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of Commission to inquiry about law and order situation at Kumher--Affidavits stating that documents pertained to unpublished official record pertaining to affairs of State--Disclosure not in public interest--Documents senstive in nature--Secreciy maintained in interest of maintaining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Kusum Prasad and Shri M.R. Ranganathan, in their respective affidavits, have stated that the documents pertained to the unpublished official records to the affairs of the State and the disclosure of such would not be in the public interest.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 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. 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 StationKumher 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

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 StationKumher: 2. Case diaries of the aforesaid F.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;

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 powers are 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.

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 preventive measures 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 such information. 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 the public interest and maintenance of security.

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 public interest 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 Bharatpur to 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 are used by the police officer who made them to refresh his memory, of if the court uses them for

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 Supreme Court 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 Government and 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:

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 report invariably 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 been challenged 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.

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 even day-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 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 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)

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 privilege has 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 order as 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.