judgement:
N: Criminal Appeal No. 183 of 1993.
From the Judgment and order dated 11.5.1992 of the Allahabad High Court in Criminal Appeal No. 1791 of the 1979.
Bahar U. Bargi and Anis Suhrawardy for the Appellant.
The following Order of the Court was delivered: The petitioner was convicted by the Special Judge, Mathura under Section 5(2) of the Prevention of Corruption Act and was sentenced to two years rigorous imprisonment and a fine of Rs. 200.
He filed an appeal before the Allahabad High Court which was dismissed for default of the appearance Or the petitioner and his counsel, when the appeal was called out for preliminary hearing.
An application for restoration of the appeal made thereafter has also dismissed by the order which has been challenged before this Court in the present special leave petition.
The question which arises in this case is whether an appeal filed under Section 374 of the Criminal Procedure Code by an accused against his conviction and sentence could be dismissed for the default of the appellant in prosecuting the appeal either in person or through counsel.
Notice was issued in the special leave petition indicating that the matter would be finally disposed of at the notice stage itself.
The office report indicates that notice has been served, but there is no appearance on behalf of the respondent State.
Special leave is granted.
The High Court in its order dated 14th November, 1990 dismissing the appeal for non prosecution, relied upon the observations of this Court in Ram Naresh Yadav and others vs State of Bihar, AIR 1987 SC 1500 to the following effect: "The court can dismiss the appeal for non prosecution and enforce discipline or refer the matter to the Bar Council with this end in view.
But the matter can be disposed of on merits only after hearing the appellant or his counsel.
The learned counsel for the appellant has contended that the appeal could not have been dismissed for default on the ground of absence of the appellant or his counsel to appear and press the appeal.
The argument appears to be well founded.
As enjoined by Section 382 of the Code of Criminal Procedure, the appeal has to be filed in the form of a petition.
Section 384 (omitting sub sections (3) and (4) which are not relevant in the present context) quoted below deals with summary disposal of appeal: "384.
Summary dismissal of appeal: (1) If upon examining the petition of appeal and copy of the judgment received under Sec. 382 or Sec.
383, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily: Provided that (a) no appeal presented under Sec. 382 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same; (b) no appeal presented under Sec.
383 shall be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same, unless the Appellate Court considers that the appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case; (c) no appeal presented under Sec. 383 shall be dismissed summarily until the period allowed for preferring such appeal has expired.
(2) Before dismissing an appeal under this section, the Court may call for the record of the case.
It will be seen that the very opening words of the Section require the Appellate Court to examine the petition of appeal and copy of the impugned judgment in considering whether there is any sufficient ground for interfering with the same.
Sub section (2) provides that the Court may call for the records of the case even at the preliminary stage.
It is, thus clear, that the duty of the appellate court to examine the petition of appeal and the judgment under challenge and to consider the merits of the case before dismissing the appeal summarily is not dependent on the appellant or his counsel appearing before the Court to press the appeal.
As soon as a petition of appeal is presented under Section 382 or 383 it becomes the duty of the appellate court to consider the same on merits, even in the absence of the appellant and his counsel before dismissing the same summarily.
In a case where the appellant has been sentenced to imprisonment and he is not in custody when the appeal is taken up for preliminary hearing, the Appellate Court can require him to surrender, and if the appellant fails to obey the direction, other considerations may arise, which may render the appeal liable to be dismissed without consideration of the merits, but that is altogether a different matter with which we are not concerned in the present case.
Here, the appellant 's advocate was not present to argue the appeal when the case was called out and in the restoration application filed subsequently, attempt was made to explain the default, which, of course, did not succeed.
The question is, whether in the circumstances, the High Court could have dismissed the appeal for default, and if not, whether the prayer for restoration should have been allowed.
As is manifest from the provisions of Criminal Procedure Code, referred to above, the High Court should have either examined the appellant 's petition of appeal and the judgment under challenge, itself or appointed a counsel to assist the Court, but could not have proceeded to dismissed the same on the ground that the Advocate for the appellant was not present.
The position of a criminal appeal is not the same as in a civil appeal governed by the Civil Procedure Code.
comparison of the provisions of Section 384 with those of Order 41, Rules 11 and 17 of the Civil Procedure Code clearly brings out the difference.
Rule 17, Order 41 of Civil Procedure Code in express terms provides that an appeal may be dismissed on the ground of absence of the appellate when the appeal is called out, and Rule 19 provides for its restoration on the appellant offering sufficient cause for his non appearance.
In the case of a criminal appeal the corresponding provisions are not to be found in the Code of Criminal Procedure.
On the other hand the Code in express terms requires the matter to be considered on merits.
Thus a criminal appeal cannot be dismissed for non prosecution, and this is the reason as to why the Criminal Procedure does not contain any special provision like Order 41, Rule 19.
The law was correctly laid down in Shyam Deo Pandey & Ors.
v State of Bihar, a case governed by the old Criminal Procedure Code.
The position in this regard remains the same under the new Code.
Even earlier, the High Courts were following this very principle is clear from the observations Emperor vs Balumal Hotchand and Others, 39 Criminal law Journal 890 and Ramesh Nanu vs State of Gujarat, 17 Gujarat Law Reporter 350.
in Emperor vs Balumal Hotchand and others, it was observed thus: That the law requires that before an Appellate Court dismisses and appeal summarily, it shall read a copy of the judgment, and then, if there is no sufficient ground for interfering, it may dismiss the appeal summarily.
it was emphasized that the dismissal of the appeal shall depend on the exercise by the judgment, and not upon the failure of the accused to press his appeal.
In view of the clear language of the Code of Criminal Procedure and the other reasons mentioned above we are constrained to hold that the observations of this Court in AIR 1987 Supreme Court page 1500 relied Upon by the High Court in the case before us, cannot be treated as having laid down the law correctly.
The High Court was, therefore, not right in dismissing the appeal on the ground of non appearance of the appellant or his counsel and it should have, therefore, allowed the prayer of restoration of the criminal appeal under its inherent power.
In the result, the present appeal is allowed, the orders of the High Court are set aside, the Criminal Appeal No. 1791 of 1979 before the High Court is restored and the matter is remitted to the High Court for consideration and decision on merits in accordance with law.
T.N.A Appeal allowed.

summary:
The appellant was convicted under Section 5(2) of the Prevention of Corruption Act and was sentenced to two years rigorous imprisonment and a fine of Rs. 200.
He filed an appeal under Section 374 of the Criminal Procedure Code before the Allahabad High Court which was dismissed for default of the appearance of the appellant and his counsel.
An application for restoration of the appeal made thereafter was also dismissed.
In appeal to this Court it was contended on behalf of the appellant that the appeal could not have been dismissed for default on the ground of absence of the appellant or his counsel to appear and press the appeal.
Allowing the appeal and setting aside the orders of the High Court, this Court, HELD: 1.
The High Court was not right in dismissing the appeal on the ground of non appearance of the appellant or his counsel and it should have allowed the prayer of restoration of the criminal appeal under its inherent power.
[310 C] 2.
Under Section 384 of the Criminal Procedure Code it is the duty of the appellant court to examine the petition of appeal and the judgment under challenge and to consider the merits of the case before dismissing the appeal summarily.
The said duty is not dependent on the appellant or his counsel appearing before the Court to press the appeal.
As soon as a petition of appeal is presented under Section 382 or 383 it becomes the duty of the appellate court to consider the same on merits, even in the absence of the appellant and his counsel before dismissing the same summarily.
Therefore, the High Court should have either examined the appellant 's petition of appeal and the judgment under challenge, itself or appointed a counsel to assist the Court, but could not have proceeded to dismiss the same on the ground that the advocate for the appellant was not present.[308 H; 309 A, C] 3.
The position of a criminal appeal is not be same as that of a civil appeal.
A comparison of the provisions of Section 384 of Criminal Procedure Code with those of Order 41, Rules 11 and 17 of the Civil Procedure Code clearly brings out the difference.
Rule 17, Order 41 of Civil Procedure Code in express terms provides that an appeal may be dismissed on the ground of absence of the appellant when the appeal is called out, and Rule 19 provides for its restoration on the appellant offering sufficient cause for his non appearance.
However, in the case of a criminal appeal the corresponding provisions are not to be found in the Code of Criminal Procedure.
On the other hand the Code in express terms requires the matter to be considered on merits.
Thus a criminal appeal cannot be dismissed for non prosecution.
[309 D, E] Ram Naresh Yadav & Ors vs State of Bihar, A.I.R. 1987 S.C. 1500, dissented form.
Shyam Deo Pandey & Ors.
vs state of Bihar, [1971 Suppl.
S.C.R. 133, relied on.
Emperor vs Balumal Hotchand and Ors., and Ramesh Nanu vs State of Gujarat, 17 Gujarat Law Reporter 350, referred to.


judgement:
N: Criminal Appeal No. 646 of 1992.
From the Judgment and Order dated 3.4.92 of the Gujarat High Court in Crl.
A. No. 161 of 1992.
T.U.Mehta, N.N. Keshwani, Ashok D. Shah, R.N. Keshwani and S.K. Gupta for the Appellant.
Anip Sachthey and Badri Nath for the Respondent.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
On 4th September, 1992 this Court had directed issue of notice on the Special Leave Petition as well as on application for bail returnable in four weeks and it was indicated that the matter will be heard and finally decided on that date.
However, there is no appearance on behalf of the State today.
Leave granted.
The matter is being disposed of.
This is an appeal by Special Leave against the judgment of the Division Bench of the Gujarat High Court dated 3rd April, 1992.
Four accused persons were tried by Special Judge, Ahmedabad.
Out of the said four accused only one of the accused person, namely accused No. 2, a Food Inspector has been convicted of offences punishable under Section 161 of the Indian Penal Code and Sections 5(1) (d) and 5(2) of the Prevention of Corruption Act, 1947.
The three other accused were acquitted by the learned Special Judge.
The State tiled the appeal against the acquittal of the three acquitted accused whereas accused No. 2 filed an appeal against his conviction and sentence.
The High Court dismissed the appeal of the State against the acquittal of accused No.1, 3 and 4 and at the same time dismissed the appeal of accused No. 2.
Accused No. 2 has come up to this Court by way of a Special Leave Petition against the aforesaid decision of the Division Bench.
The prosecution case is that the complainant Mohanlal Chhatramal Samnani is running a shop and inter alia dealing in Kimam opposite Maninagar Railway Station, Ahmedabad.
On 7th January, 1984, the Chief Inspector in the Health Department (accused No.1) and accused No. 2 (appellant herein) and accused No. 4, who were working under him as Food Inspectors, had approached the complainant at his shop and stated that they had been inspecting the food articles for adulteration and took a bottle of Kimam and opened it for sample and the complainant told them that it may be taken in sealed condition but they refused to do so and stated that the sample would not be passed and the complainant would be put to difficulties.
This was stated by accused No. 1 who further stated that the complainant should be practical.
The complainant enquired as to what was meant by being practical and the accused No. 2 (appellant) replied that "being practical" means "money".
The complainant then enquired as to the amount and he was told Rs. 5,000.00.
The complainant was not willing to make such payment.
However, he was pressurised.
The complainant stated that he did not have that much money and, therefore, he was asked to pay whatever the amount he could pay immediately and the complainant opened his `galla ' and gave Rs. 600.00 to accused No. 1.
The next day, on 8th January, 1984, accused No. 4 had come to his shop and enquired whether the money had been arranged but the complainant replied that it could not be done.
However, under pressure he gave Rs. 500.00 to accused No. 4 and asked for more time for making arrangement for more amount.
Thereafter, after about 15 days accused Nos. 2 & 4 had come to his shop demanding illegal gratification and the complainant requested for four days time.
After four days again the accused Nos. 2 & 4 came to his shop and the complainant again stated that the money could not be arranged and he may be given two days time.
After great difficulties, on complainant making a promise that he would pay the amount with 100% certainty, and on this final promise, accused Nos. 2 & 4 asked the complainant to keep the money ready on 30th January, 1984 at 3.00 p.m.
On 30th January, 1984 the complainant approached the office of the Anti Corruption Bureau and gave his complainant.
Two Panchas were called by the A.C.B.
In the presence of those two Panchas, the numbers of 40 currency notes of Rs. 100.00 each were noted done in two batchs of 20 each.
Each of these currency notes was treated with anthracene powder and a demonstration was made and shown to thc complainant and the Panchas.
One bundle of Rs. 2000.00 was to be given to accused No. I and another bundle was to be given to accused Nos. 2 & 4.
Panch No. 1 was to remain with the complainant and Panch No. 2 was to remain with the raiding party.
After making this preliminary panchnama raided party went to Maninagar and the complainant and Panch No. 1 went to the shop at about 6.30 p.m. and the others waited outside a little away.
After about an hour accused No. 2 came to the shop and the complainant asked accused No. 2 to come and sit but the accused No. 2 replied that he was in a hurry and asked the complainant to come with him where another Inspector was waiting near the Post Office.
Therefore, the complainant went with accused No. 2 and Panch No. 1 followed them.
Accused No. 3 and Jinto (absconding accused) were waiting and accused No. 2 introduced them to the complainant and asked the complainant as to what he had done about the money which was earlier talked about.
The complainant replied that he had brought the money.
The accused No. 2 demanded the same and the complainant took out the bundle of currency notes from one of his pockets and gave it to accused No. 2 who accepted it by his right hand and asked the complainant as to how much it was and the complainant replied that it was Rs. 2,000.00 and accused No. 2 asked as to for how many persons it was and the complainant replied that it was for three persons.
The accused No. 2 asked accused No. 3 to count the same and while Modi, accused No.3, was counting the same, the complainant gave the signal and the raiding party which had followed them immediately came there alongwith Panch No. 2.
All of them wont to the shop of the complainant where Modi was asked to give currency notes to the Panchas and exercise of ultra violet Iamp was undertaken and in the ordinary light, hands of each of the three Food Inspectors did not indicate any light change.
Thereafter, under ultra violet light, hands of all were seen and the hands of Panch No. 2 and the members of the raiding party did not show any change on their hands.
The hands of accused No.2 (appellant) were seen in the ultra violet light and the four fingers and thumb of the right hand showed the light blue colour and white sparkle.
So also was the position with regard to the right hand fingers and thumb of Jinto and his clothes, namely the right hand pocket of the pant, so also the fingers and thumb of both the hands of accused No.3, Modi, and the left hand pocket and the woollen cap of Modi showed white sparkle and the light blue colour.
The numbers of currency notes were compared with the numbers which were recorded in the preliminary panchnama and they were found to tally.
The currency notes also showed the anthracene powder in the ultra violet light.
The complainant 's hands were also seen and they also showed the anthracene powder in ultra violet light so also both his inside pockets of the coat.
Thereafter, the complainant and the Panchas went to the residence of accused No.1.
The complainant alongwith Panch No.1 went to the first floor of the flat of accused No.1.
Accused No.1 opened the door and asked these people to come inside and made them sit.
The complainant offered money to accused No.1.
He, however, refused to accept the same and, therefore, they came Out and no raid was made.
As stated earlier all the accused were tried by the learned Special Judge and accused Nos. 1, 3, & 4 were acquitted and ultimately the appeal of the State against their acquittal was dismissed by the High Court.
The High Court dismissed the appeal of accused No.2 also after noticing (i) that the Panchas did not recognize any of the accused persons; (ii) that there is no corroboration to what had happened in the meetings preceding the raid on 30th January, 1984; (iii) that the evidence of the complainant was disinterested and did not require any corroboration; and (iv) that the hands of accused No.2 were seen in ultra violet light and four fingers and thumb of the right hand showed the light blue colour and white sparkle.
The High Court had acquitted accused Nos. 3 & 4 in spite of the fact that their fingers have also showed light blue colour and white sparkle in ultra violet light but the High Court was not prepared to rely on that circumstance alone with the uncorroborated testimony of the complainant.
Since according to the High Court no demand had been made by accused Nos. 3 and 4 from the complainant for any bribe.
It will be noticed that not only the two Panchas could not recognize any of the accused persons but there is no corroboration to the various statements of the complainant vis a vis accused Nos. 1 to 4 by the police officials who constituted the raiding party either.
The raiding party including the police officials reached the spot at a time when they could neither hear the talk, if any, between the accused No. 2 and the complainant nor could see the alleged acceptance of money by accused No.2 and passing it on to accused No.3.
We are thus left with the sole testimony of the complainant and the test of seeing anthracene powder on the hands and fingers of accused No.2.
The High Court had acquitted accused No.3 and did not find it safe to convict him on the sole testimony of the complainant supported by the test of seeing anthracene powder on the hands and fingers of accused No.3.
in ultra violet light.
But on the same evidence the High Court upheld the conviction of accused No.2 relying on the same evidence which was rejected vis a vis accused No.3.
The High Court felt that the complainant was totally dis interested in the success of the raid and could not be called interested person and thus felt no need for corroboration of his statement.
The fact remains that the High Court totally ignored the statement of the complainant made during cross examination on behalf of accused No.2.
In his cross examination the complainant stated; "It is true that accused No.2 used to carry out raids on and often on Pan gallas.
It is true that I had felt that he is harassing businessmen selling Pan and Masalas.
It is true that is why we thought of teaching him a lesson.
It is true that in my statement before police, I have not stated that when accused No.1 asked as to why have you come, then I told that I am Kimamwala of Maninagar and according to talk with Shantilal, I have come to give money.
" It is clear that it is not a case merely of a complainant from whom bribe was demanded and he was forced to pay the same but the complainant had thought of teaching a lesson to accused No.2 for harassing the businessmen selling Pan Masalas and, therefore, it could not be said that the complainant was not interested in success or otherwise of the raid.
In fact the High Court acquitted accused No.3, though the evidence against him was the same as it was against accused No.2.
When the High Court could not find it safe to rely on the uncorroborated statement of the complainant while upholding the acquittal of accused No.3 we also find it unsafe to rely on the pise dixit of the complainant which is unsupported by both the Panch witnesses and the police officials who formed the raiding party for upholding the conviction of accused No.2, appellant before us.
The result is that the appeal succeeds, the conviction and sentence of the appellant is set aside and the appellant is acquitted.
N.V.K. Appeal allowed.

dataset_name: IN-Abs

summary:
The prosecution case was that the complainant was running a shop and dealing in Kimam and that on 7th January, 1984, the Chief Inspector in the Health Department (accused No.1) and accused No. 2 (appellant in the appeal), accused No. 3 and accused No. 4 who were working as Food Inspectors had approached the complainant at his shop and stated that a they had been inspecting food articles for adulteration, and took a bottle of Kimam and opened it for sample and when the complainant told them that it may be taken in sealed condition, they refused to do so and stated that the sample would not be passed and the complainant would be put to difficulties, unless he paid Rs. 5,000.
The complainant was not wiling to make such payment but he was pressurised.
On the next day, 8th January, 1984 accused No. 4 came to the shop to enquire whether the money had been arranged.
He was given Rs. 500 and the balance was promised to be given on 30th January, 1984.
On 30th January, 1984 the complainant approaehed the office of the Anti Corruption Bureau and gave his complaint.
Two Panchas were called by the A.C.B., the number of 40 currency notes of Rs. 100 each were noted done in two batches of 20 each, the currency notes were treated with anthracene powder, a demonstration was made and shown to the complainant and the Panchas.
Panch No.1 was to remain with the complainant and Panch No. 2 was to remain with the raiding party.
The complainant and Panch No.1 went to the stop at about 6.00 p.m. and when accused No. 2 demanded the money, the complainant gave it to him, when he was apprehended by the raiding party.
The hands of accused No. 2 (appellant) were seen in the ultra violet light and the four fingers and thumb of the right hand showed the light blue colour and white sparkle.
The currency notes also showed the anthracene powder in the ultra violet light.
Thereafter, the complainant and Panchas went to the residence of accused No. 1.
The complainant offered money to accused No. 1.
He, however, refused to accept the same, and, therefore no raid was made.
All the four accused were tried by the Special Judge for offences under section 161 of the Indian Penal Code read with Sections 5(1) (d) and 5(2) of the Prevention of Corruption Act.
Accused Nos. 1, 3 and 4 were acquitted while accused No. 2 was convicted and sentenced by the Special Judge.
The State filed an appeal against the acquittal of the three accused whereas accused No. 2 filed an appeal against his conviction and sentence.
The High Court dismissed both the appeals.
It noticed that: the Panchas did not recognise any of the accused persons; there is no corroboration as to what had happened in the meetings preceding the raid on 30th January, 1984; the evidence of the complainant was disinterested and did not require any corroboration; and the hands of accused No. 2 when seen in ultra violet light the four fingers and thumb of the right hand showed the light blue colour and white sparkle.
Allowing the appeal, and setting aside the conviction and sentence, this Court, HELD: 1.
The High Court had acquitted the accused No. 3 and did not find it safe to convict him on the sole testimony of the complainant supported by the test of seeing anthracene powder on the hands and fingers of accused No. 3 in ultra violet light, but on the same evidence upheld the conviction of accused No. 2 relying on the same evidence which was rejected vis a vis accused No. 3.
[272 G] 2.
When the High Court could not find it safe to rely on the uncorroborated statement of the complainant while upholding the acquittal of accused No.3 it is unsafe to rely on the ipse dixit of the complainant which is unsupported by both the Panch witnesses and the police officials who formed the raiding party for upholding the conviction of accused No. 2, appellant.
[273 E] 3.
Not only the two Panchas could not recognise any of the accused persons but there is no corroboration to the various statements of the complainant vis a vis accused Nos.
1 to 4 by the police officials who constituted the raiding party either.
The raiding party including the police officials reached the spot at a time when they could neither hear the talk, if any, between the accused No. 2 and the complainant nor could see the alleged acceptance of money by accused No. 2 and passing it on to accused No. 3.
[272 E] 4.
The High Court totally ignored the statement of the 2complainant made during cross examination on behalf of accused No. 2, that he had thought of teaching accused No. 2 a lesson for harassing businessmen selling Pan and Masalas.
[273 A] 5.
It is clear that this is not a case merely of a complainant from whom bribe was demanded and he was forced to pay the same but the complainant had thought of teaching a lesson to accused No. 2 for harassing the businessmen selling Pan Masalas and therefore, it could not be said that the complainant was not interested in success or otherwise of the raid.
[273 D]


judgement:
Appeal Nos.
4734 35 of 1992.
From the Judgment and Order dated 8.5.1992 of the Madhya Pradesh High Court in Misc.
Petition Nos.
48] and 533 of 1992.
Shanti Bhushan, N.C. Jain, S.K. Agnihotri and Ashok K. Singh for the Appellant.
Kapil Sibal, N.S. Kale, A.P. Dhamija, S.K. Jain, Manmohan, section Atreya, Pradeep Agarwal, Basant Bhai Mehta, Ravindra Srivastava, R.N. Srivastava, B.V. Desai and S.V. Deshpande for the Respondents.
The Judgment of the Court was delivered by VERMA, J.
The petitioner State of Madhya Pradesh in both these petitions seeks leave to appeal under Article 136 of the Constitution against the common judgment and order dated 8.5.1992 of the High Court of Madhya Pradesh in Miscellaneous Petition Nos. 481 of 1992 and 533 of 1992 under Article 226 of the Constitution.
The High Court has allowed both these writ petitions.
The material facts are these.
In Miscellaneous Petition No. 3909 of 1987 tiled in public interest by Kailash Joshi, then Leader of the Opposition in Madhya Pradesh Vidhan Sabha and now a Cabinet Minister in Madhya Pradesh, relating to the affairs of the Churhat Children 's Welfare Society and the lottery conducted by it, the M.P. High Court by its judgment dated 20.1.1989 issued a direction for setting up an independent high power agency to bold an inquiry into the affairs of the said Society of which respondent 1 Ajay Singh was one of the office bearers.
In compliance of that direction, the State Government passed a resolution on 24.2.1989 and also issued notification of the same date having the effect of setting up a Commission of Inquiry consisting of Justice S.T. Ramalingam, a Judge of the Madras High Court to investigate into the affairs of the said Society and the lottery conducted by it.
The resolution and notification are as under : "Bhopal, the 24th February, 1989 No. F. 1 3 89 l(i) E.C.
Whereas the High Court of Madhya Pradesh in its order dated the 20th January 1989 in M.P. No. 3909/87 Kailash Joshi versus State of Madhya Pradesh and others has directed that an inquiry be made by an independent high power agency into the affairs of the Churhat Children 's Welfare Society and how the share of its profits derived from all or any other draws have been utilized and to take such action as may be required under the law against the said Society and its organizing agent and that the State Government is of the view that the said order of the High Court should be implemented and carried out and whereas the State Government is also satisfied that this is a definite matter of public importance which calls for an inquiry to be made, the State Government hereby appoints an independent high power agency presided over by Shri Justice S.T. Ramalingam, Judge of the Madras High Court.
The Headquarters of the Agency shall be at Jabalpur, Madhya Pradesh.
The terms of reference for inquiry by the aforesaid Agency shall be as under: (1) How the affairs of the Churhat Children s Welfare Society are conducted and how the share of the profit derived and the money collected through lottery has been utilised ? (2) What is the amount collected draw wise, by the agent and the Society and what is the tax liability as per the Madhya Pradesh lottery (Niyantran Tatha Kar) Adhiniyam, 1973 ? (3) Whether any irregularities, illegalities and offences were committed in organizing the lottery, holding of draws of lottery, distribution of prizes, and in that event, the person responsible for the same; (4) Any other matter incidental or connected with the above subject matter of enquiry.
(4) The Agency may complete its enquiry and submit its report to the State Government within a period of six months from the date of issue of this Notification.
By order and in the name of the Governor of Madhya Pradesh, R.C. Shrivastava, Secy" "Bhopal, the 24th February, 1989 No. F.1 3 89 I(i) E.C. Whereas by Government of Madhya Pradesh Resolution dated the 24th February 1989 and Notification No. F.1 3 89 I(i) E.C., dated the 24thFebruary 1989 an independent High Power Agency presided over by Shri S.T. Ramalingam, Judge of the Madras High Court has been set up to hold an inquiry into the affairs of the Churhat Children 's Welfare Society; And whereas the State Government having regard to the nature of the inquiry to be made and other circumstances of the case is of the opinion that provisions contained in sub sections (2) to (5) of Section 5 of the , should be made applicable to the aforesaid Agency; Now,therefore, in exercise of the powers conferred by sub section (1) of Section 5 of the , the State Government hereby directs that the provisions of sub sections (2) to (5) of Section 5 of the said Act shall apply to the above described Agency.
By order and in the name of the Governor of Madhya Pradesh, R.C. Shrivastava, Secy".
According to the terms of the above notification, the inquiry was to be completed within a period of six months from the date of issue of the notification.
As the inquiry could not be completed within that period, by a notification dated 1.8.1990 the period for completing the inquiry was extended upto 22.8.1991; then by another notification dated 16.8.1991 the period was extended upto 31.3.1992; and then by another notification dated 27.3.1992 the period for completing the inquiry stands extended upto 31.3.1993.
In the meantime, Justice S.T. Ramalingam became due to retire as a Judge of the Madras High Court on 30.6.1991 on attaining the age of superannuation and, therefore, he wrote a letter dated 19.3.1991 to the Chief Secretary of the State drawing attention to this fact and requesting that necessary modalities be worked out well in time for his continuance as Commission of Inquiry in the light of the guidelines issued by the Government of India for the benefits and emoluments payable to a Judge on his retirement in such a situation.
Just Ramalingam mentioned in that letter some of the facilities he expected, to which he would not be entitled from the Government of Tamil Nadu on his retirement.
The Chief Secretary R.P. Kapoor sent a reply to Justice Ramalingam by DO No. 504/CS/91 dated 9.4.1991 as under: "My dear Hon 'ble Justice Ramalingam, Thank your very much for your letter No. 53 of 19th March, 1991.
The issues raised in your letter regarding the tenure of the Commission and the terms and conditions after your superannuation are under active consideration of the Government and I will be in a position to inform your after a final view is taken in this case.
In the meanwhile may I request that the proceedings may be continued so that the inquiry can be completed at the earliest possible.
With very kind regards, Yours sincerely, Sd/ (R.P. Kapoor)" `This letter of the Chief Secretary apart from promising to give an early reply also requested Justice Ramalingam to continue with the inquiry so that the same could be completed early.
While the promised reply from the State Government Justice Ramalingam was awaited, the State Government, without further reference to Justice Ramalingam, issued a notification dated 10.7.1991 as under: "Bhopal, the 10th July, 1991 No. F.1 6 91 I (8 Ka).
Whereas, an independent high power agency comprising of a single member namely Justice S.T. Ramalingam, Judge of the Madras High Court was appointed under this Department Notification No. F.1 3 89 I(i) E.C., dated the 24th February 1989; And whereas Justice S.T. Ramalingam has retired as Judge of the Madras High Court, on 30th of June 1991; And whereas for continuing in the said agency after retirement Justice Shri S.T. Ramalingam has placed certain terms and conditions which have not been found possible for the Government to accept.
Now, therefore, in exercise of the powers conferred by sub section (3) of Section 3 of the (No. LX of 1952), the State Government hereby appoint Justice Shri G.G. Sohani, retired Chief Justice, High Court of Patna (Bihar) as single member of the said agency in place of Justice Shri S.T. Ramalingam.
Accordingly this Department Notification Nos.
(I)F.1 3 89 I(i) E.C. dated the 24th February 1989, (2) F.1 3 89 1(i) E.C., dated the 24th February 1989 and (3) F.1 3 89 I(i) E.C. dated the 24th February 1989, shall stand amended to this extent.
By order and in the name of the Governor of Madhya Pradesh S.K. Misra, Secy.
Accordingly, by this notification, the State Government replaced Justice S.T. Ramalingam with Justice G.G. Sohani, retired Chief Justice of Patna High Court as the sole member of the Commission of Inquiry.
The appointment of Justice G.G. Sohani in place of Justice S.T. Ramalingam was challenged in the M.P. High Court by a writ petition M.P. No. 2359 of 1991 by respondent No. 1 Ajay Singh.
By an interim order dated 30.7.1991 passed by the High Court, the operation of the above notification dated 10.7.1991 was stayed.
During the pendency of that writ petition, Justice G.G. Sohani conveyed to the State Government his disinclination to continue with the assignment and tendered his resignation.
Consequently, the High Court dismissed that writ petition as infructuous on 5.9.1991.
It was only thereafter that the Chief Secretary of the State Government sent a letter dated 12.9.1991 in continuation of his earlier letter dated 9.4.1991 to Justice Ramalingam which is as under : "This is in continuation to my earlier letter No. 504/CS/91 dated 9th April, 1991 regarding the arrangement for the Commission of Enquiry (Churhat Children Welfare Society and Lottery), consequent to your superannuation as a Judge of the Madras High Court.
The State Government have considered your communications about the inconveniences you were facing in coming to Jabalpur for want of Air link between Madras and Jabalpur.
The State Government have also considered the terms and conditions mentioned in your letter of 19th March, 1991.
On careful consideration of all aspects mentioned in your communications it has not been possible for the State Government to accept the terms and conditions set out in your letter of 19th March for taking up the work of the above mentioned Enquiry Commission after your superannuation.
The State Government had accordingly appointed Justice Mr. G.G. Sohani, retired Chief Justice of the Patna High Court to be the single Member of the Commission.
I am, however, happy to convey the deep appreciation of the State Government for the services rendered by you in the Commission in spite of all the personal inconvenience it has caused.
The Hon 'ble Chief Minister had made a general mention of it in the Vidhan Sabha on the 4th July, 1991.
Delay in reply to your letter is regretted.
It was caused because of the litigation arising out of the appointment of Justice Sohani which was since been decided.
Wishing you and your family a very happy life after your superannuation.
Yours sincerely, R.P. Kapoor" The State Government thereafter issued another notification dated 9.1.1992 as under: "Bhopal, the 9th January 1992 No. F.1 6 91 I (8 Ka).
Whereas in exercise of the powers conferred by sub section (3) of Section 3 of the Commissions of Enquiry Act, 1952 (No. LX of 1952) Justice Shri G.G. Sohani, retired Chief Justice, High Court of Patna (Bihar) was appointed as single member of an independent high power agency constituted under this department notification No. F.1 3 89 I(i) E.C., dated 24th February 1998 in place of Justice Shri S.T. Ramalingam vide this department Notification No. F.1 6 91 I(8 Ka), dated the 10th July 1991; And whereas Justice Shri G.G. Sohani, retired Chief Justice, High Court of Patna (Bihar) has since withdrawn his consent to work as single member of the said agency; Now, therefore, in exercise of the powers conferred by sub section (3) of Section 3 of the Commissions of Enquiry Act, 1952 (No.LX of 1952), read with Section 21 of the General Clause Act, 1987 (No. 10 of 1897), the State Government hereby appoint Justice Shri Kamlakar Choubey, retired Judge of the Allahabad High Court as a single member of the said agency in place of Shri G.G. Sohani.
Accordingly this department Notification Nos.
(1) F.1 3 89 l(i) E.C., dated 24th February, 1989, (2) F.1 3 89 I (i) E.C., dated 24th February, 1989, and (3) F.1 3 89 I (i) E.C., dated the 24th February, 1989, shall stand amended to this extent.
By order and in the make of the Governor of Madhya Pradesh In this manner, the State Government after replacing Justice S.T. Ramalingam first by Justice G.G. Sohani, thereafter replaced him by Justice Kamlakar Choubey, a retired Judge of the Allahabad High Court, as the sole member of the Commission.
It is unnecessary to refer to the terms and conditions of appointment of Justice Kamlakar Choubey which were detailed in the General Administration Department Memo.
dated 23.3.1991 and are referred in the High Court judgment, which include the facility of a Camp Office for him at Varanasi and other facilities of vehicle, telephone and staff etc.
The appointment of Justice Kamlakar Choubey as the sole member constituting the Commission of Inquiry in this manner resulting in the replacement of Justice S.T. Ramalingam initially appointed for the purpose and to writ petitions M.P. Nos. 481 of 1992 and 533 of 1992 for quashing the notification dated 9.1.1992 appointing Justice Kamlakar Choubey.
Challenge to the notification dated 10.7.1991 issued earlier appointing, Justice G.G. Sohani is academic in view of Justice Sohani having resigned as indicated earlier.
The remaining significance of the validity of the notification dated 10.7.1991 appointing Justice G.G. Sohani relates only to the State Government 's power to appoint another person in place of Justice S.T. Ramalingam in the above circumstances.
The challenge of the writ petitioners before the High Court was that during the continuance as the single member of the Commission of Inquiry of Justice S.T. Ramalingam, there was no power in the State Government to replace him as the member of the Commission and, therefore, the appointment first of Justice G.G. Sohani and on his refusal, of Justice Kamlakar Choubey, being without any authority, was invalid.
On this basis, the relief of quashing the notification dated 9.1.1992 appointing Justice Kamlakar Choubey was sought.
In substance, the argument was that there being no vacancy in the office, the power under Section 3(3) of the , which is available only to fill any vacancy could not be invoked and there was no other source of power available to the State Government for this purpose.
The argument of the learned Advocate General on behalf of the State Government was that a vacancy had arisen in the membership of the Commission on account of Justice Ramalinga 's retirement from Madras High Court on 30.6.91, and there being his implied resignation indicated by his inclination to continue on the terms and conditions suggested by him, which the State (Government did not consider feasible, the power of the State Government under Section 3(3) of the to fill the implied vacancy was available.
It was also urged by the learned Advocate General that vacancy in the office of the single member of the Commission was also implied from the fact that the appointment of Justice S.T. Ramalingam as the Commission of Inquiry was also his status as a sitting Judge of the Madras High Court and, therefore, his retirement as a Judge resulted in creation of the vacancy.
The learned Advocate General also placed reliance on Section 16 of the , in aid of the State Government 's power under Section 3(3) of the .
Another submission of the learned Advocate General was that the State Government was the sole judge in this matter and was, therefore, competent to choose the person for making or continuing the inquiry in view of the power available under Section 3 of the lead with Section 16 of the .
The learned counsel appearing on behalf of Kailash Joshi placed reliance on Section 3(2) of the Commission of Inquiry Act read with Section 14 of the to support the State Government 's action appointing Justice Kamlakar Choubey contending that the State Government had power to reconstitute the Commission replacing Justice S.T. Ramalingam by another person.
An argument challenging the locus standi of the writ petitioner was also faintly urged by counsel for Kailash Joshi.
The High Court allowed the writ petitions and quashed the notification dated 9.1.1992 appointing Justice Kamlakar Choubey.
It held that there was no vacancy in the office of the single member of the Commission to empower the State Government to fill the vacancy under Section 3(3) of the .
On a construction of the provisions of the and those of the relied on in support of the rival contentions, the High Court came to the conclusion that there was neither any valid reason or ground nor any power available in the State Government to replace Justice S.T. Ramalingam by another person as was purported to be done by First appointing Justice G.G. Sohani and then Justice Kamlakar Choubey, both of whom were also retired Judges.
The objection to locus standi for the writ petitioners was also rejected.
The relevant part of the directions made by the High Court is as under: 42.
As a result of the aforesaid discussion, the petition succeeds and is hereby allowed.
The notification dated 10.7.1991 (Annexure H) and the consequent notification based thereon dated 9.1.1992 (Annexure M) are hereby quashed.
It is open to the State Government to propose to Hon 'ble Shri Justice S.T. Ramalingam the terms and conditions or his continuance as a member of the Commission equivalent to, loss or more favourable than those offered and fixed for Hon 'ble Shri Justice Kamlakar Choubey.
Thereafter depending on his reply the State Government may continue or discontinue his appointment or substitute another member in his place.
It is also made clear that it would be open to Justice Ramalingam to accept the terms and conditions offered by the State Government of Madhya Pradesh or to resign from the office, by taking a decision in that behalf early, so that the work of the Commission is not unduly hampered and it is completed well within the extended period i.e. before 31st March, 1993 . . " Hence, these petitions for grant of special leave.
Leave granted.
Shri Shanti Bhushan, learned senior counsel for the State of Madhya Pradesh, expressly gave up the argument advanced before the High Court of the implied resignation of Justice S.T. Ramalingam giving rise to a vacancy or any implied vacancy on retirement of Justice Ramalingam as a Judge of the Madras High Court to enable exercise of power under Section 3(3) of the for first appointing Justice G.G. Sohani and then Justice Kamlakar Choubey in place of Justice S.T. Ramalingam The case of the State of Madhya Pradesh in this Court was confined by Shri Shanti Bhushan to only one point.
The only contention of Shri Shanti Bhushan is that the aid of Section 21 of the is available to the State Government for exercising its powers under the `to add to, amend or vary ' the notification issued initially appointing Justice S.T. Ramalingam as the sole member of the Commission which enables the State Government to reconstitute the Commission by replacing Justice S.T. Ramalingam with any other person in the circumstances of the case.
He argued that it is in exercise of this power that the period fixed initially for completion of the inquiry could be amended since, to the extent the provisions in the are silent, recourse can be had to Section 21 of the for making a suitable addition, amendment or variation of the initial notification.
According to learned counsel, the power to rescind any notification being provided in Section 7 of the , such a power in Section 21 of the was not available, but not so the power given by Section 21 of the to add to, amend or vary any notification.
Shri Shanti Bhushan also referred to Section 8 A of the as an indication to support his submission of the Government 's power to reconstitute the Commission even during the availability of the person so appointed even though, he stated, Section 8 A is not the source of power for reconstitution of the Commission.
In reply, Shri Kapil Sibal, learned senior counsel for respondent No.1, submitted that the scheme of the does not permit invoking Section 21 of the except for enlarge ment of the period for completion of the inquiry by amendment of the notification only to that extent since the only situations in which reconstitution of the Commission can be made are provided in the itself and, therefore, the context rules out the applicability of Section 21 of the for any such purpose.
Shri Sibal also submitted that the construction suggested by Shri Shanti Bhushan is alien to the scheme of the .
Shri Sibal added that Section 8 A of the was enacted for an entirely different purpose, to ensure continuity of the Commission 's work and has nothing to do with its reconstitution.
Shri N.S. Kale, learned counsel for Kailash Joshi, while supporting the submission of Shri Shanti Bhushan added that Sections 14 and 16 of the are also available to support the impugned notifications issued by the State Government.
In the ultimate analysis, the controversy surviving before us on the rival contentions is considerably narrowed.
In substance, the only surviving controversy now is whether in the scheme of the , the power `to add to, amend or vary ' any notification given by Section 21 of the is available to reconstitute a Commission of Inquiry constituted under Section 3 of the by replacing the sole member appointed initially with another person during the availability of the sole member initially appointed.
The validity of the aforesaid impugned notifications dated 10.7.1991 appointing Justice G.G. Sohani and dated 9.1.1992 appointing Justice Kamlakar Choubey to replace Justice S.T. Ramalingam depends on the answer to this question which alone now survives for decision.
A reference to the object and purpose of an enactment in the nature of the would be worthwhile before proceeding to examine its scheme and the provisions therein.
The object of the enactment, to the extent it is relevant, while construing the meaning of its provisions may be of assistance.
The Commissions of Inquiry Act, 1955 is similar to and is modelled on the corresponding English statute and provides this historical back ground for the Indian statute.
The purpose of such an enactment is aptly summarised in the speech of Lord Salmon on `Tribunals of Inquiry ' as under : "In all countries, certainly in those which enjoy freedom of speech and a free Press, moments occur when allegations and rumours circulate causing a nation wide crisis of confidence in the integrity of public life or about other matters of vital public importance.
No doubt this rarely happens, but when it does it is essential that public confidence should be restored, for without it no democracy can long survive.
This confidence can be effectively restored only by thoroughly investigating and probing the rumours and allegations so as to search out and establish the truth.
The truth may show that the evil exists, thus enabling it to he rooted out, or that there is no foundation is the rumours and allegations by which the public has been disturbed.
In either case, confidence is restored.
How, in such circumstances, can the truth best be established ?" It is for the purpose of ascertaining the truth in such circumstances that the has been enacted.
While construing the provisions of the enactment, it would be useful to bear in mind its object if occasion arises for illumination of any grey areas with reference to the object of the enactment as a permissible aid to construction.
The was enacted to provide for the appointment of Commissions of Inquiry and for vesting such Commissions with certain powers.
Section 2 of the Act contains definitions.
Section 3 provides for appointment of a Commission of Inquiry.
Sub section (1) of Section 3 lays down that a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance may be appointed by the appropriate Government it is of opinion that it is necessary so to do and shall make such an appointment if a resolution in this behalf is passed by each House of Parliament or, as the case may be, the Legislature of the State, by notification in the Official Gazette.
Sub section (2) of Section 3 says that the Commission may consist of one or more members appointed by the appropriate Government, and where the number is more than one, one of them may be appointed as the Chairman.
Sub section (3) of Section 3 enables the appropriate Government to fill any vacancy which may arise in the office of a member of the Commission whether consisting of one or more than one member, at any stage of an inquiry.
Sub section (4) of Section 3 requires the appropriate Government to cause to be laid before each House of Parliament or, as the case may be, the Legislature of the State, the report, if any, of the Commission of Inquiry together with a memorandum of the action taken thereon, within a period of six months from the submission of the report by the Commission to the appropriate Government.
Section 4 prescribes that the Commission shall have the powers or a civil court while trying a suit under the Code of Civil Procedure in respect of the matters mentioned therein.
Section 5 deals with the additional powers of the Commission.
Section 5 A relates to the power of the Commission for conducting investigation pertaining to inquiry.
Section 5 B deals with the power of the Commission to appoint assessors.
Section 6 provides for the manner of use of the statements made by persons to the Commission.
Section 6 A provides that some persons are not obliged to disclose certain facts.
Section 7 deals with the manner in which a Commission of Inquiry appointed Section 3 ceases to exist in case its continuance is unnecessary.
It provides for a notification in the Official Gazette by the appropriate Government specifying the date from which the Commission shall cease to exist if it is of the opinion that the continued existence of the Commission is unnecessary.
Where a Commission is appointed in pursuance of a resolution passed by the Parliament or as the case may be, the Legislature of the State, then a resolution for the discontinuance of the Commission is also to be passed by it.
Section 8 A provides that the inquiry is not to be interrupted by reason of vacancy or change in the constitution of the Commission and it shall not be necessary for the Commission to commence the inquiry afresh and the inquiry may be continued from the stage at which the change took place.
Section 8 B prescribes that persons likely to be prejudicially affected by the inquiry must be heard.
Section 8 C deals with the right of cross examination and representation by legal practitioner of the appropriate Government, every person referred to in Section 8 B and, with the permission of the Commission, any other person whose evidence is recorded by the Commission.
Sections 9, 10 and 10 A relate to ancillary matters while Section 12 contains the rule making power of the appropriate Government.
Section 11 provides that the Act is to apply to other inquirying authorities in certain cases and where the Government directs that the said provisions of this Act shall apply to that authority and issues such a notification, that authority shall be deemed to be a Commission appointed under Section 3 for the purposes of this Act.
Admittedly, it is by virtue of Section 11 that the Commission of Inquiry appointed in the present case is deemed to be a Commission appointed under Section 3 for the purposes of this Act because the Commission was constituted by a resolution of the Government pursuant to the direction of the M.P. High Court in the writ petition filed in public interest by Kailash Joshi as indicated earlier.
For the purposes of this case, the material provisions of the enactment are Sections 3, 7 and 8 A apart from Section 21 of the with reference to which the rival contentions were made.
These provisions are as under : The "3. Appointment of Commission. (1) The appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by each House of Parliament or, as the case may be, the Legislature of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may he specified in the notifications and the commission so appointed shall make the inquiry and perform the functions accordingly: Provided that where any such Commission has been appointed to inquire into any matter (a) by the Central Government, no State Government shall, except with the approval of the Central Government, appoint another Commission to inquire into the same matter for so long as the Commission appointed by the Central Government is functioning; (b) by a State Government, the Central Government shall not appoint another Commission to inquire into the same matter for so long as the Commission appointed by the State Government is functioning, unless the Central Government is of opinion that the scope of the inquiry should be extended to two or more States.
(2) The Commission may consist of one or more members appointed by the appropriate Government, and where the Commission consists of more than one member one of them may be appointed as the Chairman thereof.
(3) The appropriate Government may, at any stage of an inquiry by the Commission fill any vacancy which may have arisen in the office of a member of the Commission (whether consisting of one or more than one member).
(4) The appropriate Government shall cause to be laid before each House of Parliament or, as the case may be, the Legislature of the State, the report, if any, of the Commission on the inquiry made by the Commission under sub section (1) together with a memorandum of the action taken thereon, within a period of six months of the submission of the report by the Commission to the appropriate Government. ' "7.
Commission to cease to exist when so notified. (1) The appropriate Government may, by notification in the Official Gazette, declare that (a)a Commission (other than a Commission appointed in pursuance of a resolution passed by each House of Parliament or, as the case may be, the Legislature of the State) shall cease to exist, if it is of opinion that the continued existence of the Commission is unnecesary; (b) a Commission appointed in pursuance of a resolution passed by each House of Parliament or as the case may he, the Legislature of the State, shall cease to exist if a resolution for the discontinuance of the Commission is passed by each House of Parliament or, as the case may be, the Legislature of the State.
(2) Every notification issued under sub section (1) shall specify the date from which the Commission shall cease to exist and on the issue of such notification, the Commission shall cease to exist with effect from the date specified therein." "8 A. Inquiry not to be interrupted by reason of vacancy or change in the constitution of the Commission. (1) Where the Commission consists of two or more members, it may act notwithstanding the absence of the Chairman or any other member or any vacancy among its members.
(2) Where during the course of an inquiry before a Commission, a change has taken place in the constitution of the Commission by reason of any vacancy having been filed or by any other reason, it shall not be necessary for the Commission to commence the inquiry afresh and the inquiry may be continued from the stage at which the change took place.
" The "21.
Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye laws.
Where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye laws is conferred, then that power includes a power, exercisably in the like manner and subject to the like sanction and conditions (if any) to and to, amend, vary or rescind any notifications, orders, rule or bye laws so issued.
" It may be mentioned that sub sections (3) and (4) of Section 3 and Section 8 A were inserted while Section 7 was substituted in the by the Commissions of Inquiry (Amendment) Act, 1971 (No.79 of 1971) as a result of the recommendations of the Law Commission of India made in paras 26 and 34 of its 24th Report.
In para 26, the recommendation made was to amend Section 3 of the Act `to provide expressly for the filling up of vacancy or for an increase in the number of members whenever the Government thinks it necessary or expedient to do so '.
In para 34 of the Report, the recommendation was to insert a new section 8 A in the light of the proposed amendment in Section 3 to clarify that `it is not necessary for the Commission to recommence its inquiry if a change takes place in the constitution of the Commission during the pendency of an inquiry '.
The legislative history of sub section (3) of Section 3 and Section 8 A inserted simultaneously by amendment of the Act shows their interrelation and the object of enacting Section 8 A is to clarity that the inquiry is not required to recommence or be interrupted by reason of the filling of any vacancy or decrease in the number of members of the Commission.
Section 8 A along with Sections 8 B and 8 C inserted simultaneously by amendment in the principal Act relate to the procedure of the Commission and were inserted to provide for specific situations while Section 8 contains the general power of the Commission to regulate its own procedure.
The real question for decision in the present case is: Whether the appropriate Government after constituting the Commission under Section 3 of the Act is empowered to reconstitute the Commission substituting another person as the sole member in place of the initial appointee? In substance, it is this power that the State Government claims to have exercised in the present case and is attempted to be justified by the argument advanced by Shri Shanti Bhushan to support the appointment first of Justice G.G. Sohani and then of Justice Kamlakar Choubey in place of Justice S.T. Ramalingam.
To recapitulate, the argument of Shri Shanti Bhushan is that the power of reconstituting the Commission in this manner is available to the State Government under Section 21 of the which can be invoked in aid of the power of the Government under Section 3 of the .
Section 8 A of the is referred to by Shri Shanti Bhushan as an indication of the existence of this power in the State Government even though he does not rely on it as a source of this power.
Shri Kapil Sibal, on the other hand, contends that the scheme of the enactment shows that the appropriate Government cannot interfere with the working of the Commission after its constitution except in the manner expressly provided in the Act and Section 7 is a clear indication that interference with the functioning of the Commission is not permissible in any other manner.
Shri Sibal contends that Section 21 of the is not available to support the Government 's action in the present case.
Shri Shanti Bhushan concedes that there is no express provision in the empowering the Government to replace or substitute the sole member of a Commission with another person during the continuance of the Commission, but he submits that this is implicit in the power to appoint a Commission and designate its personnel under sub sections (1) and (2) of Section 3 of the read with the power to amend or vary any notification available under Section 21 of the .
Shri Shanti Bhushan also conceded that the aid of Section 21 of the is available only if the context and the scheme of the so permits.
He submitted that the Government 's power to extend the time specified in the initial notification for completing the work of the Commission is not to be found in any express provision in the , but is exercised by amendment of the initial notification only under Section 21 of the .
According to Shri Shanti Bhushan, the appointment of a Commission is under sub section (1) and it is under sub section (2) of Section 3 that the person constituting the Commission is appointed even though it may be a simultaneous process.
The replacement of the member initially appointed to constitute the Commission, according to learned counsel, is by re exercise of the power under sub section (2) of Section 3.
The submission is that the Commission appointed under sub section (1) of Section 3 continues while it may be reconstituted by replacement of the member which is done under sub section (2).
In our opinion, the power of the Government to appoint a Commission of Inquiry and name the person or persons constituting it is in sub section (1) of Section 3 and is not an exercise divided between subsections (1) and (2) of Section 3 as suggested by Shri Shanti Bhushan.
Sub section (2) merely confers the power in the Government to appoint a Commission consisting of one or more members and provides that if there be more than one member of the Commission, then one of them may be appointed Chairman of the Commission.
lt is not as if sub section (1) deals with mere appointment of a Commission of Inquiry without clothing it with its personnel and the power to appoint the member/members thereof is to be found only in sub section (2).
That apart, there is nothing in any of these provisions to suggest that the Government has the power to reconstitute the Commission after its appointment by replacing the existing sole member with another person, Sub section (3) deals expressly with the Government 's power to fill any vacancy which may have arisen since the constitution of the Commission.
The question of replacement of a member appointed initially is obviously beyond its scope.
Sub section (3) inserted by amendment in Section 3 of the is a clear contra indication to the construction suggested by Shri Shanti Bhushan of sub sections (1) and (2) of Section 3 in the scheme of the Act.
If the construction suggested by Shri Shanti Bhushan be correct, there was no need to make this amendment and insert sub section (3) which is a clear indication of the limit and extent to which the power of reconstitution of the Commission can be exercised by the Government after the Commission has been constituted.
As the Law Commission 's Report itself indicates, this amendment became necessary to provide expressly in the statute for the Government 's power to till any vacancy after the initial constitution Whatever may have been the position prior to insertion of sub section (3) in Section 3, there can be no doubt that after its insertion, the scheme of the enactment excludes the power of reconstitution of the Commission in a manner not expressly provided therein.
In view of sub section (3), it is not permissible to construe sub sections (1) and (2) of Section 3 in any other manner.
If the scheme of the enactment gave such wide power to reconstitute a Commission after its initial constitution and permitted replacement or substitution of the existing member of a Commission with another person sans sub section (3) of Section 3, the power to fill any vacancy was not required to be provided separately ahat the Commission functions as an independent a gency free from any govern mental control after its constitution.
It follows that after appointment the tenure of members of the commission should not be dependent on the will of the Government to secure their independence.
A body not so independent is not likely to enjoy the requisite public confidence and may not attract men of quality and self respect.
In such a situation the object of the enactment would be frustrated.
[302 H. 303 A C] Minerva Mills Ltd. v, There Workers, ; distinguished.
The State of Bihar vs D. N. Ganguly.; , , relied on.
in Rangachari and Soshit Karamchari respectively reiterated in State of Punjab vs Hira Lal, ; , and Comptroller and Auditor General of India, Gian Prakash vs K.S. Jagannathan & Anr., ; In Rangachari it was held, 'The condition precedent may refer either to numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation '.3
In the context the expression, 'adequately represented imports consideration of size as well as values, numbers as well as the nature of appointments '.4
But, inadequacy of representation is creative of jurisdiction only.
It is not measure of backwardness.
That is why less rigorous test or lesser marks and competition amongst the class of unequals at the point of entry has been approved both this Court and American courts.
But a student admitted to a medical or engineering college is further not granted relaxation in passing the examinations.
In fact this has been explained as valid basis in American decisions furnishing justification for racial admissions on lower percentage.
Rationale appears to be that every one irrespective of the source of entry being subjected to same test neither efficiency is effected nor the equality is disturbed.
After entry in service the class is one that of employees.
If the social scar of backwardness is carried even, thereafter the entire object of equalisation stands frustrated.
No further classification amongst employees would be justified as is not done amongst students.
Constitutional, legal or moral basis for protective discrimination is redressing identifiable backward class for historical injustice.
That is they are today, what they would not have been but for the victimisation.
Remedytuting the Comm ission.
The enactment, therefore, also provides in Section 7 the only situation in which the Government can rescind the notification issued under Section 3 constituting the Commission.
To the extent to which express provision is made in the enactment, it is common ground, Section 21 of the cannot be invoked.
These aspects have to be borne in mind while considering the tenability of the submission made by Shri Shanti Bhushan with the aid of Section 21 of the .
It is common ground before us that Section 21 of the can be invoked only if, and to the extent, if any, the context and the scheme of the so permits.
The general power in Section 21 of the is to add to, amend, vary or rescind any notification etc.
In the context of reconstitution of the Commission, the power to fill any vacancy in the office of a member of the Commission is expressly provided in sub section (3) of Section 3 of the Commission of Inquiry Act.
Similarly, the power to discontinue the existence of the Commission when it becomes unnecessary can be exercised by issue of a notification in accordance with Section 7 of the Act which results in rescinding the notification issued under Section 3 constituting the Commission.
Thus, the power to rescind any notification conferred generally in Section 21 of the is clearly inapplicable in the scheme to the which expressly provides for the exercise of this power in relation to a Commission constituted under Section of the Act.
The only material remaining general powers in Section 21 of the are the power to `amend ' or `vary ' any notification.
The extent to which the constitution of the Commission can be amended or varied by filling any vacancy in the office of a member as provided in the is also obviously excluded from the purview of Section 21 of the which cannot be invoked for this purpose.
The surviving question, therefore, is: Whether there is power to reconstitute the Commission by replacement or substitution of the existing member, though not provided in the by invoking the residuary power to amend or vary any notification under Section 21 of the ? In the first place, in a case like the present where the scheme of the does provide for amendment and variation of the notification issued under Section 3 for the purpose of reconstitution of the Commission in the manner indicated, even that power to amend or vary any notification by virtue of Section 21 of the must be taken as excluded by clear implication in the sphere of reconstitution of the Commission.
Moreover, the power to amend or vary cannot include the power to replace or substitute the existing composition of the Commission with an entirely new composition.
Shri Shanti Bhushan submitted that the time specified in the initial notification for completing the task of the Commission is enlarged by subsequent notification and this is done in exercise of the general power available under the to extend time.
This submission does not support the argumentof learned counsel that the general power under Section 21 of the is also available to reconstitute the Commission by replacement or substitution of its sole member.
The aid of Section 21 of the general Clauses Act for enlargement of time does not conflict with the context or scheme of the .
The context as well as the scheme of the clearly indicate that Section 21 of the cannot be invoked to enlarge the Government 's power to reconstitute the Commission constituted under Section 3 of the Act in a manner other than that expressly provided in the .
There being no express power given by the to the appropriate Government to reconstitute the Commission of Inquiry constituted under Section 3 of the Act by replacement or substitution of its sole member and the existence of any such power being negatived by clear implication, no such power can be exercised by the appropriate Government.
The scheme of the enactment is that the appropriate Government should have no control over the Commission after its constitution under Section 3 of the Act except for the purpose of filling any vacancy which may have arisen in the office of a member of the Commission apart from winding up the Commission by issuance of a notification under Section 7 of the Act if the continued existence of the Commission is considered unnecessary.
The vacancy in the office of a member of the Commission may arise for several reasons, including resignation by the member, when the Government 's power to fill the vacancy under Section 3(3) of the Act can be exercised.
Even though a case of implied resignation creating an implied vacancy was set up by the State of Madhya Pradesh before the High Court, that stand was rightly abandoned before us by Shri Shanti Bhushan.
We have no doubt that the rule of construction embodied in Section 21 of the cannot apply to the provisions of the relating to reconstitution of a Commission constituted thereunder since the subject matter, context and effect of such provisions are inconsistent with such application.
Moreover, the construction made by us best harmonises with the subject of the enactment and the object of the legislation.
Restoring public confidence by constituting a Commission of Inquiry to investigate into a 'definite matter of public importance ' is the purpose of such an exercise.
It is, therefore, the prime need that the Commission functions as an independent agency free from any governmental control after its constitution.
It follows that after appointment, the tenure of members of the commission should not be dependent on the will of the Government, to secure their independence.
A body not so independent is not likely to enjoy the requisite public confidence any may not attract men of quality and self respect.
In such a situation, the object of the enactment would be frustrated.
This aspect suggests that the construction made by us, apart from harmonising the provisions of the statute, also promotes the object of the enactment while the construction suggested by the appellant frustrates both.
Shri Shanti Bhushan placed reliance on the decision in Minerva Mills Ltd. vs Their Workers, 1 19541 S.C.R. 465.
In that decision, the power of the appropriate Government under Section 7 of the to constitute an industrial tribunal for a fixed period of time and to constitute a new tribunal on the expiry of that period to hear and dispose of references made to the previous tribunal which had not been disposed of by that tribunal was upheld.
Shri Shanti Bhushan contended that the observations made in that decision are not confined to the exercise of that power on the expiry of the tenure of the tribunal first constituted.
It was clearly indicated in that decision that 'when the life of the first tribunal automatically came to end by efflux of time, no question of vacancy in the office really arose and, therefore, it was not a case falling under sub clause (2) of Section 8 but the situation that arose fell within the ambit of Section 7 '.
The observations made in that decision have to be read in the context of the facts of that case.
That decision is clearly distinguishable.
On the other hand, Shri Kapil Sibal placed reliance on The State of Bihar vs D.N. Ganguly & Others, [1959] S.C.R. 1191.
This decision also related to the reference of a dispute under the .
It was pointed out that 'it was well settled that the rule of construction embodied in Section 21 of the can apply to the G provisions of a statute only where the subject matter, context, and effect of such provisions are in no way inconsistent with such application .
On this basis it was held that it did not apply to Section 10(1) of the .
On a construction of Section 10(1 ) of the , it was held that it does not confer on the appropriate Government the power to cancel or supersede a reference made thereunder in respect of an industrial dispute pending adjudication by the tribunal constituted for that purpose.
Reliance placed on Section 21 of the on behalf of the Government to invoke such a power by necessary implication was clearly negatived.
The decision of this Court in Minerva Mills Ltd. (supra) was distinguished as we have already indicated.
In our opinion, the ratio in D.N. Ganguly (supra) supports the view taken by us in the present case that Section 21 of the cannot be invoked to support the impugned action of the State of Madhya Pradesh as contended by Shri Shanti Bhushan.
The construction suggested by Sri Shanti Bhushan is inconsistent with the provisions and the scheme of the and must, therefore, be rejected.
Admittedly, the power under Section 3(3) of the was not available to the State of Madhya Pradesh in the facts of the present case to appoint any other person replacing Justice S.T. Ramalingam as the sole member of the Commission of Inquiry.
The power under sub sections (1) and (2) of Section 3 read with Section 21 of the or even Sections 14 or 16 thereof was also not available for this purpose, for the reasons given earlier.
Accordingly, the notification dated 10.7.1991 appointing Justice G.G. Sohani and the notification dated 9.1.1992 appointing Justice Kamlakar Choubey were both invalid.
It is not unlikely that Justice G.G. Sohani may have resigned forming the same opinion when his appointment was challenged.
However, the State of Madhya Pradesh did not choose to reflect and reconsider the legality of its action in spite of the resignation of Justice G.G. Sohani and it continued to move in the wrong direction by making another invalid appointment of Justice Kamlakar Choubey.
Consequently, these appeals are dismissed and the impugned judgment of the High Court quashing the notifications dated 10.7.1991 and 9.1.1992 is sustained for the aforesaid reasons given by us.
The State of Madhya Pradesh shall, in view of the retirement of Justice S.T. Ramalingam as a Judge of the Madras High Court in the meanwhile, take necessary action to finalise his terms and conditions in accordance with the guidelines issued by the Government of India in this behalf.
Such action be taken promptly to avoid any undue delay in completion of the Commission 's task.
No costs.
N.P.V. Appeal dismissed.

summary:
: Section 21 Power to add to amend or vary or rescind any notification Whether could be invoked to reconstitute the Commission of Inquiry by replacement of substitution of the existing members, though not provided in the scheme of the Act.
Pursuant to the direction given by the State High Court, the appellant State by a Notification dated 24.2.1989, constituted a Commission of Inquiry under the (Commission of Inquiry) Act, 1952, to investigate into the affairs of the children 's Welfare Society, of which Respondent No.1 was an office bearer and appointed a sitting Judge of the High Court of another State as the sole member of the Commission.
The inquiry was to be completed within a period of six months, but the period was extended from time to time.
Meanwhile, the sole member became due to retire as a Judge of the High Court on attaining the age of superannuation and, therefore, he wrote a letter dated 19 3.1991 to the Chief Secretary of the appellant State drawing attention to this fact and requesting that the necessary modalities be worked out well in time for his continuance as Commission of Inquiry, in the light of the guidelines issued by the Government of India for the benefits and emoluments payable to a Judge on his retirement in such a situation.
The Judge also mentioned some of the facilities he expected, to which be would not be entitled from the State Government on his retirement.
The Chief Secretary sent a reply dated 9.4.1991 to the Judge promising to give an early reply and requesting him to continue with the inquiry so that the same could be completed early.
However, without further reference to the Judge, the State Government issued a notification dated 10.7.1991, replacing him by a retired Chief Justice of another High Court.
This appointment was challenged before the High Court, which, by an interim order dated 30.7.1991 stayed the operation of the notification.
During the pendency of the writ petition, the new member tendered his resignation.
Consequently, the High Court dismissed the writ petition as infructuous on 5.9.1991.
Thereafter, the Chief Secretary to the Government sent a letter dated 12.9.1991 to the original appointee expressing the State Government 's inability to accept the terms and conditions of the Judge, and informing him of the appointment of retired Chief Justice of another High Court, who had since resigned.
Thereafter the State Government issued another notification dated 9.1.1992 appointing a retired Judge of another High Court as a single member of the Commission.
This was challenged before the High Court on the ground that during the continuance as the single member of the Commission of Inquiry of the original appointee, there was no power in the State Government to replace him, and there being no vacancy in the office, the power under Section 3(3) of the , which was available only to fill any vacancy, could not be invoked and there was no other source of power available to the State for the purpose and, therefore, the appointment first of the retired Chief Justice and then, on his refusal, of another retired Judge, being without any authority, was invalid.
The High Court allowed the writ petitions and quashed the notification dated 9.1.1992.
It held that there was no vacancy in the office of the single member of the Commission to empower the State Government to fill the vacancy under Section 3(3) of the .
It also held there was neither any valid reason or ground nor any power available in the State Government to replace the original member by another person as was purported to be done by first appointing one member and then another member, both of whom were also retired Judges .
In the appeals, by special leave, on behalf of the State Government, it was contended that aid of Section 21 of the was available to the State Government for exercising its powers under the 'to add, to amend or vary ' the notification issued initially appointing the sitting Judge as the sole member of the Commission which enabled the State Government to reconstitute the Commission by replacing that Judge with any other person in the circumstances of the case, though the power to rescind any notification was not available, since this was provided in Section 7 of the .
Reference was also made to Section 8 A of the to support the Contention that Government 's power to reconstitute the Commission even during the availability of the person so appointed even though it was submitted that Section 8 A was not the source of power for reconstitution of the Commission.
It was also contended that the Government 's power to extend the time specified in the initial notification for Completing the work of the Commission was not to be found in any express provision in the .
but was exercised by amendment of the initial notification only under Section 21 of the .
and that though there was no express provision in the empowering the Government to replace or substitute the sole member of a Commission with another person during the continuance of the Commission.
this was implicit in the power to appoint a Commission and designate its personnel under Sub sections (1) and (2) of Section 3 of the read the power to amend or Vary any notification available under Section 21 of the .
It Was submitted on behalf of the petitioner in the Public Interest Petition that Sections 14 and 16 of the were also available to support the notifications under challenge issued by the State Government.
On behalf of respondent No.1 it was submitted that the scheme of the did not permit invoking Section 21 of the except for enlargement of the period for completion of the inquiry by amendment of the notification only to that extent since the only situations in which reconstitution of the Commissions could be made were provided in the itself, that Section 8 A of the was enacted for an entirely different purpose namely to ensure continuity of the Commission 's work and had nothing to do with its reconstitutions that the scheme of the enactment showed that the appropriate Government could not interfere provide expressly in the statute for the Government 's power to fill any vacancy after the initial constitution After its insertion the scheme of the enactment excludes the power of reconstitution of the Commission in a manner not expressly provided therein.
In view of sub section (3), it is not permissible to construe sub sections (1) and (2) of Section 3 in any other manner.
If the scheme of the enactment gave such wide power to reconstitute a Commission after its initial constitution and permitted replacement or substitution of the existing member of a Commission with another person sans sub section (3) of Section 3 the power to fill any vacancy was not required to be provided separately and expressly.
It is also significant that in the amendment so made the power is limited only to filling any vacancy without conferring any power to reconstitute the Commission by replacement or substitution of the existing member which indicates that no such power of replacement or substitution of the existing member was contemplated in the scheme of the Act or intended to be conferred on the Government even after the amendment.
[298 H: 299 A C; 300 A] 2 7.
Section 8 A was simultaneously inserted by amendment to provide that the procedure does not require interruption of the inquiry by reason of change in the constitution of the Commission due to filling any vacancy or decrease in the number of members.
The expression 'or by any other reason ' in sub section (2) of Section 8 A cannot be widened to include the reason of reconstitution of the Commission by replacement or substitution of the existing member since that power is not available to the Government in the scheme of the Act and, therefore.
this expression in Section 8 A(2) cannot be read as conferring any additional power or giving any such indication.
The expression or by any other reason following `vacancy having been filled ' in Section 8 A(2) must therefore.
mean any other reason such as decrease in the number of members when the initial number is more than one and the vacancy remains unfilled.
It cannot mean substitution of the existing member with another person, since no such power exists.
Section 8 A(2) is not the source of an additional power, but merely an indication of the power to reconstitute the Commission.
The indication is of the power of reconstitution being available only in the manner indicated.
The only situation in which the Government can rescind the notification issued under Section 3 constituting the Commission is laid down in Section 7 the Act, which provides that the Commission would cease to exist when the appropriate Government by notification with the working of the Commission after its constitution except in the manner expressly provided in the Act and Section 7 was a clear indication that interference with the functioning of the Commission was not permissible in any other manner, and, therefore, Section 21 of the was not available to support the Government 's action in the instant case.
Dismissing the appeal, this court, HELD: 1.
The power under Section 3(3) of the Commissions of the Inquiry Act, 1952, was not available to the State Government in the facts of the instant case to appoint any other person replacing the original member as the sole member of the Commission of Inquiry.
The power under sub sections (1) of (2) of Section 3 read with Section 21 of the or even Section 14 or Section 16 thereof was also not available for the purpose.
Accordingly, the notifications dated 10.7.1991 and 9.1.1992 issued by the State Government appointing the retired Chief justice and another retired Judge were both invalid.
The high Court was, therefore, right in quashing the notifications dated 10.7.1991 and 9.1.1992.
The appellant state should, in view of the retirement of the original member as a judge of the High Court in the meanwhile, take necessary action to finalise his terms and conditions in accordance with the guidelines issued by the Government of India in this behalf.
Such action should be taken promptly to avoid any undue delay in completion of the commission 's task.
[304 C F] 2.1.
The power of the Government to appoint a Commission of Inquiry and name the person or persons constituting it is in sub section (1) of Section 3.
It is not as if sub section (1) deals with the mere appointment of the Commission of Inquiry without clothing it with its personnel and the power to appoint the member/members thereof is to be found only in sub section (20 That apart, there is nothing in any of these provisions to suggest that the Government has the power to reconstitute the commission after its appointment by replacing the existing sole member with another person.
Sub Section (3) of Section 3, inserted by the Amendment Act of 1971, deals expressly with the Government 's power to fill any vacancy which may have arisen since the constitution of the Commission.
The question of replacement of a member appointed initially is beyond its scope.
The insertion of sub section (3) became necessary to declares that 'the continued existence of ' the Commission is unnecessary '.
The scheme of the enactment is that the appropriate Government should have no control over the Commission after its constitution under Section 3 of the Act except for the purpose of filling any vacancy which may have arisen in the office of a member of the Commission apart from winding up the Commission by issuance of a notification under section 7 of the Act if the continued existence of the Commission is considered unnecessary.
The vacancy in the office of a member of the Commission may arise for several reasons, including resignation by the member, when the Government power to fill the vacancy under Section 3(3) of the Act can be exercised.
[300 A E & G] 2.4.
The context as well as the scheme of the clearly indicate that Section 21 of the General clauses Act 1897 cannot be invoked to enlarge the Government 'section power to reconstitute the Commission constituted under Section 3 of the Act in a manner other that that expressly provided in the .
There being no express power given by the Commissions of inquiry Act to the appropriate Government to reconstitute the Commission of Inquiry constituted under Section 3 of the Act by replacement or substitution of its sole member and the existence of any such power being negatived by clear implication, no such power can be exercised by the appropriate Government.
[302 C F] 2.5.
Section 21 of the can be invoked only if, and to the extent.
if any the context and the scheme of the so permits.
The general power in Section 21 of the is 'to add, to amend vary or rescind any notifications ' etc.
In the context of reconstitution of the Commission the power to fill any vacancy in the office of a manner of the Commission is expressly provided in sub section (3) of Section 3 of the Similarly the power to discontinue the existence of the Commission when it becomes unnecessary can be exercised by issue of a notification in accordance with Section 7 of the Act which results in rescinding the notification issued under Section 3 constituting the Commission.
Thus the power to rescind any notification conferred generally in Section 21 of the is Clearly inapplicable in the scheme of the Commissions of inquiry Act which expressly provides for the exercise of his power in relation to Commission constituted under Section 3 of the Act.
The only other material general powers in Section 21 of the are the power to 'amend ' or vary any notification.
The extent to which the constitution of the Commission can be amended or varied by filling any vacancy in the office of a member as provided in the is also obviously excluded from the purview of Section 21 of the which cannot be invoked for this purpose.
In a case like the instant one where the scheme of the does provide for amendment and variation of the notification issued under Section 3 for the purpose of reconstitution of the Commission in the manner indicated even that power to amend or vary any notification by virtue of Section 21 of the must be taken as excluded by clear implication in the sphere of reconstitution of the Commission.
Moreover, the power to amend or vary cannot include the power to replace or substitute the existing Composition of the Commission with an entirely new composition.
The aid of Section 21 of the for enlargement of time does not conflict with the context or scheme of the Commissions of Inquiry Act.[301 A E] 2.6.
The rule of Construction embodied in Section 21 of the cannot apply to the provisions of the relating to reconstitution of a Commission constituted there under since the Subject matter.
context and effect of such provisions are inconsistent with such application.
Moreover.
this construction best harmonises with the subject of the enactment and the object of the legislation.
Restoring public Confidence by constituting a Commission of Inquiry to investigate into a 'definite matter of public importance ' is the purpose of such an exercise.
It is therefore, the prime need that the Commission functions as an independent agency free from any govern mental control after its constitution.
It follows that after appointment the tenure of members of the commission should not be dependent on the will of the Government to secure their independence.
A body not so independent is not likely to enjoy the requisite public confidence and may not attract men of quality and self respect.
In such a situation the object of the enactment would be frustrated.
[302 H. 303 A C] Minerva Mills Ltd. v, There Workers, ; distinguished.
The State of Bihar vs D. N. Ganguly.; , , relied on.