Report No. 33
64. Analysis of Comments received.-
We had circulated the proposal of the Central Bureau of Investigation for comments to State Governments and High Courts. We had also issued a Press Communique inviting any person or body interested to offer comments on the proposed amendment. The replies which we received may be classified under four heads:-
(a) Replies stating that they had no comments;
(b) Replies in favour of the amendment;
(c) Replies favouring the amendment partially, or with some qualification or modification;
(d) Replies opposed to the amendment.
65. Several replies state that they have no comments1. It may be stated that many High Courts2 fall under this category.
1. S. No. 31 (A State Government)
2. S. No. 7; S. No. 38; S. No. 42; S. No. 44 (High Courts); S. No, 40 (Some Judges of a High Court).
66. Some replies are in favour of the amendment1-2-3-4
1. S. Nos. 33 and 35 (High Courts); S. No. 40 (One Judge of a High Court); S. No. 55 (Some Judges of a High Court).
2. S. Nos. 33, 36, 45 and 51 (Administrations of Union Territories).
3. S. Nos. 41, 43 (State Governments).
4. S. No. 30 and 50 (Private bodies).
67. Some of the replies approve of the amendment only partially, or subject to certain qualifications or modifications. Thus, one High Court would like to exclude judicial officers from the proposed provision as, in its view, judicial officers should not be placed in the position of an informant.
The High Court has stated that this may result in a Judge becoming a witness in or even a party to a criminal prosecution. This is wholly undesirable from the point of view of the independence of the judiciary.
Further, that High Court1 has suggested that the provision should make it clear that a public servant is said to be aware of the commission of an offence when he has personal knowledge of the commission of an offence but not otherwise. In the reply of some of the Judges of another High Court2, it has been emphasised that mere hearsay information should not impose any such duty.
1. S. No. 52 (A High Court).
2. S. No. 55 (Some Judges of a High Court).
68. Two Judges of a High Court1 are in favour of the amendment, provided the Government is able to ensure that the public officers will not be victimised for making disclosures against their superior officers.
1. S. No. 39 (Two Judges of a High Court).
69. Some replies state10-11that every member of the public should be under the proposed obligation.
1. S. No. 34 (Three Judges of a High Court).
2. S. No. 40 (Some Judges of a High Court).
70. Some replies are totally opposed to the proposed amendment. Thus, the majority of the Judges of a High Court1 are opposed to it, as they think that it would serve no useful purpose. The Administration of a Union Territory2 is opposed to the amendment.
One Judge of a High Court 3, while not in favour of expressing any opinion until the proposed amendment is actually put in the form of a draft, has stated that the implication of this amendment is very serious.
1. S. No. 39 (Majority of the Judges of a High Court).
2. S. No. 49 (Administration of a Union Territory).
3. S. No. 55 (One Judge of a High Court).
71. The view of the Judge of a High Court (shared by three other Judges of that High Court) may be quoted1:-
'The object of the proposed amendment is, no doubt, laudable, but it has been drafted in too wide terms. It will not be practicable for every public servant to report about every commission of the offences in question of which the public servant may become aware. For example, if the commission of such an offence by a Railway servant comes to the notice of a public servant in course of a Railway journey, he will have to incur a grave risk of being himself prosecuted for giving false information, if he makes a report about such offences and the other passengers or the persons who paid the illegal gratification do not co-operate with him for some reason or other.
I, therefore, suggest that the words "who in course of the discharge of his duties as public servant becomes" should be added after the words "every public servant" and before the word "aware" in the first line of the draft of the proposed amendment.'.
1. S. No. 55 (Some Judges of a High Court).
72. In the reply of a State Government1, which is opposed to the proposal, the following points are made:-
"The proposed section 44 A seeks to make it a legal duty of public servants to give information about offences of bribery and corruption committed by other public servants. Such a legislation is unnecessary and ineffective because mere enactments cannot induce a public servant to give information or evidence against his fellow employees. Generally, public servants are reluctant to give such information for various reasons. A public servant aware of an offence of bribery or corruption may himself have shared the benefit derived from the offence. When he is not connected with that particular offence, he may be involved in some other cases which may be known to other public servants guilty in some particular cases.
The result will be that he will not dare to go against other public servants for fear of his own exposure by others. There are some other public servants who are honest but yet do not like to brand themselves as informers by giving information against their colleagues. Besides, a public servant will not be enthusiastic to give any information when the offender happens to be a public servant of some importance and position because his experience has shown that such an offender ultimately manages to get the cases against him dropped".
In the same reply2, it has been stated:-
"The proposed provision is not only unnecessary and ineffective; it will produce most undesirable consequences because the public servants will suspect one another as a potential informer against them".
1. S. No. 57 (A State Government).
2. S. No. 57 (A State Government).
73. In the reply of another State Government1, it has been stated-
"This Government also had occasion to examine the power regarding enquiries and investigations into cases of corruption at different stages. There was no occasion to feel that the enquiry or the investigation was at any time hampered by the lack of co-operation from public servants. No instance of any unwillingness on the part of any public servant to cooperate with the investigating agencies by furnishing any information regarding any corrupt practices to the investigating agencies has come to the notice of this Government. In view of this, in the opinion of this Government the proposed addition to section 44 of the Criminal Procedure Code may not be necessary as it is felt that such an amendment may cause embarrassment to public servants and might give occasion for harassment".
1. S. No. 60 (A State Government).
74. The wide difference of opinion revealed in these comments1 would also seem to justify a cautious approach in the matter.
1. Paras. 64 to 73, supra.