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Case Number

Criminal Ref. No. 1 of 1981

Attorney(S)

N.M.Lahiri
A.M.Mazumdar
C.R.De
G.Sahewalla
M.Z.Ahmed

Judges

Hon'ble Mr. Justice Tarun Chandra Das
Hon'ble Mr. Justice Banwari Lal Hansaria

Acts

COMMISSIONS OF INQUIRY ACT 1952
S. 145 of the Evidence Act.
Sec. 145 Evidence Act,
S. 145 Evidence Act.

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Smart Summary

Structured Summary of the Opinion (Reference under S.395 Cr.P.C.)

Factual and Procedural Background

This matter was referred to the Court under Section 395 of the Code of Criminal Procedure by the Sessions Judge, Nowgong, asking whether a witness in a criminal trial may be contradicted with reference to his statement made before a Commission of Inquiry constituted under the Commissions of Inquiry Act, 1952.

Facts and procedural history as presented in the opinion:

Several persons were on trial under various provisions of law, including Section 302 IPC, in relation to the death of one Anil Bora at Hojai Town.
A Commission of Inquiry had been constituted under the Commissions of Inquiry Act, 1952, to inquire into the circumstances leading to that death; the Commission submitted a report and had recorded evidence of some witnesses.
On 27-6-1980 a petition was filed in the trial court seeking call-up of statements/depositions of witnesses examined before the Commission, on the ground that many charge-sheeted witnesses had been examined by the Commission and those records were necessary for the defence and ends of justice.
The Presiding Officer (learned Sessions Judge) by order dated 5-7-1980 granted the prayer and ordered the depositions to be called from the Home Secretary, reasoning that “the statement made by witnesses before Commission can be used for corroboration and contradiction under S.145 Evidence Act.”
The records were not produced by 25-3-1981, and on a fresh application the Sessions Judge then hearing the matter held the record inadmissible under Section 6 of the Commissions of Inquiry Act, 1952.
Because of this conflicting view, the point was referred to the High Court under Section 395 Cr.P.C. for authoritative opinion.

Legal Issues Presented

Whether a witness in a subsequent criminal or civil proceeding can be contradicted with reference to a statement made by him before a Commission of Inquiry constituted under the Commissions of Inquiry Act, 1952 (i.e., whether Section 6 of the Act prohibits such use of the Commission statement).
Whether statements made before a Commission can be used for corroboration in subsequent proceedings under Section 145 of the Evidence Act or otherwise.
Whether a statement given before a Commission can be used to prosecute the witness for perjury (i.e., whether Section 6 bars use of the Commission statement in a prosecution for giving false evidence in the later proceeding).

Arguments of the Parties

Order of the original Presiding Officer (learned Sessions Judge who made the 5-7-1980 order)

Reasoned that statements made before the Commission can be used "for corroboration and contradiction" under Section 145 of the Evidence Act, and therefore ordered the depositions from the Home Secretary to be produced.

Succeeding Sessions Judge (the judge who revisited the order)

Held that the record of the Commission of Inquiry is inadmissible under Section 6 of the Commissions of Inquiry Act, 1952, and therefore refused to call for the records.

Counsel for the accused (Shri Lahiri)

First raised a procedural point that it was not open to the succeeding Sessions Judge to modify an order already passed by his predecessor. The Court did not decide this procedural objection and disposed of the reference on substantive grounds instead.

Learned Advocate General, Assam

Assisted the Court and expressed the view that the prohibition in Section 6 of the Act was not intended to extend to the limited purpose of contradiction of a witness in subsequent proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Maharashtra v. Ibrahim, 1978 Cri LJ 1157 (Bombay High Court)	Upheld the view that statements made before a Commission may be used for contradiction in later proceedings (consistent with a Single Judge's view in Sohanlal v. State).	The Court expressed respectful agreement with the Division Bench's discussion and reasoning, subject to the modification that such earlier statements cannot be used to prosecute the witness for perjury.
Sohanlal v. State, AIR 1965 Bom 1 : 1965 (1) Cri LJ 10 (Single Judge, Bombay)	Supported the proposition that Commission statements could be used for contradiction in subsequent proceedings.	The High Court in the present matter aligned itself with the view taken in Sohanlal (as approved by the Division Bench in State of Maharashtra v. Ibrahim) concerning use for contradiction, with a limitation as to prosecution for perjury.
Ram Krishna Dalmia v. Mr. Justice S.R. Tendolkar, AIR 1958 SC 538 (Supreme Court)	This decision was cited in earlier case law but dealt with a different aspect of the law relevant to Commissions or inquiry evidence.	The Court noted that this Supreme Court decision (and another cited case) had no bearing on the specific point under examination and agreed with the treatment of those cases by the Bombay decisions.
Puhupram v. State, 1968 MPLJ 629 (Madhya Pradesh High Court)	Also dealt with an aspect other than the specific question whether a Commission statement can be used for contradiction.	The Court accepted that Puhupram, like Ram Krishna Dalmia, did not directly affect the point at issue and had been rightly regarded as inapposite in the Bombay decisions.

Court's Reasoning and Analysis

The Court's analysis proceeds from a textual reading of Section 6 of the Commissions of Inquiry Act, 1952, whose relevant terms were quoted in the opinion. The Court distilled three propositions from the section:

No statement made by a person in the course of giving evidence before the Commission shall subject him to any civil or criminal proceeding.
No such statement shall be used against him in any civil or criminal proceeding.
The embargo does not apply to a prosecution for giving false evidence by such statement (i.e., the proviso to S.6).

The Court accepted the first proposition as protecting a witness from being directly made liable (civilly or criminally) by reason of the Commission statement (example given: one who says “I had burnt the house of A” before the Commission cannot be sued or prosecuted solely on that statement). The Court identified the second proposition as the problematic provision: whether preventing any use “against” the witness includes barring the use of the earlier Commission statement to contradict the witness in later proceedings.

To resolve this tension the Court balanced three competing considerations that are explicitly discussed in the opinion:

The purpose of Section 6 to encourage full and truthful disclosure before a Commission by protecting witnesses from adverse consequences.
The public interest in discovering the truth in judicial proceedings and the established procedural right of an accused or adversary to cross-examine a witness and impeach his credit.
The assurance in Section 6 that protection is not absolute — a witness giving false evidence can be prosecuted for giving false evidence under the proviso — and the related reference to Section 8-B of the Act (concerning impeachment of credit) which the Court noted.

The Court held that if Section 6 were read so broadly as to deny the right to use an earlier Commission statement for the limited purpose of contradiction, that reading would frustrate the larger public interest in eliciting truth in judicial proceedings and would unduly curtail the right of cross-examination. At the same time, the Court emphasized that it would not adopt an interpretation which would “whittle down” the safeguard provided by Section 6 so as to erode witness protection.

The compromise adopted by the Court — grounded in statutory purpose and rules of interpretation (the opinion cites Maxwell's Interpretation of Statutes) — is that:

Section 6 does not prohibit the use of a statement made before a Commission for the limited purpose of contradicting the witness in later civil or criminal proceedings.
This limited use should be allowed while preserving the substance of the protection in Section 6 by holding that the Commission statement cannot be used to prosecute the witness for perjury in respect of his later testimony.

The Court further observed that Section 145 of the Evidence Act does permit contradiction, but does not itself envisage use of Commission statements for corroboration; however, if another statute permits corroboration then Section 6 would not stand in the way of that use.

The Court relied on and adopted the reasoning of the Bombay High Court decisions (State of Maharashtra v. Ibrahim and Sohanlal v. State) and treated the Supreme Court decision in Ram Krishna Dalmia and the Madhya Pradesh decision in Puhupram as inapplicable to the particular question before it, because those decisions dealt with different aspects.

Holding and Implications

Holding:

Sec. 6 of the Commissions of Inquiry Act, 1952 does not inhibit the use of a statement made by a witness before a Commission in a subsequent civil, criminal or other proceeding for the purpose of contradicting that witness.

The Court clarified related points as part of the holding:

The use of the Commission statement for corroboration is not envisaged by Section 145 of the Evidence Act; but if some other statute permits corroboration, Section 6 does not per se prevent such use.
The Commission statement is not usable against the witness for the purpose of a prosecution for perjury arising out of the subsequent proceeding (i.e., Section 6 protects against such prosecution based on the Commission statement itself).

Direct effect on the case and parties: The opinion was answered in favour of permitting use of Commission statements for contradiction; the High Court ordered that a copy of the opinion be sent to the Sessions Judge, Nowgong urgently so he could call for relevant records and dispose of the sessions case expeditiously. The opinion does not elaborate on broader doctrinal consequences beyond providing this authoritative guidance to the subordinate judiciary.

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The State Of Assam v. Suprabhat Bhadra And Others

Hansaria, J.:— This is a reference under S. 395 of the Cri. P.C by the learned Sessions Judge, Nowgong, soliciting this Court's opinion on an important question of law. The same is whether a witness in a criminal trial can be allowed to be contradicted with reference to the statement made by him before a Commission of Inquiry constituted under the Commissions of Inquiry Act, 1952, hereinafter the Act.

2. In the case before the learned Sessions Judge, some persons were facing trial under various sections of law, including 302 IPC. One of the charges was that the unlawful assembly had caused the death of one Anil Bora at Hojai Town. To inquire into the circumstances leading to the death of aforesaid Anil, a Commission of Inquiry under the Act had been constituted and which had submitted its report. A petition was, therefore, filed before the trial court on 27-6-1980 stating that many charge-sheeted witnesses were examined before the aforesaid Commission, and so, for the ends of justice and for proper defence of the accused, the statements of these witnesses before the Commission should be called for. The Presiding Officer by an order dated 5-7-1980 allowed this prayer as he felt that “the statement made by witnesses before Commission can be used for corroboration and contradiction under S. 145 Evidence Act.” He, therefore, ordered to call for the depositions from the Home Secretary. The records, however, did not come even by 25-3-1981 when a fresh prayer was made to call for the records. In the meantime there was charge in the incumbent of the office. The learned Sessions Judge who dealt with this matter on 25-3-1981 felt that the record of Commission of Inquiry is inadmissible under S. 6 of the Act. In view of the conflicting decision the point has been referred to this Court under S. 395 of the Code. This is how the matter is before us. Shri Lahiri who has appeared for the accused persons first raised a point that it was not open to the succeeding Sessions Judge to modify the order already passed in this regard by his predecessor. We do not propose to go into this aspect and dispose of the reference on this short ground inasmuch as the point is of importance and needs decision at our hand for guidance of the subordinate judiciary.

3. To express our views on the point under reference, let S. 6 of the Act be noted:

“Statements made by persons to the Commission.— 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 proceeding except a prosecution for giving false evidence by such statement:

Provided that the statement—

(a) is made in reply to a question which he is required by the Commission to answer, or

(b) is relevant to the subject matter of the inquiry.”

4. An analysis of this section brings out these propositions:

(1) No statement made by a person in the course of giving evidence before a Commission shall subject him to any civil or criminal proceeding; and

(2) no such statement shall be used against him in any civil or criminal proceeding.

(3) This embargo would not apply if the statement maker is being prosecuted for having given false evidence by such statement.

5. The restriction imposed by the proviso to the section may not detain us as it would be assumed that the requirement is satisfied for the statemens in question. The first of the above three propositions presents no difficulty. This safeguard takes care of any probable direct harm to the person making the statement as it lays down that because of the statement made by him, the person shall not be subjected to any civil or criminal proceeding. To illustrate, if a person states before a Commission; “I had burnt the house of A”, A cannot file a suit claiming damage against such person relying on that statement, nor can any criminal proceeding be started against the person because of the above statement.

6. The trouble maker is the second proposition. Can it be said that when a witness is sought to be contradicted in a civil or criminal proceeding with reference to his earlier statement made before the Commission, that statement is being used “against him”? One view may be that this is so, specially when it is found by referring to the earlier statement made before the Commission that the witness was giving a false evidence in the subsequent legal proceeding which may even make him liable for prosecution of having committed perjury. To decide whether the legislature really wanted to prohibit even this use of the earlier statement, we have to bear in mind the object of the Act, the public interest involved in discovering truth in a Court of Justice and the right of an accused or adversary to cross-examine a witness and to solicit truth from him. There can be no denial that section 6 must have found its place in the Act to enable the Commission to solicit true facts from witnesses, who would have been afraid of telling the truth, the whole truth and nothing but the truth, but for the protection given by S. 6. If the witnesses apprehend prosecution or civil proceeding against them for the statements made before the Commission, their own self interest might have stood in the way of giving out the full truth known to them. But then S. 6 has a reservation, and the same is that the statement made before the Commission cannot be false, and were it so, the maker thereof runs the risk of prosecution for giving false evidence. S. 8-B of the Act also shows that where the credit of a witness is being impeached, no opportunity visualised by that section need be given — the underlying idea perhaps being that if to shake the credibility of a witness, his credit is impeached, the same cannot be regarded as an act prejudicial to the reputation of the person, inasmuch as the finding of a Commission must after all be based on the evidence of credible witnesses.

7. As a witness is supposed to speak the truth before the Commission, so also he had to be a witness of truth in any civil or criminal proceeding. Therefore, use of the statement made before the commission cannot strictly speaking be said to be using the same against him”. Of course, if he departs from his earlier statement, he may be contradicted as permitted by S. 145 of the Evidence Act. If would not advance the cause of justice, if even this right is denied to a person who is going to be affected in any civil or criminal proceeding because of what has been deposed by a witness if he not be a reliable person having made contradictory statements. It may as well be that on the basis of the statement of a witness a person may find himself saddled with heavy civil liability, or may be lodged inside a prison, though the witness had earlier given a contradictory statement. Cause of justice would, therefore, undoubtedly suffer if a broad meaning were to be given to the protection visualised by the second of the aforesaid propositions of S. 6 of the Act. It is a settled rule of interpretation that if two views are reasonably possible on the construction of a statutory provision, the one which ouviates injustice or advances the cause of justice (and larger public interest as against private interest of an individual) should be upheld. See Maxwell's Interpretation of Statutes, 12th Edn p. 208.

8. We cannot, however, stress the language of a provision which would defeat the object behind it. As a person is assured by S. 6 of the Act that statement made by him in the Commission would not be used against him in any civil or criminal proceeding the assurance cannot be whittled down by so interpreting the provision which would water down the safeguard. It seems to us that if while allowing use of the earlier statement for the purpose of contradiction, it is held that the earlier statement cannot be used in any prosecution that may be launched against the witness for having given false evidence in the subsequent proceeding, the protection given by S. 6 of the Act will have its full play and at the same time it will not throttle the larger public interest which is to discover truth and for this purpose to impeach the credit of a witness making contradictory statement in a Court of Justice. Such an interpretation also gives strength to the valuable right of cross-examination conferred on parties.

9. In examining the matter thus we have been immensely benefited by the discussion of this subject by a Division Bench of the Bombay High Court in State of Maharashtra v. Ibrahim, 1978 Cri LJ 1157 which upheld the view taken by a single Judge in Sohanlal v. State, AIR 1965 Bom 1 : (1965 (1) Cri LJ 10) has noted the different aspects involved, and has dealt with some other decisions cited at the Bar. As we are in respectful agreement with the view taken by that Bench except that the statement cannot be used for prosecution of perjury, we have not burdened this judgment with the case law. We only wish to say that the decision of the Supreme Court in Ram Krishna Dalmia v. Mr. Justice S.R Tendolkar*, AIR 1958 SC 538 and that of Madhya Pradesh High Court in Puhupram v. State, 1968 MPLJ 629 were rightly held in the aforesaid case to have no bearing insofar as the point under examination is concerned, as they had dealt with some other aspect of the matter altogether. Let it be said to the credit of learned Advocate General, Assam, who has also assisted us in answering the reference, that he loo felt that prohibition of his statement before the Commission for the limited purpose of contradiction was not intended by Sec. 6 of the Act.

10. We, therefore hold that Sec. 6 of the Act does not inhibit use of the statement made by a witness before a Commission in a subsequent civil, criminal or other proceeding for the purpose of contradicting the witness. The use of the statement for corroboration is not visualised by Sec. 145 Evidence Act, but if any other statute permits it, Sec. 6 of the Act apparently does not stand in the way. The statement would not, however, be usable against the witness in any prosecution of perjury for having given false evidence in the subsequent proceeding.

11. Let a copy of this opinion be sent to the learned Sessions Judge, Nowgong urgently to enable him to call for the relevant records and to dispose of the sessions case expeditiously.

12. T.C Das, J.:— I agree.

13. Reference answered.

The State Of Assam v. Suprabhat Bhadra And Others

Structured Summary of the Opinion (Reference under S.395 Cr.P.C.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Order of the original Presiding Officer (learned Sessions Judge who made the 5-7-1980 order)

Succeeding Sessions Judge (the judge who revisited the order)

Counsel for the accused (Shri Lahiri)

Learned Advocate General, Assam

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

The State Of Assam v. Suprabhat Bhadra And Others

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