant Singh TMC Gate.
Three eye witnesses to the occurrence:
(i) Narain Singh;
(ii) Rameshwar Dayal; and
(iii) Nathu Ram corroborate with each other on
all material particulars.
They had accompanied the Prime Minister on the
fateful day. They were able to see vividly, describe correctly and indentify
properly the persons who gunned down Mrs. Gandhi. Both the Courts below have
accepted them as natural and trustworthy witnesses.
Such a conclusion based on appreciation of
evidence is binding on this Court in the appeals under Act. 136. I may. however,
briefly refer to their evidence.
Narain Singh (PW 9) is a Head Constable. He was
on duty from 7.30 AM on October 31, 1984. He has deposed that at 8.45 AM, he came to know that
the Prime Minister had to go to No. 1 Akbar Road,to meet certain foreign foreign T.V.
representatives. He took up an umbrella and remained ready PG NO 199 to follow
the Prime Minister.
According to him, 9. 10 AM, Smt. Gandhi emerged
out of the house followed by Mr.R.K. Dhawan, Private Secretary and Nathu Ram
(PW 64). He has stated that he moved over to the right side of Mrs. Gandhi
holding the umbrella to protect her against the Sun. They proceeded towards the
TMC Gate. The TMC Gate was kept open, where Beant Singh was on the left side
and Satwant Singh on the right side. When they were about 10 or 11 feet from
the TMC Gate, Beant Singh took out his revolver from his right dub and fired at
Mrs. Gandhi. Immediately, Satwant Singh also started firing at Mrs. Gandhi with
his Sten-gun.Mrs.
Gandhi fell down. He threw away the umbrella,
took out his revolver and dashed towards Beant Singh to secure him. He saw Mr.
Bhatt, the personal guard of Mrs. Gandhi and ITBP personel arriving there and
securing Satwant Singh and Beant Singh. He noticed that Rameshwar Dayal (PW 10)
was also hit by bullets. He has further stated that the Doctor came running. Mrs.
Sonia Gandhi too. They lifted Mrs. Gandhi and placed in the rear seat of the
escort car that was brought there. Mrs. Gandhi was taken to the AIIMS
accompanied by the Doctor and Mrs. Sonia Gandhi on the back seat and Mr. Bhatt.
Mr. Dhawan and Mr. Fotedar on the front seat of the car. He also went to the
hospital where Kochar (PW 73) came and took his statement. That statement
formed the basis of the F.I.R. in the case.
There can be little doubt as to the presence, of
Narain Singh at the spot. His evidence receives full corroboration from the
other two eye witnesses. The umbrella (Ex. P. 19) which ho was holding has been
recovered from the place under the seizure memo ( Ex. PW 5/H ).
Rameshwar Dayal (PW 10) is an A.S.l. of Police.
He was on security duty at the PM's residence. He was also, the water attendant
in the pilot car of the Prime Minister. From his evidence, it will be seen that
he had gone to the pantry, in the PM's house and got thermos flasks with water,
napkins and glass. He was informed that the Prime Minister had an engagement
with a T.V. Team at the Akbar Road premises. He went there and saw the T.V.
Team. He met the gardner and asked for a `guldasta', but the gardner said that
he would prepare and get it. In the meantime, he saw the Prime Minister coming
out of the house and proceeding towards Akbar Road premises followed by Mr.
R.K. Dhawan and others. He also joined the entourage. Rest of his evidence is
identical in terms with that of Narain Singh (PW 9).
According to him, he ran to shield Mrs. Gandhi,
but was hit by bullets. undisputedly, he had suffered bullet injuries.
He was admitted to the AIIMS for treatment. The
Medico-legal PG NO 200 Certificate (MLC) issued by the AIIMS (Ex. 10/DA)
supports his version. No further corroboration is necessary to accept his
evidence.
Nathu Ram (PW 64) is also an eye witness. He was
a dedicated servant of Mrs. Gandhi. He was always with Mrs.
Gandhi not only when she was in power but also
when she was out of power. His duty was to clean and dust the library- cum-bed
room of the Prime Minister and then stand by in attendance. He has deposed that
he was informed by Mrs. Gandhi about the change ofprogramme in the morning of
October 3 1 and was asked to ring up to the makeup persons to come.
Accordingly, he called the make-up persons at 7.35 AM. After Mrs. Gandhi was
ready and left the room at about 9.05 AM, he followed her.. He has testified
that Mrs. Gandhi was accompanied by Mr. R.K. Dhawan and followed by Narain Singh
and Rameshwar Dayal. His evidence as to the relative acts of the two assassins
is consistent with the version of PW 9 and PW 10. As a faithful servant: he has
helped to lift and carry Mrs. Gandhi to the car. His presence at the spot was
most natural. His evidence is simple and straight-forward.
Ganga Singh (PW 49) has spoken to events that
immediately followed the assassination of the Prime Minister. He is a
lance-naik in the ITBP commando force placed on duty at the PM's residence.
When he heard the sound of fire arms from the TMC Gate, he ran to the spot as
duty bound. He found Mrs. Gandhi on the ground lying injured. He saw two
Sardars out of whom one was in uniform whom he identified in the Court as
Satwant Singh. He has deposed that his Inspector Tarsem Singh who also came
there made the Sardars hands up. He and other ITBP personnel secured the
Sardars and took them to guard room. At the spot, he took possession of
ruck-sack (Ex. P. 21) from Satwant Singh. The ruck-sack contained four
magazines of 9 mm carbine, two of which were full (one with 20 bullets and the
other with 30 bullets) and two empty.
The presence of Satwant Singh at TMC Gate is
also not in dispute and indeed it was admitted by him while answering question
No. 5l(A) in the examination under sec. 313 of the Code. What is important to
notice from the testimony of Ganga Singh is that Satwant Singh when apprehended
by him was not injured. He was taken safely to the guard room.
He did not receive any bullet injury in the
incident with which we are concerned. He must have been shot evidently inside
the guard room where he was taken for safe custody by the ITBP personnel. The
defence put forward by Satwant Singh that he was decoyed to the TMC gate where
he received bullet injury is therefore, patently false.
PG NO 201 The eye witnesses are not strangers to
the assassins.
They were familiar faces in the security ring of
the Prime Minister. Their presence with Mrs. Gandhi at the spot was not
accidental, but consistent with their duties. There was no scope for mistaken
identity since everything happened in the broad day light. Therefore, the
evidence thus far discussed itself is sufficient to bring home the guilt to
Satwant Singh on all the charges levelled against him.
If necessary, the records contain evidence as to
the identification of arms and ammunition entrusted to the assassins. I have
already referred to the evidence relating to the sten-gun (Ex. P. 4) and
ammunition delivered to Satwant Singh. The sten-gun along with 25 empties of the
sten-gun was recovered from the place of incident under the seizure memo (Ex.
PW 5/H). The revolver (Ex. P. 1) delivered to Beant Singh and 5 empties of the
revolver were also collected at the spot. Dr. T.D. Dogra (PW 5) while
conducting limited post-mortem examination has taken two bullets from the body
of Mrs. Gandhi; one from injury No. 1 and the other from injury No. 2. These
bullets along with the: arms recovered from the spot were sent for the opinion
of D G.R. Prasad (PW 12), Principal Scientific Officer, Ballistic Division,
GFSL, New Delhi. P.W. 12 has testified that the bullets recovered from the body
of Mrs. Gandhi are traceable to the sten-gun and the revolver. Similar is the
evidence with regad to the other bullets recovered from the place of incident.
The record also contains evidence about the total tally of the bullets fired
and the empties collected. lt is needless to discuss that evidence here.
It is, however, argued for the accused that the
finger prints found on the sten-gun were not tested for comparison and the two
bullets recovered from the body of Mrs. Gandhi were not examined for the traces
of blood or tissues. It is further said that the post-mortem examination
conducted by Dr. Dogra ought to have been full and complete to clinch the
issues. There is no substance in these contentions. It is not necessary to
confirm the finger prints on the sten-gun, as that of the accused when it is
proved that sten-gun was delivered to him. The examination of the bullets
recovered from the body of Mrs. Gandhi for the traces of blood or tissues is
also unnecessary, since one of the bullets taken by the Doctor tallied with the
sten-gun (Ex. P. 4). Equally, limited post-mortem examination conducted by Dr.
Dogra would not affect the merits of the case. It is not always necessary to
have a complete post-mortem in- every case.
Section 174 of the Code confers discretion to
the Police Officer not to send the body for post-mortem examination if there is
no doubt as to the cause of death. If the cause of PG NO 202 death is
absolutely certain and beyond the pale of doubt or controversy, it is
unnecessary to have the post-mortem done by Medical Officer. In the instant
case there was no controversy about the cause of death of Mrs. Gandhi. A
complete post-mortern of the of the body was therefore uncalled for.
From the aforesaid direct testimony coupled with
the other clinching circumstances available on record, there is not even an
iota of doubt about the crime committed by Satwant Singh. I agree with the High
Court that he is gulity of all the charges. In this view of the matter, it is
unnecessary to burden this case by reference to confession of Satwant Singh.
This takes me to the question of sentence.
Section 354(3) of the Code, 1973 marks a
significant shift in the legislative policy of awarding death sentence. Now the
normal sentence for murder is imprisonment for life and not sentence of death.
The Court is required to give special reasons for awarding death sentence.
Special reasons mean specific facts and circumstances obtained in the case
justifying the extreme penalty. This Court in Bachan Singh v. State of Punjab, [1980] 2 SCC 684 has
indicated certain guidelines to be applied to the facts of each individual case
where the question of imposing death sentence arises.
It was observed that in cases where there is no
proof of extreme culpability the extreme penalty need not be given.
It may be given only in rarest of rare Cases,
where there is no extenuating circumstance. In Machhi Singh v. Stare of Punjab,
11983] 3 SCR 413, this Court again indicated some principles as to what
constitute ,,the rarest of rare cases" which warrant the imposition of
death sentence. The High Court has carefully examined these principles and
given reasons why in this case, the death sentence alone should be awarded.
In my opinion, the punishment measured is
deserved.
There cannot be two opinions on this issue. The
"Blue Star Operation" was not directed to cause damage to Akal
Takhat.
Nor it was intended to hurt the religious feelings
of Sikhs.
The decision was taken by the responsible and
responsive Government in the national interest. The Prime Minister (late) Mrs.
Indira Gandhi was, however, made the target for the consequences of the
decision. The security guards who were duty bound to protect the Prime Minister
at the cost of their lives, themselves became the assasins. Incredible but
true. All values and all ideals in life; all norms and obligations are thrown
to the winds. It s a betrayal of the worst order. It is the most foul and
senseless assassination. The preparations for and the execution of this
egregious crime do deserve the dread sentence of the law.
PG NO 203 Having regard to the views which I
have expressed, I too would dismiss the appeals of Kehar Singh and Satwant
Singh, but allow the appeal of Balbir Singh by setting aside his conviction and
sentence, and acquitting him of all the charges.
Before parting with the case, I would like to
express my gratitude to counsel amicus curiae for their willingness to assist,
on behalf of the accused. With their profound learning and experience, they
have argued the case remarkably well. I must also place it on record my
appreciation about the deep learning and assiduity with which Mr. G. Ramaswami,
Additional Solicitor General assisted on behalf of the State. He was extremely
fair to the Court as well as to accused.
A.P.J.
Back