Central Bureau of Investigation Vs

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Central Bureau of Investigation Vs.Kumher Inquiry Commission and Ors.

Equivalent Citation: 1995(2)WLN291, MANU/RH/0381/1995

S.B. Civil Writ Petition Nos. 7217 of 1993 and 1700 of 1994, Decided On: 01.05.1995

Hon'ble Judges: M.P. Singh, J., HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

Subject: Civil: Law of Evidence

Acts/Rules/Orders:

CODE OF CRIMINAL PROCEDURE, 1973 - Section 35, CODE OF CRIMINAL

PROCEDURE, 1973 - Section 145, CODE OF CRIMINAL PROCEDURE, 1973 - Section

161, CODE OF CRIMINAL PROCEDURE, 1973 - Section 172, CODE OF CRIMINAL

PROCEDURE, 1973 - Section 173; COMMISSIONS OF INQUIRY ACT, 1952 - Section 3,COMMISSIONS OF INQUIRY ACT, 1952 - Section 4, COMMISSIONS OF INQUIRY

ACT, 1952 - Section 5; CONSTITUTION OF INDIA - Article 32, CONSTITUTION OF

INDIA - Article 226; INDIAN EVIDENCE ACT 1872 - Section 123, INDIAN EVIDENCE

ACT 1872 - Section 124

Disposition: Petition allowed

CaseNote:

Commission of Inquiry Act, 1952 - Section 4 and Rajasthan State Commission of

Inquiry (Procedure) Rules, 1969--Rule 2 and Evidence Act--Section 123 and 124--Production of case diaries Claiming of prevcilege--Jurisdiction of Commission to

inquiry about law and order situation at Kumher--Affidavits stating that documents

pertained to unpublished official record pertaining to affairs of State--Disclosure not in

public interest--Documents senstive in nature--Secreciy maintained in interest of

maintaining peace and public order--Disclosure to affect criminal trials and

investigation--Emerging of communal passion possible--Heidi affidavits disclose good

reasons for withholding documents.

The order notification dated 7.6.1992 passed by the State Government appointing the

Commission has confined the jurisdiction of the Commission only to the point of making

inquiries about the law and order situation prevailing at Kumher in the month of June, 1992.

Smt. Kusum Prasad and Shri M.R. Ranganathan, in their respective affidavits, have stated

that the documents pertained to the unpublished official records to the affairs of the State and

the disclosure of such would not be in the public interest. The communication sought to be

disclosed relates to official communication made in official confidence. These documents are

sensitive in nature. The secrecy is to be maintained in the interest of maintenance of security

and public order in the State. Disclosure of the contents of the case-diaries may affect the

criminal trial and investigation and the possibility of communal tension re-emerging couldalso not be ruled out. The Commission could not have expected these two officers to give the


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details mentioned in these documents claiming privilege. In my opinion, the affidavits have

disclosed good reasons for withholding the documents.

Writ Allowed

JUDGMENT

M.P. Singh, J.

1. These two connected writ petitions are directed against the common order dated

28.10.1993 passed by the Kumher Inquiry Commission, Jodhpur (Camp-Bharatpur), directing

the petitioners to prouduce:

1. the case diaries of case Nos. 220, 222, 223, 226, 227, 228, 229 and 230 of 1992 of the

Police Station-Kumher;

2. Rojnamchas containing wireless messages sent by and received at the Police Station-

Kumher on 1.6.92 and 2.6.92;

3. the report of the Intelligence Branch, Joint report of the Collector and Superintendent of

Police, Bharatpur, and inspection there of may be allowed to the parties;

4. the report of the Additional Superintendent of Police C.I.D. (Spl. Branch), Bharatpur Zone,

containing some material which shall not be in the public interest to be disclosed and this part

may not, therefore, be revealed to the parties;

5. the C. I. D. was also directed to produce the case-diaries Nos. 210, 218 and 219 of 1992;

6. the inspection was to be carried out by the parties in the presence of the Secretary or the

Dy.Secretary of the Commission, the parties shall not be entitled to copies of any of these

documents, certified or uncertified, except the First Information Reports.

2. Some incident took place at Kumher between the 1st June and 7th June of 1992 in which

about 17 persons lost their lives and a large number of persons-were seriously injured.

Damages were also caused to the personal properties. Sixteen criminal cases were registered

in respect of these incidents under the various provisions of the Indian Penal Code and

Scheduled Castes and Scheduled Tribes (Prevention of Attrooities) Act, 1989. It was a sort of

caste war between Jats and Jatavs who are the members of the Scheduled Castes.

3. Since the case was of a sensitive nature and the incident disturbed the law and order

situation, the Rajasthan Govemment, vide notification No. 32(2) Grah-9/92, dated 7th June,

1992, appointed a Commission under the Commissions of Inquiry Act, 1952 (in short, 'the

Act'). The Commission in pursuance of Rule 2 of the Rajasthan State Commissions of Inquiry

(Procedure)Rules, 1969 (in short, 'the Rules') issued a notification on 20th August, 1992


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inviting all the persons acquainted with the subject matter of the inquiry to make a statement

of facts.

4. In response to the notification, four sets of the statements have been filed:(i) by the State

Government; (ii) by Zila Nyay Sangharsh Samiti; (iii) by Society for Depressed people for

Social Justice, and; (iv) by Bhartiya Janta Yuva Morcha, Bharatpur. Some individual Jatavs

also filed affidavits, but did not file any statement of case.

5. 12th March, 1993 was the date fixed for evidence of the witnesses to be examined by the

State Government. On that date, an application was filed on behalf of Zila Nyay Sangharsh

Samiti, Bharatpur, praying for Summoning:

1. The F.I. Rs. of cases Nos. 210, 219, 229 and 230 of 1992 registered at police Station-

Kumher:

2. Case diaries of the aforesaidF.I.Rs.

3. Daily diary registers (Rojnamchas)of Police Station Kumher from 1st June, 1992 to 7th

June, 1992 with special reference to the entries concerning the registration and investigation

of all the F.I. Rs. as also the arrival and departure of the Police Officers in connection with

the investigation and law and order situation;

4. Various wireless messages sent and received regarding the above incidents from Kumher

to Bharatpur, Jaipur etc. and vice versa;

5. Various reports prepared by (i) Crime Branch (CID), Jaipur, and (ii) Special Branch

(CID),Jaipur, on the basis of visits of their officials and Informations collected by them;

6. Various reports submitted by the District Intelligence Bureau, Bharatpur;

7. Various reports submitted by the Intelligence Bureau (Ministry of Home Affairs) regarding

the incidents;

8. Various reports and findings of the C.B.I. relating to the incidents;

9. Various reports of Zone Office Bharatpur (Special Branch) submitted to the Police

Headquarters (special Branch);

10. Various reports prepared and sent by the then Collector Bharatpur to the higher

authorities regarding the incidents;

11. Various reports submitted by the Supdt. of Police and Addl. Supdt. of Police, Bharatpur

(Shri Mohan Singh) to the higher authorities;
http://f.i.rs/http://f.i.rs/http://f.i.rs/http://f.i.rs/


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12. Reports of the Incidents sent by the Dy. Inspector General of Police, Bharatpur to the

Police Headquarters, Jaipur, and;

13. Reports of series of incidents, which took place between 1st and 8th June, 1992,

submitted by the police Headquarters to the Chief Secretary and the Home Secretary of the

Government of Rajasthan, Jaipur.

6. Similar prayer was made on behalf of Bhartiya Janta Yuva Morcha, Bharatpur.

7. Since the matter had been handed over for investigation to the C.B.I., the Commission

passed an order on 15.4.1993 calling upon the C.B.I. to produce the case-diaries.

8. Though, the major portion of record was produced before the Commission on 27th and

28th of Sept., 1993 for its perusal, but there were serious objections for permitting the parties

to inspect these secret documents as the petitioners had claimed privilege.

9. The Commission vide its order dated 28th October, 1993 rejected theo objection of the

petitioners. The State Government and the C.B.I. were directed to produce case diaries and

other documents for inspection of general public. This resulted in filling the writ petitions.

10. The only question to be decided in this case is whether the Commission has exceeded its

jurisdiction in passing the order directing the State Government and the C.B.I., to produce the

documents for i nspection over which privilege has been claimed.

11. The Commission has, been appointed under Section 3 of the Act. Its functions and powersare contained to Section 4, which runs as follows:

4.Powers of Commission. The Commission shall have the powers of a Civil Court while

trying a suit under the Code of Civil Procedure, 1908 in respect of the following matters,

namely:

(a) summoning and enforcing the attendance of any person from any part of India and

examining him on path;

(b) requiring the discovery and production of any document; (C) receiving evidence on

affidavits;

(d) requisitioning any public record or copy thereof from any court or office;

(e) issuing commissions for the examination of witnesses or documents;

(f) any other matter which may be prescribed.

12. Additional powers of the Commission are mentioned in Section 5 of the Act.


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13. The aims and objects of the Act in appointing a Commission is to enquire into the matter

and submit the report to the Government. The Commission is not a Court but has certain

powers of the Civil Court as conferred by Section 4 of the Act. It does not decide any dispute.

There, are, no parties before it. There is no lis even before it. Of course, it has to examine

witnesses in order to find out the cause of incident and may suggest some preventivemeasures and also bring to the notice of the Government about the lapses on the part of the

administration, if there were any. It has no power of adjudication. The inquiry made by the

Commission is entirely different from the Civil litigation or the criminal proceedings pending

before any other court. It is only a recommendatory agency without any power of enforcing

the report.

14. In the instant case the order notification dated 7.6.1992 passed by the State Government

appointing the Commission has confined the jurisdiction of the Commission only to the point

of making inquiries about the law and order situation prevailing at Kumher in the month of

June, 1992.

15. While claiming privilege, Smt.Kusum Prasad (the then Principal Secretary, Department

of Home Affairs, Government of Rajasthan at Jaipur) being the Head of the Department

pertaining to Home Affairs, fllled for personal affidavit. It was stated that the copies of the

various reports prepared by the Crime Branch, Jaipur, District Intelligence Branch; copies of

the various reports of Zone Officer, Bharatpur (Special Branch), submitted to Police

Headquarters (Special Branch), relate to the police (Intelligence Branch) of the state and

pertained to unpublished official records to the affairs of the State. Disclosure of such

information will cause injury to the public interest so it was considered fit to withhold suchinformation. The information, thus, sought to be disclosed, relates to official communication

which has been made in official confidence, their disclosure would be against the public

interest. These documents are confidential and sensitive in nature.

16. Copies of the various reports prepared and sent by the then Collector, Bharatpur, to higher

authorities regarding this incident, report submitted by the then Superintendent of Police and

Addl.Superintendent of Police, Bharatpur, the reports of this incident sent by the then Dy.

Inspector General of Police, Bharatpur Range, Bharatpur, were not sent by these officers

separately. There is only one Joint report sent by the then Collector and then Superintendent

of Police about this incident. This information is always kept secret and confidential and is

contained in the unpublished official records relating to the affairs of the State. These reports

are kept secret in the interest of maintenance of security and public order in the State. Case

diaries, copies of daily register (Rojnamchas) of Police Station-Kumher from 1.6.1992 to

7.6.1992 are now with the C.B.I., as the investigation had been entrusted to this Agency.

17. Case diaries relate to entries pertaining to day to day investigation. Daily diary relates to

movement, duties of Police Officers and other matters. The cases are still under investigation.

Wireless messages were always kept secret and confidential and contained in the unpublished

record relating to the affairs of the State. They are always required to be kept secret in thepublic interest and maintenance of security.


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18. On behalf of the C.B.I., an affidavit of Shri M.R. Ranganathan (the then Secretary

(Personnel) Ministry of Personnel, Public Grievances and Pension, Government of India,

New Delhi, has been filed. Privilege has been claimed by stating that case diaries are

unpublished official records relating to the affairs of the State and also contained

communication made in official confidence. Their disclosure would be against the publicinterest and would defeat the interest of the cases pending investigation and trial. These case

diaries are the unpublished official record relating to the affairs of the State which includes

the stages of investigation and valuable evidences. They also contained various

connunications made by various officers in official confidence. The disclosure of crucial

evidence at this pre-mature juncture may Jeopardize the harmony amongst different castes

and consequently communal tension may re-emerge in the society and thereby the valuable

evidence collected during the course of investigation may prove futile.

19. Case diaries contained certain seized papers/documents vis-a-vis daily dairy of Kumher

Police Station, case-diaries and wireless messages sent by different officers from Bharatpurto Jaipur are all confidential in nature. Therefore, privilege was claimed.

20. Entire documents can be divided into two groups:

(i) The First information Reports and case-diaries;

(ii) Rojnamchas, wireless messages pertaining to Police Station-Kumher and various reports

of various Branches of police Department, Collector-Bharatpur, relating to these incidents.

21. So far as the First Information Reports are concerned, no privilege is being claimed by the

petitioners. The respondents are entitled to get copies thereof. The controversy now confines

to the documents other than the First Information Reports.

22. The privilege regarding case diaries is to be examined first. Privilege has been claimed

under Section 172 and 173 of the Cr.P.C. and Sections 123 and 124 of the Indian Evidence

Act. The provisions of Section 172 have of be critically examined, which run as follows:

172 Diary of proceedings in investigation:(i) Every police officer making an investigation

under this Chapter shall day by day enter his proceedings in the investigation in a diary,setting forth the time at which the Information reached him, the time at which he began and

closed his investigation, the place or places visited by him, and a statement of the

circumstances ascertained through his investigation.

(2)Any Criminal Court may send for the police diaries of a case under inquiry or trial in such

Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or

trial.

(3) Neither the accused not his agents shall be entitled to call for such diaries, not shall he or

they be entitled to see them merely because they are referred to by the Court; but, if they areused by the police officer who made them to refresh his memory, of if the court uses them for


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the purposes of contradicting such police officer,the provisions of Section 161 or Section

145, as the case may be, of the India Evidence Act, 1872(1 of 1872), shall apply.

23. Under this provision it is only the criminal court which may send for the police diaries of

a case under inquiry or trial in such court and may use such diaries, not as evidence in the

case, but to aid it in such inquiry, or trial. Sub-section (3) specifically provides that neither

the accused, nor his agents shall be entitled to see them merely because they are referred to

by the Court. This power has been only given to a Criminal Court. The Commission while

exercising the power under Section 4 of the Act does not have the power of the criminal

court. It exercises the power of the Civil court only for limited purposes. Under Clause (d) of

Section 4 of the Act, the Commission can requisition any public record or copy thereof from

any Court or office. But the question is-what jurisdiction it has to make this document

available to general public for inspection.

24. The dispute regarding production of case diaries was first considered by the SupremeCourt in the case of Khatri v. State of Bihar reported in MANU/SC/0163/1981 :

[1981]3SCR145 . Whreein it was observed:

This bar can obviously have no application where a case diary is sought to be produced and

used in evidence In a civil proceeding or in a proceeding under Articles 32 or 226 of the

Constitution and particularly when the party calling for the case diary is neither an accused

nor his agent in respect of the offence to which the case diary relates. Now plainly and

unquestionably the present writ petition which has been filed under Article 226 of the

Constitution to enforce the fundamental right guaranteed Under Artiole 21 is neither an

'inquiry' nor a'trial'nor an offence nor is this Court hearing the writ petition as a Criminal

Court nor are the petitioners, accused or their agents so far as the offence arising out of their

blinding are concerned. Therefore, even if the report submitted by Shri L.V. Singh as a result

of his investigation, could be said to form part of 'case diary' it is difficult to see how their

production and use, in the present writ petition under Article 32 of the Constitution could be

said to be barred under Section 172.

25. While discussing the matter, the Supreme Court has expressed the view that the reports

made by Shri L.V. Singh, as a result of investigation carried out by him and his associates,

were relevant under Section 35 and they were liable to be produced by the State Governmentand used in evidence in the writ petition. Of course, the evidentiary value of the case shall be

decided by the Court. The Supreme Court had no occasion to consider the jurisdiction of the

Criminal Court, Civil Court or the Commission. So, the view expressed therein will have no

relevance to this case. It only examined the powers of High Court or the Supreme Court

under Articles 226 or 32 of the Constitution, respectively. The Commission does not have

that power.

26. An identical point came for consideration before the Allhahabad High Court in the case of

Mahabirji Birajman v. Prem Narain Shukia reported in MANU/UP/0141/1965 :

AIR1965All494 , in which it was held:


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The case diary contains not only the statements of witnesses recorded under Section 161, Cr.

P.C. and the site plan or other documents prepared by the Investigating Officer, but also

reports or observations of the Investigating Officer or his superiors. These reports are of a

confidential nature and privilege can be claimed thereof. Further, the disclosure of the

contents of such reports cannot help any of the parties to the litigation, as the reportinvariably contains the opinion of such officers and their opinion is inadmissible in evidence.

27. This judgment was subsequently considered and affirmed by the Supreme Court in the

case reported in MANU/SC/0322/1988 : AIR1989SC144 (Mukund Lal v. Union of India)

holding that the Criminal Court has unfettered power or examine the entries in the case

diaries. If there is any inconsistency of contradiction arising in the context of the case diary,

the Court can use the entries for the purpose of contradicting the Police Officer as provided in

Sub-section (3) of Section 172 of the Cr. P.C. The Court was further of the opinion that

nobody has a right to receive information of this privilege document.

28. It was contended on behalf of the petitioners that the case-diary may contain some

reference about informants and its disclosure may endanger their lives. In my opinion, the

submission has ... substance to be accepted. In the impugned order reference was made to the

order of the Jain Commission and also to Shri Krishna Commission, but it has not been

pointed out whether the Commission has permitted the general public the inspection of case

diaries and the order attained finality. The petitioners have no objection if the Commission

itself examines the case-diaries, but without making them available for inspection to general

public. Moreover, the major part of the record has already been filed before the Commission

for inspection. Commission's jurisdiction for perusal of these case diaries has not beenchallenged at any stage. The similar view has been expressed by this Court in the case

reported in R.L.W 1978. 220 (Prabhu Ram v. State of Rajasthan).

29. The main contention of the learned Counsel appealing on behalf of the respondent

Commission was that in the affidavits filed by Smt. Kusum Prasad and Shri M.R.

Ranganathan no details have been mentioned on the basis of which the privilege was being

claimed but when he was confronted With the question as to what detailed information did

the Commission expect from these two officers, he had no answer. Thus, I am of the view

that the affidavit filed by these two Officers suffer from no vagueness and minimum

requirements have been mentioned.

30. Now the provision of Sections 123 and 124 of the Indian Evidence Act under which the

privilege has been claimed, may also be examined, They run as follows:

123. Evidence as to affairs of State:No one shall be permitted to give any evidence derived

from unpublished official records relating to any affairs of State, except with the permission

of the officer at the head of the department concerned, who shall give or withhold such

permission as he thinks fit.


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124. Official communications.--No public officer shall be compelled to disclose

communications made to him In official confidence, when he considers that the public

interests would suffer by the disclosure.

31. A reading of these two Sections indicates that in order to claim privilege there must be

some pre-requisite conditions; (i) the document must be unpublished official record; (ii) it

should relate to the affairs of the State; and (iii) it can be admitted in evidence with the

permission of the Head of the Department concerned who shall give or withhold the

permission.

32. The Act does not say that what documents are to be regarded as unpublished official

records relating to the affairs of the State. Admittedly, the documents in question are the

unpublished official records. The expression "affairs of the State" has not been defined by the

legislature. Through judicial pronouncements its scope has been considered and has been

held to be of a very wide amplitude. It will cover every business activity of the State evenday-to-day routine administration and also the highly confidential matters connected with the

law and order situation. The disclosure of such unpublished affairs of the State may be

prejudicial to the public interest or the State security. The Head of the concerned department

after examining the matter, has the jurisdiction to withhold the permission to give any

evidence derived from such unpublished official record as has been rightly done in this case.

33. The Supreme Court in a recent case reported in MANU/SC/0291/1993 :

1993(65)ELT305(SC) (R.K. Jain v. Union of India and Ors.), while considering immunity of

disclosure of unpublished State document, expressed the view that document must relate to

the affairs of the State and disclosure thereof may be against the interest of the State, but the

affidavit filed in support of privilege must give reasons. If the Court finds that the affidavit is

unsatisfactory, further opportunity may be given to file additional affidavit or the deponent

could be summoned for cross-examination. But, if the court is satisfied, immunity may be

granted.

34. Smt. Kusum Prasad and Shri M.R. Ranganathan, in their respective affidavits, have stated

that the documents pertained to the unpublished official records to the affairs of the State and

the disclosure of such would not be in the public interest. The communication sought to be

disclosed relates to official communication made in official confidence. These documents aresensitive in nature. The Secrecy is to be maintained in the interest of maintenance of security

and public order in the State. Disclosure of the contents of the case diaries may affect the

criminal trial and investigation and the possibility of communal tension re-emerging could

also not be ruled out. The Commission could not have expected these two officers to give the

details mentioned in these documents claiming privilege. In my opinion, the affidavits have

disclosed good reasons for withholding the documents.

35. The Supreme Court in the case of M/s Doypack Systems Put Ltd. v. Union of India

reported in MANU/SC/0300/1988 : 1988(36)ELT201(SC) , while considering its earlier

decision reported inMANU/SC/0080/1981 : [1982]2SCR365 (S.P. Gupta v. Union of India)


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observed that in that case the question was not actually what advice was tendered to the

President on the appointment of Judges. The question was whether there was the factum of

effective consultation between the relevant constitutional authorities. Distinguishing the

same, it was said that the relevant documents were part of the preparation to the formation of

advice tendered to the President of India. It was further observed that the claim of privilegehas to be based on public interest. Applying the ratio of this case in the instant case, I am of

the view that the petitioners have claimed privilege only in the public interest and to maintain

law and order situation in the State.

36. Inspite of service nobody has appeared to oppose the writ petition on behalf of the

contesting respondents No. 2 to 5 (in writ petition No. 7217/1993) and respondents No. 2 to 4

(in writ petition No. 1700/1994. Only Mr. v. Lodha has appeared on behalf of the

Commission.

37. For the reasons given above, the writ petitions succeed and are allowed without any orderas to costs. The order of the Commission dated 28th of October, 1993 suffers from error

apparent on the face of the record and is accordingly set aside. Petitioners claim for privilege

is hereby allowed.