The Judgment of the Court was delivered by

B.C Mitra, J.:— This appeal is directed against a judgment and order dated June 22, 1970, by which the appellant's application for a Rule Nisi for appropriate Writs and orders against certain notifications, appointing a Commission of Inquiry to enquire into certain matters, was dismissed. Although no Rule was issued, notice was directed to be served on the second and third respondents, who appeared at the hearing of the application and contested the same. The appellant claims to be a member of the Communist Party of India (Marxist) and as such contested a by-election from Raina, District Burdwan and was elected a Member of the Legislative Assembly in 1969.

2. On March 16, 1970, Shri Ajoy Kumar Mukherjee, who was the Chief Minister of the then United Front Ministry resigned. This resignation was followed by a Hartal, called by the appellant's party. The call for Hartal was opposed by a number of political parties who constituted the then United Front. This call for Hartal, and the opposition to the same, provoked a number of violent incidents at Burdwan near the house of some persons known as Sains. These incidents resulted in the death of three persons including two members of the Sain family. In consequence of the violent incidents the Governor visited Burdwan on March 30, 1970. The Governor's visit to Burdwan was followed by an order dated April 28, 1970, under Section 3 of the Commissions of Inquiry Act, 1952. By this order, the first respondent was directed to hold an inquiry in accordance with the terms and conditions of the order which ran as follows:—

“Whereas the Governor is of opinion that it is necessary that an enquiry should be made intothe following definite matter of public importance, namely, the disturbances which occurred in and around the house of the Sains at Burdwan, on the 17th March, 1970 resultingin the death of three persons and injury to several others, and destruction of property; and whereas no Commission of Enquiry has been appointed by the Central Government to enquire into the aforesaid matter; now, therefore, in exercise of the power conferred by Section I of the Commissions of Enquiry Act, 1952 (Act 60 of 1952), the Governor is pleased hereby to appoint a Commission of Enquiry consisting of Shri Tarapada Mukherjee, retired Judge of the Calcutta High Court, to enquire into the aforesaid matter with reference to the following points, namely:—

(1) What were the causes which led to the incident at Burdwan on the 17th March, 1970 resulting in the death of three persons and injury to several others;

(2) were the police and other local officials negligent in the discharge of their duty to prevent the occurrence and to protect the lives, person and property of the persons killed and injured;

(3) if the answer to the question No. 2 is in the affirmative, what were the causes of this negligence and dereliction of duty;

(4) any other matter relevant to or incidental to the above question which the Commission may deem fit and proper to investigate;

and to submit to the State Government a report embodying its findings, and its recommendations thereon, within three months from the date of publications of this notification in the Calcutta Gazette.

The Commission of Inquiry, from time to time may appoint one or more assessors to assist and advice it on any matter connected with the aforesaid enquiry.”

3. The resignation tendered by Shri Mukherjee as mentioned earlier, was accepted by the Governor on March 19, 1970 and on the same day a Proclamation was issued by the President of India, assuming to himself all the functions of the Government of the State, and all powers vested in or exercisable by the Governor of the State. The notification by which a Proclamation was made was numbered G.S.R 490. The substance of this Proclamation is that the President assumed to himself the functions of the Government of the State and all powers vested in the Governor, and he declared that the powers of the Legislature of the State should be exercisable by the authority of Parliament, and also made certain incidental and consequential provisions for giving effect to the Proclamation. One of such provisions was that it should be lawful for the President of India to act to such extent as he thought fit through the Governor of the State. On the same day, namely March 19, 1970, another notification was issued by the President being notification No. G.S.R 491 which is as follows:—

“In pursuance of sub-clause (i) of Clause (c) of the Proclamation issued on this the 19th day of March, 1970, by me under Article 356 of the Constitution of India, I hereby direct that all the functions of the Government of the State of West Bengal and all the powers vested in or exercisable by the Governor of that State under the Constitution or under any law in force in that State, which have been assumed by the President of India by virtue of Clause (a) of the said Proclamation, all subject to the superintendence, direction and control of the President of India, be exercisable also by the Governor of the said State.”

4. Going back to the events that happened in Burdwan, it appears that following the death of three persons in the disturbances, information under Section 154 of the Cr PC was lodged on March 17, 1970, by one Dilip Kumar Bhattacharyya. On such information an investigation was started by the local Police and the appellant was arrested.

5. On March 30, 1970, the Governor visited the house of Sain brothers at Burdwan, and it is alleged by the appellant in the writ petition that a violent demonstration took place in the presence of the Governor, and the District Magistrate was physically assaulted. The appellant's case is that it was no part of the duty of the Governor to investigate into the charges of a criminal nature or to come to any finding even tentatively on the basis of such investigation. It is also contended that the Visit of the Governor was designed to give publicity to the alleged incident and was procured with a view to vilify the Communist Party (Marxist), whose members were falsely accused to be participants in such incidents. It is further alleged that the Police investigation, with regard to the incident, had been vitiated by improper interference by high dignitaries and leaders, who were politically motivated. According to the appellant, at the judicial inquiry, the appellant and members of the Communist Party (Marxist) would have no opportunity to defend themselves in respect of wild and reckless charges made or to be made against them. The appellant further contends that the judicial inquiry would not only hamper and prejudice any proper investigation, and trial of persons who have been wrongfully accused, for alleged offences, but would also prejudice a fair trial of such persons, and would further result in deliberate interference with the administration of justice. The substance of the appellant's contention is that the judicial inquiry would deny him a fair trial on the charge on which he has been arrested.

6. It is in the background of the events mentioned above, and on the ground that he was not likely to get a fair trial by reason of the judicial inquiry ordered by the Governor, that the appellant moved the writ petition out of which this appeal arises. The trial Court, however, did not issue a Rule Nisi and disposed of the matter after directing notice to be served on the respondents Nos. 2 and 3. The petition for Rule Nisi was dismissed and this appeal is directed against the order of dismissal.

7. Before proceeding to deal with the contention of Mr. Chakrabarti on behalf of the appellant, I should note that so far as the prayers for a writ in the nature of prohibition directing the respondents to refrain from acting in pursuance of the notification, appointing the Commission of Inquiry, and a writ in the nature of Quo Warranto directing the respondents to justify under what authority they were pretending to function or usurp or continue to usurp the function of the Commission of Inquiry, are concerned, these prayers have become anfractuous as the first respondent has already completed the inquiry and submitted the report to the State Government. Orders restraining the first respondent from discharging the functions of the Commission of Inquiry or proceeding with the inquiry cannot now be made as the inquiry proceedings have been completed. The publication of the inquiry report until disposal of this appeal, however, has been restrained. The only question in this appeal, therefore, is whether the order appointing the Commission of Inquiry was a valid order, and if held to be invalid, whether this Court should permanently restrain the publication of the report.

8. The first contention of Mr. Chakrabarti was that after the Proclamation under Article 356 of the Constitution, it was for the President alone to be satisfied about the necessity of an inquiry under the Commissions of Inquiry Act. It was argued that the President having assumed to himself all the functions of the Government of the State, and all powers vested in the Governor of the State, it was for him alone to be satisfied that an inquiry under the Act was called for, and also about the necessity of such inquiry. In other words, it was contended that it was for the President alone, to the exclusion of any other authority, to be satisfied about the necessity of an inquiry into a matter of public importance and on being so satisfied the President alone could issue the notification under Section 3 of the Commissions of Inquiry Act, 1952, hereafter referred to as the Act, and the Governor had no authority of jurisdiction to issue such a notification. It was argued that as this was not done and the notification was issued by the Governor on his own satisfaction about the necessity of the inquiry, the notification was invalid and for that reason the inquiry should not be held by the first respondent.

9. In order to deal with this question it is necessary to look at the totality of I the effect of the two notifications issued by the President. By the notification G.S.R No. 490, the President firstly assumed to himself the functions of the State Government and all powers vested in the Governor I of the State. He also made various incidental and consequential provisions under Clause (e) of the notification, and one of these is to the effect that in exercise of the functions and powers assumed by the President, it shall be lawful for him as President of India to act to such extent as he thought fit, through the Governor of the State. Secondly, by a second notification issued on the same day namely, G.S.R No. 491, the President directed that all the functions of the Government of the State, and all the powers vested in or exercisable by the Governor of the State under the Constitution or under any law in force in the State, shall subject to the superintendence, direction and control of the President be exercisable also by the Governor of the State. The question is, do the provisions in G.S.R 490 and G.S.R 491, enable the Governor of the State to act on his own, in taking a decision that an inquiry into a matter of public importance is called for and that such an inquiry ought to be made?

10. Mr. Chakrabarti argued that, even if it was held that the Governor was properly authorised to make the order appointing a Commission of Inquiry, he had no jurisdiction or authority to decide for himself about the necessity of such an inquiry. In other words, it was submitted, that it was one thing to make an order appointing a Commission of Inquiry, and quite another thing to form an opinion that such an inquiry was called for. It was for the President alone, it was argued, to form an opinion that an inquiry was necessary. It was submitted that what was delegated by the notification G.S.R 491 were the powers of the President, but not the duties or the Statutory obligation, of forming an opinion that an inquiry was called for.

11. It seems to me that there is an inherent fallacy in this argument. This argument requires that the Statutory obligation of forming an opinion about the necessity of an inquiry should be exercised by the President, and the order appointing the Commission of Inquiry may be made by the Governor by virtue of delegation of powers to him. If in this case, the opinion as to the necessity of the inquiry was formed by the President, and on such formation of opinion by the President, the Governor issued the notification appointing the Commission of Inquiry, the order would have been open to challenge on the ground that the opinion was formed by a person who did not make the order, appointing the Inquiry Commission, and that the order appointing the Inquiry Commission was made by a person who did not form the opinion. If such an order was made, it could not be sustained, because the opinion required to be formed about the necessity of the inquiry was not the opinion of the person, who made the order appointing the Commission of Inquiry.

12. It was argued by the learned Advocate-General on behalf of the respondents, on the other hand, that the Governor in making the order for inquiry acted by virtue of the delegation made in his favour by the President by the notification G.S.R No. 491, read along with the Proclamation in G.S.R No. 490. The question is, in a case, such as this, where the powers and duties and statutory obligations, are so interwoven, interconnected and inter-dependent on each other, can it be said that the delegation of the power would not necessarily involve a delegation of the duty and the statutory obligation? In other words, in a case of delegation of power, where power and duty are inter-woven, interconnected, and inter-dependent, can it be said that the power and the duty can be so separated and distinguished, that the delegation of the power only can be made, leaving the duty or statutory obligation with the principal? The answer to both these questions, in our opinion, must be in the negative. The delegation of the power in a case, such as this, operates as an implied delegation of the duties and the statutory obligations as well. It cannot, in our view, be held that while the power to appoint a Commission of Inquiry stood delegated to the Governor, the duty and the statutory obligation to form an opinion about the necessity of such an inquiry remained vested in the President. To hold otherwise, would be creating a situation where the exercise of the power itself would be invalid. Because, in that case the President will have to form the opinion about the necessity of the inquiry, and having formed such an opinion, he will have to leave it to the Governor to make the order appointing the Commission of Inquiry, though the Governor has formed no opinion about the necessity of such an inquiry.

13. The learned Advocate-General next contended and we think rightly, that under Clause (c)(i) of the notification G.S.R No. 490, it was lawful for the President to act to such extent as he thought fit, through the Governor of the State. He also relied upon the notification G.S.R No. 491, by which the President directed that all the functions of the Government of the State of West Bengal, and all the powers vested in or exercisable by the Governor of that State, which have been assumed by the President shall subject to the superintendence, direction and control of the President, be exercisable also by the Governor of the State. The Advocate-General argued that there was clear delegation by the President of all the functions of the State Government and also of all the powers vested in the Governor, which were assumed by the President by the notification No. G.S.R No. 490, to the Governor of the State. Such a delegation, it was argued, fully invested the Governor not only with the powers of the Governor, but also with all the functions of the State Government which includes the duty or statutory obligation of the Governor to form an opinion. It seems to us that there is good deal of force in this contention on behalf of the respondents. Under Article 154(1) of the Constitution, the executive power of the State is vested in the Governor and is to be exercised by him directly or through the Officers subordinate to him. The President delegated to the Governor not only the powers of the Governor, but also the functions of the State Government. Quite apart from the position that delegation of powers carries with such delegation the duties and statutory obligations connected with the power, delegation of the functions of the State Government to the Governor, would include within its ambit the power to form an opinion about the necessity of an inquiry under the Commissions of Inquiry Act.

14. In support of the contention that delegation of powers includes a delegation of duties connected with the exercise of such power, reliance was placed by the Advocate-General on a decision of the Supreme Court in Daluram Pannalal Modi v. Asst. Commr. of Sales Tax, AIR 1963 SC 1581. A reference may also be usefully made to another decision of the Supreme Court on this point H.S.S.M Ali Alquadari v. Commr. of Wakf, West Bengal, AIR 1961 SC 1095. In that case, it was held that where powers and duties were inter-connected, and it was not possible to separate one from the other in such way that the powers might be delegated, while the duties were retained and vice versa, the delegation of the powers took with it the duties also. A similar view was also taken in a Bench decision of this Court reported in (1970) 74 Cal WN 330.

15. The learned Advocate-General also relied upon a decision of the Judicial Committee in Edward Liso Mungoni v. Attorney-General of Northern Rhodesia, 1960 AC 336, in which it was held that where power and duty were so inter-woven that it was not possible to split the one from the other, so as to put the duty on one person and power on another, whoever exercised the power must also carry out the duty. On the same question, reliance was placed on a decision of this Court reported in AIR 1971 Cal 122 in which the notification, with which we are concerned in this appeal, was also construed by Banerjee J., who held that the notification G.S.R 491 was a valid notification and was issued by the President by virtue of the Proclamation under Article 356 of the Constitution. In support of the contention that the Governor in appointing the Commission of Inquiry, in exercise of the power delegated to him by the notification G.S.R 491, was really making an order on behalf of the President who had assumed all the executive powers and functions of the State Government and also the powers of the Governor, reliance was placed on a decision of the Supreme Court Roop chand v. State of Punjab, AIR 1963 SC 1503.

16. Mr. Chakrabarti next contended that the notification G.S.R 491 should not be so construed as to imply a delegation of powers by the President to the Governor. Alternatively, it was argued that if the said notification was construed to effectuate a delegation of powers by the President to the Governor, then it should be held that the notification G.S.R 491 was ultra vires the powers of the President, as the effect of the delegation would be that the President completely abdicated and surrendered the powers and responsibilities, which he had assumed by the Proclamation under Article 356. In other words, it was argued that by the Proclamation the President had assumed to himself the powers of the State Government and the State Governor, and it was for him alone to discharge the duties and obligations of the State Government, and the Governor, and he could not divest himself of the powers which he had lawfully assumed, to the State Governor.

17. In my view, there is hardly any merit in this contention of counsel for the appellant. It is true that by the Proclamation the President had assumed to himself the powers of the State Government, as also those of the Governor of the State. It is also true that upon such assumption of power, the State Government and the Governor stood divested of their powers, functions and duties under the Constitution. But it cannot be overlooked, and it should not be overlooked, that Article 356 itself enables the President when a Proclamation is made under that Article, to make incidental and consequential provisions. These incidental and consequential provisions are such as may appear to the President to be necessary for giving effect to the objects of the Proclamation. The terms of Clause (c) of Article 356(1) make it abundantly clear that, what incidental and consequential provisions are to be made, is a matter entirely for the subjective satisfaction of the President. The validity or legality of the incidental and consequential provisions contemplated by Article 356(1)(c) is not justiciable. The President makes the Proclamation on being satisfied from a report of the State Governor or otherwise, that a situation has arisen, in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. On being so satisfied, the President makes the Proclamation assuming to himself the functions of the State Government, as also the powers vested in or exercisable by the State Governor. After assumption of power by the President under Article 356(1)(a), the President is enabled to make such incidental and consequential provisions as appear to him to be necessary for giving effect to the objects of the Proclamation. And it is an exercise of the powers, assumed by him by Clause (c)(i) of the Proclamation, that the President delegated all the functions of the Government of the State and all the powers vested in or exercisable by the Governor of the State, to the latter, subject to the superintendence, direction and control of the President himself. Apart from the question of the validity of an absolute delegation of power by the President to the Governor, resulting in a complete divestiture of the powers and functions which the President had assumed by reason of the Proclamation, it is to be noticed that the notification G.S.R 491 explicitly provides that the powers and functions delegated to the Governor, are to be exercised by the latter, subject to the superintendence, direction and control of the President of India. This provision in the notification leaves no room for doubt, that the President of India retains full control and superintendence over the Governor who exercises the powers delegated to him by the notification. The second answer to the contention that there was complete abdication of powers and duties by the President to the Governor, is to be found in the last few words of the notification itself, namely, “be exercisable also by the Governor of the said State”. The word “also” appearing in the notification should not be lost sight of, in dealing with this question. It is quite clear that there is, by no means, a complete abdication or surrender of the powers, duties and functions which the President assumed by the Proclamation in favour of the Governor, as the President retains in his own hands, the authority and the jurisdiction to act, by virtue of the assumption of power under the Proclamation. This, in my view, is the answer to the contention on behalf of the appellant that the notification should be construed to mean a complete abdication of power by the President in favour of the Governor. The President, in my view, has not surrendered or abdicated his powers, functions and duties absolutely to the Governor. He retains the power of direction, superintendence and control in his own hands and furthermore, he retains to himself the power to act on his own without reference to the Governor, to whom the powers and functions have been delegated by the notification, G.S.R 491. In this view of the matter, the contention on behalf of the appellant that the Governor was not validly authorised to make the order, appointing the Commission of Inquiry, or that the order is ultra vires the powers of the President, as it amounts to an abdication of his powers, cannot be upheld.

18. The next contention, on behalf of the appellant, was that the holding of a public inquiry by a Commission appointed under the impugned order would amount to interference with the course of justice, as it would result in a parallel inquiry over a matter which was pending investigation by the Police, and which might ultimately be taken up by the Court for trial. In order to deal with this contention, it is necessary to examine the question, whether the subject-matter of the inquiry before the Commission of Inquiry, and the subject-matter of the criminal proceedings, are such that it can be held that the proceedings before the two Tribunals are parallel proceedings or that the subjects to be dealt with by them overlap each other. The matter, which is pending investigation by the Police and which may ultimately lead to a trial in a Criminal Court, is the Commission of one or more cognisable offences, leading to three deaths in the town of Burdwan. The first information report specifies the commission of such offences by certain persons unnamed. The appellant's name has not been mentioned in the first information report. In course of investigation, however, the appellant was arrested as an accused in the case. If the appellant is sent up for trial in the Criminal Court, it would be trial for commission of a cognisable offence, set out in the first information report or made out in course of the investigation. The matters which have been referred to the Commission of Inquiry are:

(a) Causes which led to the incident, resulting in the death of three persons and injury to several others,

(b) Whether the Police and other local officials were negligent in the discharge of the duties to prevent occurrence and protect the life and property,

(c) If the Police was negligent, cause of such negligence, and

(d) Matters relevant and incidental to the matters set out in the Clauses (a), (b) and (c).

19. It is clear that the aim of the inquiry by the Commission, apart from a probe into the causes of the incident, is directed plainly and manifestly against the performance of duties by the Police or their negligence to perform such duties and the causes of such negligence. The subject-matter of trial before the Criminal Court if a trial follows the Police investigation, would be the commission of cognisable offences by particular individual or individuals. To me, it seems that the subject-matter of inquiry by the two Tribunals is entirely different and such subject-matter does not overlap each other to such an extent, as to hold that the two inquiries before the two Tribunals will be parallel in nature.

20. Mr. Chakrabarti, however, strenuously argued that the subject-matter of investigation before the Commission of Inquiry and that before the Criminal Court were identical in nature, and therefore, if the report of the inquiry was published, his client would be denied a fair trial in the Criminal Court. In support of this contention, he relied on a decision of this Court reported in (1967) 71 Cal WN 912. In that case a Police Officer arrested certain persons as a preventive measure, as they, were exciting people to commit riot and arson. There was a mob violence at a Police Station and at the instance of some of the Ministers, the Police Officer was arrested and suspended. Subsequently, a criminal case was started against the Police Officer on a charge of unlawful assembly and wrongful confinement. Thereupon the Police Officer moved this Court under Article 226 of the Constitution and obtained a Rule Nisi challenging the bona fides and legality of the order of arrest and suspension. While the Rule was pending, on May 26, 1967, the Government of West Bengal appointed a Commission of Inquiry under Section 3 of the Commissions of Inquiry Act, 1952. The Commission of Inquiry was to inquire into:

(a) The nature, circumstances, causes and consequences of the disturbances;

(b) The manner in which the situation was dealt with;

(c) Any other relevant factor having a bearing on the situation.

21. On the appointment of the Commission of Inquiry, the Police Officer made an application for injunction, restraining the respondents from proceeding with the enquiry on the ground that the same would amount to a parallel inquiry over matters pending adjudication before this Court. There was no denial, in that case, by the State Government that the terms of reference of the Commission of Inquiry involved an investigation into matters which were the subject-matter of the writ petition. This decision is of no assistance to the appellant, in this case, as it is clear from the terms of reference of the Commission of Inquiry that the Commission was to enquire into matters which were directly involved in the pending writ petition in this Court. In that case, the Court came to the conclusion that the terms of reference of the Commission of Inquiry clearly involved a probe into matters which were directly and substantially matters in issues in the writ petition. In this case, on the other hand, the matter which the Inquiry Commission is to go into, and which can be said to be, if at all, remotely connected with the criminal case, is to be found in the first term of reference, namely causes which led to the incident. Whatever may be the nature of the probe by the Commission of Inquiry into this matter, I do not see how it can be said that such a probe would amount to an investigation into the criminal charge against the appellant. From whatever point of view the matter is looked at it cannot, in my view, be said that an inquiry into the causes of the incident by the Commission of Inquiry would lead to an investigation into the question, whether the appellant is guilty of a charge of murder. The Commission of Inquiry, in this case, is charged with the duty of inquiring into the causes which led to the incident at Burdwan resulting in the death of 3 persons. I do not think that the inquiry into such a matter will, even in a remote manner, overlap the investigation involved in the criminal charge against the appellant. The Commission, it is to be noticed, is not required to inquire into the fact whether three persons died and its probe is directed against the causes which led to the incident, ultimately resulting in the death of 3 persons. Clause (d) of the terms of reference requires matters relevant and incidental to the matters set out in Clauses (a), (b) and (c). A probe into these matters cannot be said to require an inquiry into any matter connected with the criminal charge against the appellant.

22. In repelling the contention of Mr. Chakrabarti the learned Advocate-General, firstly relied on a decision of the Supreme Court Saibal Kumar Gupta v. B.K Sen, AIR 1961 SC 633. In that case, the question was whether a Special Committee appointed by the Corporation of Calcutta was guilty of contempt of Court. This Special Committee was appointed at a time when a revision petition was pending before the High Court against the order of a Sessions Judge, directing further inquiry into certain charges. On facts, it was held that there was no intention to interfere with the course of justice and no comment was made on any pending proceedings in a Court of Law. In this view of the matter it was held that there was no contempt of Court. Reliance was also placed by the learned Advocate-General on another decision of the Supreme Court P.V Jagannath Rao v. State of Orissa, AIR 1969 SC 215. In that case, the Commission of Inquiry was appointed to inquire into certain matters. At the time of the appointment of this Commission, one of the matters referred for inquiry by the Commission, was pending before the Orissa High Court in an appeal. It was held that if a statutory authority exercises its power for a purpose not authorised by law the action of the statutory authority would be ultra vires and without jurisdiction. But it was also held that the Commission of Inquiry would not be liable for contempt of Court, if it proceeded to inquire into matters referred to it by the Government, who appointed the Commission under Section 3 of the Act, in exercise of a statutory power, as the Commission of Inquiry would be performing its statutory duty. On facts, it was held that the inquiry was not in relation to the very matters which were the subject-matter of the proceedings pending in the High Court of Orissa. On this question reliance was next placed by the learned Advocate-General on another decision of the Supreme Court Jang Bahadur Singh v. Baijnath Tiwari, AIR 1969 SC 30. In that case, it was held that an inquiry, by a Domestic Tribunal in good faith, in exercise of powers statutorily vested in it, into charges of misconduct against an employee did not amount to contempt of Court, merely because an inquiry into the same charges was pending before a Civil or a Criminal Court, and that the initiation and continuation of disciplinary proceedings in good faith did not obstruct or interfere with the course of justice in the pending Court proceeding. Bachawat, J. observed: “An authority, holding an inquiry in good faith in exercise of the powers vested in it by statutory regulations, is not guilty of contempt of Court merely because a parallel inquiry is imminent or pending before a Court.” The view taken by the Supreme Court on the question of parallel inquiry, has been recently re-affirmed in another decision of the Supreme Court Shambhu Nath Jha v. Kedar Prasad Sinha (unreported). Dealing with this question, it was held:

“It may be that some of the matters which are connected with the criminal revision petitions were the subject of the inquiry by the Commission of Inquiry, but that would not attract liability for contempt of Court. In AIR 1969 SC 215, (supra), the appellant had challenged a notification issued under Section 3 of the Commissions of Inquiry Act, appointing a Commission of Inquiry to inquire into certain allegations against persons who had held the office of Chief Ministers and Ministers in Orissa. An argument was advanced in that case that one of the items of charges, which were to be inquired into by the Commission was the subject-matter of an appeal pending in the High Court. Question arose in that context whether the setting up of the Commission of Inquiry by the State Government or the continuation of the inquiry by the Commission would be tantamount to contempt of Court. This Court held that the above acts would not constitute contempt of court…………”

23. A similar question arose in an earlier decision of the Supreme Court Tukaram G. Gaokar v. R.M Shukla, AIR 1968 SC 1050, on which reliance was placed by the learned Advocate-General. In that case, however, the inquiry was a statutory inquiry by the Customs Officers. It was held that where a criminal prosecution in respect of offences in connection with smuggling of gold under Section 120-B, I.P.C read with Section 135 of Sea the Customs Act, Rule 131-B of Defence of India Rules and Section 8 of the Foreign Exchange Regulations Act, was imminent and the Collector of Customs initiated proceedings under Sections 111 and 112 of the Sea Customs Act, such initiation of proceedings bona fides by the Customs Officer and in discharge of a statutory duty, did not amount to contempt of criminal Court, even though identical issues might arise in the imminent proceedings.

24. On the law as it stands now, there can be hardly any doubt that where a Commission of Inquiry has been appointed to inquire into matters of public importance there will not be any contempt of Court, even though the matters which are to be inquired into by the Inquiry Commission are the same, as those which are pending in a litigation before the Civil or Criminal Courts. It is now well-settled that since the Commission of Inquiry, in conducting the inquiry is performing a statutory duty, although such inquiry may be parallel in nature, the question of contempt of Court would not arise merely because of the pendency of identical questions before a Court of Law, Civil or Criminal.

25. In this case, however, we are of the opinion that the subject-matter of inquiry by the Commission of Inquiry does not overlap or include matters which will have to be investigated by the Criminal Court in the trial of the appellant on a criminal charge. But having regard to the decisions of the Supreme Court, discussed earlier, even if the subject-matter of inquiry by the Commission of Inquiry is the same, which the Criminal Court may be required to go into on the prosecution of the appellant, a question of contempt of Court cannot arise, and no injunction can be issued restraining the Commission of Inquiry from proceeding with the inquiry or restraining the State Government or any other authority from publishing the report of the Inquiry Commission.

26. The learned Advocate-General fortified his contention on this aspect of the case by a reference to sub-section (1) of Section 3 of the Commissions of Inquiry Act. He argued that although the appropriate Government may appoint a commission of Inquiry, where a resolution is passed by the legislature, the Commission of Inquiry must be appointed, even though the subject-matter referred to the Commission of Inquiry is the same as the subject-matter in litigation pending in a Court of law. It seems to us that there is good deal of force in this contention also on behalf of the respondents.

27. The next point urged by Mr. Chakrabarti was that the President had assumed to himself the powers of the State Government and also of the Governor by the notification G.S.R 490 in exercise of the powers under Article 356 of the Constitution. He submitted that what was done by the notification G.S.R 491 was nothing but a variation of the proclamation made by G.S.R 490. He argued that such a variation could only be made by a Proclamation, as required by Article 356(2), and not by mere notification, as was purported to be done. There is an inherent fallacy in this contention on behalf of the appellant. The notification G.S.R 491 was not made in exercise of the powers under Article 356(1)(c) of the Constitution ex facie, it was made under sub-clause (i) of Clause (c) of the Proclamation itself. The notification G.S.R 491 was quite plainly made by the President in exercise of the powers which were assumed by Clause (c)(i) of the Proclamation itself. This contention of Mr. Chakrabarti therefore cannot be upheld.

28. It was next argued by Mr. Chakrabarti that both the President and the Governor had various powers, duties and functions under the Constitution. These powers, duties and functions of the President were not assignable without proper statutory provision. In other words, it was contended that the powers vested in the President under the Constitution could not be assigned to the Governor without appropriate statutory provision. In support of this contention counsel for the appellant relied upon Craies on Statute Law, 6 Ed. P. 283. He also relied upon a decision of House of Lords, Vine v. National Dock Labour Board, (1956) 3 All ER 939. I do not think, there is any merit in this contention on behalf of the appellant. Article 35(1) under which the President issues the Proclamation assuming to himself the functions of the State Government and the powers of the Governor, itself provides by Clause (c) thereof that the President can make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation. As to with regard to what matters, incidental and consequential provisions are to be made, is a question entirely for the subjective satisfaction of the President himself. In exercise of this power, the President made the Proclamation which is the subject-matter of notification G.S.R 490. Delegation to the Governor of the powers which the President had assumed by G.S.R 491 is nothing more than an exercise of executive authority in terms of Clause (c)(i) of the Proclamation itself, which is the subject-matter of G.S.R 490.

29. There remains only one other point raised by the appellant to be disposed of. It was argued by Mr. Chakrabarti that in this case no Rule Nisi was issued by the Court and that the application was heard only upon notice being served upon the State of West Bengal and its Chief Secretary (respondents Nos. 2 and 3). He argued that the trial Court should have issued a Rule Nisi upon all the respondents so that the other respondents might have had an opportunity of filing a return to the Rule Nisi. In support of this contention, he relied upon two decisions of the Supreme Court. The first one is Gyan Chand v. State of Haryana, (1970) 3 SCC 270 : (AIR 1971 SC 333). In that case the appeal was preferred against the dismissal of a writ petition by the High Court in limine. The appellants were Members of a Municipal Committee, which was superseded by the State Government and they filed a writ petition contending that the supersession was mala fide. This writ petition was dismissed by the High Court and on appeal, the Supreme Court held that where serious allegations of mala fides were made against Government, it is not proper to dismiss the writ petition in limine, in the manner in which it was done, without any return from the respondents. The next case relied upon by Mr. Chakrabarti was also a decision of the Supreme Court D.D Suri v. A.K Barren, (1970) 3 SCC 313: (AIR 1971 SC 175). That was also an appeal against an order of the High Court dismissing a writ petition in limine. In that case, a number of allegations of malice entertained by the Government, was made by the petitioner. The Supreme Court held that where serious allegations of mala fides of the State Government were made, the High Court should not dismiss the writ petition in limine but should call upon the respondents to make a return and then should consider whether the allegations have been proved or not.

30. In our view, there is no merit in this contention on behalf of the appellant. In the first place, the petition was not dismissed in limine but notice was directed to be served on the two parties, who were most vitally interested in the order appointing the Commission of Inquiry namely, the State of West Bengal and its Chief Secretary. These two respondents filed their affidavits-in-opposition and it is on the basis of the return filed by the respondents that the trial Court disposed of the application of the appellant. It is clear to us from the judgment under appeal, that the trial Court considered at great length each of the contentions, raised on behalf of the appellant, and heard counsel for the appellant and counsel for the two respondents. In the second place, a charge of mala fides against the respondents does not seem to us to have been pressed at all before the trial Court. In this appeal, the charge of mala fides was not raised at all by counsel for the appellant.

31. In our view, having regard to the nature of the allegations in the petition, the trial Court was right in directing notice to be served on the State Government and its Chief Secretary, and directing them to file affidavits before issuing a Rule Nisi. The appellant got full opportunity of agitating all his contentions, and two of the respondents, who were vitally interested in upholding the validity of the order, were directed to file affidavits, which they did. No greater or higher advantage could have been gained by the appellant by the issue of a Rule Nisi. All in all, it seems to us that the trial Court was not in error in disposing of the writ petition, in the manner in which it did. This disposes of all the contentions canvassed before us in this appeal.

32. For the reasons mentioned above, this appeal fails and is dismissed The interim order is vacated. There will be no order as to costs.

33. Mr. Chakrabarti, appearing for the appellant, makes an oral prayer for a certificate of fitness for appeal to the Supreme Court. This prayer is rejected. Liberty to the appellant to make a formal application. A prayer is also made for stay of operation of the order which is also rejected.

34. A.K Sinha, J.:— I agree.

35. Appeal dismissed.