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PETITIONER: KEHAR SINGH & ORS.

       Vs.

RESPONDENT: STATE (DELHI ADMN.)

DATE OF JUDGMENT03/08/1988

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) RAY, B.C. (J) SHETTY, K.J. (J)

CITATION:  1988 AIR 1883            1988 SCR  Supl. (2)  24  1988 SCC  (3) 609        JT 1988 (3)   191  1988 SCALE  (2)117  CITATOR INFO :  RF         1989 SC 653  (1)  R          1992 SC2100  (54,57)

ACT:      Constitution  of India, 1950. Articles 19, 21  and  l36 Criminal  trials-Right of access to-Open public  trial-Right of  an accused- Sessions trial held in Tihar Jail-Whether  a valid trial. %     Trial  Court  and appellate Court  conclusion  based  on appreciation  of evidence binding on the Supreme Court.     Commission of Inguiry Act, 1952: Sections 3, 4-6 and  8- Sessions  Case-Whether  trial  Court entitled  to  call  for statements of witnesses recorded by a Commission of Inquiry.     Criminal Procedure Code, 1952: Sections 9(6), 164,  194, 327,  354(3)--‘Place of trial’-High Court-Whether has  power to  direct trial of case ar place other than normal seat  of the Sessions Court.     Confessions  and  Statements-Recording  of--Omission  to record  in  proper form--Does not render  it  inadmissible-- Effect can be cured.     Public  trial--Open Court--Restrictions  on  access--How far valid.     Death  sentence-A warding of--‘Special reasons ’  to  be given. Indian Evidence Act, 1872: Sections  10,145,155,157-- Conspiracy  Proof of--Relevancy of evidence--Things said  or done  by  conspiracy  with  reference  to  common   design-- Generally  conspiracy  hatched in  secrecy--Evidence  as  to transmission   of  thoughts  sharing  the  unlawful   design sufficient--Credit of witness-Impeachment of.     Indian Penal Code, 1860 Sections 34, 120B, 302 and 307-- Assassination   of  Prime  Minister  Smt.  Indira   Gandhi-- Conviction and sentence of death on Satwant Singh and  Kehar Singh confirmed and upheld--Balbir Singh acquitted.     Practice and Procedure Criminal trial--Access to-Whether people can assert their right.                                                     PG NO 24                                                     PG NO 25     Statutory   Interpretation,   ‘Golden   rule’-How    far application--‘Intention’  of  legislature or ‘purpose  ’  of statute-- Duty of Court to look  for.

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HEADNOTE:      In  June,  1984 the Indian Army  mounted  an  operation known  as  ‘Operation  Blue  Star’  by  which  Armed   Force personnel  entered the Golden Temple Complex at Amritsar  to flush  out the armed terrorists. That operation resulted  in loss  of  life and property as well as damage  to  the  Akal Takht  in the Golden Temple Complex, which greatly  offended the   religious  feelings  of  some  members  of  the   Sikh community.  Beant  Singh (deceased) and Balbir  Singh,  Sub- Inspectors  and Satwant Singh, a constable of  Delhi  Police posted for security duty in the office of the deceased Prime Minister Smt. Indira Gandhi and Kehar Singh, an Assistant in the  Directorate General of Supply and Disposal, New  Delhi, who   were  sikhs  by  faith,  had  been  expressing   their resentment  openly, holding Smt. Indira  Gandhi  responsible for  the  action  taken at  Amritsar. They  met  at  various places  and  at various times to discuss  and to  listen  to inflammatory  speeches and recordings calculated to   excite listeners and provoke them to retaliatary action against the decision   of the Government to take army action  in  Golden Temple  Complex.  They  thus became parties  to  a  criminal conspiracy to commit the  murder of Smt. Indira Gandhi.      On   October  31,  1984  Smt.  Indira  Gandhi  had   an engagement  with well-known actor and writer Peter  Ustinov. His  crew was to record her interview for Irish  Television. They  were  waiting at Bungalow No.1, Akbar Road,  the  home office of the Prime Minister. Bungalow No.1, Safdarjung Road was  the official residence of the Prime Minister.  The  two buildings  are connected by a narrow cemented pathway.  They are  located practically in one campus, but seperated  by  a sentry  gate which is known as the "TMC Gate."  Smt.  Indira Gandhi   at  about  9.10  a.m.  emerged  from   her   house. Immediately behind her was Head Constable Narayan Singh  (PW 9)  holding  an  umbrella to protect her  against  the  sun. Rameshwar  Dayal (PW 10) an Assistant  Sub-Inspector,  Nathu Ram (PW 64), her personal attendant and R.K.  Dhawan,Special Assistant, were closely following Smt. Gandhi.      In  pursuance of the aforesaid conspiracy  Beant  Singh and Satwant Singh, who had prior knowledge that Smt.  Gandhi was  scheduled to pass through the TMC Gate on the date  and at  the  time afore-mentioned, manipulated their  duties  in such  a manner that the former would be present at  the  TMC Gate and the latter at the TMC  sentry booth on October  31. 1984 between 7.00 and 10.00 A.M. Beant  Singh got  exchanged                                                     PG NO 26 his  duty  with S.I. Jai Narain (PW7).  Satwant  Singh,  who ought  to be at Beat No. 4, managed to get TMC sentry  booth by  misrepresenting that he was suffering from dysentry.  He was  given  that place since it was near the  latrine.  Thus they had managed to station themselves together near the TMC gate.      Smt. Indira Gandhi was at the head of the entourage  on the cemented pathway followed by the afore-mentioned persons approaching  the TMC Gate where Beant Singh, S.I. was on the left  side while Satwant Singh, Constable was on  the  right side.  At that time Beant Singh was armed with  his  service revolver  while Satwant . Singh had SAF  carbine. When  Smt. Gandhi  reached  near the TMC Gate, Beant Singh  fired  five rounds  and  Satwant  Singh  25  shots  at  her  from  their respective weapons, as a result of which Smt. Indira  Gandhi sustained  injuries  and  fell  down.  She  was  immediately removed  to  the All India Institute   of  Medical  Sciences (AIIMS)  where she succumbed to her injuries the  same  day.

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The  cause of death was certified upon a  post-mortem  which took place on October 31, 1984 as haemorrhage and shock  due to  multiple fire arm bullet injuries which were  sufficient to  cause death in the ordinary course of nature. The  post- mortem  report  also  opined  that injuries  Nos.  1  and  2 specified  in the report were sufficient to cause  death  in the ordinary course of nature, as well.      At  the  spot  of the incident  both  Beant  Singh  and Satwant  Singh  are alleged to have thrown their arms  which had  been recovered. Five empties of Beant Singh’s  revolver and  25 empties of SAF Carbine of Satwant Singh and  6  lead pieces were recovered from the spot. 13 live  cartridges. 38 bore  from the person of Beant Singh and 75 live  cartridges of  .99  SAF carbine from the person of Satwant  Singh  were also recovered. Two lead pieces were recovered from the body of  Smt. Indira Gandhi during the post-mortem and  two  from her  clothes  and that the experts opined that  the  bullets recovered  from the body and found from the spot were  fired through the weapons possessed by these two accused persons.      Rameshwar  Dayal  ASI (PW 10), who was  following  Smt. indira  Gandhi, also received injuries on his left thigh  as a result of shots fired  by the accused which were grieveous and dangerous to life.      Both  the  assassins were secured by the  Indo  Tibetan Border Police Personnel, and taken to the guard room.  where they sustained gun shot injuries as a result of which  Beant Singh died and Satwant Singh suffered grievous injuries  but recovered later on.                                                   PG NO 27      The  prosecution case against Kehar Singh was  that  he was  a religious fanatic. He had intense hate  against  Smt. Indira  Gandhi  for  causing damage to the  Akal  Takhat  in Golden Temple, Amritsar by "Operation Blue Star." He was  in a  position  to influence Beant Singh, being  the  uncle  of Beant  Singh’s wife called as ‘Poopha’. He  converted  Beant Singh and through him Satwant Singh to religious bigotry. He made them to undergo "Amrit Chakhan Ceremony" on October  14 and  24,  1984  respectively at Gurdwara,  R.K.  Puram,  New Delhi.  He also took Beant Singh to Golden Temple.  Amritsar on  October 20.1984. Gold ‘Kara’ and ‘ring’ of  Beant  Singh were later recovered from him.      It is alleged that Balbir Singh, like other accused had expressed his resentment openly, holding Smt. Indira  Gandhi responsible  for the "Operation Blue Star". He was  planning to commit her murder and  had discussed his plans with Beant Singh  (deceased).  who  had similar  plans  to  commit  the murder.  He also shared his intention and  prompted  accused Satwant  Singh  to commit the murder of Smt.  Indira  Gandhi and  finally  discussed the matter with him on  October  30. 1984.  In the  first week of September 1984, when  a  falcon (Bazz)  happen to sit on a tree near the main  Reception  of the Prime Minister’s House st about  1.30 P.M. Balbir  Singh spoted the falcon. called Beant Singh there and pointed  out the  falcon.  Both  of them agreed that  it  had  brought  a message of the Tenth Guru of the Sikhs and that they  should do something by way of revenge of the "Operation Blue Star". Therefore both  of them performed ‘Ardas’ then and there.      Balbir Singh was posted on duty at the Prime Minister’s residence. On October 31. 1984 his duty was to commmence  in the evening. When reported for duty, in the usual course. he was  asked to go to  security lines. At about 3.00  a.m.  on November 1. 1984 his house was  searched and a book on  Sant Bindrawala  was recovered. At about 4.00  a.m. he was  taken to Yamuna Velodrome and kept there till late in the  evening when he was reported to have been released. This custody  in

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Yamuna  Velodrome  was  described  as  ‘de  facto  custody’. Thereafter  on  December,  1984 he was  said  to  have  been arrested at Najafgarh Bus Stand when his personal search was taken   and  certain  articles  were   recovered  from   his possession  including a piece of paper  containing   certain entries described as "Memorandum events" allegedly   written by him.      After  the  investigation the  charge-sheet  was  filed against  appellants  Satwant Singh, Balbir Singh  and  Kehar Singh.  They were accused of offences under ss.  120-B,  109                                                    PG NO 28 and  34 read with s. 302 of the IPC and also of  substantive offences under ss. 302 and 307 of the IPC and ss. 27, 54 and 59 of the Arms Act.      The  accused were committed to take their trial in  the Court  of Session. In the meanwhile the High Court of  Delhi issued  two  notifications. By one  notification,  the  High Court  directed that the trial of the case shall be held  in the  Central  Jail,  Tihar  according  to  law.  By  another notification the High Court directed that "the case be tried by  Shri  Mahesh  Chandra, Additional  Sessions  Judge,  New Delhi." In  pursuance of the said notifications, the accused were tried in Central Jail, Tihar. The trial Judge found the accused  guilty of all the charges framed against  them  and convicted  Satwant  Singh, Beant Singh and  Kehar  Singh  of murder under s. 302 read with s. 120-B and 34 IPC as well as under s. 307 IPC and s. 27 of the Arms Act. The trial  Judge awarded the sentence of death on all the three accused.  The trial  Judge  also awarded other terms  of  imprisonment  on Satwant Singh.      Two  appeals  were  filed in  the  High  Court--One  by Satwant Singh  and the other by Balbir Singh and Kehar Singh jointly,  challenging their conviction and  sentence.  These appeals were heard alone with the  Murder Reference No. 2 of 1986.  The  High  Court accepted the  Murder  Reference  and dismissed the appeals preferred by the accused and confirmed firmed  the conviction and the sentence of death on all  the accused. The High Court also confirmed the other sentence on Satwant Singh.      In  the  appeal  to  this  Court,  on  behalf  of   the appellants it was contended; (1) that under Art. 2.1 of  the Constitution  speedy, open and  public trial is one  of  the constitutional  guarantees of a fair and just trial  and  by holding  the  trial in Tihar Jail in the instant  case  this gurantee  has  been  affected  and  the  accused  have  been deprived  of  fair and open trial as contemplated  under  s. 327  of  the Code of Criminal Procedure; (2) that  in  cases where  the ends of justice would be defected it the case  is not  heard  in  camera. only the trial  Court.  for  special reasons  to be recorded, could hold the trial or a  part  of the  trial  in cameral. Section  327 of the  Code  does  not confer any such authority or jurisdiction on the High Court; (3)  that the High Court has no power to direct  that  trial of a criminal case at a place other than the normal seat  of the  Court of  Sessions. Section 9(6) of the  Code  empowers the High Court only to  specify the place or places at which all  or any class of the cases pertaining to a division  can be heard and does not empower the High Court to  specify the place or places of hearing for individual cases; (4) that in the   instant   case,  the  High  Court   while   exercising jurisdiction under s. 9(6) of the Code notified the place of                                                    PG NO 29 trial as Tihar Jail. It indirectly did  what the trial Court could  have  done  in  respect of  particular  part  of  the proceedings.  By shifting the trial to Tihar Jail  it  could

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not be said to be open and public trial as the trial  inside the  Jail premises is the very antithesis of an open  trial; (5) that the orders passed by the trial Court providing that representatives of the Press may be permitted to attent  and for security, etc. the Jail authorities will regulate  entry to the Court indicate that the trial was not public and open and  therefoe on this ground alone the trial  vitiates;  (6) that the fundamental right guaranteed under Art. 19(1)(a) of the  Constitution need not be under the mercy of  the  Court and  that  there  should not be any  discrimination  in  the matter  of public access to judicial proceedings  and  first come first  serve should be the principle no matter  whether one  is  a press person or an ordinary.  citizen;  (7)  that under  s. 194 of the Code it was not necessary for the  High Court  to  have allotted the instant case  to  a  particular Judge;  (8) that inspite of the prayer made by  the  accused during the trial and also in the High Court about the copies of the statements of the witnesses who have been examined by the  prosecution and were also examined before  the  Thakkar Commission the same were not supplied. Even the copy of  the Thakkar  Commission Report was not made available. Not  only were  the  accused entitled to the  previous  statements  of witnesses  who  were examined by the prosecution,  but  they were  also   entitled to relevant material on the  basis  of which  they could build their defence and raise  appropriate issues   at  the  trial;  (9)  that  the  High   Court   has misconstrued the scope of s. 6 of the Commission of  Inquiry Act,  1952  and misunderstood the observations  in  Dalmia’s case  [1959]  SCR  279; (10) that even if  the  words  "used against" in s. 6 of the said  Act mean preventing the use of statement  for  the purposes of contradictions  as  required under s. 145 of the Evidence Act, there are other provisions by  which  the previous statement could be looked  into  for productive  uses without confronting the witnesses  such  as first  part of  145, sub-s. (1) & (2) of s. 146, s. 157  and s. 159 of the Evidence Act. The  term "used against" in s. 6 was  not  intended to be an absolute bar for making  use  of such  statements  in subsequent proceedings; (11)  that  the confession of Satwant Singh being not recorded in the manner prescribed in s. 164 of the Code is inadmissible in evidence and  cannot  be used for convicting the accused;  (12)  that there  is no evidence that  Beant Singh and his  wife   were deliberately  taken  by  Kehar  Singh  to  expose  them   to provocative  Bhajans  in the house of Ujagar Sandhu  at  the time  of celeberation of the birthday of a child; (13)  that Kehar  Singh being an elderly person and a devout  religious Sikh  was keeping company with Beant Singh to  dissuade  the latter  from taking any drastic action against Smt.  Gandhi; (14)  that  there  is  no  substantive  evidence  from   the                                                   PG NO 30 testimony  of Bimla Khalsa that Beant Singh  took  Amrit  on October  14, I9S4 at the instance of Kehar Singh; (15)  that the  finger prints found on the sten-gun of accused  Satwant Singh  were  not tested for comparison and the  two  bullets recovered from the body of Smt. Gandhi were not examined for traces  of  blood  or tissues; (16)  that   the  post-mortem examination ought to have been full and complete.     It was further contended on behalf of Balbir Singh:  (i) that  the  document Ex. PW 26/B was not recovered  from  his possession; (ii) that  his arrest at Najafgarh bus-stand was a  make believe arrangment. He  was not arrested  there  and indeed  he  could not have been arrested, since he  was  all along  under police custody right from the day when he   was taken  to Yamuna Velodrome on November 1, 1984. He  was  not absconding and the question of absconding did not arise when

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he was not released at all. No question was put to him under Section  313 examination that he had absconded;  (iii)  that the conclusions of the High Court on all these matters  were apparently  unsustainable;  and  (iv) that  there  being  no charge against the accused under s. 109 IPC  they are liable to  be  sentenced only for the offence of abetment  and  not for murder.     On behalf of the Respondent-State it was contended;  (i) that  this   Court  in  an appeal under:  Art.  136  of  the Constitution of India is not expected to interfere with  the concurrent  findings of facts arrived at by the  two  Courts below;  (2) that there is no question-of any  constitutional right  under  Art. 21. Article 21 only  talks  of  procedure established  by  law and if today on the statute book  there is s. 327 Cr. P.C. tomorrow  s. 327, may be so amended  that it may not be necessary for a criminal  trial to be open and it  does not becomes a consitutional right at  all;(3)  that the  premises where the trial was held was not that part  of the  Jail  where the prisoners are kept but was the   office block where there was  an approach, people were permitted to reach.  and  the  trail was held as if it  was  held  in  an Ordinary  place; (4) that there is nothing to show that  the friends and relations of the accused or any other member  of the   public was prevented from having access to  the  place where the trial  was held. On the other hand, permission was granted to the friends and relations of the accused as  well as  to outsiders who wanted to have  access to the Court  or to   see  the  proceedings  subject,  of  course,  to   Jail Regulations.  Section 2 (p) Criminal Procedure Code  defines ‘place’  as including a house, building, tent,  vehicle  and vessel.  So Court can be  held in a tent, vehicle, a  vessel that  than  in Court. Furthermore, the provision  to  s.327, Cr.P.C. provides that the presiding Judge or Magistrate  may also  at any stage of trial by Order restrict access of  the                                                    PG NO 31 public    in general, or any particular person in particular in the Court room or  building where the trial is held;  (5) that if the confession is not recorded     in proper form as prescribed  by s. 164 read with s. 281 which corresponds  to earlier  s.  364, it is a mere irregularity, and it  can  be cured  by s. 463 on taking evidence that the  statement  was recorded duly and that it has not injured the accused in his defence  on  merits;  (6) that if the  High  Court  had  the authority  to  issue  notification under s.  9(6)  Cr.  P.C. fixing  the place of sitting it was open to the  High  court also to fix the place of sitting for a particular case;  (7) that  the language of s. 6 of the Commission of Inquiry  Act is clear that a witness who is examined before a Commission, is protected and that protection is that the statement  made before the Commission could not be used against him for  any other  purpose  in  any other proceedings  either  Civil  or Criminal. The only exception carved out in s. 6 pertains  to his   prosecution  for  perjury.  The  Commission   by   its regulation  and  notification clearly  made  the  enquiry  a confidential  affair  and in addition to that there  was  an amendment of the Act which even provided that if  Government by   notification  decided not to place the  Report  of  the Commission before     the House of Parliament or Legislature then it was not necessary that it should be so placed before the House and thus the report not only wast confidential but even  the  Parliament had no right to see  the  report  and. therefore, neither the report nor the statements made before the  Commission  could be asked for by the accused  for  the purposes  of trial;     (8) that in the  remand  application dated December 4, 1984, it was stated     that Balbir  Singh

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had  absconded and was not available for  interrogation  and that  he was arrested at Najafgarh Bus stand on December  3, 1984.  The  Magistrate therefore, remanded  the  accused  to policc  custody till December h and the order of remand  was signed I,S’ the accused. The accused being a police  officer did  not object to the allegations made against him  in  the remand application; and (9) that as     regards recovery  of documents  Ex. PW 26/B from the accused Balbir Singh,  entry No.  986 in the Malkana Register of  Police  Station,Tughlak Road, which contains verbatim copy of the seizure memo  (Ex. PW  26/A),  is indicative of the fact that Ex. PW  26/B  was recovered from the     accused upon his arrest and search.         The  Court  unanimously dismissing  the  Appeals  of Kehar  Singh, and Satwant Singh and allowing the  Appeal  of Balbir Singh,      HELD: Per Oza, J.)         1.  The  act of the accused not only took  away  the life of a popular leader of the country but also  undermines the democratic system  which has been working in the country                                                     PG NO 32 so well for the last forty years.      There is yet  another serious  consideration. Beant Singh (deceased)  and  accused Satwant  Singh  were  posted on the  security  duty  of  the Prime Minister to protect her from any intruder or from  any attack  from  outside  and, therefore,  if  they  themselves resort to this kind of      offence, there appears to be  no reason  or no mitigating circumstance for  consideration  on the question of sentence. Additionally, an unarmed lady  was attacked  by these two persons with a series of bullets  and it has been found that a number of bullets entered her body. The  manner in which mercilessly she was attacked  by  these two persons on whom      confidence was reposed to give  her protection   repels  any  consideration  of   reduction   of sentence.  In this view of the matter, even the  conspirator who inspired the persons who actually acted does not deserve any  leniency in the matter of sentence. The death  sentence awarded by the trial Court and maintained by the High  Court appears to be just and proper. [115F-ll6B]     2.  The first part of s. 194 Cr. P.C.  clearly  provides that  the  Sessions  Judge of the  Division  by  general  or special  order  is  supposed to allot  cases  arising  in  a particular   area   or   jurisdiction   to   be   tried   by Additional  or  Assistant Sessions Judges appointed  in  the Division,  but       the  last part  of  this  section  also authorises  the  High  Court to allot  the       case  to  a particular  Judge keeping in view the fact that  in  certain cases      the Sessions Judge may not like to allot and  may report  to the High court or either of the parties may  move an   application   for   transfer   and        under   these circumstances it may become necessary for the High Court  to allot a particular care to a particular Judge. [78G-H]     3.  From  the language of s. 9(6) Cr.P.C. one  thing  is clear that so far as  the High Court is concerned it has the jurisdiction to specify the place or places where ordinarily a  Court of Sessions may sit within the division. So far  as any particular case is concerned trial at a place other than the  normal place of sitting is only permissible  under  the second  part of the sub-clause with the consent  of  parties and that decision has to be taken by the trial Court itself. Whatever  be  the  terms  of  the  notification,  it  is   a notification  issued by the Delhi High Court under  s.  sub- clause (6) of Cr.P.C. and thereunder the High Court could do nothing  more or less than what it has the authority to  do. Therefore,  the      High  Court  could  be  taken  to  have notified  that Tihar Jail is also one of     the  places  of

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sitting of the Sessions Court in the Sessions division ordi- narily. That means apart from the two places Tis Hazari  and New  Delhi,  the High Court by  notification  also  notified Tihar Jail as one of the places where ordinarily a  Sessions Court could hold its sittings.                                                     PG NO 33 There is, therefore, no error if the Sessions trial is  held in  Tihar Jail after such a notification has been issued  by the High Court. [79G-80E]     4. In fact, the High Court was right when it referred to the concept of administration of justice under the old Hindu Law.  But apart from it even the Criminal Procedure Code  as it stood before the amendment had a provision similar to  s. 327  which  was  s. 352 of the Old Code and in  fact  it  is because  of this that the criminal trial is expected  to  he open and public. In our Constitution phraseology  difference from the United States Constitution has been there. Art.  21 provide?  that no  person shall be deprived of his  life  or personal  liberty except according to procedure  established by law. So far as this aspect of open trial is concerned the procedure  established by law even before  our  Constitution was  enacted  was  as  is provided in  s.  327  Cr.P.C.  The language  of  s. 327 shows that any place where  a  criminal Court holds its sitting for enquiry or trial shall be deemed to  be an open Court to which the pablic generally may  have access provided the same can conveniently contain them.  The language  itself’ indicates that even if a trial is held  in an  private  house  or is held inside.jail  or  anywhere  no sooner  it becomes venue of trial of a criminal case  it  is demed  to be in law an open place and everyone who wants  to go  and  attend the trial has a right to go and  attend  the trial except the only restriction contermplated is number of persons  which could be contained in the premises where  the Court sits. [18C-E,82D-E]     5. The only thing that is necessary for the appellant is to point out that, in fact, it was not an open tiral.  There is no material at all to suggest that any one who wanted  to attend  the  trail was prevented from so doing  or  one  who wanted  to  go  into the Court room was not  allowed  to  do so.[82G]     6. it is very clear that Art. 21 contemplates  procedure established by law and the procedure established by law  was as  on  the day on which the Constitution was  adopted  and, therefore, it is not so easy to contend that by amending the Criminal   Procedure  Code  the  effect  of  the   procedure established by law indicated in Art. 21 could be taken away. The  trend of decisions of this Court has clearly  indicated that  the procedure must be fair and just. Even  expeditious trial  has  been considered to be a part  of  the  guarantee under Art. 21. Undisputedly the procedure established by law as indicated in Art. 21 is as provided in s. 327 and  unless on  facts it is established that what is provided  in  s.327 was prevented or was not permitted,it could not be said that merely because trial was held at a particular place it could be  said to be a trial which was not open to public.  Merely suggesting the difficulties in reaching the Jail will not he enough,  to say that it ceased to be a public trial. It  was not  that part of the Jail where the prisoners are kept  but was  the  Office block where there was an  approach,  people were permitted to reach and the trial was held as if it  was held  in an ordinary place and in fact what the  High  Court did  by issuing a notification under s. Y(6) was not to  fix place  of trial of this Particular case in Tihar  Jail,  but the High Court by the said notification made Tihar Jail also as one of the places where a Sessions Court could ordinarily

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sit  and in this case, therefore,    the trial was  held  at this place. As soon as a trial is held whatever the    place may be the provisions of s. 327 are attracted and it will be an open Court and every citizen has a right to go and unless there  is evidence or material on record to suggest that  on the  facts  in  this  particular public  at  large  was  not permitted to go or some one was prevented from on the  facts in  this  Particular case attending the trial  or  that  the trial  was in camera. In fact, without an appropriate  order it could not be said that what is contemplated under s.  327 or  under Art. 21 was not made available to the  accused  in this  case  and, therefore, it could not be  contended  that there is any prejudice at the trial.[83B-84C]                                                     PG NO 34     7.  On  analysis  of  the  provision  of  s.  6  of  the Commission of Inquiry Act, I952, it will be found that there are  two restrictions on the   use of a statement made by  a witness  before  the  Commission. A  statement  given  in  a Commission  cannot  be used to subject the  witness  to  any civil or criminal proceedings nor it can be used against him in  any  civil    or criminal proceedings and it is  in  the context of these restrictions the   Provisions of s.145 read with  s. 155(3) and s. 157 of the Evidence Act which  permit the  use of a previous statement of a witness and  for  what PurPose  will  have to be examined. These  sections  clearly indicate  that there are two purposes for which  a  previous statement  can  be used. One is  for  cross-examination  and contradiction and the other is for corroboration. The  first PurPose  is  to  discredit the witness by  putting  him  the earlier  statement and contradicting him on that  basis.  So far as corroboration is concerned, it could not be  disputed that  it  is  none  of  the  PurPoses  of  the  defence   to corroborate  the  evidence  on the  basis  of  the  previous statement. section 145, therefore, is the main section under which  relief was sought by the accused. The use  for  which the  previous statement was asked for was to contradict  him if necessary and if it was a contradiction then the  earlier statement    was    necessary    so    that    contradiction be put to the witness and that part of the statement can  be proved.[89E-G; 91D-E]]     8.Contradiction  could  be used either  to  impeach  the credit  of  a witness or discredit him or to  pull  down  or bring  down the reliability of the witness.  These  purposes for which the previous statements are required could not  be said to be purposes which were not against the witness.  The two aspects of the restrictions which s. 6 contemplates  are the only two aspects which could be the result of the use of these  state-    . There is no other use  of  such  previous statements in criminal proceedings. It is, therefore,  clear that  s. 6 prohibits the use of the previous  statements  at the trial either for the purpose of cross-   examination  to contradict the witness or to impeach his credit.  Therefore, the  Courts below were right in not granting the  relief  to the  accused. [9lF-92A]        9. The report of a Commission is a recommendation  of the  Commission for the consideration of the Government.  It is  the opinion   of the Commission based on the  statements of witnesses and other material. It has no evidentiary value in  the trial of a criminal case. In the instant  case,  the Courts  below  were  also justified  in  not  summoning  the reports of the Thakkar Commission. Moreover, the  Commission framed  regulations under s. X of the Act in regard  to  the procedure for enquiry and Regulation 8 provided that in view of  the sensitive nature of enquiry the proceedings will  be in camera unless the Commission directs otherwise. So far as

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recording of evidence and the proceedings  of the Commission are  concerned they were held in camera throughout and  even the reports, interim and final were stated by the Commission itself  to  be confidential. Normally,  the  Government  was supposed  to place the report of the Commission  before  the House  of  the People, but the Government did not  do  that, amended the Commisson of Inquiry Act, 1952 and notified that the  reports  of the Thakkar Commission shall  not  be  laid before  the  House  of the People in  the  interest  of  the security  of the State and in public interest and  the  said notification  was also got approved by the House of  people. [86B-87Gl                                                     PG NO 35     10. Undisputedly Smt. Indira Gandhi died as a result  of the  gun shot injuries inflicted by Beant Singh and  Satwant Singh with their service revolver and carbine  respectively. In  view  of such clear evidence    about the cause  of  the death,  the post-mortem or a fuller postmortem   examination loses  all  its significance. It becomes important  only  in cases where the cause of death is to be established and is a matter of controversy. [92D-F]     11.  Where the High Court has reached cunclusions  based on partly inadmissible evidence and partly on  circumstances which  are  not    justified on the basis  of  evidence,  or partly on facts which are not borne out from the evidence on record  it cannot be contended that in an appeal under  Art. 136  of the Constitution the Supreme Court will not to  into the  facts of the case and come to its own conclusions.  The case  in hand is one of such cases and some of the  findings of  fact reached by the High Court could not be said  to  be such  which  are concurrent or conclusive. This  Court  was, therefore,  put to the necessity of examining  the  evidence wherever it was necessary. Moreover, it was a case where the very popular elected leader of the people, Prime Minister Of India,  was  assassinated,  but still  this  Court  has  all through      maintained  the  cardinal  principle   of   the Constitution-Equality before law and the concept of rule  of law  in the system of administration of  Justice.  [93G,77H- 78A]                                                     PG NO 36     Pritam  Singh v. The State,[1950]AIR SC 169; Ram Raj  v. State of Ajmer,[1954]SCR 1133 and AIR 1983 SC 753,  referred to.     12. Section 12O-A I.P.C. provides that when two or  more persons  agree to do or cause to be done an act which is  an illegal act it is criminal conspiracy. Section 12-B provides for  the  Punishment for a criminal conspiracy. To  prove  a conspiracy   it  was  not  easy  to  get  direct   evidence. Therefore,  s.  10 of The Indian Evidence Act  was  enacted. first  part  of  s- 10 talks of where  there  is  reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable    wrong, and it is  only when  this condition Precedent is satisfied that  subsequent part  of  the Section comee into operation and it  talks  of reasonable grounds to believe that two or more persons  have conspired  together and this evidently has reference  to  s. 120-A  of the I.P.C. where it is provided "when two or  more persons agree to do, or cause to be done."  This further has been  safeguarded by providing a proviso that  no  agreement except  an  agreement to commit an offence shall  amount  to criminal  conspiracy.  Therefore,  a  prima  facie  case  of conspiracy has necessarily to be established for application of  s.  10. The second part of     s.10  talks  of  anything said,  done  or  written  by any  one  of  such  persons  in reference  to the common intention after the time when  such

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intention   was  first  entertained by any one  of  them  is relevant fact against each of    the persons believed to  be so  conspiring  as  well for the  PurPose  for  proving  the existence  of the conspiracy as for the purpose  of  showing that  any such person was a party to it. The second port  of s.  10 permits    the use of evidence which otherwise  could not be used against the accused person. Act or action of one of  the  accused cannot be used as    evidence  against  the other.  But  an exception has been carved out in s.  10   in case  of conspiracy. The second part of s. 10 operates  only when  the first Part of the section is  clearly  established i.e. there must be reasonable ground to believe that two  or more  persons  have conspired together in the light  of  the language of s. 120-A. It is only then the evidence of action or  statements made by one of the accused could be  used  as evidence against the other.[94E-95E]                                                     PG NO 37     Sardul Singh Caveeshar v. State of Maharashtra,  [1964]2 SCR 378 relied on.     13.At  about  3 A.M. on November  1,1994  Balbir  Singh, appelant  was  awakened  from his sleep and  his  house  was searched,  but  nothing  except  a  printed  book  on   Sant Bhindrawala was recovered. At about j P.M. allegedly he  was taken to Yamuna Velodrome, a place where police has reserved a portion of this building to be used for interrogation  and investigation.  He was kept there till late in  the  evening when  he  is reported to had been released. The  custody  in Yamuna  Velodrome  is described as ’de facto  custody’.  But there  is no evidence or no police officer examined  to  say that  he  allowed  this appellant to go in  the  evening  on November  1,  1984.  The  appellant is  said  to  have  been absconding  since then and thereafter he is alleged to  have been  arrested on December 3. I984 at Najafgarh  Bus  stand. When   his  personal  search  was  taken  certain   articles including a piece of paper Ex. PW 26/H were  recovered  from his possession. "he appellant denied his release from Yamuna Velodrome  and challenged his arrest at Najafgarh  Bus-stand and recovery of any document from his possession as  alleged by the prosecution. [97B-D]     14.  The prosecution evidence itself indicates  that  on Novembr  1,1984  late  at night  Balbir  Singh’s  house  was searched and a printed Book-Sant Bindrawala was seized  from his  house, he was brought to Yamuna Velodrome and upto  the evening  of the next day he was seen there. normally when  a person  or  a  witness  is  brought  for  interrogation   or investigation  at a  Police station, some record has  to  be made  as there is a general diary, although diaries  may  or may  not  be filled in, but a duty is cast  on  the  Station House Officer of a Police Station to maintain the  movements of the Police Officers and also to note down the activities, especially when it is connected with the investigation of an important   case.  But  it  appears  that  all   about   the preliminary  investigation  of  this case was  going  on  at Yamuna  Vlodrom,  witnesses and persons were  brought  here, detained  or kept, and interrogated but there is no  further evidence in regard to this place.[98D-G]      15.  This  part  of the  prosecution  story  that  this accused was at Yamuna Velodrome upto the evening of that day and  thereafter he was allowed to go and then  he  absconded becomes very important in view of the further facts  alleged by the prosecution that the investigating officer  got  some information  through  some  one that this  accused  who  was wanted  would appear at the time and place But there  is  no evidence  as  to  who asked this accused to  go.  He  was  a suspect  in the criminal conspiracy. He could not have  gone

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away  of his own accord. Some responsible officer must  have taken the decision but it is unfortunate that no office  has been examined to state that "I thought that his presence was not  necessary and therefore I allowed him to go." There  is no evidence on this aspect of the matter at all and the only evidence is that this person was arrested at midnight in the late hours on November 1, 1984, carried to Yamuna  Velodrome and  was seen there by some prosecution witnesses  till  the evening of the next day. [98H-99C]                                                     PG NO 38     16.  As  regards the prosecution  allegation  that  this appellant  was absconding from Ist or 2nd November till  3rd Dec.  1984,  it  is significant that  no  witness  has  been examined to indicate that he went to find him out either  at his  residence  or at any other place in search of  him  and that  he  was  not  available. There  is  also  no  evidence produced  to indicate that inspite of the fact  that  during investigation  police wanted to arrest him again but he  was not available at his known address. It is perhaps of absence of  evidence as to absconding the trial Court when  examined this  accused  under  s. 313 Cr.P.C. did  not  put  him  any question about his abscondence. It is, therefore, clear that the abscondence as a circumstance could not be used  against him. [99D-E]     17. As regards the arrest of this appellant at Najafgarh Bus stand, it was alleged that the Investigating Officer got some information that this accused was expected to appear at that place on December 3,1984. It was not immediately  after the  assassination. It was after a month. The  people  could come  forward to become witness. But no independent  witness has  been examined in support of the arrest or seizure  from the accused. In all matters where the police wants that  the story  should  be believed they always  get  an  independent witness  of  the  locality so that that  evidence  may  lend support   to  what  is  alleged  by  the  police   officers. Admittedly for this arrest  Najafgarh and for the seizure of the  articles  from the person of this accused there  is  no other  evidence  except  the evidence  of  police  officers. Independent  witness  in  this case would be  all  the  more necessary,  especially  when his release after  the  earlier arrest  is  not  established  and  his  abscondence  is  not proved.  In such a controversial situation the  presence  of an  independent  witness   from the public, if  not  of  the locality,  would have lent some support to the case  of  the prosecution. The accused is said to haveappeared at th  Bus- stand  but it  has been shown where he appeared. Whether  he get down from a bus, if so from which bus-city or outstation bus?How  he appeared there is all mystery.  Nobody  bothered to  notice of his coming. It is said that he had a  DTC  bus ticket. NobodY     examined it. Perhaps there was nothing to examine.   If  the  Police  Officer  had  gone  with   prior information  to  arrest  the  absconding  accused  who   was involved  in such an important crime, they could have  taken an independent witness with them. It is again interesting to note instead of searching him and Performing the formalities of  arrest at the place where the accused appeared,  he  was taken  to a place said to be the office of  the  Electricity Board.  The  search  and  seizure  took  place  there.  Some articles  were  recovered from his possession. Most  of  the articles  recovered are mere personal belongings. There  was also  a  piece  of paper since marked as Ex.  PW  26/B.  The Police  did  not think it necessary to have  an  independent witness  even for the seizure memo, when  particularly  some important   piece  of  evidence  was  recovered  from    his possession  The plea of the prosecution was that noboy   was

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available  or  none  was prepared to be a  witness  in  this matter. It is unthinkable at a public place and that too  at the Bus-stand. The further plea of the prosecution was  that the  circumstances  After  the assassination  of  the  Prime Minister  were  such that no witness was  prepared  to  come forward. It appears that for every problem this situation is brought  as a defence by th prosecution but this  would  not help them go them so far as this matter is concerned. It  is very difficult to believe that more than one month after the unrest  in  Delhi  a citizen in this capital  did  not  come forward to be a witness for seizure memo. The arrest of  the accused Balbir Singh in the circumstances stances appears to be  only  a  show and not an  arrest in  actuality.  If  the release of this accused after his arrest on  Ist November is not established and his abscondence is not proved, then  the story of his arrest on 3rd December with the recovery of the articles  loses  all  its significance. The  arrest  of  the accused  on  3rd December and the recovery  of  the  alleged articles from his person have not been proved satisfactorily and  therefore could not be of any consequence against  this accused.  The  attempt  of  the  prosecution  lo  prove  the recovery  of  Ex. PW 26/B on the basis of an  entry  in  the Mslkhana  Register  of Tughlak Road Police   Station  is  an interesting  situation.  There  is  an  endorsement  in  the Malkhana  Register  stating that the DTC  ticket  which  the accused  carried  and  the paper  containing  the  dates  in English  Ex.  PW.26/B   were  not  deposited.  The  Malkhana Register,  therefore, is of no help to the  prosecution.  In view  of’ these infirmities it cannot be accepted  that  the accused  was  arrested  on 3rd December as  alleged  by  the prosecution So the recovery of Ex. PW 26/B is doubtful.[99G- 101G]                                                     PG NO 40     18.  The  document  Ex.  PW 26/B is  a  sheet  of  paper containig  certain entries, and if it is considered to be  a "memorandum of events˜ prepared by this accused relating  to his  conspiracy,  why should he carry it  in  an  atmosphere surcharged  with emotion against the Sikhs. Not  only  that, this person knew that he was an accused in such an important case,  absconding  and  carrying  in  his  pocket  such   an important  piece of evidence. Was it his intention  that  he should keep it readily available so that he could oblige the prosecution whenever they needed? There is no other possible reason  why this person should keep this document  with  him all the time. The prosecution could not explain this strange behaviour of the accused as to why he could have thought  of carrying such a piece of paper in his pocket. [1O1H-102C]     Except  a mention of few dates and few events  there  is nothing  in  document Ex.PW.26/B.It even does  not  indicate that with those events whether this accused was connected in any  manner.  It is significant that this document  was  not with him when his house was searched and he was arrested  on the  night of November 1, 1984. If after that arrest he  was not released at all and there was no occasion for him to  go away  then, one fails to understand as to how this  document came  in  his possession. The evidence indicates  that  this accused  was preparing to give a statement or  a  confession and,  therefore,  he was given the notes and  he  must  have recorded those dates to facilitate the statement that he was planning  or he was made to give which ultimately he  choose not to give at all. [102D-F]  There  is no reference after the words ’felt like  killing’ as  to  who  was  intended ln be killed,  and  as  to  whose feelings  were  noted  in  this piece of  paper.  There  are entries  in this document which refer to  meetings,  visits.

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persons, visiting somebody’s house but it is not clear as to whom they refer and what is intended when reference is made. Beant Singh has been referred to in this document more  than in  one place. At one place, there is a reference  to  Beant Singh  with  eagle.  But there is no reference  to  a  joint brought  a  message or they should take revenge.  The  entry dose not suggest that the accused Balbir Singh had  anything to  do  with the eagle. If there is anything it  is  against Beant Singh. [102G-103A]     A  perusal of this whole document also shows that  there is  no reference at all to Beant singh and his plan to  kill the  Prime Minister Nor there is any mention about the  bomb or granade with which he was planning to eliminate the Prime Minister  before  15th  August  1984.   There  is  also   no reference about Beant Singh conspiring with this Accused  or                                                     PG NO 41 vice-versa.  Kehar  Singh is not at all  in  the   document. Satwant  Singh, however, is mentioned against 30th  October, but without any indication where? [103B]     22.  Under  these circumstances it is  very  clear  that except  the mention of ’Operation Blue Star’ and ’felt  like killing’  there is nothing in this document which is of  any significance.  If  the document is read as it is,  there  is nothing   incriminating   against  accused   Balbir   Singh. Unfortunately  it appears that the High Court read  in  this document  what  was  suggested  by  the  posecution  without considering  whether  it  could be accepted or  not  in  the absence of evidence on record. Admittedly, there is no  such evidence at all in this case. [103D]     23.  Even  if  the document is  accepted  to  have  been written  by accused Balbir Singh, still there is nothing  in it on the basis of which an inference of conspiracy could be drawn.  There must be evidence to indicate that the  accused was  in agreement with the other accused persons to  do  the act  which  was the ultimate object which  was  achieved  on October   31,  1984.  This  document,  therefore,   although described  by  the  High Court as very  important  piece  of evidence, is nothing but a ’scrap of paper’. [103G]     24.  Unfortunately, the High Court while coming  to  the conclusion  that Balbir Singh knew Beant Singh  and  Satwant Singh well, has not referred to any piece of evidence  which establishes that they knew each other well. The  prosecution has also not been able to point out any piece of evidence on the  basis  of which this could be  inferred.  This  accused being  a Sikh also is referred to, but there were number  of Sikh Officers posted at the house of the Prime Minister  and merely  because he was a Sikh it could not be said  that  he became a party to the conspiracy or he was in conspiracy  or he  knew  Beant Singh and Satwant Singh well.  Similarly  as regards the observations made by the High Court that  Balbir Singh shared indignation of Beant Singh against Smt.  Gandhi was in a mood to avenge for the ’Operation Blue Star’  there is no evidence to support it. From the evidence of SI  Madan Lal  Sharma, PW 30 all that could be gathered is that  after the  ’Operation Blue Star’ Balbir Singh was in  an  agitated mood and he used to say that the responsibility of  damaging the Akal Takht lies with Smt. Gandhi and it would be avenged by  them. From this it cannot be inferred that Balbir  Singh wanted to take revenge against the Prime Minister  alongwith Beant  Singh.  If  expression of anger  or  protest  on  the ’Operation  Blue Star’ could be used as a piece of  evidence or a circumstance against accused then all those members  of the  Sikh  Community who felt agitated over  the  ’Operation Blue  Star’  must be held as members  of  the    Conspiracy. [104E-105A]

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                                                   PG NO 42     25.  There  is no material to indicate that  during  the leave  taken by Balbir Singh, he met Beant Singh  or  anyone else  or was in any manner connected with the conspiracy  or was  doing  something  in  pursuance  of  the  agreement  of conspiracy between them. Merely because on certain dates  he was on leave no inference could be drawn. [105B]     26. So far as appearance of falcon and offering of Ardas is   concerned,  admittedly  appearance  of  a   falcon   is considered,  by  the Sikh Community, as a  sacred  thing  as falcon  is supposed to be a representative of the  Guru  and if,  therefore, this accused and Beant Singh  offered  Ardas nothing could be inferred from this alone. [105C]     27.  The statement of Amarjit Singh PW 44  was  recorded thrice  during  the investigation. In  the  first  statement there  is  no involvement of Balbir Singh  and  had  alleged against  Beant Singh. According to him, he recalled  bit  by bit  and  that was the reason, he gave  the  subsequent  two statements. If these statements are carefully perused it  is clear that the entire approach of the High Court appears  to be  erroneous.  What he did later was to  improve  upon  his statement  and  indroduce Balbir Singh  also  or  substitute Balbir  Singh  in  place  of Beant  Singh.  The  only  other inference is that he was himself a party to that conspiracy. Otherwise  there  is no explanation why he should   keep  on giving statement after statement, that too after 25 days  of the  incident.  It clearly shows that he  was  a  convenient witness available to State whatever was desired from him. He appears  to have become wiser day by day and remembered  bit by  bit, is certainly interesting to remember. In his  first version there is nothing against Balbir Singh. In his second statement he has tried to introduce things against him. This apparently is a clear improvement. [105F-107C]     28.  Even delay is said to be dangerous and if a  person who  is an important witness does not open his mouth  for  a long  time his evidence is always looked with suspicion  but here  is  a witness who even after 15 days  gave  his  first statement and said nothing against accused Balbir Singh  and then  even  waited for one more month and then  he  suddenly chose to come out with the allegations against this accused. Such  a witness could not be relied upon and even  the  High Court  felt  that  it  would not be  safe  to  rely  on  the testimony of such a witness alone. His claim that he had  so much of close association with Beant Singh and Balbir  Singh that he used to be taken in confidence by these two persons means  that  he is one of the conspirators or  otherwise  he would not have kept quiet without informing his superiors as it was his duty to do when the Prime Minister was in danger. [107D-G]                                                     PG NO 43     29. In the instant case, there is no evidence at all  to establish prima facie participation of accused Balbir  Singh in  conspiracy  or  any evidence to  indicate  that  he  had entered  into  any  agreement to do an unlawful  act  or  to commit  an  offence  alongwith the  other  accused  persons. Therefore,  in  absence of any evidence in  respect  of  the first  part of s. 10 of the Evidence Act which is  necessary it  could  not be contended that the confession  of  Satwant Singh  could be of any avail or could be used  against  this appellant. [107H-108A]     30. It is clear that where PW 44 says ’agreed’ and  ’he’ in  his  statement  on November 24, 1984 he  had  not  named Balbir  Singh  at all. It is only now in  his  statement  at trial that he grew wiser and made an attempt by way of  this explanation.  It is rather unfortunate that the  High  Court

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felt that this explanation should be accepted. [108D]     31.  The Statement against Balbir Singh coming  for  the first time on December, 21, 1984 itself in the light of  the settled criminal jurisprudence of this country ought to have been rejected outright. Even Bimla Khalsa, the wife of Beant Singh  does  not mentioned anything  against  Balbir  Singh. [108E]     32. So far as accused Balbir Singh is concerned there is no  evidence  at all on the basis of  which  his  conviction could  be  justified.  He  is,  therefore,  entitled  to  be acquitted. [108H]     33. The material evidence against accused Kehar singh is the  evidence  of PW 65, Bimla Khalsa wife of  Beant  Singh. Although  she has been declared hostile, but  her  statement could  not  be discarded in toto merely because  on  certain questions  she has chosen not to support prosecution. It  is true   that  her  statement  for  the  first   time   during investigation was recorded on January 16, 1985. She lost her husband Beant Singh on October 31, 1985. She was placed in a situation where it would have been very difficult for her to compose  herself  in a manner in which she  could  give  her statement immediately. It is nobody’s case that she has  any grudge  against anybody. Bimla Khalsa in clear terms  stated that Kehar Singh and Beant Singh had secret talks on October 17,  1984. She wanted to know it, but she was not  given  to understand. This kind of secret talk with Beant Singh  which Kehar  Singh  had,  is  a  very  significant   circumstance. Apparently  Kehar  Singh  being an elderly  person  did  not indicate her about their plan. If the attempt of Kehar Singh was  to dissuade Beant Singh then there was no occasion  for him to keep the matter secret from his wife. On the contrary he  should have indicated to his wife also what Beant  Singh was  planning.  These talks, therefore, as proved  by  Bimla Khalsa  go  a long way in establishing Kehar Singh  being  a party to the conspiracy. [109-C, 111G-112A]                                                     PG NO 44     34.  Her evidence also indicates that Beant  Singh  took Amrit  on  14th and Beant Singh kept his golden  ’kara’  and ’ring’ in the house of Kehar Singh which have been recovered from  the latter. It clearly goes to show that  Kehar  Singh knew  why Beant Singh took Amrit and why he handed over  the golden  ’kara’ and ’ring’ to him. It is also clear from  the evidence of Bimla Khalsa that what transpired between  Beant Singh  and Kehar Singh on 14th was not conveyed to  her  and she was kept in dark. [112B]     35.  In  this background the trip to Amritsar  of  Beant Singh,   Kehar   Singh  and  their  families  is   of   some significance.  The  attempt  of these two  persons  to  keep themselves away from the company of their wives and children speaks volume about their sinister designs. The way in which these  two avoided the company of the members of the  family and  PW  53  at whose residence they were  staying  and  the manner  in which they remained mysterious if looked at  with the secret talks which they had in the house of Bimla Khalsa earlier goes to establish that the two were doing  something or  discussing  something or planning something  which  they wanted to keep it as a secret even from Bimla Khalsa. [112C- G]     36.  The manner in which Amrit has been taken  by  Beant Singh and even Satwant Singh and Bimla Khalsa have been made to  take it makes it significant that in all these three  of Amrit taking Kehar Singh was always with them or at least it could  be  said,  was inspiring them to  have  it.  It  also indicates  that  there was something in the  mind  of  Beant Singh which was known to Kehar Singh and which he even tried

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to keep a secret from his wife Bimla Khalsa and wanted Beant Singh to have a full religious purification and  confidence. [113 A-B]     37.  The post-crime conduct of Kehar  Singh  immediately after the news of assassination spread when he mentioned  to his   office   colleague   that   ""whosoever   would   take confrontation  with the Panth, he would meet the same  fate" shows  his  guilty  mind with that  of  Beant  Singh.  These circumstances by themselves indicate that Kehar Singh was  a co-conspirator to assassinate Mrs. Gandhi. [113C-E]                                                     PG NO 45     38.  The main evidence against accused Satwant Singh  is evidence of eye witnesses. The testimony of Narain Singh  PW 9-an  eye witness, is corroborated by the first  information report  and  also by the two other eye  witnesses  Rameshwar Dayal PW 10 and Nathu Ram PW 64, whose presence on the  spot could not be doubted. Nathu Ram was in the personal staff of the Prime Minister and Rameshwar Dayal himself had  received injuries.  Apart from it, this evidence of direct  witnesses also  finds  corroboration  from  the  post-mortem   report, recovery of cartridges and arms on the spot and the evidence of the Doctor and the expert who tallied the bullets.  Under these   circumstances,  even  if  the  confession  of   this appellant  Satwant  Singh is not taken  into  consideration, still there is enough evidence which conclusively  establish his part in the offence and in this view of the matter there appears  to be no reason to interfere with  the  conclusions arrived at by the two Courts below. Therefore, the appeal of Satwant Singh deserves to be dismissed. [114D,115C-D]     (Per Ray, J.)     1. The concurrent findings of the Trial Court as well as of  the  High Court that offences under s. 302  I.P.C.  read with  s. 120-B, I.P.C. and s. 34 I.P.C. were  proved  aginst Satwant  Singh,  must  be upheld. It is  a  gruesome  murder committed  by  the accused who was employed  as  a  security guard to protect the Prime Minister Indira Gandhi. It is one of  the  rarest of rare cases in which  extreme  penalty  of death is called for. [136C]     2. The charge of conspiracy against Kehar Singh with the accused  Satwant  Singh and Beant Singh since  deceased  has been proved without any reasonable doubt. [136D]     3.  The  fixing  of the place of  sitting  of  Court  of Sessions  was made prior to the enforcement of the  Code  of Criminal  procedure Amendment 1973 by the  Executive.  Under the  amended  Criminal  Procedure Code, 1973,  s.  9(6)  has conferred power on the High Court to notify the place  where the  Court  of Sessions will ordinarily  hold  its  sittings within  the Sessions Division in conformity with the  policy of  separation  of Judiciary from the  executive.  The  High Court may notify the place or places for the sitting of  the Court  where  the sittings are ordinarily held if  the  High Court  can  fix  a  place other than  the  Court  where  the sittings  are ordinarily held if the High Court so  notifies under  s.  9(6) Cr. P.C. by itself signifies that  the  High Court  in exercise of its powers under s. 9(6) of  the  Code may  order  the holding of Court in a place other  than  the Court  where sittings are ordinarily held if the High  Court thinks  it  expedient to do so and for other  valid  reasons such as security of the accused as well as of the  witnesses and also of the Court. [117C-F]                                                     PG NO 46     4. The Order of the High Court notifying the trial of  a particular  case  in a place other than the Court is  not  a prejudicial order but an administrative Order. In this  case because  of  the surcharged atmosphere and  for  reasons  of

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security,  the High Court ordered that the trial be held  in Tihar  Jail. Therefore, it cannot be said that the trial  is not  an open trial because of its having been held in  Tihar Jail  as  there  is noting to show that the  public  or  the friends  and  relations of the accused were  prevented  from having  access to the place of trial provided the  space  of the Court could accommodate them. Various representatives of the  press including representatives of  international  news agency like BBC, etc. were allowed to attend the proceedings in  Court  subject  to the usual regulations  of  the  jail. [117F-G]     5.  Section  327  of  the  Code  of  Criminal  Procedure provides that any place in which any criminal Court is  held for  the  purpose of inquiring into or  trying  any  offence shall  be  deemed to be an open Court, to which  the  public generally   may  have  access.  so  far  as  the  same   can conveniently contain them. The place of trial in Tihar  Jail according  to this provision is to be deemed to be  an  open Court as the access of the public to it was not  prohibited. [117H-118A]     6.  In Some cases, trial of a criminal case is  held  in Court and some restrictions are imposed for security  reason regarding  entry  into the Court. Such restrictions  do  not detract  from  trial  in open  Court.  Section  327  proviso empowers  the  Presiding Judge or Magistrate to  make  order denying  entry  of public in Court. No such order  had  been made  in  this case denying access of members of  public  to Court. [118D-E)     7. Trial in jail does not by itself create any prejudice to the accused and it will not be illegal. [118F]     8.  In  the instant case, though the trial was  held  in Tihar Jail for reasons of security of the accused as well as of  the witnesses and of the Court and also because  of  the surcharged  atmosphere,  there  was no  restriction  on  the public  to attend the Court, if they so  minded.  Therefore, the  trial,  in the instant case, in Tihar Jail is  an  open trial and it does not prejudice in any manner whatsoever the accused. [120H-121A]                                                     PG NO 47       9.  Though public trial or trial in open Court is  the rule  yet  in  cases  where the ends  of  justice  would  be defeated if the trial is held in public, it is in that  case the  Court  has got inherent jurisdiction to hold  trial  in camera.  Therefore, the holding of trial in jail  cannot  be said  to  be  illegal and bad and  entire  trial  cannot  be questioned as vitiated if the High Court thinks it expedient to hold the trial in jail. [122F]     Re: T.R. Ganeshan, AIR 1950 Madras 696; Shashi Singh  v. Emperor,  AIR 1917 Lahore 311; Prasanta Kumar  Mukherjee  v. The  State, AIR 1952 Cal. 9; Kailash Nath Agarwal & Anr.  v. Emperor,  AIR 1947 Allahabad 436 and Narwarsingh  v.  State, AIR 1952 MB 193, approved.      C     Richmond  Newspapers, Inc. v. Commonwealth of  Virginia, United States, Supreme Court Reports 65 L. Ed. 2d 973; Scott and Anr. v. Scott, [1913] AC 417; Core Lillian MC Pherson v. Oran  Leo MC Pherson, AIR 1936 PC 246 and A.K. Roy, etc.  v. Union  of India and Anr., [1952] 2 SCR 272 at 356,  referred to.     Naresh Shridhar Mirajkar v. State of Maharashtra, [1966] 3 SCR  744, relied upon.     10.  Section  164(2) of the Code of  Criminal  Procedure requires  that  the Magistrate before  recording  confession shall explain to the person making confession that he is not bound to make a confession and if does so it may be used  as

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evidence against him and upon questioning the person if  the Magistrate  has  reasons to believe that it  is  being  made voluntarily,  then  the confession will be recorded  by  the Magistrate.  The  compliance  of sub-s. (2)  of  s.  164  is therefore,mandatory and imperative and non-compliance of  it renders the confession inadmissible in evidence. Section 463 (old  s. 533) of the Code provides that where the  questions and answers regarding the confession have not been  recorded evidence   can  be  adduced  to  prove  that  in  fact   the requirements of sub-s. (2) of s. 164 read with s. 281  have, in fact, been complied with. If the Court comes to a finding that  such  a compliance had, in fact, been  made  the  mere omission  to  record the same in the proper  form  will  not render  it inadmissible in evidence and the defect is  cured under s. 463 (s. 533 of the old Code) but when there is non- compliance of the mandatory requirement of s. 164(2) of  the Code  and it comes out in evidence that no such  explanation as envisaged in the aforesaid sub-section has been given  to the  accused  by  the Magistrate,  this  substantial  defect cannot be cured under s. 463 of the Code. [126E- 127A]                                                     PG NO 48     11.  In the instant case, accused Satwant Singh who  was in  police  custody was produced before  the  Magistrate  on 29.11.1984.  On  that day the accused  made  an  application stating  that he wanted to make a statement about the  facts concerning   assassination  of  Mrs.  Indira   Gandhi,   the Magistrate  directed the remand of the accused  in  judicial custody till 1.12.1984 giving the accused time to reconsider and  reflect. The Magistrate also told him that he  was  not bound to make any statement and if any statement is made the same might be used against him. The Magistrate also directed the  sending  of  a  letter  to  the  Secretary,  Legal  Aid Committee to provide legal assistance to the accused at  the expenses of the State. On 1.12.1984, the Magistrate enquired of the accused whether he wanted to make a statement whereon the  accused stated that he wanted to make a  statement.  He was  allowed to consult his counsel who conferred  with  him for about 15 minutes privately. As the accused insisted that his  statement be recorded, the application was sent by  the magistrate   to  the  Link  Magistrate  for  recording   his statement.  Before  recording  his statement  a  doctor  was called  to examine the accused, who in his report  (Ext.  PW 11/B) stated that in his opinion the accused is fit to  make his  statement.  It appears from Ext. PW 11/B-2 as  well  as from  the  questions  and answeres which  were  put  to  the accused (Ext. PW 11/B-3) that the Link Magistrate warned the accused  that  he  was not bound to  make  any  confessional statement and in case he does so it may be used against  him during trial. The accused in spite of this warning wanted to make  a statement and thereafter the confessional  statement Ext.  PW 11/C  Was recorded by the Link Magistrate.  In  the certificate  appended to the said confessional statement  it has been stated that there was no pressure upon the  accused and  there was neither any police officer nor  anybody  else within  the  hearing  or  sight  when  the   statement   was recorded. Therefore, it appears that the accused was put the necessary  questions and was given the warning that  he  was not bound to make any statement and in case any statement is made, the same might be used against him by the  prosecution for  his conviction. Of course, no question was put  by  the Magistrate  to  the accused as to why he wanted  to  make  a confessional statement. It also appears from the evidence of the  Magistrate  that the confessional  statement  was  made voluntarily  by the accused. So the defect in regarding  the statement  in the form prescribed is cured by s. 463 of  the

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Code.  The defect in recording the statement in  appropriate form  prescribed can be cured under section 463 of the  code provided  the  mandatory  provisions  of  s.  164[2]  namely explaining  to the accused that he was not bound to  make  a statement and if a statement is made the same might be  used against  him,  have  been  complied with  and  the  same  is established  on  an examination of the Magistrate  that  the mandatory provisions have been complied with. [128D-129D]                                                     PG NO 49     Hem  Raj  Devi Lal v. State of Ajmer, A.I.R.  1954  S.C. 462, followed.     Ram  Chandra and Anr. v. State of Uttar Pradesh,  A.I.R. 1957 S.C. 381; Nazir Ahmed v. King Emperor, A.I.R. 1936 P.C. 253  [2]; Taylor v. Taylor, [1876] 1 Chancery Division  426; State  of  U.P.  v. Singhara Singh, A.I.R.  1964  S.C.  358; Ranbir  Singh v. Emperor, [1932] Cr. L.J. 242; Partap  Singh v.  The  Crown, I.L.R. [1925] 6 Lah. 415; Prag  v.  Emperor, [1931]  Cr. L.J. 97; Ambai Majhi v. State, [1966]  Cr.  L.J. 851;  Abdul Rajak Murtaja v. State of Maharashtra, [1970]  1 S.C.R.  551; Dagdu and Ors. v. State of Maharashtra,  A.I.R. 1977  S.C. 1579 and Ram  Parkash v. State of Punjab,  [1959] S.C.R. 1219, considered.     On  a consideration and appraisement of the evidence  of the eye-witnesses, it is clear and apparent that the accused Satwant  Singh and Beant Singh fired at Smt.  Indira  Gandhi while  she was approaching the TMC gate accompanied  by  her Private Secretary Shri R.K.  Dhawan, Narain Singh, H.C., PW- 9  holding an umbrella on her head to protect her  from  sun accompanying  her on the right side and Nathu Ram  following behind  Shri R.K. Dhawan. It also appears that  Beant  Singh first   started  firing  from  his  service   revolver   and simultaneously the accused Satwant Singh also cocked his SAF Carbine  towards  the  Prime  Minister  whereon  the   Prime Minister  fell  on the ground on her right  side.  The  eye- witnesses have specifically stated that the accused  Satwant Singh  and Beant Singh shot on the Prime Minister while  she was  approaching the TMC gate and she was about  8-10  steps away  from the TMC gate. The eye-witnesses have denied  that there  was  any firing from all the sides and  it  has  been specifically stated in cross-examination that the firing was caused   by  Beant  Singh  and  Satwant  Singh  from   their respective service revolver and SAF carbine. It also appears that Beant Singh and accused  Satwant Singh were apprehended by PW-9 Narain Singh, HC and by the ITBP people. PW-9 in his cross-examination specifically stated that Satwant Singh did not  sustain bullet injuries before Smt. Indira  Gandhi  had been fired at. The suggestion on behalf of the defence  that there  was  firing from all the sides  and  accused  Satwant Singh  was  injured seriously and Beant Singh died  by  this firing  has  got  no basis and it is  unsustainable.  It  is obvious from the deposition of PW-49 that when he and  other ITBP  took Beant Singh and Satwant Singh to the  guard  room they were not at all in injured condition. [132F-133C]     13. The evidence clearly show that Satwant Singh accused No.  1 manipulated his duty from beat No. 4 to TMC  gate  in P.M.  House and so there is no-doubt about his  presence  at the TMC gate on 31.10.1984 from 7.30 A.M. [135C]                                                     PG NO 50     14.  A confession made by an accused cannot be  used  to convict   his  co-accused  unless  there  is   corroborative evidence  against  the  co-accused  but  a  person  can   be convicted  solely upon his own confession even if  retracted if  the Court believed it to be true. The deposition of  the independent  witnesses is corroborated by  the  confessional statement PW 11/C made by the accused Satwant Singh.  Though

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the  said  confession  was  retracted  subsequently  by  the accused,  the  same  can be used by the  Court  against  the accused   in  convicting  him.  In  the  instant  case   the confessional  statements  were corroborated  by  independent evidences   which  clearly prove the guilt of  the  accused. [135C-E]     Per Shetty, J.     1.  Section  354(3) of the Code of  Criminal  Procedure, 1973 marks a significant shift in the legislative policy  of awarding death sentence. Now the normal sentence for  murder is  imprisonment  for life and not sentence  of  death.  The Court is required to give special reasons for awarding death sentence.   Special   reasons  mean   specific   facts   and circumstances  obtained in the case justifying  the  extreme penalty. [202D]     Bachan Singh v. State of Punjab, [1980] 2 S.C.C. 684 and Machhi  Singh  v.  State of Punjab,  [1983]  3  S.C.R.  413, referred to.     2. In the instant case, the crime charged was not simply the  murdering of the human being, but it was the  crime  of assassination  of  the duly elected Prime  Minister  of  the country. The motive for the crime was not personal, but  the consequences  of the action taken by the Government  in  the exercise  of  constitutional  powers  and  duties.  In   our democratic republic, no person who is duly constituted shall be  eliminated  by privy conspiracies. The  ’Operation  Blue Star’ was not directed to cause damage to Akal Takht. Nor it was  intended to hurt the religious feelings of  Sikhs.  The decision  was  taken  by  the  responsible  and   responsive Government in the national interest. The late Prime Minister Smt.  Indira  Gandhi was, however, made the target  for  the consequences  of the decision. The security guards who  were duty-bound  to  protect the Prime Minister at  the  cost  of their lives, themselves became the assassins. All values and all ideals in life; all norms and obligations were thrown to the winds. It was a betrayal of the worst order. It was  the most foul and senseless assassination. The preparations  for and  the  execution of this egregious crime do  deserve  the dread sentence of the law.                                                     PG NO 51     3. Sub-s. (6) of s. 9 of the Code of Criminal  Procedure can be divided into two parts. The first part provides power to  the  High Court to notify the place or  places  for  the Court of Session to hold its sittings for disposal of cases. The  second  part  deals  with the power  of  the  Court  of Sessions  in any particular case to hold its sittings  at  a place not notified by the High Court. [142D-E]     4. The words "place or places" used in S. 9(6)  indicate that  there could be more than one place for the sitting  of the  Court of session. The different places may be  notified by   different  notifications.  There   may  be  a   general notification as well as a special notification. The  general notification  may specify the place for the class  of  cases where  Court of Session shall sit for disposal. The  special notification may specify the same place or a different place in respect of a particular case. [143C]     5.  The  words and sections like men do not  have  their full  significance when standing alone. Like man,  they  are better understood by the company they keep. [143D]     6.  Section 9(4) and s. 194 of the Code are the  closely related sections and they may also be examined to understand the true meaning of the words "place or places" in the first part  of  s. 9(4). Section 9(4) empowers the High  Court  to appoint  a  Sessions Judge of one division to  sit  at  such place  or places in another division for disposal of  cases.

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The  High Court while so appointing need not direct  him  to sit  only at the ordinary place of sittings of the Court  of Sessions.  There is no such constraint in s. 9(4). The  High Court  may also issue a separate notification under s.  9(6) specifying  the  place or places where that  Sessions  Judge should sit for disposal of cases. Section 194 provides power to  the  High  Court to make a special  order  directing  an Additional  or Assistant Session Judge of the same  division to try certain specified cases or a particular case. If  the High Court thinks that the Additional or Assistant  Sessions Judge should hold the Court at a specified place, a separate notification could be issued under s. 9(6). [143E-144C]     7.  The  power provided by the first part  of  the  High Court  is an administrative power, intended to  further  the administration of justice. The power provided by the  second part is a judicial power of the Court of Session intended to avoid hardship to the parties and witnesses in a  particular case. One is independent of and unconnected with the  other. So,  the  first part of s. 9(6) cannot be read  with  second part thereof. The Judicial power of the Court of Session  is of  limited operation, the exercise of which is  conditioned by  mutual  consent  of  the parties  in  the  first  place. Secondly,  the  exercise of that power has  to  be  narrowly tailored  to the convenience of all concerned. It cannot  be made  use  of for any other purpose. This  limited  judicial power  of  the  Court of Session cannot  be  put  across  to curtial  the  vast administrative power of the  High  Court. [144D-E]                                                     PG NO 52     8.  Section 9(6) is similar to s. 9(2) of the  Old  Code (Act  5  of 1898). The only difference being  that  s.  9(2) conferred  power  on  the State Government  to  specify  the "place or places’’ where the Court of Session should sit for the  purpose of disposal of cases. That power is now  vested in  the  High Court. The change of authorities was  made  to keep  in  tune  with the separation of  judiciary  from  the executive.  The scope of the sections, however, remains  the same. [144G]     9.  It  is unnecessary for the High Court  to  hear  the accused or anybody else before exercising the Power under s. 9(6).  Such a hearing, however, is required to be  given  by the  Court  of Session, if it wants to   change  the  normal place  of  sitting,in any particular case, for  the  general convenience   of  parties  and  witnesses.  Therefore,   the impugned  notification  of the High Court,  in  the  instant case, directing that the trial of the case shall be held  at Tihar is not ultra vires of s. 9(6) of the code. [146G-H]     Lakshman  v.  Emperor, A.I.R. 1931 Bom. 313  and  Ranjit Singh  v.  Chief  Justice & Ors., [1985] Vol.  28  DLT  153, affirmed.     10.   The   Sixth  Amendment  to   the   United   states Constitution  provides  "In all  criminal  prosecution,  the accused  shall enjoy the right to a speedy and public  trial by   an  impartial  jury.....".  No  such  right  has   been guaranteed to the accused under the Indian Constitution. The right of an accused to have a public trial in India has been expressly, provided in the Code. [147F]     11.  The  jail trial is not an innovation. It  has  been there since long back. The practice of having trials  inside jails,  Seems to have persisted even after the  coming  into force of the Indian Constitution. [147G]     12. Jail is not a Prohibited place for trial of criminal cases. Nor the jail trial can be regarded as an illegitimate trial.  There can be trial in jail premises for  reasons  of security  to  the  parties, witnesses and  for  other  valid

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reasons. The enquiry or trial, however, must be conducted in open  Court. There should not be any veil of secrecy in  the proceedings. There should not even be an impression that  it is  a secret trial. The dynamics of judicial process  should be thrown open to the public at every stage. The public must have reasonable access to the place of trial. The  Presiding Judge must have full control of the Court house. The accused must  have  all  facilities to have a  fair  trial  and  all safeguards to avoid prejudice. [149F]                                                     PG NO 53     13.  In  the instant case, there is no decision  of  the High Court to have the trial in Tihar Jail. The records show that the situation then was imperative. It is said that  the assessination of Smt. Indira Gandhi had provoked  widespread violence  threatening  the  security of the  State  and  the maintenance  of law and order. The remand and the  committal proceedings  had  to  be  taken  in  Tihar  Jail  since  the Magistrate   and   Prosecutor  were  threatend   with   dire consequence. Such circumstances continued to exist when  the case  came up for trial. The Government requested  the  High Court  to have the trial of the case in Tihar Jail  for  the security  of the Judge, witnesses, Police Officers and  also for  the  safety of the accused themselves. The  High  Court also had taken note of the events that immediately  followed the assassination of Smt. Indira Gandhi, Beant Singh one  of the  assassins  was  shot dead  and  Satwant  Singh  accused received near fatal gun shot injury. There was unprecedented violence aftermath in the national capital and other places. Frenzied mobs armed with whatever they could lay their hands were   seen  besieging  passing  Sikhs  and  Burning   their vehicles,  as  doctors  in the hospital  fought  their  vain battle  to  save  the  life  of  Smt.  Indira  Gandhi.  Even President  Zail Singh’s cavalcade, making its way  from  the Airport  to  the hospital was not spared.  The  reaction  of outrage  went on unabated followed by reprisal killings  and destruction of properties. The local police force was  Badly shaken.  They could do little even to contain the  violence. The Army had to be deployed to stem the tide of deluge.  The new  Prime  minister, made an unscheduled broadcast  to  the Nation  pleading  for sanity and protection  to  the  Sikhs. Nevertheless  three  days  passed on with  murder  and  loot leaving  behind a horrendous toll of more than two  thousand dead  and  countless  property destroyed. It  is  a  tragedy frightening even to think of. These unprecedented events and circumstances  would amply justify the decision of the  High Court to direct that the trial of the case should take place in Tihar Jail. [149G-151C]     Sahai Singh v. Emperor, A.I.R. 1917 Lahore 311;  Kailash Nath   v.   Emperor,  A.I.R.  1947  All.   436;   Re:   M.R. Venkataraman,  A.I.R.  1950 Madras 441; Re:  T.R.  Ganeshan, A.I.R. 1950 Madras 696; Prasanta Kumar v. The State,  A.I.R. 1952 Calcutta 91 and Narwar Singh & Ors.v. State, [1952]  MP 193 at 195, referred to.                                                     PG NO 54     14.  The main part of sub-s. (1) of s. 3Z7 embodies  the principle  of  public trial. It declares that the  place  of enquiry  and trial of any offence shall be deemed to  be  an open Court. It significantly use the words "open Court".  It means  that all justice shall be done openly and the  Courts shall  be  open  to public. It means  that  the  accused  is entitled  to a public trial and the public may claim  access to  the trial. The sub- section, however, goes on  to  state that  "the  public generally may have access so far  as  the place can conveniently contain them". It is implicit in  the concept  of a public trial. The public trial does  not  mean

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that every person shall be allowed to attend the Court.  Nor the  Court  room shall be large enough  to  accommodate  all persons. The Court may restrict the public access for  valid reasons  depending upon the particular case  and  situation. [151G-152B]     15.  The  proviso to sub-s. (1) of s.  327  specifically provides  power to the Presiding Judge to  impose  necessary constraint on the public access depending upon the nature of the  case. It also confers power on the Presiding  Judge  to remove any person from the Court house. The public trial  is not disorderly trial. It is an orderly trial. The  presiding Officer  may,  therefore, remove any person from  the  Court premises  if his conduct is undesirable. If exigencies of  a situation require, the  person desiring to attend the  trial may  be asked to obtain a pass from the  authorised  person. Such  visitors may be also security checks. These and  other like  restrictions will not impair the right of the  accused or that of the public. They are essential to ensure fairness of the proceedings and safety to all concerned. [152F-153A]     16.   "There  are  yet  other   fundamental   principles justifying  the public access to criminal trials. The  crime is a wrong done more to the society than to the  individual. It  involves a serious invasion of rights and  liberties  of some  other  person or persons. The people  are,  therefore, entitled  to  know whether the justice  delivery  system  is adequate or inadequate. Whether it responds appropriately to the situation or it presents a pathetic picture. This is one aspect. The other aspect is still more fundamental. When the State representing the society seeks to prosecute a  person, the State must do it openly. [153B]     Cooley’s Constitutional Law, Vol. I. 8th Ed. at 647  and Scott v. Scott, 1913, A.C. 417 at 477, referred to.                                                     PG NO 55     17. In open dispensation of justice, the people may  see that the State is not misusing the State machinery like  the Police,  the  Prosecutors  and other  public  servants.  The people may see that the accused is fairly dealt with and not unjustly condemned. There is yet another aspect. The  Courts like  other institutions also Belong to people. They are  as much human institutions as any other. The other  instruments and  institutions of the State may survive by the  power  of the  purse  or might of the sword. But not the  Courts.  The Courts have no such means or power. The Courts could survive only  by  the  strength of  public  confidence.  The  public confidence can be fostered by exposing Courts more and  more to public gaze. [153H-154B]     "First Amendment Right of Access to Pretrial Proceedings in   Criminal Cases" By Beth Hornbuckle Fleming  (Emory  Law Journal, V. 32 (1983) p. 618 to 688, referred to.     18.  In the instant case, the Office Block of  the  Jail Staff  was  used as the Court House. It  is  an  independent building  located  at  some  distance  from  the  main  jail complex.  In between there is a court-yard. This  court-yard has direct access from outside. A visitor after entering the court-yard  can straight go to the Court House. He need  not get  into the Jail Complex. This is evident from the  sketch of  the premises produced before this Court. It appears  the person  who visits the Court House does not get any idea  of the  Jail Complex in which there are Jail Wards  and  Cells. From  the  sketch, it will be also seen  that  the  building comprises  of  a Court-hall, bar room and  Chamber  for  the Judge. The Court hall can be said to be of ordinary size. It has  seating  capacity for about fifty with some  space  for those  who could afford to stand. The accused as  undertrial prisoners were lodged at Jail No. 1 inside the Jail Complex.

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It  was at a distance of about 1 Km. from the  Court  House. For trial purposes, the accused were transported by van.  In the  Court  hall,  they  were  provided  with  bullet  proof enclosure. [155D-G]     19. For security reasons, the public access to trial was regulated.  Those  who  desired to witness  the  trial  were required  to intimate the Court in advance. The trial  Judge used  to accord permission to such persons subject to  usual security  checks.  Before commencement of the trial  of  the case,  the representatives of the Press and  News  Agencies, national  or international, approached the trial  Judge  for permission  to cover the Court proceedings. The trial  Judge allowed their request. The trial Judge did permit access  to the  members of the public also. He permitted even  the  Law Students  in batches to witness the trial. There  is  hardly any instance brought to the attention of this Court where a person  who  sought  permissions was denied  access  to  the Court.  The observations of the High Court that  the  "trial Judge has given access to the place of trial for all members of the public who may be minded to attend the same save  for certain  reasonable restriction imposed in public  interest" have  not  been  shown to be  incorrect.  The  accused  were represented by leading members of the Bar. Some of the close relatives  of the accused were allowed to be present at  the trial.  All press representatives and news agencies  whoever sought permission have been allowed to cover the day to  day Court  proceedings.  There can, therefore, be  no  doubt  or dispute  as  to  the  adequacy  of  safeguards  provided  to constitute an open trial. Indeed, the steps taken by learned trial Judge were more than adequate to ensure fair trial  as well  as public trial. There is no member of the  public  or press   before   this  Court  making  grievance   that   his constitutional right of access to the trial has been  denied in this case. [155H, 158C-F,H]                                                     PG NO 56     20.  What  the Judicial decision purports to  do  is  to decide the controversy between the parties brought the Court and  nothing more. The Judicial verdict pronounced by  Court in  or  in relation to a matter  brought before it  for  its decision cannot be said to affect the fundamental rights  of citizens  under  Art. 19(1) of the  Constitution  of  India. [159E-F]     Naresh Shridhar Mirajkar v. State of Maharashtra, [1966] 3 S.C.R. 744, referred to.     21.  Under  the  American  Constitution  the   mandatory exclusion of the press and public to criminal trials in  all cases  violates  the First Amendment to  the  United  States Constitution.  But  if such exclusion is made by  the  trial Judge  in  the  best  interest  of  fairness  to  make  that exclusion,  it would not violate that constitutional  right. [161C-D]     Gannet Co. v. De Pasquale, 433 U.S. 368 (1979); Richmond Newspaper  Inc.  v.Virginia, 448 U.S. 555 (1980)  and  Globe Newspapers v. Superior Court, 457 U.S. 596 (1982),  referred to.     22.  Soon after the assassination of Smt. Indira  Gandhi the  Government of India by notification dated November  20, 1984,  constituted  a  Commission under  the  Commission  of Inquiry Act, 1952 presided over by Mr. Justice M.P.  Thakkar the  sitting  Judge  of the Supreme  Court.  The  Commission inter-alia  was  asked  to make recommendations  as  to  the corrective  remedies and measures that need to be taken  for the  future with respect to the matters specified in  clause (d)  of  the  terms  of  reference.  The  Commission  framed regulations under s. 8 of the Act in regard to the procedure

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for  enquiry. Regulation 8 framed thereon provided that  "in view of the sensitive nature of the enquiry, the proceedings will be in camera unless the Commission directs  otherwise". Accordingly, the Commission had its sittings in camera,  and the Commission submitted an interim report, followed by  the final report. [161G, 162E-F]                                                     PG NO 57     23. The Government of India did not lay the said reports before  the House of People on the ground of  expediency  in the interest of the security of the State and in the  public interest  and  for that purpose amended the  Commissions  of Inquiry Act. [162G,163G]     24.  The trial Court while rejecting the application  of the  accused  held  that  the  statements  recorded  by  the Commission  are inadmissible in evidence in  any  subsequent proceedings  and cannot, therefore, be used for the  purpose of  contradicting  the same witnesses under s.  145  of  the Evidence Act. The High Court also rejected such applications and held that it was not proper to compel production of  the proceedings  or the report of the Commission in view of  the privilege   of  non-disclosure  provided  by  the   Act   of Parliament  and that the evidence before the  Commission  is wholly   inadmissible  in  any  other  Civil   or   Criminal proceedings  except for prosecuting the person for  prejury. [164B-G]     Ramkrishna  Dalmia v. Justice Tandolkar,  [1959]  S.C.R. 279, followed.     25. The accused in criminal trials should be given equal opportunity to lay evidence fully, freely and fairly  before the  Court. The Government which prosecutes an accused  will lay bare the evidence in its possession. If the accused asks for  summoning any specific document or thing for  preparing his  case,  it should normally be allowed by  the  Court  if there  is  no  legal  bar.  But  "the  demand  must  be  for production  of  .....  specific  documents  and  should  not purpose  any  broad  or  blind  fishing  expedition."  These principles  are  broadly incorporated for  the  guidance  of Courts  under  s.  91 and s. 233 of  the  Code  of  Criminal procedure. [165G-166C]     Clinton E. Jencks v. United States, 353 U.S. 657-1 L.Ed. 1103  at 1111 and Nizam of Hyderabad v. A.M. Jacob, ILR  XIX Cal. 52 at 64, referred to.     26.  Dissecting s. 6 of the Commission of  Inquiry  Act, 1952  it will be clear that the statement made by  a  person before  the Commission, in the first place shall not be  the basis to proceed against him. Secondly, it shall not be used against him in any subsequent civil or criminal  proceedings except  for the purpose set out in the section  itself.  The single  exception provided thereunder is a  prosecution  for giving false evidence by such statement. [l66Fl                                                     PG NO 58     27. From the provisions of ss. 3, 4, 5, 5(a), G and 8 of the Commission of the Inquiry Act, it will be clear that the Act  was intended to cover matters of public  important.  In matters  of  public importance it may be necessary  for  the Government  to fix the responsibility on individuals  or  to kill  harmful rumours. The ordinary law of the land may  not fit  in  such  cases apart from it is  time  consuming.  The Commission under the Act is given the power to regulate  its own procedure and also to decide whether to sit in camera or in  public.  A Commission appointed under the Act  does  not decide  any  dispute.  There  are  no  parties  before   the Commission.  There is no lis. The Commission is not a  Court except  for  a  limited  purpose.  The  procedure   of   the Commission  is inquisitorial rather than  accusatorial.  The

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Commission more of ten may have to give assurance to persons giving evidence before it that their statements will not  he used  in  any  subsequent proceedings  except  for  perjury. Without such an assurance, the persons may not come  forward to  give statements. If persons have got lurking  fear  that their  statements given before the Commission are likely  to be used against them or utilised for productive use on  them in  any  other proceeding, they may be reluctant  to  expose themselves before the Commission.  Then the Commission would not  be able perform its task. The Commission would  not  be able to reach the nuggets of truth from the obscure horizon. The  purpose for which the Commission is constituted may  be defeated. [169-170B]     28. The Court should avoid such construction to s. 6  of the  said  Act which may stultify the purpose  of  the  Act. Section  6 must receive liberal construction so that  person deposing  before  the Commission may get  complete  immunity except  in  a  case of prosecution  for  perjury.   That  is possible  if  the word "against" used in s.  6  is  properly understood. [170C]     29.  Section 6 contains only one exception.  That  is  a prosecution  for  giving false evidence by  such  statement. When  the  Legislature  has expressly  provided  a  singular exception   to  the  provisions,  it  has  to  be   normally understood that other exceptions are ruled out.   Therefore, the  statement  given  before  a  Commission  shall  not  be admissible  against  the person in any subsequent  civil  or criminal proceedings save for perjury. [170E]                                                     PG NO 59     Sohan  Lal  v.  State,  A.I.R. 1965  Bom.  1;  State  of Maharashtra  v.  Ibrahim Mohd., [19781 Crl.  L.J.  1157  and State  of Assam v. Suparbhat Bhadra, [1982] Crl. L.J.  1672, overruled.     Puhupram & Ors., v. State of M.P., [19681 M.P. L.J. 629, affirmed.     Royal  Commission on Tribunals of Inquiry,  (1966);  The Special  Commission  Act, 1888 and The Tribunal  of  Inquiry (Evidence) Act. 1921 referred to.     Ramakrishnu  Dalmia v. Justice  Tandolkar.  [1959]S.C.R. 279. upheld.     30.  There is vital difference between the  two  crimes; (i)   abetment   in  any  conspiracy,  and   (ii)   criminal conspiracy.  The former is defined  under the second  clause of  s.  107 and the latter is under s. 120-A of  the  Indian Penal  Code. The gist of the offence of criminal  conspiracy created  under  s. 120-A is a bare agreement  to  commit  an offence.  It  has been made punishable under s.  120-B.  The offence  of abetment created under the second clause  of  s. 107  requires that there must be something more than a  mere conspiracy..  There must be some act or illegal omission  in pursuance  of that conspiracy. That would be evident by  the wordings  of s. 107 (Secondly): "engages in  any  conspiracy omission takes place in pursuance of that conspiracy  ....." The punishments for these two categories of crimes are  also quite different. Section 109 IPC is concerned only with  the punishment  of abetments for which no express  provision  is made  under  the Indian Penal Code; A charge  under  s.  109 should,  therefore,  be along with  some  other  substantive offence committed in consequence of abetment. The offence of criminal  conspiracy is, on the other hand,  an  independent offence.  It is made punishable under s. 120-B for  which  a Charge   under  s.  109  IPC  is  unnecessary   and   indeed inappropriate. [l75G_l77C]     31.  The  genuineness  of the document Ex.  PW  26/B  is inextricably  connected  with the arrest and search  of  the

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accused  Balbir Singh at Najafgarh Bus Stand.  The  document was  recovered from the accused upon arrest and search  made under  s.  51  of  the Code.  If  the  arrest  cannot  carry conviction  then  the recovery automatically  falls  to  the ground.  Not  merely  that, even  the  allegation  that  the accused had absconded vanishes to thin air. The case of  the prosecution  is that Balbir Singh was released from his  ’de facto  custody  ’  at Yamuna Velodrome  in  the  evening  of November  1, 1984 and thereafter he was absconding  till  he was  arrested on December 3, 1984 at Najafgarh Bus  Station. The accused has challenged this version. [177H- I78C]                                                     PG NO 60     32. The Courts do not interfere in the discretion of the police  in matters of arrest, search and release of  persons suspected  in criminal cases. But the Courts do insist  that it  should be done according to law. If the prosecution  say that  the accused was released from custody and the  accused denies it, it will be for the prosecution to place  material on  record in support of the version. In the  instant  case, there  is no record indicating the release op  Balbir  Singh from Yamuna Velodrome. The explanaTion gIven is that  Yamuna Velodrome  being  not a Police Station, registers  were  not maintained   to  account  for  the  incoming  and   outgoing suspects.  It is hardly an explanation where life and  death questions are involved. [178D-E]     33.  The  question of absconding by the  accused  Balbir Singh  remains  unanswered. First, there is no  material  to lend  credence to this serious allegation. Nobody  has  been asked to search him. No police party has been sent to  track him.  No  procedure contemplated under law has  been  taken. Second.  there is no evidence from which place  the  accused came  and  landed  at  Najafgarh Bus  stand.   There  is  no independent  witness  for the seizure memo (PW.  35/a)  vide which the police is said to have recovered certain  articles including  Ex. PW 26/B described as "memorandum of  events." Third,  no question as to absconding was put to the  accused in the examination under s. 313 of the Code.  So far as  the reliance placed by the prosecution upon the averments in the remand application is concerned, the averments in the remand application  are  only  self-serving.  The  silence  of  the accused  cannot  be  construed as  his  admission  of  those allegations.    Further,   the  reliance   placed   by   the prosecution on the Malkana Register is of little  assistance to the prosecution as there is an endorsement in the Malkana Register  stating that the D.T.C. ticket which  the  accused carried  and the paper containing the dates in English  (Ex. PW. 26/B) were not deposited.  In view of these infirmities, the  arrest of the accused at Najafgarh Bus Stand  does  not inspire confidence.  This by itself is sufficient to discard the document Ex. PW. 26/B. [178F-180A]     34. The document Ex. Pw. 26/B is a sheet of paper  which contains   certain   entries.   If  this  document   is   an incriminating  piece of evidence, it is rather baffling  why the accused, who was suspected to be a conspirator to murder the Prime Minister of the country, should carry the document wherever  he  goes  that too at a  place  where  there  were reprisal killings. The accused is not a rustic person. He is a  Sub-Inspector of Police with several years of service  to his  credit.  He must have investigated so many  crimes.  He must  have anticipated the danger of carrying  incriminating document when he was already suspected to be a party to  the deadly  conspiracy.  Indeed,  nobody  could  offer  even   a plausible explanation for this unusual conduct attributed to the  accused.  To  say  that  the  absconding   accused-Sub- Inspector  was  found  at a public  place  in  the  national

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capital with an incriminating document which may take him to gallows   is  to  insult  the  understanding,  if  not   the intelligence of police force of this country. [180-181G]                                                     PG NO 61     35.  A bare reading of the document Ex. PW.  26/B  shows that  this is a document composed at one time with the  same ink and same writing instrument. The corrections. the fixing of  months  and  dates with the nature  of  entries  therein apparently  indicate  that the document was not  kept  as  a contemporaneous  record of events relating to Balbir  Singh. The  fact that it was not in the possession of  the  accused when  his house was searched in the early hours of  November 1. 1984 also confirms this conclusion. [181-182A]     36.   In the document, there is no reference to  killing of  the  Prime Minister.  In fact, except for a  "felt  like killing"  in  early  June  as  an  immediate  reaction   the "Operation Blue Star" even the manifestation of this feeling does not exist anywhere in subsequent part of the  document. The document refers to bare meetings, visits of persons,  or visiting somebody’s house.  It is, however, nor possible  to find  out  to  whom the document was intended  to  be  used. There  is no reference to a joint ’Ardas’ or a  message  for revenge  associated with the appearance of the  eagle.   The entry  does not suggest that the author had anything  to  do with  the eagle.  It is something between Beant Singh  alone and the eagle.  It is significant that there is no reference to  Beant Singh and his plans to murder the Prime  Minister. There  is no reference to bombs or grenades associated  with the  plan  to eliminate the Prime Minister before  the  15th August,  1984.  There is  no reference to any commission  of any  offence.   There  is no  reference  about  Beant  Singh conspiring  with  Balbir Singh.  There is  no  reference  to Kehar  Singh  at all.  If Balbir Singh was a  party  to  the conspiracy  with Beant Singh, the date on which Beant  Singh has  planned  the  murder of Smt. Indira  Gandhi,  that  is, October 25, 1984 as written in Ex. P. 39 ought to have  been noted  in Ex. PW. 26/B, but there is no reference  to  that. There  is a cryptic reference to Satwant Singh against  30th October.  The  only  one entry which makes  a  reference  to killing  is  the  second  entry. It  refers  to  "felt  like killing". But one does not know who "felt like killing"  and killing   whom?  It  may  be  somebody’s  reaction  to   the "Operation  Blue Star". If the document is read as a  whole, it  does  not reveal anything incriminating  against  Balbir Singh, [182B-183A]                                                     PG NO 62     37. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the  very quintessence  of the offence of conspiracy. The illegal  act may  or may not be done in pursuance of agreement,  but  the very agreement is an offence and is punishable. Reference to ss.  l20A  and l20R I.P.C. would make  these  aspects  clear beyond  doubt.  These  provisions have brought  the  law  of conspiracy  in India in line with the English Law by  making the  overt act unessential when the conspiracy is to  commit any punishable offence. [l84C]     38. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same.  The prosecution  will often rely on evidence of acts of  various parties  to infer that they were done in reference to  their common intention. The prosecution will also more often  rely upon   circumstantial  evidence.  The  conspiracy   can   be undoubtedly    proved   by   such   evidence    direct    or circumstantial.  But the Court must enquiry whether the  two persons  are  independently pursuing the same end  or  they.

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have  come together to the pursuit of the  unlawful  object. The former does not render them conspirators, but the latter does.  It  is,  however,  essential  that  the  offence   of conspiracy  requires some kind of physical manifestation  of agreement.  The  express  agreement, however,  need  not  be proved.  Nor actual meeting of two persons is necessary. Not it is necessary to prove the actual words of  communication. The  evidence  as to transmission of  thoughts  sharing  the unlawful design may be sufficient. [184D-E]     39. The relative acts or conduct of the parties must  be conscientious and clear to mark their concurrence as to what should  be  done. The concurrence cannot be  inferred  by  a group of irrelevant facts artfully arranged so as to give an appearance   of  coherence.  The  innocuous.   innocent   or inadvertent  events  and  incidents  should  not  enter  the judicial verdict.     40.  Section  10  of the  Evidence  Act  introduced  the doctrine  of agency and if the conditions laid down  therein are  satisfied, the acts done by one are admissible  against the co-conspirators. [l85D]                                                     PG NO 63     41.  Section 10 will come into play only when the  Court is satisfied that there is reasonable ground to believe that two  or  more persons have conspired together to  commit  an offence. There should be a prima facie that the person was a party to the conspiracy  before his acts prima facie against his  co-conspirator. Once such prime facie evidence  exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said  intention was first entertained is relevant against the others.  It is relevant  not only for the purpose of proving the  existence of  conspiracy, but also for proving that the  other  person was a party to it. [185G-H]     Russell on Crime, 12 Ed. Vol. I, 202; Glanville Williams in  the "Criminal Law" (Second Ed. 382); Regina  v.  Murphy, 173  England  Reports 508; Gerald  Orchard.   University  of Canterbury,  New Zealand, (Criminal Law Review 1974, 297  at 299   and  Sardar  Sardul  Singh  Caveeshar  v.   State   of Maharashtra, [1964] 2 SCR 378.     Mirza Akbar v. King Emperor, AIR 1940 P.C. 176 at 180.     Sardul  Singh Caveeshar v. State of Maharashtra,  [1958] SCR 161 at 193.     42.   The  HIgh  Court  was  unjustified  in   attaching importance  to  any one of the  aforesaid  circumstances  in proof  of  the  conspiracy.  Like Balbir  Singh  there  were several  Sikh officers on security duty at the  PM’s  house. There  is no evidence to show intimacy between Balbir  Singh and  Beant Singh or between Balbir Singh and Satwant  Singh. There is no acceptable evidence that Balbir Singh shared the indignation of Beant Singh against Smt. Gandhi and was in  a mood  to  avenge for the "Operation Blue  Star."   From  the evidence of P.W. 13 all that could be gathered is that after the "Operation Blue Star", Balbir Singh was in agitated mood and he used to say that the responsibility of damaging ’Akal Takhat’  lies  with Smt. Gandhi and it would be  avenged  by them.   This is not to say that Balbir Singh wanted to  take revenge  against the Prime Minister along with Beant  Singh. It  would  not  be proper to take  notice  of  such  general dissatisfaction.   It  is not an offence to form  one’s  own opinion  on governmental action.  It is on record that  some members  of  the  Sikh  community  felt  agitated  over  the "Operation Blue Star."  The resentment was also expressed by some  of the sikh employees of the Delhi police  posted  for PM’s  security.   In fact, the chargesheet against  all  the accused  is founded on those averments.  Resentment  of  the

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accused  on  "Operation  Blue Star"  should,  therefore,  be excluded  from  consideration.  There is  no  material  that Balbir  Singh took earned leave for any sinister purpose  or design. There is no evidence that during the said period, he met   Beant  Singh  or  anybody  else  connected  with   the conspiracy.   It  is,  therefore,  totally   an    innocuous circumstance.  Assuming that falcon did appear and sat on  a tree in the PM’s house and that Beant Singh and Balbir Singh did offer ’Ardas’ on the occasion, there is "nothing unusual or abnormal about the incident." The sanctity of the  falcon as  associated  with  the  Tenth Guru  is  not  denied.  The evidence  of Satish Chander Singh (PW Sl) about the  meeting of  Balbir Singh with Satwant Singh on October 30, 1984  has got only to be referred to be rejected. To place reliance on the  testimony  of Amarjit Singh (PW 44) would be to  put  a premium  on his irresponsibility. The discrepancies  between the  first  version and his evidence in the  Court  are  not immaterial. They are substantial and on material points. The witness  is putting the words of Beant Singh into the  mouth of  Balbir Singh and thereby creating circumstances  against the  latter. All the facts and circumstances  above  recited are either irrelevant or explainable. No guilty knowledge of the  contemplated assassination of the Prime Minister  could be   attributed   to  Balbir  Singh  on  those   facts   and circumstances. [187-188]                                                     PG NO 64     41. The confession of a co-accused could be used only to lend assurance to the conclusion on the acceptable  evidence against the accused.  When by all the testimony in the case, Balbir   Singh’s  involvement  in  the  conspiracy  is   not established, the confession of Satwant Singh cannot  advance the prosecution case.  Even otherwise, the reference in  the confession  as  to the conspiracy between Balbir  Singh  and Beant Singh was not within the personal knowledge of Satwant Singh.  He refers to Beant Singh consulting Balbir Singh and "advising"  to kill P.M.  It is not clear who told  him  and when?  such a vague statement is of little use even to  lend assurance  to  any  acceptable case  against  Balbir  Singh. [191B]     42.  The  evidence produced by the  prosecution  against Balbir  Singh  is  defective as well as  deficient.   It  is safer, to err in acquitting than in convicting him. [191C]     43.  The  evidence of Bimla Khalsa wife of  Beant  Singh indicates  that  on October 17, 1984 Beant Singh  and  Kehar Singh  were combined and conspiring together.   Kehar  Singh was  closeted with Beant Singh on the roof of her house  for about 15/18 minutes.  There was hush hush talk between  them which  could  not  be over-heard by her as she  was  in  the kitchen.   That  evoked  suspicion in  her  mind.   She  did consider  "their  talk as something secret".   She  enquired from  Kehar Singh "as to what they were talking  thereupon?" Kehar  Singh  replied that the talks were  "with  regard  to making somebody to take Amrit". Dimla Khalsa remarked: "that taking Amrit was not such a thing as to talk secretly".  She was perfectly right in her remark. There cannot be a  secret talk  about  Amrit  taking  ceremony.  It  is  a   religious function.  Kehar Singh might have realised that it would  be difficult  to explain his conduct without exposing  himself. He came with cryptic reply: "There was nothing  particular". The said conversation, as the High Court has observed, could be  only  to  further the  prosecution  of  the  conspiracy. Satwant Singh later joining them for meals lends credence to this conclusion. [193-l94C, F]                                                     PG NO 65     44.  Merely  because Bimla Khalsa  turned  hostile,  her

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evidence  cannot  be  discarded. That  is  a  well  accepted proposition. She had no axe to grind against any person. She gains  nothing  by  telling falsehood  or  incorrect  things against Kehar Singh. She has revealed what she was told  and what she had witnessed on October 17, 1984 in her own house. There  is, therefore. no reason to discard that part of  her testimony.  It  is true that the police did not  record  her statement  after the incident. That is  understandable.  she had  lost  her husband. She was in immeasurable  grief.  She ought  to  be  allowed time to  compose  herself.  Both  the objections raised against her testimony are, therefore.  not sound. [l94G-l95AI     45. The visit of Kehar Singh and Beant Singh along  with their family members to Amritsar on October 20. 1984 assumes importance and it is significant to note about The  relative character  of Kehar Singh and Beant Singh. Even at the  most sacred  place  they remained isolated from their  wives  and children. [195 E-196A]     46. Kehar Singh had the opportunity to bring Beant Singh back  to the royal path, by dissuading him from  taking  any drastic action against Smt Gandhi, but unfortunately, he did nothing   of  that  kind.  If  he  had  not   approved   the assassination  of the Prime Minister. Beant Singh would  not have  grafted Satwant Singh to the conspiracy. Secondly,  if Kehar Singh was really interested in reading Beant Singh, he would have taken the assistance of Bimla Khalsa. He did  not do   that  even.  She  was  deliberately  not   taken   into confidence. She was in fact kept in darkness even though she was inquisitive to know their secret talk. [196B-C]     47.  It  is true that there is no  substantive  evidence from  the  testimony of Bimla Khalsa that Beant  Singh  took Amrit  on October 14, 1984 at the instance of  Kehar  Singh. Undisputedly  he was present at the ceremony in which  Bimla Khalsa  took Amrit.  It may not be, therefore,  unreasonable to  state  that he must have been present when  Beant  Singh also took Amrit.  The recovery made from his house  supports this  inference.   It  is said that while  taking  Amrit  or thereafter,  the  person  is  not  expected  to  wear   gold ornaments.  Beant Singh had gold ’kara’(Ex. p. 27) and  ring (Ex.  p.  28).   These two articles were  recovered  by  the investigating agency from the house of Kehar Singh.  That is not  disputed  before  this Court.   Beant  Sign  must  have entrusted  the  articles to Kehar Singh at the time  of  his taking Amrit.  It also shows the significant part played  by Kehar Singh in taking.  Amrit by Beant Singh. [196D-F]                                                     PG NO 66     48. It is true that taking Amrit by itself may not  have any  sinister significance.  It is a religious ceremony  and ’Amrit’  is  taken only to ’lead a life  of  spartan  purity giving  up  all worldly pleasures and  evil  habits.’   But, unfortunately,  the  assassins  have  misused  that   sacred religious ceremony for ulterior purpose. [196G]     49. The post crime conduct of Kehar Singh is  conclusive of  his guilt.  He was cognizant of all the details  of  the coming  tragedy  and  waiting to receive the  news  on  that fateful day.  That would be clear from the testimony of Nand Lal  Mehta  (PW  59) who was an office  colleague  of  Kehar Singh.   He has deposed that Kehar Singh had met him in  the third  floor corridor of the office at about 10-45  A.M.  on October  31, 1984.  By that time the news of  the  murderous attack  on the Nation’s Prime Minister came like a  thunder- blot  from a clear sky.  The messenger had told that  ’some- body’  had  shot at Smt. Gandhi. PW 59  then  enquired  from Kehar  Singh as to what had happened.  Kehar  Singh  replied that "whosoever would take confrontation with the Panth,  he

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would  meet the same fate."  So stating, he went  away.   It may  be  noted  that at that time,  there  was  no  specific information  to the outside world whether any Sikh had  shot the Prime Minister or anybody else.  Unless Kehar Singh  had prior knowledge, he could not have reacted with those words. [196H-197C]     50.  To  sum  up:  Kehar  Singh’s  close  and  continued association  with  Beant Singh; his  deliberate  attempt  to exclude   Mrs.   Bimla  Khalsa  from   their   company   and conversation;  his secret talk with Beant Singh followed  by taking  meals together with Satwant Singh; his  keeping  the gold  ’kara’ and ’ring’ of Beant Singh; and his  post  crime conduct  taken together along with other material on  record are   stronger  as  evidence  of  guilt  than  even   direct testimony.  Kehar Singh was one of the     conspirators  to murder Smt. Gandhi, though not for  all the reasons stated. [197D]                                                     PG NO 67     51.  Satwant Singh, a constable in the Delhi Police  was on security duty at the Prime Minister’s house since July 2, 1983.  On October 31, 1984, in the usual course, he was  put on  security at Heat No. 4 in the Akbar Road House  (not  at the TMC Gate). This has been confirmed by R the daily  diary maintained at Teen Murti (Ex. PW I4/C)-Entry No. 85). He was issued SAF Carbine (Sten-gun) having Butt No. 8() along with 5  magazines  and  100 live rounds of 9  mm  ammunition.  In acknowledgement thereof, he had signed the register (Ex.  PW 3/A).  He got exchanged his place of duty to carry  out  the conspiracy he had with Beant Singh to murder Smt. Gandhi  on the pretext that he was suffering from loose motions and got himself  posted  as TMC Gate being C nearer  to  a  latrine. [197F-l98E]     52.  Three  eye  witnesses to  the  occurrence,  namely, Narain singh. Rameshwar Dayal and Nethu Ram corroborate with each other on all material particulars. They had accompanied the Prime Minister on the fateful day. They were able to see vividly,  describe  correctly  and  indentify  properly  the persons  who gunned down Smt. Gandhi. Both the Courts  below have  accepted  them as natural and  trustworthy  witnesses. Such  a  conclusion  based on appreciation  of  evidence  is binding  on this Court in the appeals under Article  136  of the  Constitution of India. [198F-G]     Pritam  Singh v. The State, A.l.R. 1950 SC 169; Hem  Raj v.  State  of  Ajmer,  [l954]  S.C.R.  1133  and  Bhoqinbhai Hirjibhai  v. State of Gujarat, A.l.R. 1983 SC  753;  relied upon.     53.  There  can be little doubt as to  the  presence  of Narain  singh  at  the  spot.  His  evidence  receives  full corroboration from the other two eye witnesses. The umbrella (Ex. p. 19) which he was holding has been recovered from the place under the seizure memo (Ex. PW  5/H). Rameshwar  Dayal (PW  10) is an A.S.I. of Police. He was on security duty  at the  PM’s residence. He was also the water attendant in  the pilot car of the Prime Minister. On material particulars his evidence is identical in terms with that of Narain Singh (PW 9).  Undisputedly, he had suffered bullet injuries.  He  was admitted  to  the  AIIMS  for  treatment.  The  Medico-legal Certificate  issued  by the AIIMS (Ex. 10/DA)  supports  his version. No further corroboration is necessary to accept his evidence. [l99E-200A]                                                     PG NO 68     54.  Nathu Ram (PW 64) is also an eye witness. He was  a dedicated  servant of Smt. (Gandhi. His evidence as  to  the relative  acts of the two assassins is consistent  with  the version of PW 9 of PW 10. His presence at the spot was  most

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natural.  His  evidence  is  simple  and   straight-forward. [200B-D]     55.  The presence of Satwant Singh at TMC Gate  is  also not  in   dispute and indeed it was admitted  by  his  while answering question No.    51(A) in the examination under  s. 313  of the (code. What is important to     notice from  the testimony  of  Ganga  Singh (PW 49) is  that  Satwant  Singh when apprehended by him was not injured. He was taken safely to the     guard room. He did not receive any bullet  injury in the incident with      which this Court is concerned.  He must  have been shot evidently inside       the  guard  room where   he   was  taken  for  safe  custody  by   the   ITBP personnel. The defence put forward by Satwant Singh that  he was        decoyed to the TMC gate where he received  bullet injury is. therefore.       patently false. 200G-H]     56.   The  eye  witnesses  are  not  strangers  to   the assassins. They  were familiar faces in the security ring of the Prime Minister. Their  presence with Smt. Gandhi at  the spot  was not accidental, but consistent with their  duties. There   was   no   scope   for   mistaken   identity   since everything  happened in the broad day light. Therefore,  the evidence  thus far discussed itself is sufficient to  bring, home the guilt to Satwant Singh on all the charges  levelled against him. [201A-B]     The records contain evidence as to the identification of arms and  ammunition entrusted to the assassins. The stengun issued  to Satwant Singh along with 25 empties of the  sten- gun  were  recovered from the  place of incident  under  the seizure memo (Ex. PW 5/H). The revolver (Ex. P.1)  delivered to  Beant  Singh and 5  empties of the  revolver  were  also collected  at  the  spot.  Dr.  T.D.  Dogra  (PW  5)   while conducting  limited  post-mortem examination had  taken  two bullets from the body of Smt. (Gandhi; one from injury No. 1 and the other from injury No 2. These bullets along with the arms  recovered from the spot were sent for the  opinion  of the Principle Scientific Officer, Ballistic Division,  GFSL, New Delhi. P.W. 12 has testified that the bullets  recovered from  the body of Smt. Gandhi are traceable to the  sten-gun and the revolver.Similar is the evidence with regard to  the other  bullets  recovered from the place  of  incident.  The record  also contains evidence about the total tally of  the bullets fired and empties collected. It is not necessary  to confirm  the finger prints on the sten-gun, as that  of  the accused  when  it is proved that sten-gun was  delivered  to him. The examination of the bullets recovered from the  body of  Smt. Gandhi for the traces of blood  or tissues is  also unnecessary,  since one of the bullets taken by  the  Doctor tallied with the sten-gun (Ex. P. 4). Equally, limited post- mortem examination would not affect the merits of the  case. It is not always necessary to have a complete post-mortem in every  case. Section 174 of the Code confers  discretion  to the  Police  Officer not to send the  body  for  post-mortem examination  if there is no doubt as to the cause of  death. If                the cause of death is  absolutely  certain and  beyond  the  pale  of  doubt  or  controversy,  it   is unnecessary to have the post-mortem done by Medical Officer. In  the  instant case, there was no  controversy  about  the cause of death of Smt. Gandhi. A complete post-mortem of the body was therefore uncalled for. [201F-202A]                                                     PG NO 69     57. From the aforesaid direct testimony coupled with the other clinching circumstances available on record, there  is not  even  an  iota of doubt about the  crime  committed  by Satwant Singh. He is guilty of all the charges. I202B]     58.  In  the  past, the Judges and lawyers  spoke  of  a

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’golden  rule’  by  which statutes were  to  he  interpreted according  to  grammatical and ordinary sense of  the  word. During  the last several years, the ’golden rule’  has  been given a go bye. [167H]     59.  The  Courts  now look for the  ’intention’  of  the legislature  or  the  ’purpose’ of the  statute.  First,  it examines the words, oF the statute. If the words are precise and  cover the situation in hand it does not go further.  It expounds  those words in the natural and ordinary  sense  of the words. But if the words are ambiguous, uncertain or  any doubt arises at to the terms employed, the Court deems it as its  paramount  duty  to  put  upon  the  language  of   the legislature  rational meaning. It then examines every  word, every  section and every provision. It examines the Act.  It looks  at  the mischiefs which the legislature  intended  to redress.  It looks at the whole situation and not  just  one relation.  It  will not consider any provisions out  of  the frame  work of the statute. It will not view the  provisions as  abstract  principles  separated from  the  motive  force behind. It will consider the provisions in the circumstances to  which  they  owe  their origin.  It  will  consider  the provisions  to ensure coherence and consistency  within  the law as a whole and to avoid undesirable consequences. [168B- D]     Colin Cherry, (On human communication at 10) and Reserve Bank  of India v. Peerless G.F. & I. Co., A.I.R.  1987  S.C. 1023 at 1042; referred to.                                                     PG NO 70

JUDGMENT:     CRIMINAL  APPELLATE JURlSDICTION: Criminal  Appeal  Nos. 180 to 182 of 1987.     From the Judgment and Order dated 3.12.1986 of the Delhi High  Court in Murder Reference No. 2 of 1986  and  Criminal Appeal Nos. 28 and 29 of 1986.     Ram  Jethmalani, R.S. Sodhi, Ms. Rani  Jethmalani,  R.M. Tewari, Ashok Sharma and Sanjeev Kumar for the Appellants.     G.   Ramaswamy,   Additional  Solicitor   (General,   S. Madhusudhan  Rao, P. Parmeshwaran, Ms. A.  Subhashini,  M.V. Chelapathi  Rao,  S.P. Manocha and A.P.  Ahluwalia  for  the Respondent.     The following judgments of the Court were delivered:     OZA,J.  These appeals by leave are directed against  the conviction of the three appellants Kehar Singh. Balbir Singh Satwant Singh under Section 302 read with Section 120-B  IPC and the appellant Satwant Singh under Section 302 read  with Sec. 120-B, Sec. 34 & Sec. 307 IPC and also under Sec. 27 of the  Arms Act. All the three were sentenced to  death  under Section  302  read  with  Sec.  120-B.  The  conviction  and sentence  of  these appellants were confirmed  by  the  High Court  of Delhi by its judgment in Criminal Appeal Nos.  28- 29/ 1986 and Confirmation Case No. 2/86. The case relates to a  very unfortunate incident where the Prime  Minister  Smt. Indira  Gandhi  was assassinated by persons posted  for  her security at her residence.     The facts brought out during investigation are that Smt. Indira  Gandhi  had  her residence in New Delhi  at  No.  1, Safdarjung  Road. Her office was at No. 1, Akbar Road  which was  a  bungalow adjoining her residence. In  fact  the  two bungalows  had  been  rolled into one by  a  campus  with  a cemented pathway about 8 ft. wide leading from the residence to the office and separated by a Sentry gate which has  been referred to as the TMC Gate and a sentry booth nearby.  Smt.

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Indira  Gandhi had gone on a tour to Orissa and returned  to New  Delhi  on the night of 30th October, 1984. At  about  9 A.M. On the fateful day i.e. 3Ist October, 1984 Smt.  Gandhi left  her residence and proceeded towards the  office  along the cemented path. When she approached the TMC Gate and  was about  10  or 11 ft. away therefrom she was riddled  with  a spray  of bullets and she fell immediately. She was  removed to  All  India Institute of Medical  Sciences  (’AllMS’  for short)  but  to  no  avail. A  wireless  message  about  the occurrence  was  received  at  9.23  A.M.  by  the  Wireless Operator  Head  Constable  Ram Kumar PW 38  at  Tuglak  Road Police  Station  having  jurisdiction  over  the  place   of occurrence. The Duty Officer PW 1 deputed Sub Inspector’ Vir Singh   PW 20 and Constable Mulak Raj to visit the  spot  at once.  They  were soon joined by the Station  House  Officer Inspector  Baldev Singh Gill PW 21. These persons roped  off the area of occurrence to isolate it, placed it in charge of Constable and then proceeded to AllMS.                                                     PG NO 71       In  the  meanwhile  it was  decided  to  entrust  this investigation  to    Rajendra  Prasad  Kochhar  PW  73  then Inspector in the Homicide squad of the Crime Branch of Delhi Police. However, as is only to be expected having regard  to the   circumstances,  the  Government  soon     decided   to constitute a Special Investigation Team (SIT) to pursue  the investigation.  On 9.11.84 the Delhi  Administration  issued two  notifications.  By one of these in exercise  of  powers under Section 7(1) of Delhi Police Act, S. Anandram, IPS was appointed  as an Additional Commissioner of Police  and  was declared  for  the purpose of Section 36 Cr. P.C.  to  be  a Police Officer superior in rank to an Officer-in-charge of a Police Station. By the other notification issued in exercise of  the  powers conferred under Sec. 7(2)(b) of  the  Police Act, Anandram  was authorised to exercise all the powers and perform all the duties of Commissioner of Police in relation to  this case and any other offences connected thereto.  The notification  shows  that  copy of  them  is  forwarded  for puhlication  to  the Delhi Gazette. Sometime later  on  22nd December,  1984  the Administration in  exercise  of  powers under  Section  8(1)  of the Police Act  appointed  Des  Raj Kakkar and M.S. Sharma as Deputy Commissioner of Police  and was declared for the purpose of Section 36 Cr. P.C. to be  a Police Officer superior in rank to an Officer-in-charge of a Police Station. By the other notification issued in exercise of  the  powers conferred under Sec. 7(2)(b) of  the  Police Act, Anandram was authorised to exercise all the powers  and perform all the duties of Commissioner of Police in relation to  this case and any other offences connected thereto.  The notification  shows that copy of each of them  is  forwarded for publication to the Delhi Gazette. Sometime later on 22nd December,  1984  the Administration in  exercise  of  powers under  Section  8(1)  of the Police Act  appointed  Des  Raj Kakkar and M.S. Sharma as Deputy Commissioner of Police  and Assistant  Commissioneer of Police respectively  designating them  as  officers  superior to an  officer-in-charge  of  a Police Station and placed their services at the disposal  of Shri Anandram. We understand that Shri R.P. Kapoor was named as  the Chief Investigative Officer but it was  Mr.  Kochhar who was closely associated with the investigation throughout except  for  a short period between 15.11.84  when  the  SIT assumed  charge and 27.11.84 when his services were lent  to SIT and he is an important witness of the prosecution so far as investigation is concerned.      Shri  Kochhar  reached AIIMS at about 10  A.M.  and  at 11.25  A.M.  on 31.10.84 he sent at the Tuglak  Road  Police

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Station through Shri Vir Singh, PW 20 A report on the  basis of  which  First Information Report (FIR) for  a  cognizable offence  punishable  under  Sections  307,  120-B  IPC   and Sections 25,27,54 & 59 of the Arms Act was registered at the Police  Station.  The report was based on the  statement  of Narain Singh, PW 9, a Head Constable deputed on duty at Smt. Indira  Gandhi’s  residence,  recorded by  Shri  Kochhar  at AIIMS. Narain Singh who was accompanying Smt. Gandhi at  the time  of shooting and claimed to be a witness of  occurrence had  stated as follows: This statement made by Narain  Singh in  the  First Information Report brings out  the  important facts leading to the offence and this part of the  Statement as quoted by the High Court reads:                                                     PG NO 72     "When  we were about 10-11 ft. away from the gate of  1, Safdarjung Road and 1, Akbar Road, I noticed Beant Singh  SI on  duty  at  TMC Gate and in  the  adjoining  Sentry  booth Constable  Satwant  Singh, 2nd Bn. in uniform armed  with  a Stengun  was on duty. When Smt. Indira Gandhi  reached  near the  Sentry  booth,  Beant Singh, SI took  out  his  service revolver  from his right dub and immediately started  firing bullets  at Smt. Indira Gandhi. At the same  time  Constable Satwant  Singh also fired shots at Smt. Indira  Gandhi  with his  Stengun. As a result of firing of bullets at the  hands of  the aforesaid two persons Smt. Indira  Gandhi  sustained injuries  on  her  front and fell down on  the  ground.  Sh. Rameshwar Dayal ASl has also received bullet injuries due to the  firing made by the aforesaid two persons. I  threw  the umbrella.  Shri Beant Singh SI and Constable  Satwant  Singh were secured with the assistance of Shri B.K. Bhatt AGP  PSO in  ITBP personnel. The arms of these two persons fell  down on  the spot itself. Thereafter I went to call Dr. R.  Obey. In  the  officials reached the place of occurrence and  Smt. Indira  Gandhi  was removed to AIIMS and  was  got  admitted there.  Shri B.K. Bhatt, Shri R.K. Dhawan, Shri  Nathu  Ram, Sh, Lavang Sherpa and Shri Rameshwar Dayal ASI had witnessed the  occurrence. Beant Singh SI and Constable Satwant  Singh in  furtherance of their common objects have fired shots  at Smt.  Indira Gandhi and have caused injuries on  her  person with an intention to kill her. It is learnt that Beant Singh SI  and  Constable Satwant Singh had also  sustained  bullet injuries  at the hands of ITBP personnel. Legal  action  may please be taken against them."      Upon receiving the news about the death of Smt.  Indira Gandhi,  the offence in the FIR was converted  from  Section 307 to Section 302 and investigation proceeded ahead.                                                     PG NO 73     According to the prosecution Satwant Singh was  arrested on15.  11.84 at Red Fort where he had been taken  after  his discharge from the Hospital in early hours of the same  day. The Chief Justice and the Judges of the Delhi High Court  on a request made by Delhi Administration decided to depute and designate  Shri S.L. Khanna, Additional  Chief  Metropolitan Magistrate,  Tis  Hazari to deal with the remand  matter  of Satwant Singh in Red Fort, Delhi. Satwant Singh was produced before Shri S.L. Khanna, PW 67 on the same day and  remanded to the police custody till 29.11.84. On 29.11.84 it was said that  Satwant Singh wanted to make a confession and  he  was produced before Shri Khanna. Shri Khanna, however, gave  him time to think over till1.12.84 and remanded him to  judicial custody in Tihar Jail. It appears that thereafter the  Delhi Administration again made a request to the Delhi High  Court and the Delhi High Court authorised Sh. S.L.Khanna by  Order dated  1.12.84 to hold remand proceedings in Tihar  Jail  on 1.12.84  and on subsequent dates. It also appears that  Shri

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G.P.Tareja  who was the link Magistrate of Shri S.L.  Khanna had  gone on long leave and by an order dated 1.12.84,  Shri Bharat Bhushan Gupta,PW 1 was appointed as a link Magistrate in this case. In the light of these orders Satwant Singh was produced before Shri Khanna on1.12.84 in the Jail. He passed on  the  papers  to  Shri Bharat  Bhushan  Gupta  and  later recorded  a  confession from Satwant Singh on the  same  day which is Ex. 11-G.       .     One  Kehar Singh said to be an Uncle (Phoopha) of  Beant Singh working as an Assistant in the Office of the  Director General  of  Supplies & Disposals was claimed to  have  been arrested on 30.11.84. He was produced before Shri Khanna  on 1.12.84 who remanded him to police custody till 5.12.84.  He is said to have made a statement on3. 12.84 in pursuance  of which  some incriminating articles were seizedat  his  house and  from a place pointed out by him. He was again  produced on  5.12.84  before  Shri S.L. Khanna who  remanded  him  to judicial    custody    till   15.12.84    pending    further investigation.     Balbir  Singh, a Sub-Inspector posted for security  duty at  Smt.Gandhi’s  office is said to have  been  arrested  on 3.12.84.  It  is  said that certain  is  said  that  certain incriminating material was found on his person when searched at  the  time of his arrest. On 4.12.84 at  the  request  of Delhi  Adminis-tration  the High Court empowered  Shri  S.L. Khanna  to  deal  with the remand matter  of  these  persons accused in the assassination case of Prime Minister.  Balbir Singh  was  therefore  produced before  Shri  S.L.Khanna  on 4.12.84 and was remanded to the police custody  till6.12.84. On 6.12.84 an application was filed before Shri S.L. Khanna which stated that Balbir Singh wanted to make a  confession. The matter was sent by Sh. S.L. Khanna to Sh. Bharat Bhushan Gupta.  After  two appearances before Shri  Bharat  Bhushan, Balbir Singh finally refused to make statement  confessional or otherwise.                                                     PG NO 74     In   the  meantime  the  Police  had  recorded   certain statements one of Amarjit Singh PW 44 who was also a  Police Officer ASI on duty at the PM’s residence. These  statements have  been  recorded on 24.11.84 and  19.12.84.  The  Police requested  the  Magistrate Shri Bharat Bhushan to  record  a statement  of  Amarjit under Section 164 Cr. P.C.  That  was accordingly recorded as PW 44-A.     Beant  Singh had died as a result of injuries  sustained by  him and referred to by Narain Singh in his statement  in the  FIR itself. A report under Section 173 Cr. P.C.  hereto referred  to as the charge-sheet was filed on 11.12.1985  in the Court of Shri S.L. Khanna against Satwant Singh who  had survived  after  a  period  of  critical  illness  from  his injuries and the two other persons referred to above  namely Balbir  Singh   and Kehar Singh. These  three  persons  were accused of an offence under Sections 120-B, 109 and 34  read with 302 IPC and also of substantive offences under Sections 302, 307 IPC and Sections 27, 54 & 59 of the Arms Act.  This report  also  mentions  Beant Singh as one  of  the  accused persons  but since he had died the charges against him  were said to have abetted.     The prosecution case at the trial was that in June  1984 the  armed forces of the Indian Union took action  which  is described  generally  as ’Operation  Bluestar’  under  which armed forces personnel entered the Golden Temple complex  at Amritsar  and  cleared  it  off  the  terrorists.  In   this operation  it  is alleged that there was loss  of  life  and properties  as  well as damage amongst other things  to  the Akal Takht in the Golden Temple complex. As a result of this

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Operation the religious feelings of the members of the  Sikh community   were   greatly  offended.   According   to   the prosecution,  all the four accused persons mentioned in  the charge-sheet  who were sikhs by faith have  been  expressing their  resentment  openly  and holding  Smt.  Indira  Gandhi responsible  for the    action taken at Amritsar.  They  had met at various places and at various times to discuss and to listen  inflammatory  speeches and recording  calculated  to excite  listeners  and provoke them  to  retaliatory  action against  the decision of the Government to take army  action in Golden Temple complex. The resentment led them ultimately to  the  incident  of 31.10.84 and to become  parties  to  a criminal  conspiracy  to  commit an illegal  act  namely  to commit the murder of Smt. Indira Gandhi. In pursuance of the above  conspiracy accused has committed the following  acts. This report (charge-sheet) stated facts against each of  the accused persons which have been quoted by the High Court  in its judgment:                                                     PG NO 75     "(i) Accused Kehar Singh, a religious fanatic, after the ’Bluestar  Operation’ converted Beant Singh and through  him Satwant  Singh  to religious bigotry and made  them  undergo ’Amrit  Chhakna  ceremony’  on 14.10.1984  and  24.  10.1984 respectively at Gurudwara Sector V1, R.K.  Puram, New Delhi. He  also  took Beant Singh to Golden  Temple  on  29.10.1984 where Satwant Singh was to join them as part of the mission.     (ii)  Since  the ’Bluestar Operation’ Balbir  Singh  was planning  to  commit the murder of Smt.  Indira  Gandhi  and discussed his plans with Beant Singh, who had similar  plans to   commit  the  offence.  Balbir  Singh  also  shared  his intention and prompted Satwant Singh to commit the murder of Smt.  Indira Gandhi and finally discussed this  matter  with him on 30th October, 1984.     (iii)  In  the  first week of September,  1984,  When  a falcon  (baaz)  happened  to sit on a  tree  near  the  main reception  of  PM’s house, at about 1.30 P.M.  Balbir  Singh spotted the falcon. called Beant Singh there and pointed out th  falcon.  Both  of them agreed that it  had  brought  the message of the Tenth Guru of the Sikhs and that they  should do    something   by  way  of  revenge  of   the   ’Bluestar Oeration’.Both of the above accused performed ardas then and there.      (iv)  In pursuance of the aforesaid  conspiracy.  Beant Singh  and Satwant Singh, who had prior knowledge that  Smt. Indira Gandhi was scheduled to pass through the T.M.C.  Gate on 31.10.1984 at about 9 A.M. for an interview with       an Irish  television team, manipulated their duties in  such  a manner that Beant Singh would be present at the T.M.C.  Gate and  Satwant  Singh would be present at the  T.M.C.Gate  and Satwant  Singh  at  the T.M.C. Sentry  booth  on  31.10.1984 between 7.00 and 10.00 A.M. Beant Singh Managed to  exchange his  duty   with  SI  Jai Narain (PW 7)  and  Satwant  Singh arranged  to  get his duty with  SI Jai Narain  (PW  7)  and Satwant  Singh arranged to get his  duty changed  from  Beat No.4 at PM’s  house to T.M.C. Sentry Booth situated near the latrine  by  misrepresenting  that  he  was  suffering  from dysentery.  Beant  Singh was armed with a revolver  (No.  J- 296754,  Butt No. 140) which had 18 cartridges  of.38   bore and Satwant Singh was armed with a SAF Carbine (No. WW-l3980 with  Butt No. 80) and 100 cartridges of 9 mm.  Both  having managed to station themselves together near the T.M.C.  Gate on 31.10. 1984, at about 9.10 A.M., Beant Singh opened  fire from his revolver and Satwant Singh from his carbine at Smt. Indira Gandhi as she was approaching the T.M.C. Gate.  Beant Singh  fired five rounds and Satwant Singh 25 shots  at  her

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from their respective weapons. Smt. Indira Gandhi  sustained injuries  and  fell down. She was immediately taken  to  the AllMS where she succumbed to her injuries the same day.  The cause  of death was certified upon a post-mortem which  took place  on  31.10.1984,  as  haemorrhage  and  shock  due  to multiple  fire arm bullet injuries which were sufficient  to cause  death  in the ordinary course of  nature.  The  post- mortem  report  No. 1340/84 of the AIIMS  also  opined  that injuries  Nos.  1  and  2, specified  in  the  report,  were sufficient to cause death in the ordinary course of  nature, as well.’’                                                     PG NO 76     IN this report (charge-sheet) it was also mentioned that Beant Singh and Satwant Singh laid down their weapons on the spot  which had been recovered. About five empties of  Beant Singh’s  revolver were recovered and 13 live cartridgcs  .38 bore  from his person, 25 empties of SAF carbine and  6  led pieces   were  recovered  from  the  spot.  About  75   live cartridges of .99 SAF carbine were recovered from the person of  Satwant Singh. That too led pieces were  recovered  from the  person  of  Satwant Singh. That  too  led  pieces  were recovered  from  the body of Smt. Indira Gandhi  during  the post-mortem  and  two from her cloths and that  the  experts have  opined  that the bullets recovered from the  body  and found from the spot were fired through the weapons possessed by these two accused persons. The report also mentioned that Rameshwar Dayal ASI who was following Smt. Indira Gandhi, PW 10 also received grievous and dangerous injuries on his left thigh  as  a  result of shots fired  by  the  accused  which according to the medical opinion were grievous and dangerous to life.     It  is  significant  that in  this  case  the  Addtional Sessions Judge who tried the case was nominated by the  High Court  for  trial  of  this case  and  on  this  count  some arguments  were  advanced  by the learned  counsel  for  the appellants.  I will examine the contentions a little  later. Learned  counsel  appearing for appellants Kehar  Singh  and Balbir Singh first raised some preliminary objections  about the  procedure at the trial. First contention raised by  him was  about  the venue of the trial and the manner  in  which this  venue  was  fixed  by  the  Delhi  High  Court  by   a notification Under Section 9(6) Cr. P.C.                                                     PG NO 77     The  second objection was about the trial held  in  jail and   it  Was  contended  that  under  Article  21  of   the Constitution  of India, open and public trial is one of  the constitutional  guarantees of a fair and just trial  and  by holding the trial in the Tihar Jail this guarantee has  been affected  and accused have been deprived of a fair and  open trial  as contemplated under Section 327 Cr. P.C. The  other objection raised was that under Sec. 327 Cr. P.C. it is only the  trial  Judge,  the Sessions Judge  who  could  for  any special  reasons hold the trial in camera or a part  of  the trial  in camera but there is no authority  conferred  under that Section on the High Court to shift the trial in a place where  it  ultimately ceases to be an  open  trial.  Learned counsel on this ground referred to series of decisions  from United  States,  England and also from our  own  courts  and contended  that the open trial is a part of the  fair  trial which an accused is always entitled to.     The other question raised by the learned counsel for the appellants  was that by preventing the accused from  getting the  papers  of  the  Thakkar  Commission,  its  report  and statements   of  persons  recorded;  who   are   prosecution witnesses  at  the trial the accused have been  deprived  of

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substantial material which could be used for their defence.     These   main  questions  were  raised  by  the   counsel appearing  for Kehar Singh and Balbir Singh and counsel  for Satwant Singh adopted these arguments and in addition raised certain preliminary objections pertaining to the evidence of post-mortem, ballastic expert and similar matters.     Learned  Additional Solicitor General appearing for  the respondent  replied to some of the legal arguments and  also the  other  arguments  on  facts.  One  of  the  preliminary objections  sought  to be raised by the  learned  Additional Solicitor  General  was that this Court in an  appeal  under Article 136 of the Constitution of India is not expected  to interfere  with  the findings of facts arrived  by  the  two courts below. He also relied on some decisions of this Court to support his contention.     On  the preliminary objection raised by  the  Additional Solicitor General that in this appeal under Article 136,  we are  not expected to go into the facts of the case, we  will like  to observe that we are dealing with a case  where  the elected  leader of our people, the Prime Minister  of  India was  assassinated and who was not only an elected leader  of the   majority  but  was very popular with  the  people,  as observed  also by the  High Court in its judgment but  still we  have all through maintained the  cardinal  principle  of our  Constitution-Equality before law and the    concept  of rule  of  law in the system of  administration  of  justice. Although these accused persons indicated at some stage  that they  are  not able to engage counsel but still  they  could get  the services of  counsel of their choice at  the  State expense,  it  must  be said to the  credit  of  the  learned counsel  Shri Ram Jethmalani and Shri R.S. Sodhi  that  they have done an excellent job for the appellants and  therefore we will like to thank these counsel and also the  additional Solicitor    General,   who  all  have   rendered   valuable assistance to this Court.                                                     PG NO 78     In view of the importance of the case, we have heard the matter  at some length both on questions of law and also  on facts.     The first objection raised by the learned counsel is  on the basis of Sec. 194 that it was not necessary for the High Court  to have allotted the case to a particular Judge.  The learned Judges of the High Court in their judgment have come to  the conclusion that the last part of the Section  refers to  "The High Court may by special order direct him to  try" and  on  the  basis of this phrase the  High  Court  in  the impugned judgment, has observed that it was even open to the accused  to  make  an  application  and  to  get  the   case transferred or allotted to a Judge. Sec. 194 Cr. P.C. Reads:      "Additional  and Assistant Sessions Judge to try  cases made over to them-An Additional Sessions Judge or  Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over  to him  for trial or as the High Court may, by  special  order, direct him to try."     The first part of the Section clearly provides that  the Sessions  Judge of the Division by general or special  order is  supposed to allot cases arising in a particular area  or jurisdiction to be tries by Additional or Assistant Sessions Judges  appointed in the division but the last part of  this Section also authorised the High Court to allot the case  to a  particular Judge keeping in view in fact that in  certain cases  the  Sessions  Judge may not like to  allot  and  may report  to the High Court or either of the parties may  move an application for transfer and under these circumstances if

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may  become  necessary  for  the  High  Court  to  allot   a particular case to a particular Judge. This, this  objection is  of  no consequence. The other objection which  has  been raised  by  the learned counsel is about the issuance  of  a notification  by the High court under Sec. 9(6) Cr.P.C.  and by this notification the High Court purported to direct that the trial in this case shall be held in Tihar Jail.  Learned counsel appearing for the Delhi Administration on the  other hand  attempted to justify such an order passed by the  High Court by contending that if the High Court had the authority to  issue  notification fixing the place of sitting  it  was open to the High Court also to fix the place of sitting  for a  particular case whereas emphasis by learned  counsel  for the  appellants was that Sec. 9(6) only authorises the  High Court  to fix the place of sitting generally. So far  as  in any  particular case is concerned, the second part  of  sub- clause  6  permits  the trial court  with  the  consent  the parties to sit at any other place than the ordinary place of sitting.                                                     PG NO 79     The  High Court in the impugned judgment have  attempted to  draw  from proviso which has been a local  amendment  of Uttar  Pradesh.  Unfortunately nothing could be  drawn  from that  proviso  as admittedly that is not a  State  amendment applicable  to Delhi. Section 9(6) Cr.P.C.  nowhere  permits the  High Court to fix the venue of a trial of a  particular case at any place other than the place which is notified  as the ordinary place of sitting. It reads thus:     "Sec.  9(6): The Court of Session shall ordinarily  hold its sitting at such place or places, as the High Court  may, by  notification,  specify but if, in any  particular  case, court  of  Session is of opinion that it will  tend  to  the general convenience of the parties and witnesses to hold its sittings  at  any other place in the sessions  division,  it may,  with the consent of the prosecution and  the  accused, sit  at  that  place for the disposal of  the  case  or  the examination of any witness or witnesses therein."     On the basis of this language one thing is clear that so far  as the High Court is concerned it has the  jurisdiction to  specify the place or places where ordinarily a Court  of Sessions  may  sit  within  the  division.  So  far  as  any particular  case  is to be taken at a place other  than  the normal   place of sitting it is only permissible  under  the second  part of sub-clause with the consent of  parties  and that decision has to be taken by the trial court itself.  It appears that seeing the difficulty the Uttar Pradesh amended the provision further by adding a proviso which  reads:                                                     PG NO 80     "Provided  that the court of Sessions may hold,  or  the High  Court  may direct the Court of Session  to  hold,  its sitting in any particular case at any place in the  sessions division,   where  it  appears  expedient  to  do   so   for considerations of internal security or public order, and  in such cases, the consent of the prosecution and accused shall not be necessary."     But  it  is certain that if this proviso is not  on  the statute book applicable to Delhi, it can not be used as  the High Court has used to interpret it. That apart, if we  look at  the notification from a different angle  the  contention advanced by the learned counsel for the appellants ceases to have  any force. Whatever be the terms of the  notification, it  is not disputed that it is a notification issued by  the Delhi  High Court under Sec. 9 sub-clause (6) Cr.  P.C.  and thereunder the High Court could do nothing more or less than what  it  has  the  authority to  do.  Therefore,  the  said

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notification  of  the  High Court could  he  taken  to  have notified  that  Tihar  Jail is also one  of  the  places  of sitting  of  the  Sessions Court in  the  Sessions  division ordinarily. That means apart from the two places Tis  Hazari and  the  New  Delhi, the High Court  by  notification  also notified Tihar Jail as one of the places where ordinarily  a Sessions Court could hold its sittings. IN this view of  the matter,  there is no error if the Sessions trial is held  in Tihar Jail after such a notification has been issued by  the High Court.     The next main contention advanced by the counsel for the appellants  is  about  the  nature  of  the  trial.  It  was contended  that  under  Article 21  of  the  Constitution  a citizen  has  a  right to an open public  trial  and  as  by changing  the venue the trial was shifted to Tihar Jail,  it could  not  be  said to be an  open  public  trial.  Learned counsel also referred to certain orders passed by the  trial court  wherein it has been provided that representatives  of the Press may be permitted to attend and while passing those orders  the  learned  trial Judge  had  indicated  that  for security  and  other  regulations it will be  open  to  Jail authorities to regulate the entry or issue passes  necessary for  coming  to  the  Court  and  on  the  basis  of   these circumstances  and the situation as it was in Tihar jail  it was  contended  that the trial was not public and  open  and therefore  on  this ground the trial vitiates. It  was  also contended  that  provisions contained in Sec. 327  Cr.  P.C. clearly  provides that a trial in a criminal case has to  be public  and open except if any part of the  proceedings  for some  special  reasons to be recorded by  the  trial  court, could  be  in camera. It was contended that the  High  Court while  exercising jurisdiction under Sec. 9(6) notified  the place  of  trial as Tihar Jail, it indirectly did  what  the trial court could have done in respect of particular part of the proceedings and the High Court has no jurisdiction under Section  327 to order trial to be held in camera or  private and in fact as the trial was shifted to Tihar Jail it ceased to be open and public trial. Learned counsel on this part of the  contention referred to decisions from American  Supreme Court  and also from House of Lords. In fact,  the  argument advanced  has  been on the basis of the  American  decisions where the concept of open trial has developed in due  course of  time  whereas  so far as India is  concerned  here  even before  the 1973 Code of Criminal Procedure and even  before the Constitution our criminal practice always contemplated a trial which is open to public.                                                     PG NO 81     In  fact,  the High Court in the impugned  judgment  was right  when it referred to the concept of administration  of justice under the old Hindu Law. But apart from it even  the Criminal Procedure Code as it stood before the amendment had a  provision similar to Sec. 327 which was Sec. 352  of  the Old Code and in fact it is public of this that the  criminal trial  is  expected  to  be open  and  public  that  in  our Constitution  phraseology difference from the United  States has been there. Article 21 provides:     "No  person  shall be deprived of his life  or  personal liberty except according to procedure established by law."     It  is not disputed that so far as this aspect  of  open trial  is  concerned the procedure established by  law  even before  our Constitution was enacted was as is  provided  in Sec. 327 Cr. P.C. (Sec. 352 of the old Code):     "Court  to be open (1) The place in which  any  criminal Court  is held for the purpose of inquiring into  or  trying any  offence shall be deemed to be an open Court,  to  which

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the public generally may have access, so far as the same can conveniently contain them:     Provided that the Presiding Judge or Magistrate may,  if he  thinks fit, order at any stage of any inquiry  into,  or trial of, any particular case, that the public generally, or any  particular person, shall not have access to, or  be  or remain in, the room or building used by the Court.     (2)  Notwithstanding anything contained  in  sub-section (1), the inquiry into and trial of rape or an offence  under section  376,  section 376A, Section 376B, section  376C  or section 376D of the Indian Penal Code shall be conducted  in Camera ;                                                     PG NO 82     Provided that the presiding judge may, if he thinks fit, or  on an application made by either of the  parties,  allow any  particular person to have access to, or be  or  remains in, the room or building used by the Court.     (3) Where any proceedings are held under sub-section (2) it  shall not be lawful  for any person to print or  publish any matter in relation to any such proceedings, except  with the previous permission of the court."     This  was Section 352 in the Code of Criminal  Procedure which was Act of 1898. It will be interesting to notice  the language  of  Sec.  327. It speaks that any  place  where  a criminal court holds its sitting for enquiry or trial  shall be  deemed  to  be  an open  court  to  which  the    public generally   may  have  access.  So  far  as  the  same   can conveniently  contain  them. The language  itself  indicates that  even if a trial is held in a private house or is  held inside  Jail  or anywhere no sooner it becomes  a  venue  of trial  of a criminal case it is deemed to be in law an  open place and everyone who wants to go and attend the trial  has a  right  to  go  and  attend  the  trial  except  the  only restriction contemplated is number of persons which could be contained  in the premises where the Court sits. It  appears that the whole argument advanced on behalf of the appellants is on the basis of an assumption in Spite of the  provisions of Sec. 327 that as the trial Was shifted from the  ordinary place where the Sessions Court are sitting to Tihar Jail  it automatically  became a trial which was not open  to  public but  in our opinion in view of Section 327 this  assumption, the  basis of the argument itself is without any  foundation and  can  not be accepted and argument on the basis  of  the foreign decisions loses all its significance. So far as this country is concerned the law is very clear that as soon as a trial  of a criminal case is held whatever may be the  place it  will  be  an  open trial. The  only  thing  that  it  is necessary  for  the appellant is to point out that  in  fact that it was not an open trial. It is not disputed that there is no material at all to suggest that any one who wanted  to attend  the  trial was prevented from so doing  or  one  who wanted  to go into the Court room was not allowed to  do  so and  in  absence of any such material on  actual  facts  all these   legal   arguments  loses   its   significance.   The authorities  on which reliance were placed are  being  dealt with elsewhere in the judgment.                                                     PG NO 83     Learned   Additional  Solicitor  General  attempted   to contend  that this is not a question of  any  constitutional right  under  Article 21 and the basis of his  argument  was that  Article 21 only talks of procedure established by  law and  if  today  on the statute book there  is  Section  327, tomorrow  Section 327 may be so amended that it may  not  be necessary for a criminal trial to be open and on this basis, learned  Additional Solicitor General attempted  to  contend

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that it does not become a constitutional right at all. It is very   clear   that  Article   21   contemplates   procedure established   by  law  and  in  my  opinion  the   procedure established  by  law  was  as  on  the  day  on  which   the Constitution was adopted and therefore it is not so easy  to contend  that  by amending the Criminal Procedure  Code  the effect  of  the procedure established by  law  indicated  in Article  21 could be taken away. The trend of  decisions  of this Court has clearly indicated that the procedure must  be fair and just. Even expeditious trial has been considered to be a part of guarantee under Article 21 but in my opinion so far as the present case is concerned it is not necessary  to go  so  far.  At  present no  one  could  dispute  that  the procedure  established by law as indicated in Article 21  is as  provided  in  Section  327 and unless  on  facts  it  is established that what is provided in Sec. 327 was  prevented or  was  not  permitted, it could not be  said  that  merely because  trial  was held at a particular place it  could  be said  to  be  a  trial which was  not  open  to  public.  As indicated  earlier  on facts there is  nothing  to  indicate although  learned counsel also attempted to some  extent  to suggest  that there were restrictions. A person has to  pass through two gates, a person has to sign on the gate and  had to  have  a  pass or a clearance but  in  the  modern  times especially  in  the  context of the  circumstances  as  they exist. On this basis it could not be said that it ceased  to be a public trial. It could not be doubted that at one  time in  this Court the highest Court of the land, any one  could freely  walk in and sit and attend the Court but today  even in  this  Court there are restrictions and one has  to  pass through  those restrictions but still it could not  be  said that  any  one  is prevented from attending  the  Court  and therefore merely suggesting the difficulties in reaching the Jail  will  not  be  enough.  On  the  other  hand,  learned Additional Solicitor General drew our attention to the  plan of  the  Jail and the situation of the  premises  where  the trial  was held and it is not dispute that it was  not  that part  of the Jail where the prisoners are kept but  was  the Office  block  where  there was  an  approach,  people  were permitted to reach and the trial was held as if it was  held in  an  ordinary  place and it is in this  view  that  as  I observed  earlier  that in fact what the High Court  did  by issuing a notification under Sec. 9(6) was not to fix  place of  trial  of this particular case in Tihar Jail.  But  what could be understood is that High Court by notification  made Tihar Jail also as one of the places where a Sessions  Court could  ordinarily sit and in this case therefore  the  trial was held at this place. As soon as a trial is held  whatever the  place may be the provisions of Sec. 327  are  attracted and  it will be an open Court and every citizen has a  right to go and unless there is evidence or material on record  to suggest that on the facts in this particular case public  at large was not permitted to go or some one was prevented from attending the trial or that the trial was in camera. In fact without an appropriate order it could not be said that  what is  contemplated under Section 327 or under Article  21  was not made available to the accused in this case and therefore it could not be contended that there is any prejudice at the trial.                                                     PG NO 84     There remains however one more question which was raised by  the  counsel  for the appellants that in  spite  of  the prayer made by the accused person during the trial and  also in  the  High  Court about the copies of  the  statement  of witnesses who have been examined by the prosecution and were

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also examined before the Commission (Thakkar Commission)  to be provided to the accused so that they may he in a position to use these statements for purposes of contradiction or for other  purposes.  They had also prayed for the copy  of  the Thakkar  Commission  report as the  Thakkar  Commission  Was inquiring into the events which led to the assassination  of the Prime Minister. In fact. it was contended that the terms of  reference  which were notified for the  enquiry  of  the Thakkar  Commission  were more or Less  the  same  questions which  fell  for  determination in this case  and  thus  the appellants have been prejudiced and they could not avail  of the material which they could use to build up their defence. According  to  learned  counsel not  only  the  accused  are entitled  to  previous  statements  of  witnesses  who   are examined  by the prosecution but they are also  entitled  to any material on the basis of which they could build up their defence  and raise appropriate issues at the trial.  Learned counsel relied on number of decisions and also said that the decision  of  the  Supreme Court in  Dalmia’s  case  is  not binding  as  in  that  case  the scope  of  Sec.  6  of  the Commission of Enquiry Act was not in question.     Whereas   learned  counsel  for  the   respondent,   the Additional  Solicitor General vehemently contended that  the language  of Sec. 6 is clear that a witness who is  examined before  a  Commission, is protected and that  protection  is such  which  clearly  indicates that  this  statement   made before the Commission could not be used against him for  any other  purpose  in  any other  proceeding  either  civil  or criminal.  The only exception carved out in Sec. 6  pertains to  his  prosecution  for perjury  and  therefore  when  the language  is  clear and the exception carved  out  is  clear enough,  no  other  exception could be carved  out  nor  the Section could be interpreted in any manner. According to the Additional   Solicitor   General  the  Commission   by   its regulation  and  notification  clearly made  the  enquiry  a confidential  affair  and in addition to that there  was  an amendment  of the Act by Ordinance which even provided  that if  Government  by  notification decided not  to  place  the Report  of the Commission before the House of Parliament  or Legislature  then it was not necessary that it should be  so placed  before  the House and thus the report not  only  was confidential but even the Parliament had no right to see the report  and therefore neither the report nor the  statements made before the Commission could be asked for by the accused for the purposes of trial.                                                     PG NO 85     Soon after the assassination of Smt. Indira Gandhi,  the Government   of   India  by  notification   dated   20.11.84 constituted  a  Commission under the Commission  of  Enquiry Act,  1952 (the Act). The Commissioner was presided over  by Mr. Justice M.P. Thakkar, a sitting Judge of this Court. The terms of enquiry notified for the Committee reads:     "(a)  the sequence of events leading and all  the  facts relating to, the assassination of late Prime Minister;     (b)  Whether  the  crime could  have  been  averted  and whether there were any lefts or dereliction of duty in  this regard on the part of any one of the commission of the crime and  other individuals responsible for the security  of  the late Prime Minister;     (c) the deficiencies, if any, in the security system and arrangements  as  prescribed or as  operated  to  impractice which might have facilitated the commission of the crime;     (d)  the  deficiencies,  if any, in  the  procedure  and measures  as  prescribed,  or as  operated  in  practice  in attending  to  any providing medical attention to  the  late

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Prime  Minister  after  the commission  of  the  crime;  and whether was any lapse or dereliction of duty in this  regard on  the  part of the individuals responsible  for  providing such medical attention;     (e)  whether  any  person or persons  or  agencies  were responsible  for  conniving,  preparing  and  planning   the assassination  or whether there was any conspiracy  in  this behalf, and if so, all its ramifications’’.                                                     PG NO 86     The Commission was also asked to make recommendations as to  corrective remedies and measures that need to  be  taken for future.     It  is  therefore  clear  that out  of  these  terms  of reference  the first term (a) and the last one (e) are  such that the evidence collected by the Commission could be  said to be relevant for the purposes of this trial.     It is significant that the Commission framed regulations under  Section 8 of the Act in regard to the  procedure  for enquiry and regulation 8 framed therein reads:     "In  view  of  the  sensitive  nature  of  enquiry   the proceedings will be in camera unless the Commission  directs otherwise."     The Regulation made it clear that the proceedings of the Commission will be ordinarily in camera. It would only be in public  if the Commission so directs and it is not  disputed that  so far as recording of evidence is concerned  and  the proceedings  of  the  Commission it has gone  on  in  camera throughout  and  even  the report,  interim  and  the  final report. And then also it was stated by the Commission itself to  be confidential. In this perspective the prayer  of  the appellants has to be considered.     Under the Act as it stood before the amendment which was done by Ordinance No. 6 of I986 normally the Government  was supposed to place the report of the Commission under Section 3 sub-clause 4 of the Act before the House of the Commission but the Government did not do that. The steps were taken  to amend the commission of Enquiry Act and on May 14, I986  the President  of India promulgated an Ordinance No. 6  of  1986 namely Commission of Enquiry (Amendment) Ordinance. 1986  by which  sub-sections 5 and 6 were introduced to section 3  as follows:     "Sub-clause 5: The provisions of sub-section 4 shall not apply  if  the appropriate Govt. is satisfied  then  in  the interest  of  the sovereignty and integrity  of  India,  the security  of  the  State, friendly  relations  with  foreign states  or  in public interest, it is not expedient  to  lay before  the  House  of People, or as the case  may  be,  the Legislative  Assembly of the State, the report, or any  part thereof,  of  the  Commission. On the enquiry  made  by  the Commission  under sub-sec. (1) and issue a  notification  to that effect in the official gazette.                                                     PG NO 87     (6)  Every  notification issued  under  sub-section  (5) shall  be laid before the House of the People, as  the  case may  be,  the Legislative Assembly of the State,  if  it  is sitting   as  soon  as  may  be  after  the  issue  of   the notification, and if it is not sitting, within seven days of its  resuming  and  the appropriate  Govt.  shall  seek  the approval of the House of People, or as the case may be,  the Legislative  Assembly of the State to the notification by  a resolution  moved within a period of 15 days beginning  with the  day  on which the notification is so  laid  before  the House  of  People  or as the case  may  be  the  Legislative Assembly  of  the  State  makes  any  modification  in   the notification  or directs that the notification should  cease

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to  have  effect.  The notification  shall  thereafter  have effect as the case may be."     In  pursuance  of  this amendment on May  15,  l986  the Central  Government issued a notification under  sub-section (5)  of  Section 3 stating "The  Central  Government,  being satisfied  that it is not expedient in the interest  of  the security  of the State and in public interest to lay  before the House of People, the report submitted to the  Government on 19.11.85, and 27.2.86, by justice M.P. Thakkar, a sitting Judge  of  the Supreme Court of lndia  appointed  under  the notification of the Government of India, in the Ministry  of Home  Affairs No. So. 867(B), dated the 20th November,  1984 thereby  notifies  that the said report shall  not  be  laid before  the  House  of People." It is  interesting  that  on 20.8.86,  Ordinance  No.  6 was replaced  by  Commission  of Enquiry  (Amendment)  Act. I986 (Act No. 36  of  I986)  with retrospective  effect. The said notification dated  May  15, l986  was  also  got  approved by the  House  of  People  is required  under  sub-section 6 of Section  3  and  therefore after  the approval of the notification by the House of  the People  there remains no question of placing the  report  of the Commission before the House.     So  far  as  the  steps  taken  by  the  appellants  are concerned,   it  is  no  doubt  true  that  an   appropriate application in the manner in which it was moved in the  High Court  was not moved in the trial court but it could not  be doubted  that  one of the accused persons  had  even  sought these copies in the trial court and the same prayer has been appropriately made during the hearing in the High Court. The proper  time for awarding the prayer was in the trial  court during  the pendency of the trial as the accused wanted  the copies of the previous statements of some of the prosecution witnesses which were recorded during the enquiry before  the Thakkar Commission but such a prayer was made and rejected.                                                   PG NO 88     The  High  Court rejected this prayer  by  the  impugned judgment against which the present appeal is before us.  The High Court relied on the decision of this Court in the  case of  Ram Krishan Dalmia v. Justice Tendulkar, [1959] SCR  279 which  is  referred to henceforth as Dalmia’s case.  It  was contended  by learned counsel for the appellants  that  this case could not be accepted as an authority on interpretation of Sec. 6 as in that case the scope of Sec. 6 was not before the  Court but it was the validity of the  provisions  which were challenged. Das, C.J. in Dalmia’s case while  examining the   challenge  to  the  validity  of  the  Act   and   the notification   issued   thereunder   made   the    following observations:     "The  whole  purpose of setting up of  a  Commission  of Enquiry  consisting  of experts will be frustrated  and  the elaborate process of enquiry will be deprived of its utility if  the opinion and the advice of the expert body as to  the measures and situation disclosed calls for can not be placed before  the  Government for consideration  not  withstanding that doing so can not be to the prejudice of anybody because it has no force of its own. In our view, the recommendations of  a Commission of Enquiry are of great importance  to  the Government  in order to enable it to make up its mind as  to what  Legislative  or  administrative   measures  should  be adopted  to  eradicate the evil found or  to  implement  the beneficial objects it has in view. From this point of  view, there can be no objection even to the Commission of  Enquiry recommending the imposition of some form of punishment which will, in its opinion, be sufficiently deterrent to deliquent in future. But seeing that the Commission of Enquiry has  no

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judicial powers and its report will purely be recommendatory and not effective propro vigro."     The  statement made by any person before the  Commission of Enquiry under Sec. 6 of the Act is wholly inadmissible in evidence in any future proceedings civil or criminal.                                                     PG NO 89     According  to learned counsel, in that case it  was  not the  scope of Section 6 but the validity of  the  provisions were  in question and the observations were only  incidental and it can not be regarded as a binding precedent. The  High Court  has accepted these observations of this Court in  the judgment quoted above and in our opinion rightly. But  apart from  it,  we shall try to examine Sec. 6 itself  and  other provisions  relevant  for  the purpose  as  to  whether  the appellants  i.e.  the accused before the  trial  court  were entitled  to  use  the copies of  the  statements  of  those prosecution  witnesses who were examined before the  Thakkar Commission  for purposes of cross examination or to use  the report of the Commission or whether it could be handed  over or  given  over  to the accused for  whatever  purpose  they intended to use. The learned counsel for the parties on this aspect of the matter have referred to number of decisions of various  High Courts and also some of the decisions  of  the English  Courts. They are being dealt with in  the  Judgment elsewhere  as in my opinion it is not necessary to  go  into all  of  them  except examining the provisions  of  the  Act itself.     Sec. 6 of the Commission of Enquiries Act reads:     "No statement made by any person in the course of giving evidence  before the Commission shall subject him to, or  be used against him in any civil or criminal proceedings except a prosecution for giving false evidence by such statement."     On  analysis  of the provision, it will  be  found  that there  are restrictions on the use of a statement made by  a witness before the   Commission. First is "shall subject him to, ................any civil or Criminal proceedings except a prosecution for giving false evidence by such  statement." This,  in my opinion, is the first restriction.  The  second restriction,  according to me, is spelt out from  the  words "or   be  used  against  him  in  any  civil   or   criminal proceedings." Thus if we examine the two restrictions stated above it appears that a statement given in a Commission  can not  used  to subject the witness to any civil  or  criminal proceedings and in my opinion it is in the context of  these restrictions that we will have to examine the provisions  of the  Evidence  Act  which  permit  the  use  of  a  previous statement  of a witness and for what purpose. Sec. 145  read with Sec. 155(3) and Sec. I57 are the relevant provisions of the Evidence Act. Sec. 145 reads:     "Cross-examination as to previous statements in writing. A  witness may be cross examined as to  previous  statements made by him in writing or reduced into writing and  relevant to matters in question, without such writing being shown  to him,  or being proved; but if it is intended  to  contradict him  by the writing, his attention must, before the  writing can  be proved, be called to these parts of it which are  to be used for the purpose of contradicting him."                                                    PG NO 90     This  provision  permits that a witness  may  be  cross- examined as to the previous statement made by him in writing or  reduced to writing relevant to the matters  in  question without such writing being shown to him or being proved. But if  it  is  intended to contradict him by  the  writing  his attention  must be drawn to these parts of the writing;  and it  can be proved. A witness could be cross examined on  his

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previous  statement but if a contradiction is sought  to  be proved  then that portion of the previous statement must  be shown to him and proved in due course.     Sec.  155 of the Evidence Act provides for the use of  a previous statement to impeach the credit of a witness.  Sec. 155 reads:     "155.  Impeaching  credit  of witness-The  credit  of  a witness  may  be  impeached in the  following  ways  by  the adverse  party  or, with the consent of the  Court,  by  the party who calls him-     (1)  by the evidence of persons who testify  that  they, from their knowledge of the witness, believe to be  unworthy of credit;     (2)  by proof that the witness has been bribed,  or  has (accepted)  the offer of a tribe, or has received any  other corrupt inducement to give his evidence;     (3) by proof of former statements inconsistent with  any part of this evidence which is liable to be contradicted;     (4)  When a man is prosecuted for rape or an attempt  to ravish,  it  may  be  shown  that  the  prosecutrix  was  of generally immoral character."     This  section provides that the credit of a witness  may be impeached in the following ways by an adverse party  with the consent of the Court by the party who calls him and  the third  sub-clause  refers  to a former  statement  which  is inconsistent  with  the  statement made by  the  witness  in evidence in the case and it is permissible that the  witness be contradicted about that statement. The third provision is Sec. 157 which provides for the use of a previous  statement for corroboration. it reads:                                                  PG NO 91     "157.  Former  statements of witness may  be  proved  to corroborate  later  testimony as to same fact. In  order  to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or  about the  time when the fact took place, or before any  authority legally competent to investigate the fact, may be proved."     A perusal of these three Sections clearly indicate  that there are two purposes for which a previous statement can be used. One is for cross examination and contradiction and the other  is  for  corroboration.  The  first  purpose  is   to discredit  the  witness  by  putting  to  him  the   earlier statement  and  contradicting him on that basis. So  far  as corroboration is concerned it could not be disputed that  it is  none of the purposes of the defence to  corroborate  the evidence  on the basis of the previous statement.  Sec.  145 therefore is the main section under which relief was  sought by the accused. The use for which the previous statement was asked  for was to contradict him if necessary so  that  that contradiction  be  put to the witness and that part  of  the statement can be proved.     To  my mind, there could be no other purpose  for  which the  appellants could use the previous statements  of  those witnesses. Contradiction could be used either to impeach his credit  or discredit him or to pull down or bring  down  the reliability  of  the witness. These purposes for  which  the previous  statements  are required could not be said  to  be purposes which were not against the witness. The two aspects of the restrictions which Sec. 6 contemplates and have  been discussed  earlier are the only two aspects which  could  be the result of the use of these statements. I cannot find any other   use   Of  such  previous  statements   in   criminal proceedings.  It is therefore clear that without going  into the  wider  questions  even a plain reading  of  Sec.  6  as discussed  above  will  prohibit the  use  of  the  previous

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statements  at  the trial either for the purposes  of  cross examination  to  contradict the witness or  to  impeach  his credit.  The  only permissible use which has  been  provided under  Sec.  6  is  which has  been  discussed  earlier  and therefore  the Courts below were right in not  granting  the relief to the accused.                                                     PG NO 92     The  report  of  the  Commission  was  also  prayed  for although  learned  counsel could not clearly suggest  as  to what  use report of the Thakkar Commission could be  to  the accused  in his defence. The report is a  recommendation  of the  Commission for consideration of the Government.  It  is the  opinion  of  the  Commission  based  on  the   previous statements  of  witnesses  and other  material.  It  has  no evidentiary  value  in the trial of the criminal  case.  The courts  below  were  also justified  in  not  summoning  the reports.     Learned  counsel  for  parties  referred  to  number  of decisions, Indian and foreign and are being dealt with by my learned  colleague  in  this judgment. But in  view  of  the discussions  above I do not find it necessary to go  further into the matter.     Learned  counsel for Appellant No. I Satwant Singh  also made  a reference to some of the question which were  raised before  the  High  Court  in  respect  of  the  post-mortem, although  learned  counsel  appearing  for  the  other   two appellants  did not seriously raise those questions.  It  is apparent  that  in  the facts of the case  as  the  evidence stands  the question of post-mortem or a fuller  post-mortem was necessary or not loses all its significance. There is no dispute  that she died as a result of the gun shot  injuries which  was inflicted by Beant Singh and Satwant  Singh,  one who  shot  from  his service revolver  and  other  from  the carbine.  In view of such clear evidence about the cause  of the  death,  the  post-mortem  examination  loses  all   its significance.  It becomes important only in cases where  the cause  of  death  is to be established and is  a  matter  of controversy.     Before I go to the merits and deal with the evidence  in the case, I will dispose of the preliminary objection raised by the Learned Additional Solicitor General as to the  scope of the appeals before us. He urged that under Article 136 of the  Constitution this Court is not expected to go into  the questions of fact when there are concurrent findings of fact recorded by the courts below. The learned counsel apart from Art.  I36  relied upon a decision reported in  the  case  of Pritam  Singh  v. The State, [1950] AIR SC 169  Where  Fazal Ali, J said:     "It would be opposed to al] principles and precedents if we  were to constitute ourselves into a third court of  fact and  after re-weighing the evidence come to  the  conclusion different  from that arrived at by the trial Judge  and  the High Court."                                                     PG NO 93     Similarly  in Ram Raj v. State of Ajmer, [1954]  SCR  p. 1133. Justice Mahajan, Chief Justice observed at page 1134:     "Unless  it  is  shown  that  exceptional  and   special circumstances  exist  that substantial and  grave  injustice have been done and the case in question presents features of sufficient gravity to warrant a review of decision  appealed against  this Court does not exercise its overriding  powers under Art. 136( 1) of the Constitution and the circumstances that because the appeal have been admitted by special  leave does  not entitle the appellant to open out the  whole  case and  contest all the findings of fact and raise every  point

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which should have been raised in the High Court. Even in the final  hearing only those points can he urged which are  fit to  be urged stage and preliminary stage at the  preliminary when the leave to appeal is asked for."     Even  in  a  recent decision AlR 1983  SC  753.  Justice Thakkar stated:     "A concurrent finding of fact can not be reopened in  an appeal  unless  it is established; (i) that the  finding  is based   on  no  evidence  or record,  that  the  finding  is perverse, it  being such as no reasonable person would  have arrived at even if the evidence was taken at its face  value or  thirdly, the finding is based and built on  inadmissible evidence   which evidence if excluded from the vision  would negate  the prosecution case or substantially  discredit  or impair  it or; fourthly some vital piece of  evidence  which would  tilt  the balance in favour of the convict  has  been overlooked, disregarded or wrongly discarded."     These  are  the principles laid down by this  court  and keeping  these  in view I will attempt to examine  the  High Court  judgment. I may however, mention that where the  High Court has reached conclusions which are not justified on the basis of evidence on record it can not be contended that  in an  appeal  under Art. 136 this Court will not go  into  the facts of the case and come to its own conclusions. The  case on  hand  is one of such cases and some of the  findings  of fact reached by the High Court could not be said to be  such which are concurrent or conclusive. We were therefore put to the  necessity  of examining the evidence  wherever  it  was necessary.                                                     PG NO 94     The  other  ground  urged on behalf  of  the  appellants relates  to the relevancy of evidence on conspiracy in  view of Section 10 of the Evidence Act. It will be worth-while to deal with this question of law at this stage. Sec. 12-A  and 120-B of the Indian Penal Code which deal with the  question of conspiracy. Sec. 120-A reads:     "When  two or more persons agree to do, or cause  to  be done.-     (1) an illegal act, or     (2)  an act which is not illegal by illegal means,  such an agreement is designated a criminal conspiracy:     Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties  to such agreement in pursuance thereof."     Sec.  120-A  provides  for the  definition  of  criminal conspiracy  and it speaks of that when two or  more  persons agree  to do or cause to be done an act which is an  illegal act  and  Sec.  120-B  provides for  the  punishment  for  a criminal  conspiracy and it is interesting to note  that  in order to prove a conspiracy it has always been felt that  it was  not  easy  to  get direct  evidence.  It  appears  that considering  this experience about the proof  of  conspiracy that Sec. 10 of the Indian Evidence Act was enacted. Sec. 10 reads:     "Things  said  or done by conspirator  in  reference  to common  design--Where there is reasonable ground to  believe that  two or more persons have conspired together to  commit an  offence or an actionable wrong, anything said,  done  or written  by  any one of such persons in reference  to  their common  intention.  after the time when such  intention  was first entertained by any one of them, is a relevant fact  as against each of the person believed to be so  conspiring, as well  for  the  purpose  of proving  the  existence  of  the conspiracy  as  for the purpose of showing  that  any   such

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person was a party to it."                                                    PG NO 95     This Section mainly could be divided into two: the first part  talks of where there is reasonable ground  to  believe that two or more persons have conspired to commit an offence or  an actionable wrong, and it is only when this  condition precedent  is  satisfied  that the subsequent  part  of  the Section comes into operation and it is material to note that this  part  of the Section talks of  reasonable  grounds  to believe that two or more persons have conspired together and this  evidently  has  reference to Sec. 120-A  where  it  is provided "When two or more persons agree to do, or cause  to be  done." This further has been safeguarded by providing  a proviso  that no agreement except an agreement to commit  an offence  shall  amount to criminal conspiracy.  It  will  be therefore  necessary that a prima facie case  of  conspiracy has to be established for application of Sec. 10. The second part  of Section talks of anything said, done or written  by any one of such persons in reference to the common intention after the time when such intention was first entertained  by any one of them is relevant fact against each of the persons believed  to  be so conspiring as well for the  purpose  for proving  the existence of the conspiracy as for the  purpose of  showing  that any such person was a party to it.  It  is clear  that  this second part permits the  use  of  evidence which  otherwise  could  not be  used  against  the  accused person. It is well settled that act or action of one of  the accused could not be used as evidence against the other. But an  exception  has been carved out in Sec. 10  in  cases  of conspiracy.  The  second part operates only when  the  first part  of the Section is clearly established i.e. there  must be  reasonable  ground to believe that two or  more  persons have conspired together in the light of the language of Sec. 120-A. It is only then the evidence of action or  statements madeby one of the accused could be used as evidence  against the  other.  In Sardar Sardul Singh Caveeshar  v.  State  of Maharashtra, [1964] 2 SCR 378 Subba Rao, J. (as he then was) analysed  the  provision of Sec. 10 and made  the  following observations:     "This  section, as the opening words indicate will  come into  play  only when the Court is satisfied that  there  is reasonable  ground to believe that two or more persons  have conspired  together  to commit an offence or  an  actionable wrong,  that  is  to  say, there should  be  a  prima  facie evidence that a person was a party to the conspiracy  before his acts can be used against his co-conspirators. Once  such a  reasonable ground exists, anything said, done or  written by  one  of  the conspirators in  reference  to  the  common intention,  after  the said intention  was  entertained,  is relevant  against  the others, not only for the  purpose  of proving  the    existence  of the conspiracy  but  also  for providing  that  the  other person was a party  to  it.  The evidentiary  value  of  the  said acts  is  limited  by  two circumstances,  namely, that the acts shall be reference  to their common intention and in respect of a period after such intention was entertained by any one of them. The expression ’in   reference   to  their  common   intention’   is   very comprehensive and it appears to have been designedly used to give it a wider scope than the words ’in furtherance of’  in the  English  law; with the result, anything said,  done  or written  by  a  co-conspirator,  after  the  conspiracy  was formed,  will  be  evidence against  the   other  before  he entered  the  field  of conspiracy or  after  he   Left  it. Another  important  limitation implicit in the  language  is indicated by the expressed scope of its relevancy.  Anything

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so said, done or written is a relevant fact only ’as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of he conspiracy as for the  purpose of showing that any such person was a party  to it.’  It  can be used only for the purpose  of  proving  the existence  of the conspiracy or that the other person was  a party to it. It cannot be used in favour of the  other party or  for the purpose of showing that such a person was not  a party  to  the  conspiracy. In short,  the  Section  can  be analysed  as  follows:  (1) There shall  be  a  prima  facie evidence  affording  a  reasonable ground  for  a  Court  to believe   that  two  or  more  persons  are  members  of   a conspiracy; (2) if the said condition is fulfilled, anything said,  done  or written by any one of them in  reference  to their  common intention will be evidence against the  other; (3)  anything said, done or written by him should have  been said, done or written by him after the intention was  formed by  any one of them; (4) it would also be relevant  for  the said  purpose  against another who  entered  the  conspiracy whether  it was said, done or written before he entered  the conspiracy  or  after he left it; (5) it can  only  be  used against a conspirator and not in his favour."                                                     PG NO 96     In  the light of these observations and the analysis  of Sec.  10  we  will  have to  examine  the  evidence  led  by prosecution in respect of conspiracy.     We first take the case of Balbir Singh. Balbir singh was an  officer  of  the  Delhi  Police  in  the  cadre  of  Sub Inspector.  He was posted on duty at the PM’s  residence  on security. On 31.10.84 in the morning he was not on duty  but his  duty was to commence in the evening and on that day  at Akbar Road gate it appears that when he reported for duty in the normal course he was asked to go to the Security  Police Lines  and  at  about  3 A.M. on November  1,  1984  he  was awakened  from  his sleep and his house was searched  by  SI Mahipal  Singh,  PW  50, Constable Hari  Chand,  PW  17  and Inspector- Shamsheer Singh. Nothing except a printed book on Sant  Bhindrawale  Ex. PW l7A was recovered. It  is  alleged that  about 4 A.M. he was taken to Yamuna Velodrome. He  was kept  there till late in the evening when he is reported  to have  been  released. This custody in  Yamuna  Velodrome  is described  by Sh. Kochhar, PW 75 as ’de facto custody.’  But there  is no evidence or no police officer examined  to  say that  he  allowed  this  accused to go  in  the  evening  on November  1,  1984. Thereafter he is alleged  to  have  been arrested  on December 3, 1984 at Nagafgarh  Bus-stand.  When his  personal  search was taken and  certain  articles  were recovered  from  his possession including a piece  of  paper which  is  Ex. PW 26B. On December 4, 1984 he  was  produced before  the Magistrate who remanded him to  police  custody. Thereafter  it  is alleged that he expressed his  desire  to make a confession but when produced before the Magistrate he refused to make any statement.                                                     PG NO 97     The allegations in the charge-sheet against this accused if summarised are: that Balbir Singh like the other  accused persons  has  expressed his resentment openly  holding  Smt. Indira  Gandhi responsible for the ’Bluestar Operation’.  He was  planning  to commit the murder of Smt.  Gandhi  and  he discussed  these matters with Beant Singh deceased  who  had similar  plan  to  commit the murder.  He  also  shared  his intention  and prompted accused Satwant Singh to commit  the murder of Smt. Gandhi and finally discussed the matter  with him on Oct. 30, 1984. In the first week of September, 1984 a falcon (baaz) happened to sit on the tree near the Reception

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gate of the Prime Minister’s house in the afternoon at about 1.30  P.M. Balbir Singh spotted the falcon and called  Beant Singh  there.  Both  of them agreed that it  has  brought  a message  of  the  Tenth Guru of Sikhs that  they  should  do something  by  way of revenge of the  ’Bluestar  Operation’. Thereafter they offered ’Ardas’.     These  allegations,  the prosecution  has  attempted  to prove by the evidence of the following witnesses:     (i) SI Madan Lal Sharma, PW 13     (ii) Constable Satish Chandra Singh, PW 52                                                    PG NO 98     (iii) Sub Inspector Amarjit Singh. PW 44 and     (iv) Confession of Satwant Singh, PW 11C.     The  prosecution also strongly relied upon the  document Ex.  PW 26B which was recovered from the possession  of  the accused  when  he was arrested at Najafgarh  Bus-stand.  His leave applications which are  Ex. PW 26 E1 to E5 along  with his post crime conduct of absconding  are also relied upon.     According  to the accused, the document Ex. PW  26B  was not  recovered  from  his  possession  as  alleged  by   the prosecution.  He also contests his arrest at Najafgarh  Bus- stand  and says that it is just a make-believe  arrangement. According  to  him, he was all along  under  police  custody right from the day when he was taken to Yamuna Velodrome  on November  1,  1984. In fact he Was all  along  under  police custody  right  from  the day when he was  taken  to  Yamuna Velodrome on November 1, 1984. In fact he was not allowed to go  out and the question of his abscondence does not  arise. He  was also not put any question on abscondence under  Sec. 313 examination.      Now, we will take first, the arrest of this accused on 1st November, It is not disputed that on 1st November late at night his house was searched and a  printed book-Sant  Bhindrawale was seized from his house and he  was brought to Yamuna Velodrome. It is also not in dispute  that the  prosecution  evidence itself indicates  that  upto  the evening the next day he was seen in the Yamuna Velodrome.     It  will  be better here to describe  what  this  Yamuna Velodrome is? From the prosecution evidence what has emerged is  that this is a place where there are number  of  offices but  Police  has reserved a portion of this building  to  be used  for interrogation and investigation. Normally  when  a person  or  a  witness  is  brought  for  interrogation   or investigation  at  a Police Station, some record has  to  be made as there is a general diary although diaries may or may or  may not be filled in but a duty is cast on  the  Station House Officer of a Police Station to maintain the  movements of the Police Officers and also to note down the  activities especially when it is connected with the investigation of an important   case.  But  it  appears  that  all   about   the preliminary  investigation  of  this case was  going  on  at Yamuna  Velodrome, witnesses and persons were brought  here, detained  or  kept,  and interrogated. We do  not  have  any further evidence in regard to this place.     According to the prosecution, this accused was at Yamuna Velodrome upto the evening of that day and thereafter he was allowed  to  go and then he absconded. As a matter  of  fact this part of the story  .RM60     becomes  very  important in view of  the  further  facts alleged  by the  prosecution that the investigating  officer got some information  through some one that this accused who was  wanted would appear at  the time and  place  indicated. But  there is no evidence as to who asked  this  accused  to go.  He was a suspect in the criminal conspiracy. He   could not  have  gone  away of his own  accord.  Some  responsible officer  must have taken the decision but it is  unfortunate

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that no officer has  been examined to state that "1  thought that his presence was not  necessary and therefore 1 allowed him  to go." Learned Additional Solicitor General  appearing for the State before us also was asked if he  could lay  his hands  at  any  part  of the evidence  of  any  one  of  the witnesses  who  could say that before him  this  person  was allowed  to  go   from the Yamuna  Velodrome.  There  is  no evidence  on this aspect of the matter at all and  therefore we  are  left with the only evidence that  this  person  was arrested at midnight in the late hours on Ist November   and was  carried to Yamuna Velodrome and was seen there by  some prosecution witness till the evening of the next day.                                                     PG NO 99     Then  the  other aspect of the matter which is  of  some importance  is about the prosecution allegation that he  was absconding from Ist or  IInd November till 3rd Dec. 1984. It is  significant  that  no  witness  has   been  examined  to indicate  that  he  went  to find  him  but  either  at  his residence  or at any other place’ in search of him and  that he was not  available. There is also no evidence produced to indicate   that   in  spite   of  the   fact   that   during investigation  police wanted to arrest him again but he  was not  available  at  his  known address.  It  is  perhaps  of absence  of evidence as to absconding the trial  court  when examined  this   accused under Sec.313 did not put  him  any question  about his abscondence. it is therefore  clear  that the  abscondence as circumstance  could not be used  against him.     Let  us  now examine the story of the  prosection  that accused  was arrested at Najafgarh Bus-stand. It is  alleged that  Sh.  Kochhar,  the  Investigating  Officer  got   some information  that accused  was  expected to appear  at  that place  on 3rd December, 1984. It was not  immediately  after the assassination. It was after a month.  The people   could come  forward to become witness. But no independent  witness has  been examined in support of the arrest or seizure  from the accused. It may be as technically argued by the  learned Additional  Solicitor  General that the presence  of  public witness  under the scheme of Code of Criminal  Procedure  is required when there is search and seizure from the house  or property  of the accused but not when a  person is  arrested and    something    is   recovered   from    the    personal Search.  But it is well-known that in all matters where  the police  wants that the story should be believed they  always get  an  independent witness of the locality  so  that  that evidence  may lend support to what is alleged by the  police officers.  Admittedly  for  this arrest  at  Najafgarh   and for  the  seizure of the articles from the  person  of  this accused  is no other evidence except the evidence of  police officers.  Independent   witness in this case would  be  all the  more  necessary especially in  view of  what  has  been ofund above as his release after the earlier   arrest is not established,  and his abscondence is not proved. In  such  a controversial  situation  the presence  of  an  indep-endent witness  from    the public, if not of the  locality,  would have  lent some support to the case of the  prosecution.  It may  also  be noted that according to Mr Kochhar,  than  the accused  appeared  at the Bus-stand but they have  not  been able to disclose from where he appeared. Whether he got down from a bus, it so from which bus/city or outstation bus? How he       appeared there is all mystery. Nobody  bothered  to notice  of  his  coming. It is said that he had  a  DTC  bus ticket.  Nobody  examined it Perhaps there  was  nothing  to examine  If  the  Police  Officers  had  gone   with   prior information  to  arrest  the  absconding  accused  who   was

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involved  in such an important crime, they could have  taken an   independent witness with them. It is again  interesting to  note  that instead of searching him and  performing  the formalities  of arrest at the place where the  appeared,  he was  taken to a place said to be the office of the    Board. The search and seizure took place there. Some articles  were recovered   from  his  possession.  Most  of  the   articles recovered  are  mere personal belongings. There was  also  a piece  of paper since marked as Ex. PW 26/B. The Police  did not think  it necessary to have an independent witness  even for the seizure memo, when particularly some important piece of evidence was recovered from his possession. The reply  of the learned Additional Solicitor General was that in law  it was not necessary. The Investigating Officer when questioned in cross-examination answered that  nobody, was available or none  was  prepared to be a witness in this  matter.  It  is unthinkable  at  a public place and that too at the  Bus   - stand.  Learned Additional Solicitor General also  attempted to  contend that the c in Delhi after the  assassination  of the.  Prime Minister were such that no witness was  prepared to  come  forward. It appears that for  every  problem  this situation  is brought as a defence but in our opinion,  this would  not help so far as this matter is concerned.  We  are talking  of 3rd December which was more than a  month  after the unrest in Delhi. It is very difficult to believe that  a citizen in this capital did not come forward to be a witness form  seizure  memo.  The  arrest  of-the  accused  in   the circumstances appears to be only a show and not an arrest in actuality.  Learned Additional Solicitor  General  appearing for the State  frankly conceded that if the release of  this accused after his arrest on  Ist November is not established and  his  abscondence is not proved, then the story  of  his arrest on 3rd December with the recovery of the     articles loses all its significance. It is indeed so.                                                    PG NO 100     In  the context of what has been discussed above  it  is apparent that the arrest of the accused on 3rd December  and the recovery of these articles from his person have not been proved  satisfactorily  and therefore could not  be  of  any consequence against this accused.     The  prosecution attempted to prove the recovery of  Ex. PW 26/B on the basis of an entry in the Malkhana Register of Tuglak  Road  Police  Station. Entry  986  in  the  Malkhana Register which is made on December 3, 1984 according to  the learned  Additional Solicitor  General, contains a  verbatim copy  of  the seizure memo Ex. PW 35A and it  indicates  the fact  of recovery of PW-26/B and therefore proves   that  it was recovered from the appellant upon his arrest and  search on  that day. Here again there is an interesting  situation. There  is an  endorsement in the Malkhana  Register  stating that the DTC ticket which the accused carried and the  paper containing  the  dates  in  English Ex.  PW  26/B  were  not deposited. the Malkhana Register therefore is of no help  to the  prosecution. If they were taken back for   any  further investigation  they could have made an entry to that  effect in  the general diary. The nature of entry in  the  Malkhana Register  only shows the recovery of certain articles and  a note  that  the  two  document   although  are  said  to  be recovered  but they were not brought and  deposited  at  the Tuglak  Road  Police  Station. It is  therefore  clear  that although  in  the  seizure  memo  the  mention  of  the  two documents  including Ex. PW 26:B is there, they in fact  did not reach the Police  Station or see the light of the day.     In view of these infirmities we can not accept that  the accused  was  arrested  on 3rd December as  alleged  by  the

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prosecution.  So  the recovery of Ex. PW 36/B  is  doubtful. However,  we may refer to the said documents as it has  been said  to be one of the most important pieces of evidence  as the  High Court has described it. The document can be  taken to  have been written in the handwriting of Balbir Singh  as that is not seriously contested before us. The document is a sheet  of  paper  in  which we  find  certain  entries.  The document  is reproduced at Pages Nos 57-58 of  the  judgment prepared by my learned brother Shetty, J.                                                    PG NO 102     If  this  document is considered to be a  memorandum  of events prepared by this accused relating to his  conspiracy, why  should  he carry it in an  atmosphere  surcharged  with emotion  against the Sikhs. Not only that, this person  knew that he was an accused in such an important case where whole public  opinion  is against him. He also knew  that  he  was absconding  and  he also knew that he was  carrying  in  his pocket  such  an  important piece of evidence.  Was  it  his intention that he should keep it readily available so that h could oblige the  prosecution whenever they needed? There is no  other possible reason why this person should  keep  this document  with  him  all the time. On  our  questioning  the learned  Additional  Solicitor General  about  this  strange behavior of the accused, he also could not explain as to way the  accused could have thought of carrying such a piece  of paper in his pocket.     Apart from it. if the document is looked at as it we see nothing  in it except a mention of few dates and events.  It even does not indicate that with those whether this  accused was  connected  in any manner. It is also  significant  that document was not with this accused when his house was search and he was arrested on the night  of Ist November, 1984.  If the  accused after that arrest was not released at  all  and there was no occasion for him to go away then, one fails  to understand as to how this document came in his possession  ? The explanation suggested by the learned counsel for accused appears  to  be the most probable. As  indicate  from  other evidence, the  accused was preparing to give a statement  or a confession and therefore  fore he was given the notes  and he  must  have  recorded  those  dates  to  facilitate   the statement  that he was planning or he made to made  to  give which ultimately he chose not to give at all.     Looking  to this document the only material which  could be  said to be of some significance is the words ‘felt  like killings.  But there is no reference after those  words  was intended  to  be killed. There is also no indication  as  to whose  feeling are noted in this piece of paper.  There  are entries  in  this document which refer  to  meeting  visits. persons, visiting somebody’s house but it is not clear as to whom  they  refer and what intended when this  reference  is made. Beant Singh has been referred to in this document more than  in  one place. At one place, there is a  reference  to beant  Singh  with eagle. But there  is no  reference  to  a joint Ardas or this accused or Beant Singh telling  that  it had brought a message or they should take revenge. The entry does  not suggest that the accused has anything to  do  with the eagle. If there is anything, it is against Beant Singh.                                                    PG NO 103     A  perusal of this whole document also shows that  there is  no reference at all to Beant Singh and his plan to  kill the  Prime Minister. Nowhere it is mentioned about the  bomb or grenade with which the accused was planning to  eliminate the  Prime Minister before 15th August, 1984. There is  also no reference about Beant Singh conspiring with this  accused or  vice-versa. Kehar Singh is not at all in  the  document.

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Satwant   Singh,   however,  is   mentioned   against   30th October.But  it  does  not give  an  indication  where?  The prosecution  has connected    it with the evidence of PW  52 who was the Sentry in the Prime Minister’s security. We will consider the evidence of this witness a little later.     Under  these circumstances it is very clear that  except the mention of ‘Bluestar Operation’ and ‘felt like  killing’ there   is  nothing  in  this  document  which  is  of   any significance.  If  the  document is read as it  is,  we  see nothing incriminating against this accused unfortunately  it appears  that the High Court read in this document what  was suggested by the prosecution without considering whether  it would  be accepted or    not in the absence of  evidence  on record. Admittedly, there is no such evidence at all in this case.     Satish  Chandra Singh, PW 52, who has been  produced  to prove the meeting of Balbir Singh with Satwant Singh Was for the  first time examined during the investigation on  7.2.85 that  is after the trial and commenced. He has  stated  that when  he was on duty on October 30, 1984 Satwant singh  came and talked to Balbir Singh. But he frankly admitted that  he could  not  follow  what  they talked as  he  did  not  know Punjabi. What value we could attach to the testimony of this witness.It is impossible to believe him.     In view of what we have noticed, even if the document is accepted to have been written by the accused, still there is nothing is on the basis of which an inference of  conspiracy could be drawn. There must be evidence to indicate that  the accused  was in agreement  with the other accused person  to do the act which was the ultimate object which was  achieved on 31.10.1984. This document therefore although described by the learned judges of the High Court as very important piece of evidence is nothing hut a scrap of paper.                                                    PG NO 104     Excluding from consideration this recovery of a piece of paper Ex.PW 26/B, what remains has been analysed by the High Court in the judgment in the following words :     "Summing  up  then  the evidence  against  Balbir  Singh leaving out of account for the time being the confession  of Satwant Singh and the evidence of Amarjit Singh the position is as follows:     He  was an Officer on security duty at the  PM’s  house. He knew Beant Singh and Satwant Singh as well. He shared the indignation of Beant Singh against Smt.Gandhi for ’Operation Bluestar’,  and was in a mood to avenge the same.He went  on leave  on  25.6.84 to 26.7.84. On his return  he  met  Beant Singh and Amarjit Singh. He was present on the  occasion  of the  appearance of eagle and their association on that  date is  borne out by Ex. PW 26/B. He is known to have talked  to Satwant Singh on 30th October, 1984."     Unfortunately, the learned Judges of the High Court when they  came  to the conclusion that Balbir Singh  knew  Beant Singh and Satwant Singh well, have not referred to any piece of evidence in this    case which establishes that they knew each  other well. The learned Additional  Solicitor  General appearing  for the State also has not been    able to  point out  any piece of evidence on the basis of which this  could be  inferred. This accused being a Sikh also is referred  to but  there were number of Sikh officers posted at the  house of  the Prime Minister and merely because he was a  Sikh  it could  not be said that he became a party to the  conspiracy or  he was in conspiracy or he knew Beant Singh and  Satwant Singh  well. Similarly as regards the observations  made  by the High Court that Balbir Singh shared indignation of Beant Singh  against Smt. Gandhi and was in a mood to  avenge  for

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the  ’Bluestar Operation’, there is no evidence  to  support it.  From  the testimony of SH Madan Lal Sharma, PW  30  all that we could gather is that after the ‘Bluestar  Operation’ Balbir Singh was in an agitated mood and he used to say that the  responsibility  of damaging the Akal  Takht  lies  with Smt.  Gandhi and it would be avenged by them. From  this  it cannot be inferred that Balbir Singh wanted to take  revenge against  the Prime Minister along with Beant Singh. This  is not  what is said by the witness. If expression of anger  or protest  on the ‘Bluestar Operation’ could be    used  as  a piece of evidence or a circumstance against accused then all that  members of the Sikh community who felt  agitated  over the  ‘Bluestar Operation’ must be held as members of the conspiracy.                                                    PG NO 105     So far as taking leave is concerned there is nothing  on the basis of which any significance could be attached to it. There  is  no  material to indicate that  during  the  leave Balbir  Singh met Beant Singh or any one else or was in  any manner connected with the conspiracy or was doing  something in  pursuance of the agreement of conspiracy  between  them. Merely because on certain dates he was on leave no inference could be drawn. The High Court relied on the fact that after returning  from  leave  this accused  met  Beant  Singh  and Amarjit  Singh  but on this meeting also there is  no  other evidence except the evidence of Amarjit Singh PW 44 which we will deal with a little later.     So far as appearance of falcon and offering of ardas  is concerned  it  is  admitted that  appearance  of  falcon  is considered,  by  the Sikh community, as a  sacred  thing  as falcon is supposed to be a representative of the Guru and if therefore this accused and Beant Singh offered ardas nothing could  be inferred from this alone. As even the  High  Court observed that:     "Nothing  unusual or abnormal about the incident as  any religious   Sikh   seeing  the  appearance   of   a   falcon could offer the Ardas."     So  far  as meeting with Satwant Singh is  concerned  on October,  30,  i984 the only evidence of that  fact  is  the evidence  of  Satish Chandra Singh PW 52 about whom  I  have discussed  little  earlier and nothing more need  be  stated here.     With  this we are now left with the evidence of  Amarjit Singh who is an important witness as per the prosecution. It has come on record  that his statement during  investigation was  recorded thrice; twice by Police under Section 161  and then  under Sec. 164 Cr. P.C. The first statement is Ex.  PW 44 which was recorded on November 24, l984,after 25 days  of the incident and the second statement PW 44 DB was  recorded on  December  l9,  1984.  On December  2l,  1984  the  third statement  PW  44A  under Sec. 164 of the Code  came  to  be recorded. In the first statement there is no involvement  of Balbir Singh. The second statement according to the  witness was recorded at his own instance. He states that it did  not occur to him that assassination was the hand-work of  Balbir Singh and Kehar Singh. After he had learnt about the  firing and  death of Smt. Indira Gandhi he recalled certain  things and  went to Shri R.P. Sharma who recorded his statement  on 24.11.84.                                                    PG NO 106     According  to him, he recalled bit by bit and  that  was the  reason,  he gave the subsequent two statements.  If  we carefully  peruse  these  statements it is  clear  that  the entire  approach of the High Court appears to be  erroneous. Amarjit Singh PW 44 states before the Court as follows:

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   "In  the  first week of August 1984 1 had  a  talk  with Beant  Singh.  Then he told me that he would  not  let  Mrs. Indira Gandhi unfurled the flag on 15th August. Shri  Balbir Singh  also  used to tell me that if he could get  a  remote control bomb and his children are sent outside India then he also  could finish Mrs. Indira Gandhi. 1 used to think  that he was angry and 1 used to tell him that he should not think In  these terms. In the third Week of October, 1984,  Balbir Singh  told me that Beant Singh and his family have been  to the  Golden  Temple along with Kehar Singh his  Phoopha.  He further  told that Beant Singh and Constable  Satwant  Singh had  taken Amrit in Sector 6, R.K. Puram, New Delhi  at  the instance of’ Kehar Singh."     In his first statement PW 44 DA which has been exhibited during   his  cross  examination  admittedly  there  is   no reference  to Balbir Singh at   all. No reference to  Balbir Singh  telling the witness that if he could   get  a  remote control  bomb  and his children are sent outside  India.  he could also finish Mrs. Indira Gandhi there he has stated     "In  the end of September, I984 SI Balbir Singh  met  me once  in the Prime  Minister’s house and told me that  Beant Singh wanted to kill the Prime Minister before 15th  August, he  (Beant  Singh) agreed to kill her a grenade  and  remote control  but  this task was to be put off because  the  same could  not  he arranged. Actual words being  In  do  cheeson ka intezam nahin ho saka isliye  baat gayi.’     Similarly in his earlier statement Ex. PW 44DA what this witness said   Was:     "In  the third week of October, 1984 Beant Singh SI  met me  and  told  me  that  he  had  procured  one   Constable. Actual  words  being  ‘October 1984  ke  tisare  hafte  main Beant  Singh  mujhe  mila  usne bataya  ki  usne  ek  sipahi pataya  hai’  and  that now both of them would  put  an  end Smt. Indira Gandhi’s life very soon.’’                                                    PG NO 107     These  portions  of  the statement which  were  put  and proved from Amarjit Singh as his first statement recorded by the police clearly go to show that he had only alleged these things against Beant Singh. What he did later was to improve upon  his  statement  and introduce  Balbir  Singh  also  or substitute  Balbir Singh in place of Beant Singh.  The  only other  inference  is  that he was himself a  party  to  that conspiracy. Otherwise there is no explanation why he  should keep on giving statement  after statement, that too after 25 days  of the incident. The second statement was recorded  on December  19 and a third statement on December 21, 1984.  It clearly shows that he was a convenient witness available  to State  whatever  was desired from him. He appears  to   have become  wiser  day  by day and remembered  bit  by  bit,  is certainly interesting to remember.     It could not be doubted that the two versions given  out by  this  witness  are  not  such  which  could  easily   be reconciled.  In fact in his first version there  is  nothing against  Balbir Singh. In his second statement he has  tried to introduce things against him. This apparently is a  clear improvement.  It is well-settled that even delay is said  to be  dangerous  and if a person who is an  important  witness does  not  open his mouth for a long time  his  evidence  is always looked with suspicion but here  we have a witness who even after 25 days gave his first statement and said nothing against  the  present accused and then even waited  for  one more  month and then he suddenly chose to come out with  the allegation  against this accused. In our opinion, therefore, such  a witness could not be relied upon and even  the  High Court  felt  that  it would not    be safe to  rely  on  the

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testimony of such a witness alone.     Apart from it, the evidence which he has given is rather interesting   According to him Beant Singh and Balbir  Singh were  so  close to him that they used to keep  him  informed about  their  plans  to assassinate the  Prime  Minister  of India.  But  relation with Balbir was such that he  was  not even invited when Balbir Singh was married and therefore  it was  nothing but casual but still he claims that he  had  so much  of  chose  association that he used  to  be  taken  in confidence by these two  persons. That means that he is  one of  the conspirators or otherwise he    would not have  kept quiet  without  informing  his  superiors  as  it  was   his duty to do when the Prime Minister was in danger.     In  view of this, it is clear that there is no  evidence at  all  to  establish prime  facie  participation  of  this accused  in conspiracy or any evidence to indicate  that  he had entered into any agreement to do an  unlawful act or  to commit  an  offence alongwith the  other  accused   persons. Therefore,  in  absence of any evidence in  respect  of  the first  part  of Sec. 10 which is necessary it could  not  be contended  hat the confession of Satwant Singh could  be  of any avail or could be used against this appellant.                                                    PG NO 108     Before parting with this witness, one more thing may  be noted. The High Court, in order to explain that this witness Amarjit  Singh did  not refer to Balbir Singh in  his  first statement   on  24.11.84  stated  something  thing  out   of imagination.  The  High Court has quoted  his  statement  on 24.11.84 in these words:     "He  is also reported to have said that Beant Singh  had wanted  to  kill  Smt.  Gandhi before  15th  of  August  and that  he had agreed to do so if grenade and  remote  control were available."     In  this context, the use of the word  ‘agreed’and  word ‘he’  the High Court felt that they  refer to  Balbir  Singh and  none else. This appears to be an explanation  given  by Amarjit  Singh in his statement in Court and the High  Court felt that it could accept it. It is clear that where he says ’agreed’  and ’he’ in his statement on November 24, 1984  he had not named Balbir at all. It is only now in his statement at  trial that he grew wiser and made an attempt by  way  of this  explanation.  It is rather unfortunate that  the  High Court  felt that this explanation should be   accepted.  The statement  against  Balbir  coming for  the  first  time  on 2lst  December,  1984  itself in the light  of  the  settled criminal  jurisprudence of this country ought to  have  been rejected   outright.   Secondly,  the   High   Court   found corroboration  from the confession of Satwant Singh. So  far as   the   statement   of  the  c  of   Satwant   Singh   is concerned,  it could not be used against this accused as  we have earlier  indicated.     Thirdly  so far as falcon incident is concerned,  we  do not  know   how  the  High Court  felt  that  that  incident corroborates  the  evidence of Amarjit  Singh  when  Amarjit Singh alone talks of the falcon incident. There is no  basis for this conclusion of the High Court.     Lastly,  it may be noted that so far as this accused  is concerned,  even Bimla Khalsa, the wife of Beant Singh  does not mention anything.     In the light of the discussion above, in our opinion, so far as this accused is concerned there is no evidence at all on the basis of which his conviction could be justified.  He is therefore entitled to be acquitted.                                                    PG NO 109     Kehar Singh

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   The finding of guilt recorded by the High Court  against Kehar   Singh is a mixture of both relevant  and  irrelevant evidence adduced by  the prosecution. We will consider  only those  that  are  most  important   and  relevant.  Material evidence  against  Kehar Singh is the evidence  of   PW  65, Bimla  Khalsa wife of Beant Singh. She was examined  by  the Police  on  16th  January, and  l9th   january,  1985.  This although  has been declared but her statement could  not  be discarded  in toto merely because on certain  questions  she has  chosen  not to support . It is true that her  statement for  the  first  time during investigation was  recorded  on 16th  January, 1985 but it  not be disputed that  after  all she is the wife of the main accused    in this case. She has lost  her  husband on 3 lst October. She was  placed   in  a situation  where  it would have been difficult  for  her  to compose  herself  in a manner in which she  could  give  her statement  immediately. It is nobody’s case that she has any grudge against anybody.     Important circumstances which emerge from the  testimony of  this witness are:     (i)  She was married to Beant Singh in 1976 through  the good  offices of her maternal uncle Gurdeep Singh.     (ii)  Kehar Singh’s wife Jagir Kaur hailed from  Matloya and  she   (Bimla) used to call Kehar Singh and  Jagir  Kaur Phoophi and Phoopha  and there was close friendship  between the two families. Rajendra singh son of Kehar Singh who  was a friend of Beant Singh and often  used to have drinks  with him.  In her statement in Court later she also  stated  that the wives of Rajendra Singh and Shamsher Singh, brother   of Beant  Singh  belonged to the same ‘biradari’.     (iii)  Kehar  Singh started visiting  their  house  more often after the ‘Operation Bluestar’. Beant Singh and  Kehar Singh had talked about  the destruction of the Akal Takht in the  Golden  Temple complex on  two or three  occasions  but became silent when she came.     (iv) In the last week of July, Beant Singh told her that he had gone to the Gurudwara at Moti Bagh at the instance of Kehar  Singh   and that they heard  highly  provocative  and inciting  speeches there.  Beant Singh has told her that  he would become a "Shaheed" and that  she should look after the children  or God will look after them but he never told  her that he wanted to kill Smt. Indira Gandhi.                                                    PG NO 110     (v) In the middle of September, 1984 the birthday of the grandson  of  Ujagar  Singh Sandhu  was  celebrated  at  his residence  at Moti Bagh.  Though they had not  received  any invitation,  at  Kehar Singh’s instance  they  attended  the party where many inciting speeches were delivered.     (vi)  On 13.10.84 her husband told her that he would  be taking Amrit on 14.10.84 and when she asked for the  reason, he told her that it was in order go give up drinking.     (vii)  On  17.10.84 she was sent to Gurudwara  Sis  Ganj alongwith   Kehar Singh and Jagir Kaur to take  Amrit  there which she did.     (viii)  On the evening of 17.10.84 Kehar Singh came  and was  closeted together with Beant Singh on the roof  of  the house for 15 to minutes. Satwant Singh who had come to their house  on  the two earlier occasions in the  first  week  of October,  also came. First two talked in low tone and  later all the three had meals together. She asked Kehar Singh what they  were talking about on the roof. He said it  was  about asking to take Amrit. When she said why it needed to be kept secret  from her, he became silent but he complained to  her husband later about her having questioned him.     (ix) On 20th October, 1984 Beant Singh’s family went  to

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Amritsar  with  Kehar Singh and his wife.  Originally  Beant Singh  Kehar  Singh had intended to go alone. She  has  said that  she would also like to go there and that all  of  them could go in , 1985. Then he insisted that she should also go with.  it  was decided that Jagir Kaur should  also  go.  At Amritsar they stayed with one M.R. Singh that evening  while Bimla  Khalsa and children and Jagir Kaur were listening  to Kirtan,  Beant  Singh  and  Kehar  Singh  went  to  see  the Takht. She also wanted to go but she was told she could  see it  next morning. Next morning also, Beant Singh  and  Kehar Singh left for Akal Takht early in the morning leaving  them to follow later.  When they were all there again Beant Singh and  Kehar  Singh went away somewhere and returned  3  to  4 hours later. On their way back again the two went away alone to  some place for a few minutes. They purchased a  cassette and a photo of Bhindrawale. Beant Singh stayed behind saying that the meet some one and join them at the railway station. They returned to Delhi on 2 lst October, 1984.     (x) On 24.10.84 Beant Singh insisted on her Taking Amrit again  at  R.K. Puram Gurudwara but she  refused.  After  he returned  from  the A night duty he went  alongwith  Satwant Singh on a Scooter.                                                    PG NO 111     There  is  only  one  variation  between  the   previous statement   and   evidence  in  Court.   That   relates   to identification of Satwant Singh. In the Court she  attempted to  say that he was a boy and later explained that  at  that time  he  had no beard but the manner in which the  boy  has been  described and the occasions when the boy had  come  to their house,  there is hardly any doubt left. Apart from  it, so  far as Satwant Singh is concerned even if we omit the  of Bimla  Khalsa,  IT  IS not material. But  it  could  not  be doubted that from her evidence that the above  circumstances have been established.     Next important circumstance is the ’Vak’. It is  alleged that  when early morning the worship starts in a  Gurudwara, the Granth Sahib, is opened at random and some message  from a page which is so opened is written on the blackboard as  a ‘Vak’ for the day. It proved by Bimla Khalsa that Ex. P  55A was  written.  in the handwriting of Beant Singh. It  was  a ‘Vak’ of a particular day which was in the following  terms: "One  gets  comfort on serving the Guru.  Then  miseries  do not  come  near.  Birth and death come to  an  end  and  the black (wicked) do not have effect.     About this ‘Vak’ having been taken out in the Gurudwara, there is. some controversy as the witness produced for  that purpose  Surenda Singh, PW 55 was not in a position  produce the  diary but so far as Beant Singh is concerned. the ’Vak’ written  by  him   on  a piece of paper  in  Yellow  ink  in Gurmuukhi  with date 13.10.84 was put on it has been  proved by  the evidence of Bimla Khalsa. This was admittedly  found from  the  quarters of Beant Singh on 31.10.84  and  it  was lying inside the book ‘Sant Bhindrawale’.     As  far  as the incident on 17th October  is  concerned. Bimla  Khalsa  in clear terms stated that  Kehar  Singh  and Beant singh had secret talks. She wanted to know it, but she was  not given to understand This kind of secret  talk  with Beant  Singh  which Kehar Singh had, is a  very  significant circumstance.  Apparently Kehar Singh began  elderly  person did not indicate to her about their plan. If the attempt  of Kehar  Singh  was  to dissuade Beant Singh  then  there  was occasion for him to keep the matter secret from his wife. On the contrary he should have indicated to his wife also  what Beant Singh was planning. These talks therefore as proved by Bimla Khalsa go a long way in establishing Kehar Singh being

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a party to the conspiracy.                                                    PG NO 112     Her evidence also indicates that Beant Singh took  Amrit on  14th and Beant Singh kept his golden ‘kara’ and ring  in the  house of Kehar Singh which has been recovered from  the latter.  It clearly goes to show that Kehar Singh  knew  why Beant  Singh  took Amrit and why he handed over  the  golden ’kara’ and ring to him. It is also clear from the   evidence of  Bimla Khalsa that between Beant Singh   and Kehar  Singh on Z4th was not conveyed to her and she was kept in   dark.     In this background, the trip to Amritsar of Beant Singh, Kehar   Singh and their families is of some significance. On October  20,  1984   Beant Singh and Kehar  Singh  alongwith their  family members went to   Amritsar. There is  evidence indicated by Bimla Khalsa that originally   Kehar Singh  and Beant Singh wanted to go alone but ultimately they    agreed that  the  families also could accompany. According  to  the evidence  of Bimla Khalsa they reached at Amritsar at  about 2  to  3 P.M.   and went to Darbar Sahib  Gurudwara  in  the evening  of 20th October.   While ladies and  children  were listening  to kirtan, Beant Singh and   Kehar Singh went  to see the Akal Takht. Bimla Khalsa wanted to   accompany  them to see the Akal Takht but she was told to see the   same  on the next morning. On the next morning i.e. on 2 lst October, pW  53  was woken up by Kehar Singh and told that  he  would attend   ‘Asaki  War  Kirtan’  in  Darbar  Sahib.  He   went alongwith  Beant  Singh.   The ladies and children  went  to Darbar Sahib at 8 A.M. alongwith PW   53. They returned home at  11  A.M. Beant Singh and Kehar Singh  did    not  return alongwith  them.  After  lunch, PW 53 took  the  ladies  and children to the railway station. Beant Singh and Kehar Singh did   came to the railway station from where they caught the train  to New   Delhi. The attempt of these two  persons  to keep  themselves  away from the company of their  wives  and children speaks volume about their sinister designs. The way in  which these two avoided the company of   the members  of the family and PW 53 at whose residence they were    staying and  the manner in which they remained mysterious if  looked at  with  the secret talks which ’they had in the  house  of Bimla  Khalsa   earlier goes to establish that the two  were doing   something  or  discussing  something   or   planning something  which they wanted to keep it as   a  secret  even from Bimla Khalsa.                                                    PG NO 113     So  far  as  ‘Amrit Chhakna’ ceremony  is  concerned  or taking    Amrit  is  concerned, ordinarily  it  may  not  be significant.  It is only a ceremony where in a Sikh takes  a vow  to  lead the life of purity and giving  up  all  wordly pleasures  and  evil  habits but  this  unfortunately  is  a situation  which could be understood in different ways.  The manner in which Amrit has been taken by Beant Singh and even Satwant Singh has been made to take it and even Bimla Khalsa made to take it makes it significant that in all these three of Amrit taking Kehar Singh was always with them or at least it  could  be said, was inspiring them to have it.  It  also indicates  that  there was something in the  mind  of  Beant Singh which was known to Kehar Singh and which he even tried to keep a secret from Bimla Khalsa, wife of Beant Singh  and wanted Beant Singh to have a full religious purification and confidence.     There is yet another circumstance. Post-crime condUct of Kehar Singh. It is in the evidence that on the day i.e. 3lst October, 1984 although Kehar Singh claims to be on leave, he goes  to the office at10.45 A.M. and at that time  when  the news  reached  in the Office about the assassination  PW  59

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inquired  from  Kehar Singh as to what had  happened?  Kehar Singh replied in these words:     "Whosoever  would take confrontation with the Panth,  he would meet the same fate. "This remark shows his guilty mind with that of Beant Singh.     We have discussed some of the main features of the  case and  it  is not necessary for us to go  into  other  details which the High Court has  discussed. These circumstances  by themselves indicate that Kehar Singh was a co-conspirator  to assassinate Mrs. Gandhi. Satwant Singh     He was a Constable on security duty at the residence  of the Prime Minister.     He  was charged under Sec. 302 read with Sec. 120-B  and Sec. 34 for murdering the Prime Minister Smt. Indira Gandhi, secondly  under  Sec.  307  for  attempting  to  murder  one Rameshwar Dayal, PW 10 and under Sec. 27 of the Arms Act. To prove these charges, prosecution has examined Narain  Singh, PW  9,  Rameshwar Dayal PW 10 and Nathu Ram  PW  64  besides Sukhvir  Singh  PW 3 and Raj Singh PW 15.pW Z7  has  deposed about the history as to how this person was in the Police in 1982 and how he happened to come to be Posted at Teen  Murti Lines  and there after in the security duty with  the  prime Minister.  PW  Duty  Officer at the  Teen  Murti  Lines  has                                                    PG NO 114 deposed  that  DAP personnel was placed on duty  at  various duty points    at the PM’s house on weekly basis from Friday to  Friday  by  Head    Constable Dayal  Singh  the  Company Havaldar. The daily duty maintained at Teen Murti Ex. PW 4-C shows  that  Entry No. 85 that on the  morning  of  31.10.84 Satwant  Singh  was put on duty at Gate No. 4 in  the  Akbar Road  House and not the TMC Gate and this entry is  continue firmed by Ex. PW 15 Daily Diary Clerk at that time. The arms and  ammunition register Ex. PW 3A at Teen Murti Lines  also shows that    Satwant Singh was issued an SAF Carbine having But No. 80 along with five magazines and hundred live rounds of .99 of ammunition. He    signed the register in token  of the  receipt.  PW 3, the Armory    Incharge  confirms  this. There  is  also  evidence  to  indicate  that  this   person manipulated  his  duty  and was put on the  TMC  gate  where ultimately  the  incident took place on the morning  of  31. 10.84.     The  main  evidence  against  him  is  evidence  of  eye witnesses. The first eye witness which I would like to refer is Narain Singh PW 9. This    witness stated that he was  on duty  at  about  7.30  A.M. in the  porch  of     the  Prime Minister’s  house. According to him at 8.45 A.M. he with  an umbrella took up his position near the entry gate as he came to  know that Smt. Gandhi had to go to No. 1, Akbar Road  to meet certain    foreign TV representatives and he was to  go alongwith her holding an    umbrella to protect her from the sun.  At  9.10. A.M. Smt. Gandhi came    out  of  the  house followed  by Nathu Ram PW 6 and her Private  Secretary  Shri R.K. Dhawan. There he moved over to the right side and  held the umbrella Ex. P 19. They approached the TMC Gate and when they   were about 10 ft. therefrom he saw that the gate  was open  and  he also    saw Beant Singh on the left  side  and Satwant Singh on the right side. the former in a Safari Suit and  the later in the uniform and with a    Carbine  stengun in  his  hands.  At  that time  Beant  Singh  took  out  his revolver  from  the right dub and fired at Smt.  Gandhi  and immediately    thereafter Satwant Singh also started  firing at her. Smt. Gandhi was hit    by these bullets and injured. She fell down on the right side. Seeing    this he threw the umbrella  on  the  left  side, took  cut  his  revolver  and

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jumped  on Beant Singh. As a result of which  revolver  fell from the    hands. He saw Satwant Singh throwing his Carbine to the ground on    his right side. At that time Shri Bhatt, the  personal  guard of Smt.    Gandhi  and  ITBP  personnel arrived there and secured Satwant Singh. Some other  persons also came and secured Beant Singh. He then ran    to  summon the  doctor  and  while going,  he  noticed  that  Rameshwar Dayal  PW 10 had also sustained bullet injuries. The  doctor himself  came  running by then. He, Bhatt,  the  doctor  and Nathu  Ram took her    to the escort car which  had  arrived near and placed her in the rear seat.                                                    PG NO 115     By  this  time, Smt. Sonia Gandhi had also  arrived  and Smt. Gandhi was taken to AIIMS accompanied by Bhatt,  Dhawan and  Fotedar on the seat and the doctor and Sonia Gandhi  on the back seat. He went to the Hospital in a staff car and PW 10  was taken to AIIMS in another . There she was  taken  to the  eighth floor and he was given the duty controlling  the crowd. At about 10 or 10.15 A.M. R.P. Kochhar, PW 73 arrived and  this  witness  gave  a  statement  to  Kochhar  in  the doctors’  room which was recorded by him and sent to  Tuglak Road Police Station which is the FlR in this case.     His  testimony is corroborated by the First  Information Report  and  also by the two other eye  witnesses  Rameshwar Dayal and Nathu Ram whose presence on the spot could not  be doubted.  Nathu  was  in the personal  staff  of  the  Prime Minister  and  Rameshwar Dayal  himself  received  injuries. Apart  from  it,  this evidence of  direct  witnesses  finds corroboration  from  the  post-mortem  report,  recovery  of cartridges  and  arms on the spot and the  evidence  of  the Doctor  and the expert who tallied the bullets. Under  these circumstances  even  if  the  confession  of  this  appelant Satwant  Singh is not taken into consideration, still  there is enough evidence which conclusively establish his part the offence  and in this view of the matter there appears to  be no  reason to interfere with the conclusions arrived  at  by the two courts below. In our opinion, therefore, the  appeal of Satwant Singh deserves to be dismissed.     Then  is  the question of sentence which was  argued  to some  extent. But it must be clearly understood that  it  is not a case where X is killed by Y on some personal ground or personal  vendatta. The person killed is a lady and no  less than the Prime Minister of this Country who was the  elected leader  of  the  people.  In our  country  we  have  adopted accepted   a  system  wherein  change  of  the   leader   is permissible by and not by bullet. The act of the accused not only  takes  away  the  life  of  popular  leader  but  also undermines our system which has been working so well for the last   forty   years.   There   is   yet   another   serious consideration. Beant Singh and Satwant Singh are persons who were posted on the security duty of the Prime Minister. They are  posted there to protect her from any intruder  or  from any  attack  from outside and therefore if  they  themselves resort  to  this  kind of offence. there appears  to  be  no reason  or no mitigating circumstance for  consideration  on the question of sentence. Additionally, an unarmed lady  was attacked  by these two persons with a series of bullets  and it has been found that a number of bullets entered her body. The  manner in which mercilessly she was attacked  by  these two  persons on whom the confidence was reposed to give  her                                                    PG NO 116 protection   repels  any  consideration  of   reduction   of sentence.  In this view of the matter, even the  conspirator who  inspired  the  persons  who  actually  acted  does  not deserves  any  leniency in the matter of  sentence.  In  our

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opinion,  the  sentence  awarded  by  the  trial  court  and maintained by the High Court appears to be just and proper.     In  the light of the discussions above  Criminal  Appeal No. 180/87 filed by accused Kehar Singh and Criminal  Appeal No.  182/87  filed by accused Satwant Singh  are  dismissed. Conviction  and sentence passed against them are  maintained whereas Criminal Appeal No. 181/87 filed by Balbir Singh  is allowed. Conviction and sentence passed against him are  set aside. He is in custody. He be set at liberty forthwith,  if not wanted in connection with any other case.     RAY,  J.  I have perused the judgments  prepared  by  my learned  brothers  Hon’ble Oza, J and Hon’ble Shetty,  J.  I fully  concur with the views expressed in  these  judgments. However  since the matter is important I like to  deal  with two aspects of the case i.e. whether trial in Tihar Jail  is vitiated  as it infringes the right of the accused  to  have open  public trial and secondly, whether the  confession  of accused   Satwant  Singh  being  not  made  in  the   manner prescribed  under  Section  164  of  the  Code  of  Criminal Procedure is admissible in evidence and whether the same can be relied upon.     A Gazette Notification dated 10.5.1985 was issued  under section  9 (6) of the Code of Criminal Procedure  mentioning that the High Court of Delhi have directed that the trial of this  assassination case shall be held in the  Central  Jail Tihar.  Another  Notification of the same  date  was  issued whereby  the High Court was pleased to order that this  case will be tried by Shri Mahesh Chandra, Addl. Sessions  Judge, New Delhi. This order was made under Section 194 of the Code of  Criminal Procedure, 1973. It was contended on behalf  of the  appellant that Section 9(6) empowers the High Court  to specify  the place where the Sessions Court shall  hold  its sittings  ordinarily. It does not empower the High Court  to direct  the  holding of a court in a place  other  than  the usual  place of sitting in court for trial of  a  particular case.  It  is  only in a particular case  if  the  Court  of Sessions  is  of  opinion that it will be  for  the  general convenience  of  the  parties  and  witnesses  to  hold  its sittings  at  any other place in the Sessions  Division,  it may,  with the consent of the prosecution and  the  accused, sit  at  that place for the disposal of the case.  The  High Court has not been given any such power to order holding  of court  at  any other place  than  the court  where generally                                                    PG NO 117 the  sittings  of the Court of Sessions are  held  or  where usually  the Court of Sessions sit. It was therefore,  urged that the impugned order is wholly bad and arbitrary. It  has also  been  urged in this connection that speedy  trial  and trial  in an open court is fundamental right  guaranteed  by Article  21  of the Constitution of India.  The  holding  of trial in Tihar Jail as directed by the High Court is a clear breach  of  this fundamental right and as  such  the  entire trial is vitiated. It has also been urged in this connection that  an  application was filed  on behalf of  the  accused, Kehar  Singh before the Court on 17.5.1985 objecting to  the holding  of trial in jail. This application, of course,  was rejected  by  order  dated 5.6.1985  by  the  Magistrate  by holding  that the trial in Tihar Jail was an open trial  and there  was no restriction for the public so minded to go  to the place of trial to witness the same. As regards the first objection  the  fixing of the place of sitting of  Court  of Sessions  was trade prior to the enforcement of the Code  of Criminal  Procedure Code Amendment, 1973 by the  executives. Under  the  amended Criminal Procedure Code,  1973,  Section 9(6)  has  conferred power on the High Court to  notify  the

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place  where the Court of Sessions will ordinarily hold  its sittings within the Sessions Division in conformity with the policy of separation of judiciary from the executive. It  is also to be noticed that the High Court may notify the  place or  places for the sitting of the Court of  Sessions.  Thus, the  High Court can fix a place other than the  Court  where the  sittings  are  ordinarily held if  the  High  Court  so notifies  for the ends of justice. Moreover. the use of  the words  "ordinarily" by itself signifies that the High  Court in exercise of its powers under Section 9(6) of the said Act may  order  the holding of court in a place other  than  the court  where sittings are ordinarily held if the High  Court thinks  it  expedient to do so and for other  valid  reasons such as security of the accused as well as of the  witnesses and also of the Court. The order of High Court notifying the trial  of a particular case in a place other than the  Court is not a judicial order but an administrative order. In this case because of the surcharged atmosphere and for reasons of security,  the High Court ordered that the trial be held  in Tihar  Jail. Therefore, it cannot be said that the trial  is not  an open trial because of its having been held in  Tihar Jail  as  there is nothing to show that the  public  or  the friends  and relations of ’the accused were  prevented  from having  access to the place of trial provided the  space  of the court could accommodate them. It is also to be noted  in this  connection that various representatives of  the  press including representatives of international news agency  like BBC  etc.  were allowed to attend the proceedings  in  court subject  to  the  usual  regulations  of  the  jail.  It  is pertinent  to  mention  that  scction 327  of  the  Code  of Criminal  Procedure  provides that any place  in  which  any criminal court is held for the purpose of enquiring into  or trying  any offence shall be deemed to be an open court,  to which  the public generally may have access, so far  as  the same  can conveniently contain them. The place of  trial  in Tihar Jail according to this provision is to be deemed to be an  open  court as the access of the public to  it  was  not prohibited. However, it has been submitted on behalf of  the prosecution  that there is nothing to show that the  friends and  relations  of the accused or any other  member  of  the public was  prevented from having access to the place  where trial  was held. On the other hand, it has been stated  that permission  was granted to the friends and relations of  the accused as well as to outsiders who wanted to have access to the court to see the proceedings subject, of course, to jail regulations.  Section 2(p) Criminal Procedure  Code  defines place  as  including a house, building,  tent,  vehicle  and vessel.  So court can be held in a tent, vehicle,  a  vessel other than in court. Furthermore, the proviso to Section 327 Criminal Procedure Code provides that the Presiding Judge or                                                    PG NO 118 Magistrate may also at any stage of trial by order  restrict access of the public in general, or any particular person in particular in the room or building where the trial is  held. In  some cases trial of criminal case is held in  court  and some restrictions are imposed for security reason  regarding entry into the court. Such restrictions do not detract  from trial  in  open  court. Section  327  proviso  empowers  the Presiding Judge or Magistrate to make order denying entry of public  in court. No such order had been made in  this  case denying access of members of public to court.     Trial in jail does not by itself create any preJudice to the  accused  and  it  will not be illegal.  In  re  T.  R,. Ganeshan,  AIR  1950 (Madras) 696 at 699 it  has  been  held that:-

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   "Section  352 empowers the Magistrate to hold his  court in  any  place, provided it is done publicly and  the  Court premises  is made accessible to the public. there can be  no objection  to  the  holding of the  trial  within  the  jail compound  in the recreation room which is  strictly  outside the jail premises proper.     Where  the public have access to the court-room and  the trial  is conducted in open view. the holding of  the  trial within  the  jail compound will not cause prejudice  to  the accussed and will not be illegal, merely because it  relates to an offence committed within the jail premises, where  the trying  Magistrate  is  in no way connected  with  the  jail department."                                                    PG NO 119     In  the case of Sahai Singh and Others v.  Emperor,  AIR 1917 (Lahore) 311 the trial of the criminal case was held in jail. It was contended that the whole trial was vitiated. It has been held that:-     "There is nothing to show that admittance was refused to any one who desired it, or that the prisoners were unable to communicate  with  their friends Counsel. No  doubt,  it  is difficult  to  get Counsel to appear in jail  and  for  that reason, if for no other, such trials are undesirable, but in this case the Executive Authorities were of the opinion that it would be unsafe to hold the trial elsewhere."     The trial was therefore, held to be not vitiated.     In  Prasanta  Kumar  Mukherjee v. The  State,  AIR  1952 (Calcutta)  91  at 92 the petitioner was  tried  along  with several others on a charge under section 147 I.P.C. and  the trial took place inside the Hooghly Jail. In accordance with the  order  made  by  the  Magistrate  who  was  posted   at Serampore. It was contended by the learned Counsel on behalf of  the accused that the trial inside the Hooghly  Jail  was improper  and prejudiced the accused in his defence. It  was observed that:     "The ordinary rule is that the trials are to be held  in open  Court.  While  there is nothing in law  to  prevent  a Magistrate  by S. 352, Criminal P.C., the very nature  of  a jail  building  and the restrictions which  are  necessarily imposed  on any one visiting jail, would make it  ordinarily impossible  for  a Magistrate to hold open  Court  in  Jail. There may be circumstances in which for reasons of  security for  the accused or for the witnesses or for the  Magistrate himself or for other valid reason the Magistrate may  think, it  proper to hold Court inside Jail building or same  other building  and restrict the free access of the public.  There is  however nothing in the record of this case to show  that there  was any such reason which made the Magistrate  decide in favour of of holding the trial in a jail."     Similar observation has been made in the case of Kailash Nath  AgarwaI and another v. Emperor., AIR 1947  (Allahabad) 436.     This decision has been relied upon in the case of Narwar singh and Ors. v. State, AIR 1953 (Madhya Bharat) 1932.                                                    PG NO 120     In  the  case  of Richmond Newspapers,  Inc.  v.  Common Wealth  of Virginia, United States Supreme Court Reports  65 L.Ed.  2nd  973 before the commencement of fourth  trial  on murder  charges,  counsel for the defendant moved  that  the trial be closed to the public. The prosecutor stated that he had no objection, and the trial court-apparently relying  on a  Virginia  statute  providing that in  the  trial  of  all criminal  cases, "the court may, in its discretion,  exclude from  the trial any persons whose presence would impair  the conduct  of  a fair trial, provided that the  right  of  the

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accused  to  a public trial shall not  be  violated"-ordered that  the courtroom be kept clear of all parties except  the witnesses  when they testified. Later that day  a  newspaper and its two reporters, who had been present at the time  the order was issued but who made no objection, sought a hearing on  a  motion to vacate the closure order.  After  a  closed hearing  on  the motion at which counsel for  the  newspaper argued  that  constitutional  considerations  mandated  that before ordering closure, the court should first decide  that the  right of the defendant could be protected in  no  other way,  the court denied the motion to vacate and ordered  the trial  to  continue  with the  press  and  public  excluded, expressing his inclination to go along with the  defendant’s motion so long as it did not completely override all  rights of  everyone else. Subsequently the Judge granted a  defense motion  to strike the prosecution’s evidence and  found  the defendant  not guilty of murder, and the court  granted  the newspaper’s  motion to intervene nunc pro tunc in the  case. The newspaper then petitioned the Virginia Supreme court for writs  of mandamus and prohibition and filed an appeal  from the  trial court’s closure order, but the  Virginia  Supreme Court dismissed the mandamus and prohibition petitions  and, finding no reversible error, denied the petition for appeal. On certiorari, the United States Supreme Court reversed  the order.  Virginia  Chief Justice who delivered  the  majority judgment  of  the Court expressed the view that there  is  a guaranteed   right  of  the  public  under  the  First   and Fourteenth  Amendments  to attend criminal trials  and  that absent  an overriding interest articulated in findings,  the trial  of  a criminal case must be open to the  public,  and emphasized that in that case at bar the trial judge made  no findings  to  support  closure, no inquiry was  made  as  to whether  alternative  solutions would have met the  need  to insure  fairness, and there was no recognition of any  right under the Constitution for the public or press to attend the trial.     It  has  already been stated hereinbefore  that  in  the instant  case  though the trial was held in Tihar  Jail  for reasons  of  security  of  the accused as  well  as  of  the witnesses  and  of  the  court  and  also  because  of   the surcharged  atmosphere,  there  was no  restriction  on  the public  to attend the Court, if they so  minded.  Therefore, this  trial  in the instant case in Tihar Jail  is  an  open trial  and it does not prejudice in  any  manner  whatsoever the accused.                                                    PG NO 121     It has been urged referring to the case Scott & Anr.  v. Scott,  1911-13 AI E.R. Rep. 1 that the broad  principle  is that the administration of justice should take place in open court  except in three cases such as suits affecting  wards, lunacy  proceedings and thirdly cases where secrecy, as  for instance,  the  secrecy  of  a  process  of  manufacture  or discovery  or invention-trade secrets is of the  essence  of the cause. Therefore, it recognises that in cases where  the ends  of justice would be defeated if the case is not  heard in  camera the court may pass order for hearing the case  in camera.     In the case of Cora Lillian Mc. Pherson v. Oran Leo  Mc. Pherson  AIR 1936 (PC) 246 a divorce suit was heard in  "the Judge’s  Library.  Public  access  to  the  court-rooms  was provided from a public corridor. There was no direct  access to the library, which was approached through a double  swing door  in the wall of the same corridor. One wig of the  door was  always fixed. A brass plate with the word "private"  on it  was attached to it. Both the counsel and the Judge  were

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not in robes, and when the Judge took his seat he  announced that he was sitting in open Court, and that the library,  as the  place of trial there was no intention of  shutting  out anybody  though a regular court-room was available.  It  was held that:     "Every Court of Justice is open to every subject of  the King.  Publicity is the authentic hall-mark of  judicial  as distinct from administrative procedure and a divorce suit is not within any exception. The actual presence of the  public is never of course necessary. The Court must be open to  any who may present themselves for admission."     These  observations were made following the judgment  in the case of Scott v. Scott, (supra).     All  these cases have been considered by this  Court  in Naresh  Shridhar Mirajkar and Ors. v. State  of  Maharashtra and Ar.,[ 1966] 3 SCR 744 wherein it has been observed that:                                                    PG NO 122     "  .  . . . . . . While emphasising  the  importance  of public  trial, we cannot overlook the fact that the  primary function  of  the  Judiciary is to do  justice  between  the parties who bring their causes before it. If a Judge  trying a cause is satisfied that the very purpose of finding  truth in the case would be retarded, or even defeated if witnesses are required to give evidence subject to public gaze, is  it or  is it not open to him in exercise of his inherent  power to  hold the trial in camera either partly or fully? If  the primary  function  of the trial is to do justice  in  causes brought  before  it, then on principle, it is  difficult  to accede to the proposition that there can be no exception  to the rule that all causes must he tried in open court. If the principle  that  all  trial before courts must  be  held  in public  was  treated as inflexible and universal and  it  is held  that  it admits of no exceptions whatever,  cases  may arise  where by following the principle, justice itself  may be  defeated. That is why we feel no hesitation  in  holding that  the  High Court has inherent jurisdiction  to  hold  a trial  in  camera  if  the  ends  of  justice  clearly   and necessarily require the adoption of such a course."     "..   ......  In  this connection  it  is  essential  to remember  that  public trial of causes is  a  means,  though important  and  valuable, to ensure fair  administration  of justice;  it  is  a  means. not an   end.  It  is  the  fair administration   of  justice which is the  end  of  judicial process, and so, if ever a real conflict arises between fair administration of justice itself on the one hand, and public trial on the other, inevitably, public trial may have to  be regulated or controlled in the interest of administration of justice."     Though  public trial or trial in open court is the  rule yet in cases where the ends of justice would be defeated  if the trial is held in public, it is in that the Court has got inherent  jurisdiction to hold trial in  camera.  Therefore, the  holding of trial in jail cannot be said to  be  illegal and bad and entire trial cannot be questioned as vitiated if the  High  Court thinks it expedient to hold  the  trial  in jail.  The  submission  of the  learned  counsel  on  behalf of   the appellant on this issue is not sustainable.     This Court while considering the plea made on behalf  of the detenu that the proceedings of the Advisory Board should be  thrown open to the public in the case of A.K. Roy,  etc. v.  Union  of India and Anr, [1982] 2 SCR 272  at  354  held that:                                                    PG NO 123     "The  right  to  a  public  trial  is  not  one  of  the guaranteed rights under our Constitution as it is under  the

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6th Amendment of the American Constitution which secures  to persons  charged with crimes a public, as well as a  speedy, trial.  Even  under  the American  Constitution,  the  right guaranteed  by the 6th Amendment is held to be  personal  to the  accused,  which  the public in  general  cannot  share. Considering  the  nature of the inquiry which  the  Advisory Board has to undertake, we do not think that the interest of justice will be served better by giving access to the public to the proceedings of the Advisory Board."     I  do not think it expedient to consider this aspect  of the  matter  at  this  juncture  in  view  of  the  explicit provision made in Section 327 of Code of Criminal Procedure. 1973  corresponding  lo  Section 351  of  the  old  Criminal Procedure  Code  which enjoins that the place in  which  any criminal court is held for the purpose of inquiring into  or trying any offence shall he deemed to be an open court.     The confession of accused No. 1. Satwant Singh which was recorded in Tihar Jail  by the Link Magistrate, Shri  Bharat Bhushan  has  been  vehemently  criticised  by  the  learned counsel Mr. Ram Jethmalani on the ground that the confession being  nor  recorded  in open court as  required  under  the provision of Section 164 of the Criminal Procedure Code,  is inadmissible  in  evidence and it cannot be adhered  to  for convicting  the accused. This submission does not hold  good in  view  of  the pronouncement of this  Court  in  Hem  Raj Devilal v. The State of Ajmer, AIR 1954 (SC) 462 wherein  it has been held that:     "No  doubt the confession  was recorded in  jail  though ordinarily it should have been recorded in the Court  House, but that irregularly seems to have been made because  nobody seems  to have realized that that was the appropriate  place to record it but this circumstances does not affect in  this case the voluntary character of the confession."     In  Ram Chandra and Anr. v. State of Uttar Pradesh,  AIR 1957  (SC) 381 the appellant was sent to Naini Jail on  13th July. He was brought before a Magistrate on 17th July but he refused  to  make any confession. On 7th  October  a  letter signed by the appellant was sent to the District Magistrate, Allahabad,  through  the Superintendent of the Jail  to  the effect he wanted to make a confession. As about this time he was kept in solitary confinement and that the police officer who  was investigating this case went to the Naini  Jail  on 8th  and 9th October. The District Magistrate  deputed  Smt.                                                    PG NO 124 Madhuri  Sbrivastava to record the confession. She  went  to Jail  on 10th October and recorded the confession  in  jail. Before  recording  the confession the   Magistrate  did  not attempt to ascertain why he was making the confession  after such a long lapse of time. She in her cross-examination said that  she  thought it improper to record  his  statement  in Court and during court hours. She was not aware of the rules framed  by the Government that confession is to be  recorded ordinarily  in open court and during court hours unless  for exceptional  reasons it is not feasible to do so.  She  also did not apprise the accused that he is not bound to make any statement  and  such statement if made may be  used  against him.  She gave the usual certificate that the  accused  made the  statement  voluntarily. In these circumstances  it  was held that the confession was not recorded in accordance with law and the accused was not explained that he was not  bound to make any statement and if any statement is made, the same will  be used against him. It was therefore, held  that  the confession  was not a voluntary one and the same  cannot  be used in convicting the accused.     Thus  the reason for not taking into  consideration  the

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confession was that the mandatory requirement of  explaining to  the  accused as provided in Section 164(3)  of  Criminal Procedure  Code,  was not observed before the  recording  of confession  and as such the confession was not  a  voluntary one.  The recording of confession in jail by itself was  not held to invalidate the confession by this Court. It has been urged  by Mr. Jethmalani that a confession not  recorded  in the  manner  prescribed  in Section 164 Cr. P.C.  and  if  a certificate as required to be appended below the  confession is  not  made in accordance with the  prescribed  terms,  is inadmissible  in  evidence. in support  of  this  submission reference  was  made to Nazir Ahmed v. King Emperor,  AIR  P 1936  (PC)  253(2).  In this  case  the  Judicial  Committee observed  that the principle applied in  Taylor  v.  Taylor, [18761  I  Chancery Division  426 to a court,  namely,  that where  a power is given to do a certain thing in  a  certain way,  the thing must be done in that way or not at  all  and that other methods of performance are necessarily forbidden, applied  to judicial officers making a record under  Section 164 and, therefore, held that the Magistrate could not  give oral  evidence  of the confession made to him which  he  had purported to record under Section 164 of the Code. Otherwise all the precautions and safeguards laid down in Ss. 164  and 3h4. both of which had to be read together, would become  of such triffing value as to be almost idle.                                                    PG NO 125     It  has been urged on behalf of the respondent  that  if the confession is not recorded in proper from as  prescribed by  Section 164 read with Section 281 which  corresponds  to earlier Section 364, it is a mere irregularity and it can be cured  by Section 463 on taking evidence that statement  was recorded  duly  and  it has not injured the  accused  in  on merits.  This question came up for consideration in this  in the  case  of State of Uttar Pradesh v. Singhara  Singh  and Others, AIR 1964 (SC) 358. It has been observed-that:     "What  Section  533 therefore, does is  to  permit  oral evidence  to be given to prove that the procedure laid  down in  S.  164 had in fact been followed when the  Court  finds that  the record produced before it does not show that  that was so. If the oral evidence establishes that the  procedure had  been  followed, then only can the record  be  admitted. Therefore, far from showing that the procedure laid down  in S.  164  is  not intended to be obligatory,  S.  533  really emphasises  that  that  procedure has to  be  followed.  The section  only  permits  oral  evidence  to  prove  that  the procedure had actually been followed in certain cases  where the record which ought to show that does not on the face  of it do so."     In Ranhir Singh and Ors. v. Emperor, [1932] Cr. L.J. 732 the  accused  was  taken into the thana   compound  and  the Magistrate  who  is a retired District  Judge  recorded  his statement in the open at 9 p.m. The Magistrate did not  tell him that he was a Magistrate and he did not satisfy  himself by  questioning  him whether he was  making  the  confession voluntarily, although he states quite definitely that he was satisfied by observation that the man was making a voluntary statement.   It  was  observed  that  the  failure  of   the Magistrate  to  question the accused as to  his  making  the confession voluntarily is a radical and fatal defect,  which cannot  be  cured by Section 533 of the  Criminal  Procedure Code. The confession was held inadmissible.     In the case of Partap Singh v. The Crown, [1935]  I.L.R. (Lahore  Series) 415 it does not appear from the  confession that the provisions of Section 164(3) i.e. to explain to the person  who  is to make it that he is not bound  to  make  a

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confession  at  all  and that if he does so, it  may  be  as evidence  against him. were not applied by  the  Magistrate. Question  arose whether such a defect in the confession  can be cured by Section 533 Criminal Procedure Code. It was held that  a defect in form is curable and a defect in  substance is not. It was further held that "If as a matter of fact the statement  was  duly recorded, that is to say,  after    the                                                    PG NO 126 required explanation had been given, but the Magistrate  had failed to embody that fact in the certificate such a  defect would  be curable. If the explanation had not in  fact  been made  the  statement could not be held to  have  been  ’duly made’ and section 533 could not be appealed to."     In Prag v. Emperor. [1933] Cr. L.J. 87 it has been  held that  in  recording  a  confession it is  the  duty  of  the Magistrate  to satisfy himself in every reasonable way  that the  confession  is made voluntarily and further it  is  the imperative duty of the Magistrate to record those  questions and answers by means of which he has satisfied himself  that the  confession is in fact valuntary. Omission to  warn  the accused that he was making a confession before a  Magistrate and to record the steps taken by the Magistrate to see  that the confession was made voluntarily is a substantial  defect not cnrable by section 533 Criminal Procedure Code.     The High Court of Orissa in the case of Ambai  Majhi  v. The State [1966] Cr. L.J. 651 has held that Section 533  can care errors of forms and not of substance.     On a consideration of the above decision it is  manifest that if the provisions of Section 164 (2) which require that the Magistrate before recording confession shall explain  to the  person making confession that he is not bound  to  make confession  and  if he does so it may be  used  as  evidence against   him  and  upon  questioning  the  person  if   the Magistrate  has  reasons  to believe that it  is  being  mad voluntarily  then   the confession will be recorded  by  the Magistrate. The compliance of the sub-section (2) of Section 164   is  therefore,  mandatory  and  imperative  and   non- compliance  of  it renders the  confession  inadmissible  in evidence.  Section  463  (old Section 533) of  the  Code  of Criminal  Procedure  provides that where the  questions  and answer  regarding  the  confession have  not  been  recorded evidence   can  be  adduced  to  prove  that  in  fact   the requirements  of  sub-section (2) of Section 164  read  with Section  281 have in fact been complied with. If  the  Court comes  to a finding that such a compliance had in fact  been made  the   mere omission to record the same in  the  proper from will not render it inadmissible evidence and the defect is cured under Section 463 (Section 533 of the old  Criminal Code)  but  when  there is non-compliance  of  th  mandatory requirement  of Section 164 (2) Criminal Procedure Code  and it  comes  out  in  evidence that  no  such  explanation  as envisaged  in the aforesaid sub-section has been   given  to the  accused  by  the Magistrate,  this  substantial  defect cannot be cured under Section 463 Criminal Procedure Code.                                                   PG NO 127     In Abdul Rajak Murtaja Dafedar v. State of  Maharashtra, [1970] 1 SCR 551 it was observed that the appellant  himself never  said  that he made the confession on account  of  any inducement  or  coercion  on the part  of  the  police.  The appellant  was kept in jail custody for 3 days from  October 25  to  October  28,  1966 and  on  October  28,  1966   the Executive Magistrate made the preliminary questioning of the appellant, gave him a warning and sent him back to  District Jail  at Sangli. On the next day the appellant was  produced before  the Magistrate and the confession was recorded.  The

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appellant  had thus spent four days in judicial custody  and he  was not under the influence of the investigating  agency for at least four days. Again he had 24 hours to think after he was told by the Magistrate that he was not bound to  make any  confession and if he made one it would be used  against him. It was held that the confession could not be said to be not voluntary.     In Dagdu and Ors. etc. v. State of Maharashtra, AIR 1977 (SC)  l573  eight  confessions  were  recorded  by  a   Sub- Divisional  Magistrate,  Devidas  Sakharam  Pawar  (PW   23) without  complying with the mandatory provisions of  Section 164 of the Code of Criminal Procedure. He made no effort  to ascertain  from  any of the accused whether he  or  she  was making  the confessional voluntarily. Nor did he ask any  of the  accused whether the police had offered or promised  any incentive for making the confessional statement. He also did not  try  to ascertain for how long the  confessing  accused were  in jail custody prior to his production for  recording the  confession.  There was no record to  show  whether  the accused were sent after they were given time for reflection. In  none  of  these  confessional  statements  there  was  a memorandum  as  required  by  Section 164  of  the  Code  of Criminal  Procedure that the Magistrate believed  "that  the confession  was voluntarily made". It was observed  by  this Court that: "The  failure to observe the safeguards  prescribed  therein are  in practice calculated to impair the evidentiary  value of the confessional statements." It was further observed that: "Considering  the circumstances leading to the  processional recording of the eight confessions and the object disregard, by  the Magistrate, of the provisions contained  in  Section 164  of the Code and of the instructions issued by the  High Court, We are of the opinion that no reliance can be  placed on any of the confessions."                                                   PG NO 128 In  Ram Prakash v. The State of Punjab, [l959] SCR  1219  it was held that: "A voluntary and true confession made by an accused  thought it  was  subsequently retracted by him, can  be  taken  into consideration  against a co-accused by virtue of Section  30 of the Indian Evidence Act, but as a matter of prudence  and practice  the  Court  should not act upon it  to  sustain  a conviction  of  the  co-accused  without  full  and   strong corroboration  in material particulars both as to the  crime and as to his connection with that crime."     In the instant case the accused Satwant Singh who was in police custody was produced before the Magistrate Shri  S.L. Khanna  on  29.11.1984.  On that day  the  accused  made  an application (Ext. PW II/A) stating that he wanted to make  a statement   about   the  facts  concerning   Indira   Gandhi Assassination  Case. The Magistrate directed the  remand  of the  accused in judicial custody till 1.11.1984  giving  the accused time to reconsider and reflect. The Magistrate  also told him that he was not bound to make any statement and  if any  statement is made the same might be used  against  him. The  Magistrate  also  directed  to send  a  letter  to  the Secretary,  Legal Aid Committee to provide legal  assistance to  the accused at the expense of the State.  On  1.12.1984, the Magistrate enquired of the accused whether he expense of the State. On to make a statement whereon the accused stated that  he  wanted  to make a statement.  He  was  allowed  to consult his counsel, Shri I.J. Khan, Advocate who  conferred with  him  for about 15 minutes privately.  As  the  accused insisted that his statement be recorded, the application was

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sent  by  the  Magistrate,  Shri S.K.  Khanna  to  the  Link Magistrate, Shri Bharat Bhushan for recording his statement. Before recording his statement Dr. Vijay Kumar was called to examine  the accused. Dr. Vijay Kumar stated in  his  report (Ext.  pW  11/B) that in his opinion the accused is  fit  to make  his statement. it appears from Ext. PW 11/B-2 as  well as  from  the questions and answers which were  put  to  the (Ext.  PW  11/B-3)  that the Link  Magistrate,  Shri  Bharat Bhushan warned the accused that he was not bound to make any confessional statement and in case he does so it may be used against  him  during  trial. The accused in  spite  of  this warning  wanted  to  make a  statement  and  thereafter  the confessional statement Ext. PW 11/C was recorded by the Link Magistrate.   In  the  certificate  appended  to  the   said                                                   PG NO 129 confessional statement it has been stated that there was  no pressure  upon the accused and there was neither any  police officer  nor any body else within the hearing or sight  when the  statement was recorded. Therefore, it appears that  the accused  was put the necessary questions and was  given  the warning  that he was not bound to make any statement and  in case  any statement is made, the same might be used  against him  by  the prosecution for his conviction. Of  course,  no question was put by the Magistrate to the accused as to  why he wanted to make a confessional statement. It also  appears from  the  evidence of the Magistrate, Shri  Bharat  Bhushan (Ext.  PW  11)  that the confes-sional  statement  was  made voluntarily  by the accused. So the defect in recording  the statement in the form Prescribed is cured by Section 463  of the Code of Criminal Procedure. It is indeed appropriate  to mention in this connection that the defect in recording  the statement in appropriate form prescribed can be cured  under section  463 of the Code of Criminal Procedure provided  the mandatory  provisions  of l64(2) namely  explaining  to  the accused  that he was not bound to make a statement and if  a statement  is made the same might be used against him,  have been  complied  with  and  the same  is  established  on  an examination of the magistrate that the mandatory  provisions have been complied with.     The  accused No. 1, Satwant Singh has been charged  with the  murder of Smt. Indira Gandhi, Prime Minister  of  India U/s 302 I.P.C. read with Section l20-B and 34 I.P.C. He  has also  been  charged  U/s 307 I.P.C. for  attempt  to  murder Rameshwar  Dayal. He has further been charged U/s 27 of  the Arms Act.     The prosecution has examined three eye witnesses  namely PW-9  Narain  Singh, PW-10 Rameshwar Dayal and  PW-64  Nathu Ram. Prosecution has also examined PW-49 Ganga Singh, Member of ITBP who immediately after the firing apprehended Satwant Singh.     PW-9  Narain  Singh, deposed that he was on duty  at  1, Safdarjang  Road from 7.30 A.M. on 31.10.1984 and the  place of duty was isolation cordon near the porch. He stated  that at  8.45  A.M.  he took hold of the umbrella  and  took  his position  near the pantary gate as he came to know that  the Prime  Minister, Smt. Indira Gandhi had to meet the  foreign T.V.  representatives  in No. 1, Akbar Road. At  9.10  A.M., Prime  Minister emerged out of her house No.  1,  Safdarjang Road   followed  by  Nathu  Ram  (PW-64)  and  her   Private Secretary,  R.K.  Dhawan.  At that  time  the  deponant  was holding the umbrella over the head of Prime Minister to save her  from  sun  and  was moving  on  her  right  side.  They                                                   PG NO 130 approached  the  TMC gate and when they were about  10  feet from there, he saw that the gate was open. He also saw Beant

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Singh on the left side and Satwant Singh on the right  side. The former was in a safari suit and the latter i.e.  Satwant Singh was in his uniform. Satwant Singh had a stengun in his hands. At that time, Beant Singh took out his revolver  from the   right  dub  and  fired  at  the  Prime  Minister   and immediately  thereafter  Satwant Singh also  started  firing upon the Prime Minister. The Prime Minister was hit by those bullets and injured and fell down on the right side.  Seeing them firing on the Prime Minister, he threw the umbrella and took out his revolver and jumped upon Beant Singh  whereupon his  (Beant Singh) revolver fell from his hands. He  secured Beant  Singh.  He further stated that he  noticed  Rameshwar Dayal,  ASI  sustained bullet injuries. The  doctor  himself came  running  by then and at his direction he,  Dr.  Bhatt, ACP, Dr. Opey and Nathu Ram took her to the escort car which had arrived and placed her in the rear seat. He further said that  he went to the hospital in staff car.  ASI,  Rameshwar Dayal  was  taken  in another escort car to  AIIMS.  In  his cross-examination  he  further stated that  except  for  the accused  Satwant  Singh  he did not find  any  constable  of D.A.P.  on  duty  on 31.10.1984 in the  P.M.  house  on  the portion through which he passed. He also stated that it  was incorrect to suggest that Satwant Singh had sustained bullet injuries before Mrs Indira Gandhi had been fired at. He also denied the suggestion that he was not present on the spot or that  bullet  were  coming from all the  four  sides  rather bullets  were  coming  from the front side  of  Mrs.  Indira Gandhi.  He also stated that he was stunned when he saw  the bullets  coming from Beant Singh and Satwant Singh. He  also stated  that  as Mrs. Indira Gandhi approached  towards  TMC gate within its ten feet, Beant Singh took out his  revolver and immediately shot at Mrs. Indira Gandhi.     PW-10  ASI  Rameshwar  Dayal deposed  to  the  following effect:     I  was  on duty on 31.10.1984 at P.M. house  at  No.  1, Safdarjang  Road  from  7.30  A.M. to 1.30  P.M.  It  was  a security  duty.  I  was on duty of water  attendant  in  the Pilot’s car of the Prime Minister. I enquired about the P.M. Programme. I learnt that the Prime Minister was to attend  a film  shooting VCR in No. 1, Akbar Road at 9 A.M. As  I  was going  from No. 1, Safdarjang Road to No. 1, Akbar Road  and had reached the concrete road from the nursery, I saw  Prime Minister,  Mrs. Indira Gandhi coming from No. 1,  Safdarjang Road  to No. 1,Akbar Road. At that time, Shri  R.K.  Dhawan, H.C.  Narain  Singh  with an umbrella on the  right  side  a little  behind her and Nathu Ram following R.K. Dhawan  were                                                   PG NO 131 also seen by me going towards No. 1, Akbar Road from No.  1, Safdarjang  Road. I also started moving behind them. As  the Prime Minister reached near the Sentry booth link gate  i.e. the TMC Gate or Akbar Road front gate, I saw Beant Singh, SI and Satwant Singh constable with a sten-gun on duty. Satwant Singh, constable was in uniform. All of a sudden Beant Singh fired at the Prime Minister with his revolver by raising his right  hand  and immediately thereafter Satwant  Singh  also fired  at  the Prime Minister with his sten-gun. I  saw  the Prime  Minister falling. I ran to shield the Prime  Minister and  I was also injured with the bullets. I fell down and  I got  up.  By  that time, Narain Singh H.C.  had  thrown  his umbrella and had run to seize and secure Beant Singh and one Lawang Sherpa ran to secure them from Akbar Road side.  They i.e. Beant Singh and Satwant Singh threw their arms. In  the meanwhile, ITBP staff secured Beant Singh and Satwant Singh. At that time Beant Singh said, "whatever was to be done  had been done".

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   In his cross-examination, he stated that the bullet  had come  from Satwant Singh side and it was that  bullet  which hit  him.  He  also stated, "In fact, I could  not  have  so stated  since  I  had already told  in  my  statement  dated 2.11.1984  that  Satwant and Beant Singh had  fired  at  the Prime  Minister,  Smt. Indira Gandhi and  injured  her."  He denied  the  suggestion that he was at a destance  of  60-65 feet away from the Prime Minister when she was fired at  and stated that he was at a distance of only 10/15 steps.     PW-64   Nathu  Ram,  Ex-Library  Asstt.  and   Personnel Attendant to Smt. Indira Gandhi stated in his deposition  to the following effect:     On 31.10.1984 I had come on my duty at 7 A.M. to No.  1, Safdarjang Road as Library Asstt. and Personnel Attendant of late P.M., Smt. Indira Gandhi. I was required to come in the morning,  open  the library-cum-bed room of the  late  Prime Minister  and  get  it cleaned and dusted  and  then  be  in attendance  upon the late  P.M. to do what she wanted me  to do. On 31.10.1984 as well, after performing the above duties by  about 9.05 A.M., the Prime Minister, Smt. Indira  Gandhi was ready to go out with Mr. R.K. Dhawan. The Prime Minister thereupon  left the room at 9.05 A.M. followed by Shri  R.K. Dhawan and then followed by me. She reached the pantry  gate where Shri Narain Singh was waiting with an umbrella in  his hand. As the Prime Minister emerged out of the pantry  gate, Shri Narain Singh opened the umbrella over her and held  the said umbrella in his right hand while the Prime Minister was moving  towards No. 1, Akbar Road. At that time,  when  P.M.                                                   PG NO 132 was moving towards No. 1, Akbar Road, Narain Singh was  with her on the right side holding the umbrella over her while on the  left  side  Shri R.K. Dhawan  was  moving  besides  her talking  to  her. I was following Shri R.K. Dhawan  at  that time. I was about two steps behind Shri R.K. Dhawan. As  all of  us  came out of the jafri gate, I noticed that  the  TMC gate  was lying open and Beant Singh SI in Safari  suit  was standing  on our left side while Satwant Singh constable  in uniform was standing on the right side of ours near the  TMC gate. As we reached within about 10-11 feet of the TMC gate, Beant Singh took out his revolver and started firing on  the Prime  Minister. Immediately, thereafter Satwant Singh  also started  firing from his sten-gun upon the  Prime  Minister. Then the Prime Minister, Mrs. Indira Gandhi fell towards her right  side. We were startled. At that very  moment,  Narain Singh  threw umbrella and jumped upon Beant Singh  and  took out his (Narain Singh’s) revolver, and secured Beant  Singh. Simultaneously,  Mr.  Bhatt  and  Lawang  Sherpa  and  other uniformed  persons  also  arrived  there  and  they  secured Satwant  Singh accused. Beant Singh and Satwant Singh  threw their  arms  on  the ground. When Narain Singh  got  up  for bringing  the  doctor, Dr. Opey arrived on  the  spot.  When myself, Shri Bhatt, Dr. Opey were in the process of removing the Prime Minister, Smt. Indira Gandhi to the car along with Shri  R.K.  Dhawan and Narain Singh at that time  I  noticed that  Rameshwar  Dayal was also holding his leg  in  injured state on the spot.     In  his  cross-examination in answer to  a  question  he stated  "I  saw two persons namely Beant Singh  and  Satwant Singh with arms. Shri Narain Singh also had arm with him and none else had the arms."     On  a consideration and appraisement of the evidence  of the eye-witnesses, it is clear and apparent that the accused Satwant  Singh and Beant Singh fired at Smt.  Indira  Gandhi while  she was approaching the TMC gate accompanied  by  her Private Secretary Shri R.K. Dhawan, Narain Singh, H.C., PW-9

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holding  an  umbrella on her head to protect  her  from  sun accompanying  her on the right side and Nathu Ram  following behind  Shri R.K. Dhawan. It also appears that  Beant  Singh first   started  firing  from  his  service   revolver   and simultaneously the accused No. 1, Satwant Singh also  cocked his SAF Carbine towards the Prime Minister whereon the Prime Minister  fell on the ground on her right side. It has  been tried  to suggest that the bullets were coming from all  the sides and accused Satwant Singh was seriousy injured by such bullets  and Beant Singh died. This suggestion was  however, denied  by  the eye-witnesses and they  specifically  stated                                                   PG NO 133 that  the accused Satwant Singh and Beant Singh shot on  the Prime  Minister while she was approaching the TMC  gate  and she was about 8-10 steps away from the TMC gate. It has been denied  that there was any firing from all the sides and  it has  been specifically stated in cross-examination that  the firing was from the front side which hit the Prime  Minister and  the said firing was caused by Beant Singh  and  Satwant Singh  from  their  respectively service  revolver  and  SAF Carbine.  It  also  appears that  Beant  Singh  and  accused Satwant  Singh were apprehended by PW-9 Narain Singh HC  and by the ITBP people. It has also been specifically stated  by PW-9 in cross-examination that Satwant Singh did not sustain bullet  injuries before Smt. Indira had been fired  at.  The suggestion  on behalf of the defence that there  was  firing from  all  sides  and accused  Satwant  Singh  was1  injured seriously  and  Beant Singh died by this firing has  got  no basis and it is unsustainable.     PW-49  Ganga  Singh,  L/Naik  of  lTBP  stated  in   his deposition to the following effect:     On 31.10. 1984 I was posted on duty at No. 1, Safdarjang Road  from  6 A.M. to 2. P.M. near the main  gate  in  guard room.  At 9.15 A.M. I heard sound of firing of bullets  from the  TMC gate. I along with Shri Tersem Singh, Padam  Singh, Jai  Chand, Daya Nand thereupon took our carbines  and  went towards  TMC  gate running. We found  Prime  Minister  Madam lying in injured condition on the floor. Near the gate there were  two  Sardars in white cloths, again said  one  was  in civil  dress  and the other was in  uniform.  The  uniformed Sardar is present in the court i.e. Satwant Singh. He had  a carbine  in his hand. The other Sardar had a  small  weapon. Inspector Tersem Singh made them hands-up. I secured them. I and Padam Singh secured the uniformed sardar. The sardar was secured by Jai Chand and Daya Nand. I took into possession a ruck-sack  from  the  shoulder  of  the  uniformed   sardar. Thereupon, Inspector "Tersem Singh asked us to take the  two sardars to the guard room. The carbine and the small  weapon were thrown on the ground. We then took both of them to  the guard  room. We left them there and Inspector  Tersem  Singh asked us to go to our point of duty. I heard some fire-shots from  the  guard room side and the accused No. 1  and  Beant Singh were Iying injured there.     In  cross-examination he stated that "The  revolver  and sten-gun were in the hands of the sardars before Shri Tersem Singh  made them hands-up. It is incorrect to  suggest  that Satwant  Singh  had  already been hit by  a  bullet  when  I reached the TMC gate. I secured Satwant Singh from the right                                                   PG NO 134 side. Ruck-sack was on the left shoulder. It is obvious from the deposition of PW-49 that when he and other ITBP men took Beant  Singh and Satwant Singh to the guard room  they  were not at all in injured condition. It has also been stated  by this  witness that the revolver and SAF carbine were in  the hands  of  two sardars before Shri Tersem  Singh  made  them

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hands-up.  This  witness  also denied  the  suggestion  that Satwant  Singh  had  already been hit by a  bullet  when  he reached   the  TMC  gate.  The  evidence  of  this   witness therefore, contradicts and falsifies the suggestion tried to be  made on behalf of the defence, i.e. the accused  Satwant Singh was injured already by bullets coming from all sides.     It  is  pertinent to mention in this connection  to  the evidence  of  PW-27  ASI Mangat Ram who was  posted  as  ASI personnel  in  2nd Battalion D.A.P. He  brought  the  record relating  to  Satwant  Singh  constable  No.  1614  in   2nd Battalion DAP who was posted on 31.10.1984 in C & D at  Teen Murti Line. He also deposed that on 27.6.1983 vide order No. 2362-67/ASIP-22nd  Battalion DAP he was posted in C  Company of Teen Murti Line. Daily diary maintained at Teen Murti 2nd Battalion  DAP (Ex. PW l4/C) shows from entry No.  85  dated 30/31.10.1984  that  on the morning on  31.10.1984,  Satwant Singh  constable No. 1614 was put on duty at Beat No.  4  in the Akbar Road House and not at the TMC gate and this  entry is  confirmed by PW-15, the daily diary clerk at Teen  Murti Line. He deposed that entry No. 85 in Ex. PW l4/A is in  his hand and is correct. He also stated that the accused Satwant Singh was put on duty at Beat No. 4, Akbar Road in the  P.M. House and not at TMC gate and he was given arms as per  Koth register. The arms and ammunitions register (Ex. PW 3/A)  at Teen  Murti Line shows that Satwant Singh was issued  a  SAF Carbine (sten-gun) having Butt No. 80 along with 5 magazines and 100 live rounds of 9mm ammunition and that he signed the register  in  token of its receipt. Therefore this  goes  to show  the presence of the accused Satwant Singh at  the  TMC gate  in the P.M. house at I, Akbar Road on duty  from  7.30 A.M. on 31.10.1984 with a SAF Carbine Butt No. 80. There  is therefore  no iota of doubt that the accused  No.  1,Satwant Singh  was  present  at the TMC gate at No.  1,  Akbar  Road on the fateful morning i.e on 31.10.1984. It is to be  noted in  this connection that the duty of accused  Satwant  Singh constable  was  placed at beat No. 4, Akbar  Road  House  on 31.10.1984 as is evident from entry No. 85 in the  Rojnamcha i.e.  daily  diary  kept  at  Teen  Murti  Line  but  he  in conspiracy with Beant Singh manipulated his duty at TMC gate on the plea that he was suffering from dysentery and  having loose  motions. This will be obvious from the deposition  of PW-43  Constable Deshpal Singh No. 1157 who deposed that  he                                                   PG NO 135 was posted at TMC gate 1, Safdarjang Road, P.M. House w.e.f. 28th  October, l984 from 7 p.m. to 10 p.m. and also  from  7 a.m.  to  10 a.m. He further stated that he was on  duty  on 29th,  30th  and  3Ist  October, l984  at  these  hours.  On 31.10.1984  he reported in the the Line Teen Murti and  then took  his arm and proceeded toward his duty in  P.M.  House. When he reached the P.M. House, the H.C. Kishan Lal No. 1109 told  him that Satwant Singh who was on duty on beat  No.  4 was  suffering  from loose motions and therefore  he  should give duty at beat No.. 4 while Satwant Singh would take  his position  duty at TMC gate, as there was laterine  near  TMC gate.     This  clearly  shows that Satwant Singh, accused  No.  1 manipulated  his  duty from beat No. 4 to TMC gate  in  P.M. House and so there is no doubt about his presence at the TMC gate on 31.10.1984 from 7.30 a.m.     PW-l2 G.R. Prasad, Principal Scientific Officer Incharge Ballistic  Division, C.F.S.L., New Delhi has deposed to  the effect  that the bullet (marked BC/7) recovered from  injury No. 1 described in the post-martem report was fired from the 9mm  sten-gun  (marked  W/l). He further  deposed  that  the bullet  recovered from injury No. 2 was fired from the  .38"

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special revolver (marked W/2). This affirms the  prosecution case that the accused Satwant Singh and deceased Beant Singh fired  shots  at Smt. Indira Gandhi  from  their  respective weapons.  The deposition of these independent  witnesses  is corroborated  by the confessional statement PW II/C made  by the  accused Satwant Singh. Though the said  confession  was retracted subsequently by the accused, the same can be  used by  the  Court  against the accused in  convicting  him.  In Manohar  Singh  v. Emperor, AIR 1946 (Allahabad) 15  it  has been  held that a confession made by an accused can  not  be used to convict his co-accused unless there is corroborative evidence  against  the  co-accused  but  a  person  can   be convicted  solely upon his own confession even if  retracted if the Court believes it to be true.     The  law  has been well settled in a  decision  of  this Court  in Sarwan Singh Rattan Singh v. State of Punjab,  AIR 1957 (SC) 637 wherein it has been observed that: "In  law  it  is always open to the  court  to  convict  and accused on his confession itself though he has retracted  it at  a later stage. Nevertheless usually Courts require  some corroboration   to   the   confessional   statement   before convicting  an  accused  person on such  a  statement.  What                                                   PG NO 136 amount  of corroboration would be necessary in such  a  case would  always be a question of fact to be determined in  the light of the circumstances of each case."     In  the  instant case the confessional  statements  were corroborated  by independent evidences which  clearly  prove the guilt of the accused.     Therefore the charges against the accused Satwant  Singh have been duly proved. The concurrent findings of the  Trial Court  as  well  as of the High Court  that  offences  under Section  302  I.P.C.  read with Section  l2O-B,  I.P.C.  and Section  34  I.P.C.  were proved, must be upheld.  It  is  a gruesome murder committed by the accused who was employed as a  security  guard  to protect  the  Prime  Minister  Indira Gandhi.  It  is  one of the rarest of rare  cases  in  which extreme penalty of death is called for.     The charge of conspiracy has been elaborately dealt with in the judgments rendered by my learned brothers. It appears therefrom that the charge of conspiracy against Kehar  Singh with  the  accused  Satwant  Singh  and  Beant  Singh  since deceased who are the constable and S.l. respectively  posted ar  the  P.M.’s  House to look after the  security  of  Smt. Indira Gandhi has been proved without any reasonable  doubt. Therefore, the appeal Nos. 180 and 182 of 1987 are dismissed and the conviction and sentence of death as confirmed by the High  Court  are upheld. The charge  of  conspiracy  against accused No. 2. Balbir Singh has not been proved and as  such the appeal filed by him i.e. Criminal Appeal No. 181 of 1987 is allowed and the judgment of the High Court is set  aside. The appellant should be set free forthwith.     K.JAGANNATHA  SHETTY, J. I agree respectfully  with  the conclusion reached by my learned brother, Mr. G.L. Oza,  J., in these appeals. I wish, however, in view of the importance of  the questions involved, to give my own reasons,  and  to which I attach importance.     These appeals by special leave are directed against  the conviction  and sentence awarded against the  appellants  by the  High Court of Delhi in Criminal Appeals Nos. 28 and  29 of 1986 and Murder Reference No. 2 of l986.     The crime charged is not simply the murdering of a human being,  but  it is the crime of assassination  of  the  duly elected  Prime Minister of the Country. The motive  for  the                                                   PG NO 137

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crime  was not personal,but the consequences of  the  action taken  by the Government in the exercise  of  constitutional powers  and  duties.  In our  democratic  republic,  if  the Government   becomes  subversive  of  the  purpose  of   its creation, the people will have the right and duty to  change it  by  their  irresistible power of  ballot  and  have  the Government  of their own choice wisely administered. But  no person who is duly constituted shall be eliminated by  privy conspiracies.   Indian   citizens  are  committed   to   the Constitution.  They have faith in the ballot box. They  have confidence in the democratic institutions. They have respect for  constitutional authorities. The assassination  of  Mrs. Indira  Gandhi,  the  third Prime Minister  of  India,  has, therefore, come as a rude shock. It has sent shudder through the  civilised  world. The issues joined  in  these  appeals involve  the  highest interest of the whole people  of  this country. It is a matter of great importance to the people of this Country that the accused be lawfully tried and lawfully convicted or acquitted. A wrongful conviction or a  wrongful acquittal  may  shake the confidence of the  people  in  our justice  delivery  system. The matter,  therefore,  requires utmost concern.     Trial of the assassin and conspirators for the murder of Mrs.  Indira Gandhi has resulted in the conviction.  Satwant Singh  (A.1),  Balbir  (A-2)  and  Kehar  Singh  (A-3)   are convicted  of  murder under section 302 read  with  Sectioin l20-B  IPC. Satwant Singh is also convicted of murder  under Section  302 read with Section 120-B and 34 IPC,as  well  as under  Section 307 IPC and Section 27 of the Arms  Act.  The trial  judge  has awarded the sentence of death on  all  the three accused. The trial judge has also awarded other  terms of  imprisonment on Satwant Singh. The Delhi High Court  has confirmed the conviction and sentence.     The  prosecution  version of the  assassination  may  be briefly told:     That in June, 1984, the Indian Army mounted an operation known  as  "Blue Star Operation" by which  the  Armed  Force personnel  entered the Golden Temple Complex at Amritsar  to flush  out the armed terrorists. That operation resulted  in loss  of  life and property as well as damage  to  the  Akal Takht  at the Golden Temple. It has offended  the  religious feelings  of some members of the Sikh community.  Resentment was  expressed  even by some of the Sikh  employees  of  the Delhi  Police  posted  for Prime  Minister’s  security.  The accused persons are Sikhs by faith. They had been expressing their   resentment  openly,  holding  the   Prime   Minister responsible  for the action taken at Amritsar.  They  became                                                   PG NO 138 parties  to  a  criminal conspiracy to  murder  Mrs.  Indira Gandhi.     Mrs. Indira Gandhi,the Prime Minister, had returned from an  official  tour of Orissa in the evening of  October  30, 1984. The day followed was Wednesday. In the early hours  of every  Wednesday, Mrs. Indira Gandhi used to meet people  in groups.  So it was called "Darshan Day". Unfortunately,  she did  not adhere to that usual programme. The  "Darshan"  was cancelled because of another engagement. That engagement was with well-known actor and writer Peter Ustinov. His crew was to  record  an interview with Mrs. Indira Gandhi  for  Irish Television. They were waiting at Bungalow No. 1, Akbar Road, the  home  office  of the  Prime  Minister.  Bungalow  No.1, Safdarjung  Road  was the official residence  of  the  Prime Minister.  The  two  buildings are  connected  by  a  narrow cemented  pathway.  They  are  located  practically  in  one campus, but separated by a sentry gate which is known as the

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"TMC Gate". This is the place where hidden hands sent  shock waves  to the Nation. Mrs. Indira Gandhi at about 9.10  a.m. emerged  from  her  house with her loyal  assistants  and  a faithful servant. Immediately) behind her was Head Constablc Narayan  Singh  (PW-9) holding an umbrella  to  protect  her against the Sun. Rameshwar Dayal (PW- 10) an Assistant  Sub- Inspector,  Nathu  Ram (PW-64), her personal  attendant  and R.K.  Dhawan, Special Assistant were closely following  Mrs. Gandhi. All were on the cemented pathway. Mrs. Gandhi was at the head of the entourage. She was approaching the TMC  gate where  Beant  Singh, SI was on the left side  while  Satwant Singh, Constable was on the right side. They had managed  to exchanged  his  duty with S.I. Jai  Narain  (PW-7).  Satwant Singh ought to be at Beat No. 4. He, however, managed to get TMC  sentry booth by misrepresenting that he  was  suffering from dysentry. He was given that place since it was near the latrine.  Beant  Singh was armed with his  service  revolver while  Satwant  Singh  had SAF  Carbine.  When  Mrs.  Gandhi reached near the TMC gate, Beant Singh opened fire from  his carbine.  Beant  Singh Fired five rounds and  Satwant  Singh released  25  bullets at Mrs. Gandhi. Then  and  there  Mrs. Gandhi fell down never to get up. She was immediately rushed to the All India Institute of Medical Science (AIIMS). There a  team  of doctors fought their losing battle of  save  the life of the slain Prime Minister.     Rameshwar  Dayal (PW-10) who was following  Mrs.  Gandhi also received bullet injuries as a result of the shots fired by the accused. At the spot of the incident, the two assains                                                   PG NO 139 are alleged to have thrown their arms and said "I have  done what  I  have to do. Now you do what you have  to  do."  The personnel of the Indo Tibetan Boarder Police (ITBP)  pounced on  them and took them off to the guard room. What  happened inside  the  guard  room is not on  the  record.  The  fact, however,  remains that both the assassins had been  shot  by the  ITBP personnel. They were soon removed to the  hospital where Beant Singh was pronounced dead and Satwant Singh  was found to be critically injured. Satwant Singh survived after 15 days’ treatment. He is accused No. 1 in this case. Balbir Singh  and Kehar Singh are the other two accused.  They  are said  to  be  parties to the conspiracy  to  eliminate  Mrs. Indira  Gandhi.  Balbir  Singh was an  S.I.  posted  in  the security at the residence of the Prime Minister. Kehar Singh was  an Assistant in the Directorate General of  Supply  and Disposal, New Delhi. He is related to S.I. Beant Singh.     After  the  investigation, the  charge-sheet  was  filed against the three appellants. They were accused of  offences under Section 120-B, 109 and 34 read with Section 302 of the IPC and also of substantive offances under Sections 302  and 307 of the IPC and Section 27, 54 and 59 of the Arms Act. It may  be mentioned that the report also names Beant Singh  as one  of  the  accused but since he  had  died,  the  charges against him were said to have abated.     In due course, the accused were committed to take  their trial  in the Court of Session. In the meanwhile,  the  High Court   of   Delhi   issued  two   notifications.   By   one notification, the High Court directed the trial of the  case shall  he held in the Central Jail, Tihar according to  law. By  another notification, the High Court directed that  "the case  be tried by Shri Mahesh Chandra,  Additional  Sessions Judge, New Delhi." In pursuance of the above  notifications, the  accused were tried in Central Jail, Tihar. The  learned trial  Judge  found the accused guilty of  all  the  charges framed against them and sentenced them as earlier stated.     There  were two appeals before the High Court  of  Delhi

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challenging  the  conviction  and  sentence.  Satwant  Singh preferred  Criminal Appeal No. 28 of 1986. Balbir Singh  and Kehar  Singh  together preferred Criminal Appeal No.  29  of 1986.  These  appeals  were listed  along  with  the  Murder Reference  No.2 of 1986, before a Bench consisting of  three Judges.  The learned Judges, in the course of hearing,  also paid  a  visit to the scene of the crime to  get  acquainted with  the  topography  of  the  place  of  incident.   After considering the material on record, the High Court  accepted                                                   PG NO 140 Murder  Reference 2/86 and confirmed the conviction and  the sentence  of death on all the accused. The High  Court  also confirmed   the   other   sentences   on   Satwant    Singh. Consequently,  the  appeals preferred by  the  accused  were dismissed.     In  these  appeals,  the  accused  are  challenging  the validity of their trial and the legality of their conviction and  sentence. The contentions raised as to legality of  the trial admit of being summarised and formulated thus:     (i) Whether the High Court has power to direct the trial of  the  case at a place other than the normal seat  of  the Court  of  Session? (ii) Whether the trial inside  the  jail premises  is  the very antethesis of an  open  trial?  (iii) Whether  the  trial proceedings were  devoid  of  sufficient safeguards  to constitute a public trial? And  (iv)  Whether the  Court’s  refusal  to call for the  statements  made  by certain prosecution witnesses before the Thakkar  Commission was justified?     I will deal with these questions in turn.     Mr. R.S. Sodhi (amicus curiae) appeared for accused  No. 1  and Mr. Ram Jethmalani, Senior Advocate, (amicus  curiae) appeared  for  accused  Nos.  2 and  3.  Mr.  G.  Ramaswamy, Additional  solicitor General appeared for the  State.  Both sides  of the case have been placed before us with care  and skill.     Re: Question (i):     Patiala House is the place where the Court of Session at Delhi  shall ordinarily hold its sittings. On May 10,  1985, the  Delhi  High Court, however, issued  a  notification  in exercise of the powers conferred by Section 9(6) of the Code of  Criminal  Procedure  1973 ("Code")  directing  that  the session case relating State v. Satwant Singh and Ors.,  FIR, No.  241 of 1984 shall be held in the Central  Jail,  Tihar. The notification reads:     "In  exercise of the power conferred by Section 9(6)  of the  Code of Criminal Procedure, 1973 the Hon’ble the  Chief Justice and Judges of this Court have been pleased to  order that  the trial of the Sessions Case relating to F.I.R.  No. 241/84 of the Arms Act-State v. Satwant Singh & Ors.,  shall be held in the Central Jail, Tihar, according to law.                                                   PG NO 141                                      BY ORDER OF THE COURT                                           Sd/-(USHA MEHRA)                                                 REGISTRAR"     On  the  same day, the High Court passed  another  order under  Section  194  of the  Code  designating  Shri  Mahesh Chandra,  Additional Sessions Judge as the Judge to try  the said  case.  Shri Mahesh Chandra was a Senior  District  and Sessions  Judge  at  the  Courts in  New  Delhi  within  the jurisdiction of which the offence was committed. The case of the appellants is that the High Court has no jurisdiction to issue  the first notification directing the trial  at  Tihar Jail.  It is argued that Section 9(6) confers power  on  the High  Court to specify by notification a place or places  at which criminal trials can be held by the Court of Session in

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the   Union  Territory  of  Delhi.  The  requirement  of   a notification of the High Court of the place or places  where the Court of Session will function is intended to facilitate the process of public participation. Such a notification, it is  submitted, has already been issued by the High Court  of Delhi. The whole of the Union Territory, it is pointed  out, comprises  of  one  division or  district.  Originally,  the trials  in  cases pertaining to the  entire  territory  were conducted only at the District Court Complex in Tis  Hazari. With  the increase of Sessions Cases, the Court  of  Session was  also authorised to hold its sittings at the  Parliament Street  Courts (now shifted to Patiala house) in  New  Delhi and the District Court Complex at Shahdra. It is pointed out that  Shri  Mahesh  Chandra himself  was  holding  court  at Patiala  House  in  relation to  certain  other  cases,  and therefore,  he  can  ordinarily hold his  sittings  only  at Patiala  House  even  for  the  present  case.  It  is  also submitted that Section 9(6) empowers the High Court only  to specify  the place or places at which all, or any  class  of the cases pertaining to a division can be heard and does not empower  the  High Court to specify the place or  places  of hearing for individual cases. The choice of any other  place for   holding  the  sittings,  wholly  or  partly,  in   any particular  case lies within the power of the  trial  Judge. The  trial  Judge may exercise that power  for  the  general convenience of parties and witnesses when agreed to by  both the parties.     The  High  Court did not accept  these  submissions.  In substance,  it was held that the actual location of a  Court can  be decided by the High Court either generally  or  with reference to a particular court or even with reference to  a particular  case  if there is compelling  reason.  The  High Court also said that the fact that it is done with reference to a particular case impairs nobody’s fundamental right  and is  also  not discriminatory, as no offender  has  a  vested right to be tried at the usual seat of the Court of Session.                                                   PG NO 142 The  High  Court, in my judgment, is right in  reaching  the above conclusion.     Section 9(6) provides:     "Section 9. Court of Session:     (6)  The  Court  of Session shall  ordinarily  hold  its sitting  at such place or places as the High Court  may,  by notification  specify but, if, in any particular  case,  the Court  of  Session is of opinion that it will  tend  to  the general convenience of the parties and witnesses to hold its sitting at any other place in the Sessions division, it may, with the consent of the prosecution and the accused, sit  at that  place for the disposal of the case or the  examination of any  witness or witnesses therein."     Sub-section  (6)  can be conveniently divided  into  two parts.  The first part provides power to the High  Court  to notify the place or places for the Court of Session to  hold its  sittings for disposal of cases. The second  part  deals with  the  power of the Court of Session in  any  particular case  to  hold its sittings st a place not notified  by  the High Court.     The real question which we have to determine is, what do the words ’place or places’ mean in the context in which  we find  it  in the first part of sub-section (6), and  in  the legal landscape of other allied provisions in the Code?     There is a great deal of juristic writing on the subject of  statutory interpretation, and I make no attempt here  to summaris  it  all. I will do it elsewhere in  this  judgment when  dealing with question No.(iv). Here I do not  want  to

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spend  more  of  my time since I need  not  search  for  the includes a house, building, tent, vehicle, and vessel.     "The  words,  too, are empirical signs,  not  copies  or models  of anything ..... The words are  slippery  customers interpretation of a                                                   PG NO 143 word must, therefore, depend upon the text and the  context. As  O.  Chinnappa  Reddy,  J., said: "If  the  text  is  the texture,  the context is what gives the colour. Neither  can be ignored. Both are important. That interpretation is  best which   makes   the  textual   interpretation    match   the contextual.  A Statute is best interpreted when we know  why it was enacted." (Reserve Bank of India v. Peerless G. F.  & I Co.. AIR 1987 SC 1023 at 1042).     The  words  "place  or places"  ’used  in  Section  9(6) apparently indicates that there could be more than one place for  the  sitting  of the Court of  Session.  The  different places may be notified by different notifications. There may be a general notification as well as a special notification. The general notification may specify the place for the class of cases where Court of Session shall sit for disposal.  The special  notification  may  specify  the  same  place  or  a different place in respect of a particular case.     Adroitly,  it is said that the words and  sections  like men do not have their full significance when standing alone. Like  men,  they are better understood by the  company  they keep.  Section  9(4)  and Section 194 of the  Code  are  the closely related sections. They may also be examined in order to understand the true meaning of the word "place or places" in the first part of Section 9(4).     Section 9(4) reads: "The Session Judge of the Session division, may be appointed by the High Court to be also an additional Sessions Judge of another  division,  and  in such case he  may  sit  for  the disposal  of  cases  at such place or places  in  the  other division as the High Court may direct."     Section  9(4)  empowers  the High  Court  to  appoint  a Sessions  Judge  of  one division to sit at  such  place  or places  in another division for disposal of cases. The  High Court while so appointing need not direct him to sit only at the  ordinary  place of sittings of the  Court  of  Session. There is no such constraint in Section 9(4). The High  Court may  also issue a separate notification under  Section  9(6) specifying  the  place or places where  that  Session  Judge should sit for disposal of cases.     Section 194 provides:                                                   PG NO 144     "Additional  and Assistant Sessions Judges to try  cases made over to them. -An Additional Session Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over  to him  for trial or as the High Court may, by  special  order, direct him to try."                                          (Emphasis supplied)     Section  194 provides power to the High Court to make  a special order directing an Additional or Assistant  Sessions Judge of the same division to try certain specified cases or a  particular  case.  If  the High  Court  thinks  that  the Additional  or  Assistant Sessions Judge  should   hold  the Court at a specified place, a separate notification could be issued under Section 9(6).     The argument that the first part of Section 9(6)  should be  read  along  with the second part thereof  has,  in  the context, no place. The first part provides power to the High Court.  It is an administrative power, intended  to  further

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the  administration of justice. The second part  deals  with the power of the Court of Session. It is a judicial power of the  Court  intended to avoid hardship to  the  parties  and witnesses  in a particular case. One is independent  of  and unconnected  with the other. So, one should not be  confused with  the other. The judicial power of the Court of  Session is   of  limited  operation,  the  exercise  of   which   is conditioned  by mutual consent of the parties in  the  first place.  Secondly,  the  exercise of that  power  has  to  be narrowly  tailored to the convenience of all  concerned.  It cannot  be made use of for any other purpose.  This  limited judicial  power  of the Court of Session should not  be  put across to curtail the vast administrative power of the  High Court.     Section 9(6) is similar to Section 9(2) of the Old  Code (Act 5 of 1898). The only difference being that Section 9(2) conferred power on the State Government to specify the place or  places  where the Court of Session should  sit  for  the purpose  of disposal of cases. That power is now  vested  in the  High Court. The change of authorities was made to  keep in tune with the separation of judiciary from the executive. The  scope  of the sections, however, remains the  same.  In Lakshman  v. Emperor, AIR 1931 Bom 313, a Special  Bench  of the  Bombay High Court sustained the validity of  a  similar notification   issued  under  section  9(2).   Patkar,   J., expressed his view (at 320):                                                   PG NO 145     "Under  S. 9, sub-section (2), Criminal P.C.  the  Local Government may, by general or special order, in the official gazette, direct at what place or places the Court of Session shall  hold its sittings, but until such order is  made  the Court of Session shall hold its sittings as heretofore.     It is contended on behalf of the accused that the  Local Government  has already issued a notification directing  the Court  of  Session to be held at Alibag  in  certain  months commencing  on  dates to be fixed by the Sessions  Judge  of Thana,  and that the notification dated 5th  February,  1931 does  not  direct any new place where the Court  of  Session should  hold its sitting, and further that the  notification does  not order the Court of Session to hold its sitting  at Alibag,  but has directed a particular  Additional  Sessions Judge  to hold the sitting of his Court at Alibag. Under  s. 193(2) the Local Government had power to direct Mr.  Gundil, the Additional Sessions Judge, to try this particular  case. The  previous  orders of the Local Government  were  general orders  under s. 9(2) and there is nothing in Sec. 9(2),  to prevent a special order being passed directing at what place a Court of Session should hold its sitting. If by reason  of an  outbreak  of  plague  or  any  other  cause  it  becomes necessary  or  expedient that a Court of  Session  hold  its sittings in respect of all the cases at a different place or should  try  a particular case at a  particular  place,  the words of s. 9(2) are wide enough to cover such an order.  An order  passed  under  s. 9(2) is  an  administrative  order, passed by the Local Government, and the special order of the Local   Government  in  the  present  case   directing   the Additional  Sessions  Judge to try this particular  case  at Alibag  does  not  appear to contravene  the  provisions  of Section 9(2)."     This  appears to be the correct view to be taken  having regard  to the scheme and object of Section 9(2) of the  Old Code.     In  Ranjit  Singh v. Chief Justice  and  others,  [l985] (Vol.  28)  Delhi Law Times 153 the Delhi High  Court  while considering  the validity of a like notification  proclaimed

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more boldly (at 157):     "Section 9(6) recognises that the Court of Session if it wishes  to hold its sitting at another place can only do  so with  The  consent of prosecution and the accused. As to the                                                   PG NO 146 specifying of places of sitting of Court of Session no  such restriction is there and it is left to the best judgment  of the  High Court. Of course, this does not mean that  such  a power  can  be exercised arbitrarily. But then  it  must  be noted that Courts have consistently held that where power is vested  in  a High Official it must ordinarily  be  presumed that  the power is exercised in a bona fide  and  reasonable manner. Surely, it is a reasonable presumption to hold  that when the Full Court exercised its power, like in the present case,  directing  that  the Court of Session  may  hold  its sitting at a place other than its ordinary place of  sitting considerations  of  the  interest  of  justice,  expeditious hearing of the trial and the requirement of a fair and  open trial  are considerations which have weighed with  the  High Court  in  issuing the impugned notification. It  should  be borne in mind that very rarely does the High Court exercises its power to direct any particular case to be tried in jail. When  it  does so it is done only  because  of  overwhelming consideration  of  public  order, internal  security  and  a realisation  that holding of trial outside jail may be  held in  such a surcharged atmosphere as to completely spoil  and vitiate  the court atmosphere where it will not be  possible to  have  a  calm,  detached and fair  trial.  It  is  these considerations  which necessitated the High Court  to  issue the impugned notification. Decision is taken on these policy considerations  and the question of giving a hearing to  the accused  before issuing the notification is totally  out  of place  in  such matters. These are matters  which  evidently have to be left to the good sense and to the impartiality to the Full Court in taking a decision in a particular case.’’     It  seems  to me that the High Court of  Delhi  is  also right  in  observing  that it is  unnecessary  to  hear  the accused  or any body else before exercising the power  under Section  9(6).  Such a hearing, however, is required  to  be given  by  the Court of Session if it wants  to  change  the normal  place  of sitting, in any particular case,  for  the general convenience of parties and witnesses.     From the foregoing discussion and the decision, it  will be clear that the impugned notification of the High Court of Delhi directing that the trial of the case shall be held  at Tihar  Jail is not  ultravires of  Section 9(6) of the Code.                                                   PG NO 147     Re: Question (ii):     It  is  argued  that  public  trial  is  a   fundamental requirement  of  the  Constitution  and is  a  part  of  the Constitutional guarantee under Article 21. A public trial in jail  in the very nature of things is neither desirable  nor possible.  The massive walls, high gates, armed sentries  at every  entrance and the register maintained for  noting  the names of the visitors are said to be the inhibiting  factors to  keep away the potential visitors. People generally  will not  venture  to  go to jail and it is said,  that  jail  is notionally  and  psychologically a forbidden place  and  can never be regarded as a proper place for public trial.     The  High  Court rejected these  contentions.  The  High Court,  however, proceeded on the assumption that "a  public trial  is  a  part of  the  Constitutional  guarantee  under Article  21 of our Constitution. It is unnecessary  to  deal with  that  aspect in this case. In A. K. Roy  v.  Union  of India, [1982] 2 SCR 272 Chandrachud, C.J., speaking for  the

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Constitutional Bench said (at 354) :     "The right to public trial is not one of the  guaranteed rights  under  our  Constitution as it is  under  the  Sixth Amendment  of  the American Constitution  which  secures  to persons  charged  with crimes a public, as  well  as  speedy trial.  Even  under  the American  Constitution.  the  right guaranteed by the Sixth Amendment is held to be personal  to the accused which the public in general cannot share."     The  right of an accused to have a public trial  in  our country has been expressly provided in the Code, and I  will have  an occasion to consider that question a little  later. The  Sixth  Amendment  to  the  United  States  Constitution provides  "In  all criminal prosecution, the  accused  shall enjoy the right to a speedy and public trial by an impartial jury  .....".  No  such right has  been  guaranteed  to  the accused under our Constitution.     The  argument that jail can never be regarded as  proper place for a public trial appears to be too general. The jail trial is not an innovation. It has been there before we were born.  The validity of jail trial with reference to  Section 352  of the Code of 1898 since re-enacted as Section  327(l) has  been  the  subject  matter  of  several  decisions   of different  High  Courts.  The High Court in  this  case  has examined almost all those decisions. I will refer to some of them with laconic details. Before that, it is better to have before us Section 352 of the Code of 1898. It reads:                                                   PG NO 148     "352. Courts to be open-The place in which any  Criminal Court  is held for the purpose of inquiring into  or  trying any  offence  shall be deemed an open Court,  to  which  the public  generally  may have access, so far as the  same  can conveniently contain them.     Provided that the presiding Judge or Magistrate may,  if he  thinks fit, order at any stage of any inquiry  into,  or trial or, any particular case, that the public generally, or any particular person, shall not have access or be or remain in, the room or building used by the Court."     In  Sahai  Singh v. Emperor, AIR 1917  Lahore  311,  the accused were convicted and sentenced in the trial held in  a jail. Their conviction was challenged before the High  Court at Lahore on the ground, amongst others, that the trial  was vitiated  because  it was held in the jail. The  High  Court rejected the contention stating:     "It   is  necessary  that  I  should  first  mention   a contention  that the whole trial is vitiated because it  was held  in  the jail. Counsel for some of the  appellants  has referred  to s. 352, Criminal Procedure Code, but  there  is nothing  to show that admittance was refused to any one  who desired it, or that the prisoners were unable to communicate with  their friends or Counsel. No doubt it is difficult  to get  Counsel to appear in the jail and for that  reason,  if for  no other, such trials are usually undesirable,  but  in this case the Executive Authorities were of the opinion that it would be unsafe to hold the trial elsewhere."     In  Kailash  Nath v. Emperor, AIR 1947 All.  436.    the Allahabad  High  Court  said  that  there  is  no   inherent illegality  in  jail trials if the  Magistrate  follows  the rules of Section 352 and the place becomes Something like an open Court.     The practice of having trials inside jails, as the  High Court has rightly pointed out, seems to have persisted  even after the coming into force of the Constitution. ln re: M.R. Venkataraman,  AIR 1950 Madras 441 the High Court of  Madras after referring to the decisions in Kailash Nath’s case  and Sahai’s case, observed (at 442):

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                                                 PG NO 149     "Again, if the conveyance of prisoners, and the  accused to  and  from the court house or other  buildings,  will  be attended  with serious danger of attack, and the  rescue  of the  accused  or the prisoners, or with heavy  cost  to  the Government  in  providing an armed escort, it  may  well  be within  the  powers of the Judge or  Magistrate,  after  due consideration of the public interests and after writing down the reasons in each case, to hold the trials even inside the jail premises, where the accused are confined."     In  re: T.R. Ganeshan, AIR 1950 Madras 696,  the  Madras High Court was again called upon to consider the validity of a jail trial. In this case, the trial was held in recreation room  which  was  within the  jail  compound.  The  building consisted  of  a  hall and varandah on  two  sides.  It  was situated  at some distance from the prison walls proper.  It was  accessible  to the public. The  press  reporters,  some members  of  the  Bar and public  also  attended  the  trial proceedings.  The  High Court upheld the  validity  of  that trial.  The  High Court also said that in  the  interest  of justice  and fair trial of the case itself that, in  certain circumstances and in some cases, the public may be excluded.     The Calcutta High Court in Prasanta Kumar v. The  State, AIR 1952 Calcutta 91 and Madhya Pradesh High Court in Narwar Singh  & Ors. v. State, [1952] MB 193 at 195 recognised  the right of the Magistrate to hold Court in jail for reasons of security  for accused, for witnesses or for  the  Magistrate himself or for other valid reasons.     It may now be stated without contradiction that jail  is not a prohibited place for trial of criminal cases. Nor  the jail  trial can be regarded as an illegitimate trial.  There can be trial in jail premises for reasons of security to the parties, witnesses and for other valid reasons. The  enquiry or  trial, however, must be conducted in open  Court.  There should not be any veil of secrecy in the proceedings.  There should not even be an impression that it is a secret  trial. The  dynamics of judicial process should be thrown  open  to the  public at every stage. The public must have  reasonable access to the place of trial. The Presiding Judge must  have full  control of the Court house. The accused must have  all facilities to have a fair trial and all safe-guards to avoid prejudice.     ln  the  present case there is no reason to  find  fault with  the  decision of the High Court to have the  trial  in Tihar  jail.  The records show that the situation  then  was imperative.  The circumstances which weighed with  the  High Court  may  be  gathered from a letter dated  May  8,  1985, addressed by the Home Secretary to the Registrar of the High                                                   PG NO 150 Court. The relevant portion of the letter reads:     "The  case  is  of very special  nature  and  of  utmost importance. The assassination of the late Prime Minister had provoked   violence  and  secutiry  of  State  besides   the maintenance  of law and order had become vital problems  for Administration.  There  is every risk of  breach  of  public peace and disturbance of law and order, if the trial is held in  an open place. The lives of the trial Judge,  prosecutor and those otherwise involved in the prosecution of the  case may  be jeopardised. It is on record that  during  committal proceeding  the  Magistrate and  Prosecutor  concerned  were threatened with dire consequences as they were working for a successful  prosecution.  The  circumstances  in  which  the Hon’ble  High Court was pleased to accept the prayer of  the Administration   for   conducting   remand   and   committal proceedings in Central Jail, Tihar continue to exist. It  is

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only  for  the  security of  the  Judge,  witnesses,  Police Officers  and others but also for the safety of the  accused themselves that the trial of the case may be held in Central Jail, Tihar."     The  letter reveals a grim picture of the then  existing situation. It is said that the assassination of Smt.  Indira Gandhi  had  provoked widespread  voilence  threatening  the security of the State and the maintenance of law and  order. The remand and the committal proceedings had to be taken  in Tihar   Jail  since  the  Magistrate  and  Prosecutor   were threatened with dire consequences. lt is also said that such circumstances  continued to exist when the case came up  for trial.  The letter ends with a request to have the trial  of the  case  in  Tihar Jail for the  security  of  the  Judge, witnesses,  Police Officers and also for the safety  of  the accused  themselves. The High Court also has taken  note  of the  events that immediately followed the  assassination  of Smt. Gandhi. Beant Singh one of the assassins was shot  dead and  Satwant Singh who is the accused herein  received  near fatal gun shot injury.     That  is  not  all.  There  was  unprecedented  violence aftermath in the national capital and other places. Frenzied mob armed with whatever they could lay their hands were seen besieging  passing  sikhs  and burning  their  vehicles,  as doctors in the hospital fought their vain battle to save the life  of  Mrs. lndira Gandhi. Even  President  Zail  Singh’s cavalcade,  making its way from the Airport to the  hospital was  not  spared. The reaction of outrage went  on  unabated followed by reprisal killings and destruction of properties.                                                   PG NO 151 The  local  police  force was badly shaken.  They  could  do little  even  to contain the violence. The Army  had  to  be deployed to stem the tide of deluge. The new Prime Minister, Mr. Rajiv Gandhi made an unscheduled broadcast to the Nation pleading   for   sanity  and  protection   to   the   Sikhs. Nevertheless  three  days  passed on with  murder  and  loot leaving  behind a horrendous toll of more than two  thousand dead  and  countless  property destroyed. It  is  a  tragedy frightening  even to think of. This has been referred to  in the  report  (at  11  to 15)  of  Justice  Ranganatha  Misra Commission  of  lnquiry.  These  unprecedented  events   and circumstances,  in  my  judgment, would  amply  justify  the decision  of the High Court to direct that the trial of  the case should take place in Tihar Jail.     Re: Question (iii):     The  question  herein for consideration is  whether  the trial held in Tihar Jail was devoid of sufficient safeguards to constitute an open trial?     As a preliminary to the consideration of this  question, it  is necessary to understand the scope of sec.  327(1)  of the Code. The section provides:     "Sec. 327. Court to be open:     (1)  The place in which any criminal court is  held  for the purpose of inquiring into or trying any offence shall be deemed  to be an open Court, to which the  public  generally may have access, so far as the same can conveniently contain them:     Provided that the Presiding Judge or Magistrate may,  if he  thinks fit, order at any stage of any inquiry  into,  or trial of, any particular case, that the public generally, or any  particular person, shall not have access, to or  be  or remain in, the room or building used by the Court."     The main part of sub-sec. (1) embodies the principle  of public  trial.  lt declares that the place  of  inquiry  and trial of any offence shall be deemed to be an Open Court. lt

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significantly uses the words "open Court". lt means that all justice shall be done openly and the Courts shall be open to public.  It means that the accused is entitled to  a  public trial and the public may claim access to the trial. The sub- section   however,  goes  on  to  state  that  "the   public                                                   PG NO 152 generally   may  have  access  so  far  as  the  place   can conveniently  contain  them". What has been stated  here  is nothing  new.  It  is implicit in the concept  of  a  public trial.  The  public trial does not mean  that  every  person shall  be  allowed to attend the court. Nor the  court  room shall be large enough to accommodate all persons. The  Court may  restrict the public access for valid reasons  depending upon  the  particular case and situation.  As  Judge  Cooley states  (Cooley’s  Constitutional Law, Vol. I,  8th  Ed.  at 647):     "It is also requisite that the trial be public. By  this is  not meant that every person who seeks fit shall  in  all cases be permitted to attend criminal trials; because  there are  many cases where, from the character of the charge  and the  nature of the evidence by which it is to be  supported, the  motives to attend the trial on the part of portions  of the  community  would be of the worst character,  and  where regard  for public morals and public decency  would  require that  at  least  the  young be  excluded  from  hearing  and witnessing the evidences of human depravity which the  trial must necessarily bring to light. The requirement of a  trial is  for the benefit of the accused; that the public may  see he  is  fairly dealt with and not unjustify  condemned,  and that  the  presence of interested spectators  may  keep  his triers keenly alive to a sense of their responsibility  into the  importance  of their functions and the  requirement  is fairly  observed  if, without partiality or  favouritism,  a reasonable  proportion of the public is suffered to  attend, notwithstanding  that those persons whose Presence could  be of  no service to the accused, and who would only  be  drawn thither by a prurient curiosity, are excluded altogether."     The  proviso  to sub-sec. (1) of sec.  327  specifically provides  power to the Presiding Judge to  impose  necessary constraint on the public access depending upon the nature of the  case. lt also confers power on the Presiding  Judge  to remove any person from the court house. The public trial  is not  a  disorderly  trial. It is an  ordinarily  trial.  The Presiding Officer may, therefore, remove any person from the Court premises if his conduct is undesirable. If  exigencies of  a situation require, the person desiring to  attend  the trial  may  be asked to obtain a pass  from  the  authorised person.  Such visitors may be even asked to  disclose  their names and sign registers. There may be  also securty checks. These and other like restrictions will not impair the  right of the accused or that of the public. They are essential  to ensure  fairness  of  the  proceedings  and  safety  to  all concerned.                                                   PG NO 153     So  much as regards the scope of public trial  envisaged under  sec.  327(1)  of  the  Code.  There  are  yet   other fundamental  principles  justifying  the  public  access  to criminal  trials:  The  crime is a wrong done  more  to  the society  than  to  the individual.  It  involves  a  serious invasion  of  rights and liberties of some other  person  or persons. The people are, therefore, entitled to know whether the  justice  delivery  system is  adequate  or  inadequate. Whether  it  responds appropriately to the situation  or  it presents  a pathetic picture. This is one aspect. The  other aspect   is   still  more  fundamental.   When   the   State

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representing  the society seeks to prosecute a  person,  the State  must  do  it  openly. As Lord  Shaw  said  with  most outspoken words (Scott v. Scott, [1913] A.C. 417 at 477):     "It  is needless to quote authority on this  topic  from legal,  philosophical,  or  historical  writers.  It   moves Bentham  over and over again. ‘ln the darkness  of  secrecy, sinister  interest and evil in every shape have full  swing. Only  in  proportion as publicity has place can any  of  the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.’ ’Publicity is the very soul of justice. It is the keenest spur to exertion and  the surest  of all guards against improbity. It keeps the  judge himself   while  trying  under  trial.’  ‘The  security   of securities  is publicity.’ But amongst historians the  grave and  enlightened  verdict of Hallam, in which he  ranks  the publicity  of  judicial  proceedings even  higher  than  the rights  of Parliament as a guarantee of public security,  is not  likely to be forgotten: ‘Civil liberty in this  kingdom has  two  direct  guarantees;  the  open  administration  of justice according to known laws truly interpreted, and  fair constructions  of  evidence; and the  right  of  Parliament, without  let  or interruption, to inquire into,  and  obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned  to enjoy a real freedom, where this  condition  is not  found  both in its judicial institutions and  in  their constant exercise . . . . .’ "     In open dispensation of justice, the people may see that the  State  is  not misusing the State  machinary  like  the Police,  the  Prosecutors  and other  public  servants.  The people may see that the accused is fairly dealt with and not unjustly condemned. There is yet another aspect.                                                   PG NO 154     The  courts  like  other  institutions  also  belong  to people.  They are as much human institutions as  any  other. The  other  instruments and institutions of  the  State  may survive by the power of the purse or might of the sword. But not  the Courts. The Court have no such means or power.  The Courts  could  survive  only  by  the  strength  of   public confidence.  The  public  confidence  can  be  fostered   by exposing Courts more and more to public gaze.     There  are  numerous benefits accruing from  the  public access  to criminal trials. Beth Hornbuckle Fleming  in  his article  "First  Amendment  Right  of  Access  to   Pretrial Proceedings  in  Criminal Cases" (Emory Law Journal,  V.  32 (1983)   p.  618  to  688)  neatly  recounts  the   benefits identified by the Supreme Court of the United States in some of the leading decisions. He categorizes the benefits as the "fairness"  and  "testimonial improvement"  effects  on  the trial  itself,  and the "educative" and  "sunshine"  effects beyond the trial. He then proceeds to state:     "Public  access to a criminal trial helps to ensure  the fairness  of  the  proceeding. The presence  of  public  and press  encourages all Participants to perform  their  duties conscientiously  and  discourages misconduct  and  abuse  of power   by  judges,  prosecutors  and  other   participants. Decisions based on partiality and bias are discouraged, thus protecting the integrity of the trial Process. Public access helps  to  ensure that procedural rights are  respected  and that justice is applied equally.     Closely related to the fairness function is the role  of public access in assuring accurate fact finding through  the improvement of witness testimony. This occurs in three ways. First, witnesses are discouraged from committing perjury  by the  presence of members of the public who may be  aware  of

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the truth. Second, witnesses like other participants, may be encouraged  to perform more conscientiously by the  presence of  the  public,  thus  improving  the  overall  quality  of testimony, Third, unknown witnesses may be inducted to  come forward and testify if they learn of the proceedings through publicity. Public access to trials also plays a  significant role  in  educating the public about  the  criminal  justice process.  Public  awareness of the functioning  of  judicial proceedings  is  essential to informed  citizen  debate  and decision making about issues with significant effects beyond                                                   PG NO 155 the  outcome  of the particular  proceeding.  Public  debate about   controversial   topics,   such   as,    exclusionary evidentiary rules, is enhanced by public observation of  the effect  of  such  rules  on  actual  trials.  Attendance  at criminal trials is a key means by which the public can learn about  the activities of police, prosecutors, attorneys  and other  public  servants, and thus  make  educated  decisions about  how  to  remedy abuses within  the  criminal  justice system.     Finally,  public  access to trials serves  an  important "sunshine"  function.  Closed proceedings,  especially  when they are the only judicial proceedings in a particular  case or   when   they  determine  the   outcome   of   subsequent proceedings,  may  foster distruct of the  judicial  system. Open proceedings enhance the appearance of justice and  thus help to maintain public confidence in the judicial system."     With  these  observations, let us now hark back  to  the safeguards  provided to ensure an open trial in  this  case. First,  let  us have an idea of the building  in  which  the trial  took  place. The Office Block of the Jail  Staff  was used  as  the Court House,. It is  an  independent  building located  at  some distance from the main  Jail  complex.  In between  there is a Court-yard. This court-yard  has  direct access from outside. A visitor after entering the court-yard can straight go to the Court House. He need not get into the Jail  Complex.  This  is  evident from  the  sketch  of  the premises  produced  before  us. It appears  the  person  who visits  the  Court House does not get any idea of  the  Jail complex  in which there are Jail Wards and Cells.  From  the sketch, it will be also seen that the building comprises  of a Court-hall, Bar room and chamber for the Judge. The  Court hall  can  be said to be of ordinary size.  It  has  seating capacity for about fifty with some more space for those  who could  afford to stand. The accused as undertrial  prisoners were lodged at Jail No. 1 inside the Jail complex. It was at a  distance  of about 1 km from the Court House.  For  trial purposes, the accused were transported by van. In the  Court hall, they were provided with bullet proof enclosure.     This  is  a rough picture of the Court House  where  the accused  had their trial. For security reasons,  the  public access to trial was regulated. Those who desired to  witness the  trial were required to intimate the Court  in  advance. The  trial Judge used to accord permission to  such  persons subject to usual security checks. Before commencement of the                                                   PG NO 156 trial of the case, the representatives of the Press and News Agencies,  national and international, approached the  trial Judge  for  permission to cover the Court  proceedings.  The representatives  of  BBC, London Times, New York  Times  and Associated Press were some of them. The trial Judge  allowed their  request  by  his  order dated May  15,  1985  in  the following terms:     "I do feel that in the best traditions of the trial, the press is permitted to cover the proceedings of the trial  in

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the case. In view thereof think it just and proper to  allow the  press to cover the proceedings. Without  exception  the news  agencies would have a right to cover  the  proceedings through  a representative. So far as individual  papers  are concerned,  efforts would be made to accommodate as many  of them as security and space would permit. In view thereof, it is  directed that a letter be addressed to the Supdt.  Jail, Tihar with the request that the press representatives may be allowed to enter and have access to the Court room where the proceedings  would be held in the jail. It would be open  to the Supdt. Jail to put such restrictions as regards security check-up  or  production of accredition  cards  or  identity cards as he considers necessary."     On May 20, 1985, Kehar Singh (A-3) filed an  application before  the trial court contending that the trial should  be held  in open Court at Patiala House, New Delhi and  not  in Central Jail, Tihar. The State filed an objection contending inter-alia :     "That  regulated entry has been made for the  safety  of the  accused  and  for  the general  safety  of  the  others concerned  with  the trial. Every specific  request  of  the accused  and others to attend the trial has been allowed  by the  Court. The entry of the Court room is merely  regulated in the interest of safety. A blanket charter to permit every person known or unknown or whose antecedents are not  proper can very much defeat the ends of justice. Not only it has to be ensured that a fair trial is given, but it has also to be kept  in  view that the prevailing peculiar  situation,  the security is not jeopardized at any cost. The members and the relatives of the accused have been permitted by the Court to be present at the time of hearing. It was, therefore, not  a closed or a secret trial. xx   xx   xx   xx   xx   xx   xx   xx   xx   xx   xx   xx                                                   PG NO 157     ln  view  of  the  prevailing  situation  and   peculiar circumstances,  the  hon’ble High Court has vide  its  order chosen the venue of trial. The only proper venue for a trial like this is jail. Even this learned Court would have  opted for  the  same in view of the security risk  nature  of  the crime, persons involved and keeping in view the other allied circumstances  of  the case. It was also stated,  "that  the case  as  is  and product of  misguided  fundamentalism  and terrorism. ln the prevailing atmosphere in the country,  the accused  as  well as the witnesses are in  grave  danger  of outside  terrorists attacks and this has to be  safeguarded. Transport  of accused persons at set times from and  to  the jail is fraught with danger."     The  application  of  the  accused  and  the  objections thereof were considered and disposed of by order dated  June 5, 1985. The relevant portion of the order reads:     ".....There can be no dispute that public has a right to know but it is precisely for this purpose that National  and International  Press has been allowed to be present  in  the Court  during  the  entire  trial. The  press  is  the  most powerful watch dog of the public interest and, certainly, we in  India  have not only free but also  a  very  responsible press and interest of general public are quite safe in their hands. It is not merely lndian press representatives and the news agencies which have been allowed to come to attend  the trial  but the International agency like BBC, London  Times, New  York Times and Associated Press have also been  allowed and admitted and are, in fact, present. xx   xx   xx   xx   xx   xx   xx   xx   xx   xx   xx   xx     It can be categorically declared and placed on record by this Court that all press representatives and news  agencies

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whosoever have sought permission have been without exception granted necessary permission by this Court. I am sure  right of  public  to  known about the trial  has  been  more  than assured  by  the  presence of the Press in  the  Court.  The suggestion of learned defence counsel that presence of Press is not sufficient guarantee is not a fair comment on a free, fair  and responsible Press of India. It would be proper  to mention  here  that  to  ensure  fair  trial  and  judicious                                                   PG NO 158 administration  of justice the presence of defence  counsel, the Press and the relations of the accused persons has  been allowed ....."     With  reference  to  the  people  in  general,  it   was pertinently observed:     "Nonetheless, space permitting, this Court would not  be averse or disinclined to allow public men also to attend the proceedings subject to usual security chehk-up."     The  learned  trial  Judge did not  make  the  aforesaid observation as an empty formality. True to his words, he did permit  access  to  the  members  of  the  public  also.  He permitted  even the Law Students in batches to  witness  the trial.  This we could see from the extract of the  visitors’ book  maintained  by the authorities. There  is  hardly  any instance brought to our attention where a person who  sought permission  was denied access to the Court. The  High  Court has  also considered this aspect carefully. The  High  Court has  observed that the "trial Judge has given access to  the place  of  trial for all members of the public  who  may  be minded  to  attend  the same  save  for  certain  reasonable restriction imposed in public interest." This statement  has not  been shown to be incorrect. The fact also remains  that the accused were represented by leading members of the  Bar. Some  of the close relatives of the accused were allowed  to be present at the trial. All press representatives and  news agencies  whoever  sought permission have  been  allowed  to cover  the day to day Court proceedings. The trial Judge  in his  order dated June 5, 1985 has specifically stated  this. There  can,  therefore,  be no doubt or dispute  as  to  the adequacy of safeguards provided to constitute an open trial. Indeed, the steps taken by learned trial Judge are more than adequate to ensure fair trial as well as public trial.     For the accused, it is argued that the people can assert their right of access to criminal trials in the exercise  of their  fundamental right guaranteed under Art.  l9(1)(a)  of the Constitution and they need not be under the mercy of the Court.  It  is  also  urgued that there  shall  not  be  any discrimination  in the matter of public access  to  judicial proceedings  and  first  come first  served  should  be  the principle  no  matter whether one is a press  person  or  an ordinary citizen. The contentions though attractive need not be  considered  since no member of the public  or  press  is before us making grievance that his constitutional right  of access to the trial has been denied in this case. This Court                                                   PG NO 159 has  frequently  emphasized that the decision of  the  Court should  be  confined to the narrow  points  directly  raised before it. There should not  be any exposition of the law at large  and  outside the range of facts of  the  case.  There should  not  be  even  obiter  observations  in  regard   to questions   not  directly  involved  in  the   case.   These principles  are  more  relevant  particularly  when  we  are dealing   with  constitutional  questions.  I   should   not transgress  these limits. However, the decisions    referred to us may be briefly touched upon here.     In  Naresh  Shridhar Mirajkar v. State  of  Maharashtra,

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[1963]  SCR 744, this Court had an occasion to consider  the validity of a  judicial verdict of the High Court of  Bombay made  under  the inherent  powers. There the  learned  Judge made  an oral order directing the Press not to  publish  the evidence  of a witness given in the course  of  proceedings. That order was challenged by a journalist and others  before this  Court  on  the ground that  their  fundamental  rights guaranteed under Art. 19(1) (a) and (g) have been  violated. Repelling  the contention, Gajendragadkar, CJ, speaking  for the majority  view said (at 760-61) :     "The  argument  that  the  impugned  order  affects  the fundamental  rights of the petitioners under Art. 19(1),  is based on a complete misconception about the true nature  and character  of  judicial process and of  judicial  decisions. But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction  in or   in  relation  to  a  matter  brought  before  him   for adjudication  can  effect  the  fundamental  rights  of  the citizens   under  Art.  19(1). What  the  judicial  decision purports  to  do is to decide the  controversy  between  the parties brought  before the Court and nothing more. If  this basic and essential aspect of the judicial process is  borne in  mind,  it  would  be plain  that  the  judicial  verdict pronounced  by Court in or in relation to a  matter  brought before  it for its decisions  cannot be said to  affect  the fundamental rights of citizens  under Art. 19(1).’’     There  is triology of decisions of the Supreme Court  of United   States dealing with the constitutional right of the public access to criminal trials.     In  Gannet Co. v. De Pasquale, 443 U.S. 368 (1979),  the defendants were charged with murder and requested closure of                                                   PG NO 160 the   hearing   of  their  motion  to   suppress   allegedly involuntary   confessions   and   physical   evidence.   The prosecution  and  the  trial Judge  agreed  and   said  that closure was necessary. The public and the press were  denied access  to avoid adverse publicity. The closure was also  to ensure  that  the defendants’ right to a fair trial was  not jeopardized.  The  Supreme Court addressed to  the  question whether  the public has an independent constitutional  right of  access to a pretrial judicial proceedings,  even  though the  defendant,  the prosecution, and the  trial  Judge  had agreed that closure was necessary. Explaining that the right to  a public trial is personal to the defendant,  the  Court held  that the public and press do not have  an  independent right  of  access to pretrial proceedings  under  the  Sixth Amendment.     Although  the  Court in Gannett held that  no  right  of public  access emanated from the Sixth Amendment it did  not decide  whether a constitutional right of public  access  is guaranteed by the first amendment. This issue was  discussed in Richmond Newspaper Inc. v. Vir- ginia, 448 US 555 (1980). This case involved the closure of the court- room during the fourth  attempt  to try the accused for murder.  The  United States Supreme Court considered whether the public and press have  a  constitutional right of access to  criminal  trials under the first amendment. The Court held that the first and fourteenth  amendments  guarantee the public and  press  the right to attend criminal trials. But the Richmond Newspapers case  still left the  question as to whether the  press  and public  could be excluded from trial when it may be  in  the the  best  interest of fairness to make such  an  exclusion. That  question  was  considered in the Globe  Newspapers  v. Superior Court, 4.57 U.S. 596 ( l982) (73 L.Ed. Z48).  There the  trial  Judge  excluded the press and  public  from  the

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courtroom pursuant to a Massachusetts statute making closure mandatory  in cases involving minor victims of  sex  crimes. The   Court   considered  the   constitutionality   of   the Massachusetts  statute  and held that the  statute  violated the first amendment because of its  mandatory nature. But it was  held  that it would be open to the Court in  any  given case to deny public access to criminal trials on the  ground of state’s interest. Brennan, J., who delivered the  opinion of the Court said (at 258-59):     "We   agree  with  appellee  that  the  first   interest safeguarding the physical and psychological well-being of  a minor  is  a  compelling  one. But  as  compelling  as  that interest  is, it does not justify a mandatory closure  rule, for   it is clear that the circumstances of  the  particular case may   determine on a case by case basis whether closure                                                   PG NO 161 is necessary to protect the welfare of a minor victim. Among the   factors  to  be weighed are the  minor  victim’s  age, psychological maturity and understanding, the nature of  the crime,  the  desires of the victims, and  the  interests  of parents and relatives.         xx       xx         xx           xx          xx     ....  Such an approach ensures that  the  constitutional right    of the press and public to gain access to  criminal trials  will  not be restricted except  where  necessary  to protect the State’s interest. "     It will be clear from these decisions that the mandatory exclusion  of the press and public to criminal trials in all cases  violates  the First Amendment to  the  United  States Constitution.  But  if such exclusion is made by  the  trial Judge  in  the  best  interest  of  fairness  to  make  that exclusion, it would not violate that constitutional rights.     It  is  interesting to note that the view taken  by  the American   Supreme Court in the last case, runs parallel  to the  principles laid  down by this Court in Naresh  Shridhar Mirajkar case.     Re: Question (iv):     There  remains,  however, the last  question  formulated earlier  in  this judgment, namely, whether the trial  Court was  justified  in refusing to call for  the  statements  of witnesses recorded by the Thakar Commission?     For a proper consideration of the  question, it will  be necessary to  have a brief outline of certain facts.     Soon after the assassination of Mrs. lndira Gandhi,  the Government  of  India, by Notification  dated  November  2O, 1984,  constituted  a  Commission under  the  Commission  of Inquiry  Act, 1952 (the "Act"). The Commission was  presided over by Mr. Justice M.P. Thakkar, the  sitting Judge of this Court.  The  Commission was asked to make  an  inquiry  with respect to the matters:     (a)  the sequence of events leading, and all  the  facts relating to, the assassination of the late Prime Minister;                                                   PG NO 162     (b)  whether  the  crime could  have  been  averted  and whether there were any lapses of dereliction of duty in this regard on the part of any of the commission of the crime and other  individuals responsible for the security of the  late Prime  Minister;     (c) the deficiencies, if any, in the security system and arrangements as prescribed or as operated in practice  which night have facilitated the commission of the crime ;     (d)  the  deficiencies, if any, in  the  procedures  and measures   as  prescribed,  or as operated  in  practice  in attending  to  any providing medical attention to  the  late Prime  Minister  after  the commission  of  the  crime;  and

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whether  there was any lapse or dereliction of duty in  this regard  on  the  part of  the  individuals  responsible  for providing such medical attention ;     (e)  whether  any  person or persons  or  agencies  were responsible  for  conceiving,  preparing  and  planning  the assassination  and whether there was any conspiracy in  this behalf, and if so, all its ramifications.     The Commission was also asked to make recommendations as to  the  corrective remedies- and measures that need  to  be taken  for  the     future  with  respect  to  the   matters specified in clause (d) above.     On  December 5, 1984,the Commission  framed  regulations under  sec.  8  of the Act in regard to  the  procedure  for enquiry. Regulation 8 framed thereon reads: "In view of  the sensitive nature of the enquiry, the proceedings will be  in camera    unless   the   Commission   directs    otherwise." Accordingly, the Commission had its sittings in  camera.  On November  19,  1985,  the Commission  submitted  an  interim report  to  the Government followed by the final  report  on February 27, 1986.     In  the  normal  course, the Government  ought  to  have placed the  report of the Commission under sec. 3(4) of  the Act before the House  of the People within six months of the submission  of  the report. But the Government  did  not  do that.  The  steps  were taken to amend  the  Commissions  of Inquiry  Act.  On  May  14, 1986,  the  President  of  lndia promulgated  Ordinance No. 6 of 1986 called the  Commissions of  Inquiry (Amendment) Ordinance 1986 by which sub-sections (5) and  were introduced to sec. 3 as follows:                                                   PG NO 163     "(5)  The provisions of sub-sec. (4) shall not apply  if the   appropriate  Government  is  satisfied  that  in   the interests  of  the sovereignty and integrity of  India,  the security of the State friendly relations with foreign  State or in the public interest, it is not expedient to lay before the   House  of  the  people or, as the  case  may  be,  the Legislative  Assembly of the State, the report, or any  part thereof,  of  the  Commission on the  Inquiry  made  by  the Commission  under sub-sec. (1) and issues a notification  to that effect in the Official Gazette.     (6)  Every notification issued under sub-sec. (5)  shall be  laid before the House of the People or. as the case  may be, the Legislative Assembly of the State, if it is  sitting as  soon as may be after the issue of the notification,  and if  it is  not sitting, within seven days of its  reassembly and  the appropriate Government shall seek the  approval  of the   House  of  the  People or, as the  case  may  be,  the Legislative Assembly of the State to the notification by   a resolution  moved within a period of fifteen days  beginning with  the  day on which the notification is so  laid  before the  House  of       the People or as the case may  be,  the Legislative Assembly of the State makes any modification  in the  notification  or directs that the  notification  should cease to have effect, the notification shall thereafter have effect, as the case may be."     On  May  15,  I986,  the  Central  Government  issued  a notification  under sub-sec. (5) of sec. 3 stating:     "The Central Government, being satisfied that it is  not expedient  in the interest of the security of the State  and in the public interest to lay before the House of the People the report submitted to the Government on the 19th November, l98S, and the 27th February, ]986, by Justice  M.P. Thakkar, a  sitting  Judge of the Supreme Court  of  India  appointed under the notification of the Government    of India in  the Ministry  of  Home Affairs No. S.O. 867(B)  dated  the  20th

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November, 1984, hereby notifies that the  said reports shall not be laid before the House of the People. ’’                                                   PG NO 164    On  August 20,1986,Ordinance No. (6) was replaced by  the Commission of Inquiry (Amendment) Act, 1986 (Act 36 of 1986) with  retrospective effect. The said notification dated  May 15, 1996 was also got approved by the House of the People as required under sub-sec.(6) of sec. 3.     We  may  now revert to the steps taken  by  the  accused before the  trial court. After the Prosecution examined some of  the  witnesses,accused  No. 1 moved the  Court  with  an application dated August 5, 1985 praying for summoning  true copies of statements of all persons  recorded by the Thakkar Commission and who happened to be the Prosecution  witnesses in  the  case.  It was stated in the  application  that  the statements should be summoned for the purpose of sec. 145 of the  Evidence Act. The trial court rejected that application following the  decision of this Court in Ramakrishna  Dalmia v.  Justice Tandolkar, 1959] SCR Z79. The trial  court  said that   the  statements  recorded  by  the   Commission   are inadmissible  in evidence by any subsequent proceedings  and cannot  therefore be used for the purpose  of  contradicting the same witnesses under sec. 145 of the Evidence Act.     Before the High Court, the accused made two applications under   sec. 391 of the Criminal Procedure Code. On July 16, 1986  accused   nos.  2  and  3  made  an  application   for additional  evidence.  Accused  No. 1 also  made  a  similar application   dated   July  17,  1986.  They   wanted    the depositions  recorded and the documentary evidence  received by  the  Thakkar Commission as additional  evidence  in  the case.  They  also  wanted the High Court to summon  the  two reports of the Thakkar  Commission.     The  High  Court rejected both the applications  in  the course of   the judgment which is now under appeal. The High Court has stated that it is not proper to compel  production of the proceedings or the  report of the Commission in  view of the privilege of non-disclosure   provided by the Act  of Parliament. The High Court also depended  upon the  decision of  this Court in Dalmia’s case. The decision  therein   was he]d  to be an authoritative pronouncement on the  scope  of sec.  6  of the Act and as to the utilisation  of  statement made  by any person  before the Commission. The  High  Court held  that  the  evidence before the  Commission  is  wholly inadmissible  in  any other Civil  or  Criminal  Proceedings except for Prosecuting the person far perjury.     The  principal  submission before us is  that  the  High Court has   misconstrued the scope of sec. 6 of the Act  and misunderstood the  obrervationsin Dalmia’s case. It is  also contended  that the observation in Dalmia’s case  cannot  be                                                   PG NO 165 regarded  as a binding precedent since this   Court was  not called upon therein to examine the true scope of sec. 6.     It  is  true that the scope of section as such  did  not come up for consideration in Dalmia’s case. Das, CJ.,  while examining  the  challenge to the validity of the Act  and  a notification issued there-under made some observations as to matters of principle (294-295):     "The  whole  purpose of setting up of  a  Commission  of Inquiry  consisting  of experts will be frustrated  and  the elaborate process of inquiry will be deprived of its utility if  the opinion and the advice of the expert body as to  the measures the situation disclosed calls for cannot be  placed before  the  Government  for  consideration  notwithstanding that doing so cannot be to the prejudice of anybody  because it  has  no  force  of  its own.  In  our  view,  the  recom

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mendations   of  a  Commission  of  Inquiry  are  of   great importance to the Government in order to enable it to   make up  its  mind  as  to  what  legislative  or  administrative measures  should be adopted to eradicate the evil  found  or the beneficial objects it has in view. From to implement’the beneficil in of view, there can be no objection even to  the Commission  of Inquiry, recommending the imposition of  some form   of  Dunishment  which  will,  in  its   opinion,   be sufficiently deterrent to delinquents in future. But  seeing that the Commission of Inquiry has no judicial power and its report  will  purely  be recommendatory  and  not  effective proprio  vigore and the staement made by any  person  before the Commission of Inquiry is under sec. 6 of the Act  wholly inadmissible  in evidence in any future  proceedings,  civil criminal."                                    (Emphasis supplied )     Since  the argument in the above case did  not  traverse the  scope of sec.6 of the Act,it is now necessary  to  call attention to the same atlength. Before examining the Act, it is  now  necessary to all attention to  the  same  atlength. Before examining the matter, it may not be inappropriate  to state  that the accused in criminal trials should  be  given equal  opportuinty to lay evidence fully, freely and  fairly before  the  Court.  The   Government  which  prosecutes  an accused will lay bare the evidence in its possession. if the accused  asks for summoning any specific document  or  thing for preparing his case, it should normally be allowed by the Court  if  there  is  no legal bar.  But  "the  demand",  as Brennan,  J.,of  the  Supreme Court of  the  United  States, observed,  "must  be  for  production  of  ......   specific                                                   PG NO 166 documents and should not propose any broad or blind  fishing expedition." (Clinton E. Jencks v. United State 353 U.S. 657 =  1  L.Ed.  1103  at  1111). Ameer  Ali,  J.  in  Nizam  of Hyderabad v. A.M. Jacob, ILR XIX Cal. 52 at 64 made  similar observations:     "...he  cannot  call for anything  and  everything  from anybody  everybody.  The  thing called for  must  have  some relation  to, or connection with: the subject-matter of  the investigation  or  equiry,  or  throw  some  light  on   the proceedings, or supply some link in the chain of evidence. "     These  principles  are  broadly  incorporated  for   the guidance of Courts under Section 91 and 233 of the Code.     Let  us turn to consider in detail the language  of  the Critical section. Section 6 provides:     "No  statement made by a person in the course of  giving evidence  before the Commission shall subject him to, or  be used against him in any civil or criminal proceedings except a prosecution for giving false evidence by such statement .      xx    xx       xx     xx     xx    xx    xx.     Dissecting  the  section,  it will  be  clear  that  the statement made by  a person before the: Commission, in  the- first place shall not be the basis  to proceed against  him. Secondly,  it  shall  not  be  ’used  against  him’  in  any subsequent  civil  or criminal proceedings  except  for  the purpose set out in the section itself. The single  exception provided  thereunder  is  a  prosecution  for  giving  false evidence by such statement.     The  term "used against" has given rise to  controversy. the   Bombay High Court in (i).Sohan Lal v.State,  AIR  I966 Bom I and (ii) State of Maharashtra v. Ibrahim Mohd., [1978] Criminal L.J. 1157 has regarded the observations in Dalmia’s case as an obiter. It was held:     "Whether a particular statement made by a witness before the  Commission  is used "against him" will depend   on  the

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prejudice  or  detriment caused or likely to  cause  to  the person  in  civil or criminal proceedings or  otherwise.  It must,  therefore,  necessarily  depend  on  the  facts   and                                                   PG NO 167 circumstances  relating to the use or intended use.  Whether any particular prejudice or detriment can be said to  result from  the use of the statements will also depend  on  facts. Mere  cross-examination under s. 145 can at the most  expose his  statement.  That  does  not  render  the  use  of   the statement  "against him" in law because law requires him  to tell  the truth, the whole truth and nothing but  the  truth before  the  Commission  also  and  implies  that  he   will prosecuted  for  perjury if he tells lies."  Maharashtra  v. Ibrahim Mohd., [1978] Cr. Law Journal 1157 at  1160.     This  line of reasoning also found with the  Assam  High Court  in   State of Assam v. Suprbhat Bhadra,  [1982]  Cal. L.J.  1672.  But Madhya   Pradesh High Court in  Puhupram  & Ors.  v.  State of M. P., [1968] MP  L.J. 629  has  taken  a contrary  view. That High Court said that the   language  of section  6 is plain enough to show that the  statement  made by a person before the Commission of Inquiry cannot be  used against  him for the purpose (of cross-examination.     It  is urged that even if the words "used against"  mean preventing   the  use of the statement for  the  purpose  of contradiction as required  under section 145 of the Evidence Act,  there  are  other provisions by   which  the  previous statement  could be looked into for productive use   without confronting  the same to the witness. Reference is made’  to the  first part of Section 145, sub-sections (1) and (2)  of Section I46 as well as Sections 157 and 159 of the  Evidence Act. It is also said that the term "used against" in Section 6 was not intended to be an absolute  bar for making use  of such  statement  in  subsequent  proceedings.  The   learned Additional Solicitor General, on the other hand, states that Section  6  was  intended lo be  a  complete  protection  to persons  against  the use or utility of their statements  in any  proceedings except in case of prosecution for  perjury. Such protection is necessary for persons to come and  depose before the Commission without any hesitation. Any   dilution of that protection, it is said, would defeat the purpose  of the Act itself.     Before  1 come to consider the arguments put forward  by each  side, I venture to refer to some general  observations by  way  of  approach to the questions  of  construction  of statutes.  In  the past, the Judges and lawyers spoke  of  a ’golden  rule’  by which statutes were  to   be  interpreted according  to grammatical and ordinary sense of  the   word. They  took the grammatical or literal meaning  unmindful  of the   consequences.  Even  if such a meaning  gave  rise  to unjust  results  which   legislature  never  intended,   the                                                   PG NO 168 grammatical  meaning alone was kept to  prevail.  They  said that  it would be for the legislature to amend the  Act  and not for the Court to intervene by its innovation.     During  the  last several years, the ’golden  rule’  has been given a go bye. We now look for the ’intention’ of  the legislature  of  the  ’purpose’of  the  statute.  First,  we examine  the words of the statute. If the words are  precise and  cover the situation in hand, we do not go  further.  We expound those words in the natural and ordinary sense of the words.  But,  if the words are ambiguous, uncertain  or  any doubt   arises as to the terms employed, we deem it  as  our Paramount  duty to put upon the language of the  legislature rational meaning. We then  examine every word, every section and  every  provision. We examine  the Act as  a  whole.  We

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examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress.  We look  at  the  whole  situation  and  not  just   one-to-one relation.  We  will not consider any provision  out  of  the framework  of the  statute. We will not view the  provisions as  abstract  principles  separated from  the  motive  force behind. We will consider the provisions in the circumstances to  which  they  owe  their origin.  We  will  consider  the provisions  to ensure coherence and consistency  within  the law as a whole and to avoid undesirable consequeces.     Let  me here add a word of caution. This  adventure,  no doubt, enlarges our discretion as to interpretation. But  it does not imply Power to us or substitute our own notions  of legislative  intention.  It implies only a power  of  choice where differing    constructions are possible and  different meanings are available.     For this purpose, we call in external and internal aids.     External aids are: The statement of Objects and  Reasons when   the Bill was presented to Parliament, the reports  of the,  Committee,  i  any, preceded  the  l3ill.  legislative history.  other statutes in parimateria and  legislation  in other  States  which pertain to the  same  sub-ject  matter. Persons, things or relations.     Internal  aids are: Preamble, Scheme. enacting parts  of the    statutes, rules of languages and other provisions  in the statutes.     The  Act  may now be analysed. The Act is  a  short  one consisting  of 12 Sections. Section 3 provides power to  the appropriate  Government  to appoint a Commission of  Inquiry for  the  purposes of making  an inquiry into  any  definite                                                   PG NO 169 matter  of  public importance.  Section 4   confers  upon  a Commission  of Inquiry certain powers of a Civil Court  (for example, summoning and enforcing the attendance of witnesses and  examining them on oath, etc.). Section 5  empowers  the appropriate Government to confer some additional powers on a Commission    of  Inquiry.  Section  5(a)   authorises   the Commission  to  utilise  the   service  of  any  officer  or investigating  agency  for the purpose  of   conducting  any investigation   pertaining  to  inquiry  entrusted  to   the Commission.  Section 6 confers upon persons giving  evidence before the Commission protection from prosecution except for perjury.  The  other  sections are  not  important  for  our purpose except Section 8. Section 8 provides procedure to be followed  by the Commission. The  Commission is given  power to regulate its own procedure and also to  decide whether to sit in public or in private.     The Statement of Objects and Reasons of the original Act reads:     "It  is  felt  that  there  should  be  a  general   law authorising Government to appoint an inquiring authority  on any   matter  of  public  importance,  whenever   considered necessary,  or when a demand to that effect is made  by  the legislature  and  that such law should enable  to  inquiring authority to exercise certain specific powers including  the powers  to  summon witnesses, to take evidence on oath,  and to  compel  person  to  furnish  information.  The  bill  is designed to achieve  this  object     It  will be clear from these provisions that   the   Act was intended  cover matters of public importance. In matters of public importance it may be necessary for the  Government to fix the responsibility on individuals or to kill  harmful rumours.  The ordinary law of the land may       not fit  in such cases apart from it is time consuming.     The  Commission  under  our Act is given  the  power  to

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regulate  its  own procedure and also to decide  whether  to sit in camera or in public. A Commission appointed under the Act does not decide any dispute. There are no parties before the  Commission. There is no list. The Commission is  not  a Court  except  for a limited purpose. The procedure  of  the Commission  is inquisitorial rather than  accusatorial.  The Commission more often may have to give assurance to  persons giving evidence before it that their statements will not  be used  in  any  subsequent proceedings  except  for  perjury. Without such an assurance, the may not come forward to  give statements.  If  persons have got  lurking fear  that  their                                                   PG NO 170 statements  given  before’ the Commission are likely  to  be used against them or utilised for productive use on them any other proceeding, they may be reluctant to expose themselves before the Commission. Then the Commission would not be able to  perform  its task. The Commission would not be  able  to reach  the nuggests of truth from the obscure  horizon.  The purpose  for  which  the Commission is  constituted  may  be defeated.     The  Court should avoid such construction to  Section  6 which may   stultify the purpose of the Act. Section 6  must on  the other hand receive liberal construction so that  the person  deposing  before  the Commission  may  get  complete immunity  except in a case of prosecution for perjury.  That is  possible  if  the  word "against"  used  in  sec.  6  is properly  understood.  The  meaning  given  in  Black’s  Law Dictionary   supports such construction (at 57):     "Against-Adverse to, contrary ...... Sometimes   meaning "Upon", which is almost, synonymous with word  "on"..."     Apart  from  that, it may also be noted that  Section  6 contains    only  one exception. That is a  prosecution  for giving false evidence b such statement. When the Legislature has   expressly  provided  a  singular  exception   to   the provisions,  it  has to be normally understood  that   other exceptions are ruled out.     The  view that I have taken gets confirmation  from  the report  of  the Royal Commission on Tribunals of  Inquiry  ( ]966). Before referring to the report, it will be useful  to have  before  us,  the relevant provisions  of  the  English statutes  which are not materially dissimilar to   our  Act. There are two English statutes which may be looked into: (i) The Special Commission Act, 1888; and (ii) The Tribunals  of Inquiry    (Evidence)  Act, 1921. Section 9 of  the  Special Commission Act, 1988  provides:     "9- - - - - - A witness examined under this Act shall  n of  be  excused from answering any question put  to  him  no the  ground  of  any privilege or on  the  ground  that  the answer  thereto may criminate or tend to criminate  himself. Provided  that no evidence taken under this Act  shall  this Act shall be   admissible against any person in any civil or criminal proceeding except in the case of u witness  accused of  having  given false evidence in any inquiry  under  this Act . . . . . "                                          (Emphasis supplied)                                                   PG NO 171     Section 1(3) of the Tribunals of Inquiry (Evidence) Act, 1921,  provides:     "A  witness before any such tribunal shall  be  entitled to  the  same  immunities and privileges as  if  he  were  a witness before the High Court or the Court of Session.’’     Section  9 of the Special Commission Act, 1888  protects the   witness in every respect except in a  prosecution  for giving  false  evidence by such statement. It provides  that the evidence given by him shall be inadmissible in any civil

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or  criminal proceedings. Section 1(3) of the  Tribunals  of Inquiry  (Evidence)  Act, 1921 provides only  a  limited  or partial immunity to a witness. It is similar to the immunity afforded to a witness before the High Court or the Court  of Session.     In  1966, the Royal Commission on Tribunals  of  Inquiry was constituted under the Chairmanship of the Rt. Hon.  Lord Justice  Salmon. The Commission was appointed to review  the working  of the  Tribunals of Inquiry (Evidence) Act,  1921, and to consider whether it should be retained or replaced by some other provision. The Commission was also authorised  to suggest  any  changes  in  the  Act  as  are  necessary   or desirable; and to make recommendations. The Royal Commission in its report at para 63 recommended:     (vii): Further Immunity:     63.  "Section  1(3) of the Act of 1921 provides  that  a witness  before any Tribunal shall be entitled to  the  same immunities and privileges as if he were a witness before the High  Court  or  the Court of Session. This  means  that  he cannot  be sued for anything he says in evidence e.g. if  he says  "A  is  a  liar. His evidence  is  untrue."  A  cannot sue  him for defamation. It does not mean however  that  his answer  as a witness cannot be used in evidence against  him in any subsequent civil or criminal proceedings. We consider the  witness’s immunity should be extended so  that  neither his  evidence before the Tribunal nor his  statement to  the Treasury  Solicitor,  nor any documents he  is  required  to produce  to the Tribunal, shall be used against him  in  any subsequent  civil or criminal proceedings except in criminal proceedings  in which he is charged with having given  false evidence before the Tribunal or  conspired with or  procured others  to do so. This extension of the  witness’s  immunity would  bring  the  law in this country  into  line  in  this respect with similar provision in the legislation of Canada, Australia  and India  and indeed with sec. 9 of the  Special Commission Act, 1888.                                                   PG NO 172     It   would  also,  in  our  view,  be  of   considerable assistance in obtaining  relevant evidence, for persons  may be  chary of coming forward for fear of exposing  themselves to the risk of prosecution or an action in the civil courts. Moreover,  the  suggested extension of  the  immunity  would make  it  difficult  for a witness to  refuse  to  answer  a question  on  that  ground that his  answer  might  tend  to incriminate  him.  Thus  not  only   would  the  witness  be afforded  a further measure of protection but  the  Tribunal would also be helped in arriving at the truth."     The Royal Commission appears to have thoroughly examined the   provisions  as  to  immunity  to  witnesses   in   the legislations of Canda. Australia and India and sec. 9 of the Special Commission Act, l988 The Commission has stated  that the  immunity provided to witnesses  under sec. 1(3) of  the Act,  l92l is insufficient for the purpose of advancing  the object  of  the  Act.  It should be  extended  so  that  the statement of a witness before the Tribunal shall not be used against him in any subsequent civil or criminal  proceedings except in a prosecution for perjury by giving false evidence before  the  Tribunal.  The  extension  of  such   immunity, according to the Royal Commission,  would bring sec l(B)  of the  Act, 1921 into line with the similar provisions in  the legislations of Canada, Australia and lndia. The legislation in  India is the Commission of Inquiry Act. 1952 with  which we  are concerned. It is apparent that the Royal  Commission was  of  opinion  that  sec. 6  our  Act  provides  complete Protection  to witnesses in  terms of sec. 9 of the- Special

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Commission  Act,.  1888. It means that the  statement  given before  a  Commission shall not be admissible  against   the person in any subsequent civil or criminal  proceeding  save for  perjury.     There is. therefore, much to be said for the observation made  in  Dalmia’s  case  and  indeed  that  is  the  proper construction  to be attributed to the language of sec. 6  of the Act. I respectfully affirm and re-emphasise that view.     It  is needless to State that the said decisions of  the High Court of Bombay and Assam are incorrect and they  stand overruled.      Having   reached  this  conclusion.  it   is   strictly unnecessary  to fall back on the other contention raised  by counsel the appellants.     Let  us  now move on to the merits of the  case  against each of the accused. But, before proceeding to consideration of  the  merits, it will be appropriate to  have  regard  to principles  and  precedents  followed by  this  Court  while                                                   PG NO 173 dealing  with an appeal under Art. 136 of the  Constitution. There is a string of decisions laying down those  principles right  from I95O. In Pritam Singn v. The State, AIR 1950  SC 169, Fazal Ali.J. said (at 170).     "It would be opposed to all principles and precedents if we  were to constitute ourselves into a third Court of  fact and.  after  reweighing the evidence. come to  a  conclusion different  from that arrived at by the trial Judge  and  the High Court."     In  Hem  Raj v. State of  Ajmer, [1954l] SCR  113.  M.C. Mahajan.CJ, had this to say (at 1134):     Unless   it  is  shown  that  exceptional  and   special circumstances exist that substantial and grave injustice has been  done  and the case in question presents  features  c,f sufficient  gravity  to  warrant a review  of  the  decision appealed   against,  this  Court  does  not   exercise   its overriding powers under Art. 136(1) of the Constitution  and the  circumstance that because the appeal has been  admitted by  special leave does not entitle the appellant to open out whole  case and contest all the findings of fact  and  raise every point which  could be raised in the  High Court.  Even at  the final hearing only those points call be urged  which are fit to be urged at the preliminary stage when the  leave to appeal is asked for."     More  recently.  in  Bhoginohai Hirjibhai  v.  State  of Gujarat, AIR 1983 SC: 753 Thakkar,J., recounted (at 755):     "A  concurrent finding of fact cannot be reopened in  an appeal, unless it is established: first that the finding  is based  on  no  evidence  or; second,  that  the  finding  is perverse,  it being such as no reasonable person could  have arrived  at  even  if the evidence was taken   at  its  face value  or  thirdly  the  finding  is  based  and  built   on inadmissible   evidence,  which evidence  if  excluded  from vision, would negate the prosecution case  or  substantially discredit  or  impair it or; fourthly, some vital  piece  of evidence  which  would  tilt the balance in  favour  of  the convict   has  been   overlooked,  disregarded  or   wrongly discarded. Bearing  in mind these principles, let me take up the case of Balbir Singh (A-2) first for consideration:                                                   PG NO 174     Balbir Singh.     He  was an officer of the Delhi Police in the  cadre  of Sub-Inspectors. He was posted on duty at the PM’s residence. He was not  on duty in the morning of October 31, 1984.  His duty  was to commence in the evening on that day at the  in- gate  of  Akbar Road. When reported for duty, in  the  usual

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course, he was asked or go to the security police lines.  At about 3 a.m. on November 1, 1984, he was  awakened from  his sleep  and his house was searched by SI, Mahipal  Singh  (PW 50),  Constable  Hari Chand (PW 17) and  Inspector  Shamshir Singh.  Nothing  except a printed book on  Sant  Bhindrawala (Ex.  PW l7/A) was recovered. At about 4 a.m., he was  taken to   Yamuna  Velodrome. He was kept there till late  in  the evening  when   he was released from. what  Kochar  (PW  73) says.  ’de facto custody’. On December 3, l984, he was  said to  have been arrested at Najafgarh  bus-stand. On  December 4, 1984, he was produced before the Magistrate, who remanded him to police custody. Thereafter, he expressed  his  desire to   make  a  confession.  But  when  produced  before   the Magistrate,  he refused to make a statement confessional  or otherwise.  He  was tried along with the other  accused  for having  entered  into a criminal conspiracy  to  commit  the murder  of the Prime Minister, Mrs.  Indira Gandhi.  He  was convicted  under  sec. 302 read with sec.  17()-13  IPC  and sentenced to death.     The  charge-sheet  contains  the  following  accusations against  Balbir Singh:     That Balbir Singh, like other accused. had expressed his resentment  openly, holding Smt. Indira  Gandhi  responsible for  the "Blue  Star Operation". He was planning  to  commit the  murder  of Smt. Indira Gandhi. He discussed  his  plans with Beant Singh (deceased). who had similar plans to commit the  murder.  He  also shared his  intention   and  prompted accused  Satwant Singh to commit the murder of  Smt.  Indira Gandhi and finally discussed the matter with him on  October 30,1984.     In  the  first week of September 1984, a  falcon  (Baaj) happened  to  sit on a tree near the main Reception  of  the Prime  Minister’s  house  at  about 1.30  pm.  Balbir  Singh spotted  the falcon. He called Beant Singh  there.  Both  of them agreed that it had brought a message of the Tenth  Guru of the Sikhs and they should do something by way of  revenge                                                   PG NO 175 of  the  "Blue Star Operation". Thereafter,  they  performed ’Ardas’ then and there.     These  accusations are sought to be established  by  the testimony of SI, Madan Lal Sharma (PW 13), Constable  Satish Chander  Singh  (PW 52), SI Amarjit Singh (PW  44)  and  the confession  of Satwant Singh (Ex. PW ll/C). The  prosecution also strongly rely upon a document described as  "memorandum of  events" (Ex. PW 26/B) said to have been  recovered  upon the  arrest of Balbir Singh on December 3. 1984.  His  leave applications  (Ex.  PW  26/E-I to E-5) and  his  post  crime conduct as to absconding are also relied upon.     The  case  of Balbir Singh is that the document  Ex.  PW 26/B  was not recovered from his possession as made  out  by the  prosecution.  His arrest at Najafgarh bus-stand  was  a make  believe  arrangement. He was not  arrested  there  and indeed  he  could not have been arrested, since he  was  all along  under police custody right from the day when  he  was taken  to Yamuna Velodrome on November 1, l984. He was   not absconding and the question of absconding did not arise when he was not released at all. No question was put to him under sec.  313  examination that he had absconded. It  is  argued that the conclusions of the High Court on all these  matters are apparently unsustainable.     Before examining these contentions, it will be better to dispose of the point common to this accused and Kehar  Singh (A-3) relating to the validity of sentence of death  awarded to them.     It is urged that there was no charge against the accused

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under  sec  109 of the IPC and without such a  charge,  they are liable to be sentenced only for the offence of  abetment and not for the murder. Reliance is placed on the provisions of sec. 120-B IPC which provides, inter alia that a party to a  criminal conspiracy shall be punished in the same  manner as if he had abetted such offence. The contention. is really ill-founded. It overlooks the vital difference  between  the two  crimes; (i) abetment in any conspiracy,  (ii)  criminal conspiracy. The former is defined under the second clause of sec. 107 and the latter is under sec. 120-A. Section 107, so far as it is relevant, provides:     "107. A person abets the doing of a thing,     Firstly .............................                                                   PG NO 176     Secondly-Engages  with  one  or  more  other  person  or persons in any conspiracy for the doing of that thing. if an act  or  illegal omission takes place in pursuance  of  that conspiracy, and in order to the doing of that thing; or     Thirdly .......................    Section l09 provides:     "Whoever abets any offence, shall, if the act abetted is committed  in  consequence of the abetment  and  no  express provision  is  made  by this Code for  the  Punishment  such abetment,  be punished with the punishment provided for  the offence."     Criminal conspiracy is defined under sec. 120-A :     "120-A.  When two or more persons agree to do, or  cause to be done-     (1) an illegal act, or     (2) an act, which is not illegal by illegal means,  such agreement is designated a criminal conspiracy-:           xx       xx       xx       xx       xx     Punishment  for  criminal conspiracy is  provided  under sec. 120-B:     "120-B  (1) Whoever is a party to a criminal  conspiracy to commit an offence punishable with death. imprisonment for life  or  regorous imprisonment for a term of two  years  or upwards,  shall, where no express provision is made in  this Code  for the Punishment of such conspiracy, be punished  in the same manner as if he had abetted such offence.          (2) xx      xx   xx      xx      xx"     The concept of criminal conspiracy will be death with in detail a little later. For the present, it may be sufficient to state that the gist of the offence of criminal conspiracy created  under sec. 120-A is a  bare agreement to commit  an offence.  It has been made punishable under sec. 120-B.  The offence of abetment created under the second clause of  sec.                                                   PG NO 177 107  requires that there must be something more than a  mere conspiracy.  There must be some act or illegal  omission  in pursuance of  that conspiracy. That would be evident by  the wordings of sec. 107 (Secondly): "engages in any  conspiracy omission  takes  place  in  pursuance  of  that   conspiracy are also quite different. Section 109 IPC is concerned  only with  the  punishment  of abetments  for  which  no  express provision  is  made under the Indian Penal  Code.  A  charge under  sec. 109 should, therefore, be along with some  other substantive  offence committed in consequence  of  abetment. The offence of criminal conspiracy is, on the other hand, an independent offence. It is made punishable under sec.  120-B for  which  a charge under sec. 109 IPC is  unnecessary  and indeed, inappropriate. The following observation of Das, J., in  Pramatha  Nath Taluqdur v. Saroj Ranjan  Sarkar.  [1962] (Supp) 2 SCR 297 at 320 also supports my view:     "Put  very briefly, the distinction between the  offence

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of  abetment under the second clause of s. 107 and  that  of criminal  conspiracy under s. 120-A is this. In  the  former offence  a mere combination of persons or agreement  between them  is  no enough. An act or illegal  omission  must  take place  in  pursuance of the conspiracy and in order  to  the doing of the thing conspired for: in the latter offence  the mere  agreement is enough, if the agreement is to commit  an offence.     So  far  as  abetment by  conspiracy  is  concerned  the abettor   will  be  liable  to  punishment   under   varying circumstances detailed in ss. 108 to 117. It is  unnecessary to detail those circumstances for the present case. For  the offence  of  criminal conspiracy it is punishable  under  s. 120-B."     This takes me back to the other contentions specifically urged on behalf of Balbir Singh. Of the evidence relied upon by  the prosecution, the document Ex. PW 26/B is said to  be the  most  important.  The High Court has  accepted  it  "as revealing  a coherent story of participation of the  accused in the conspiracy. " The High Court also said: "the document shows  beyond doubt that Balbir Singh was all along  in  the picture and associated with Beant Singh and Satwant  Singh". Before  us, the criticisms against this document are various and  varied. It may be stated and indeed cannot be  disputed that  the  genuineness  of  the   document  is  inextricably connected  with  the  arrest and search of  the  accused  at                                                   PG NO 178 Najafgarh  Bus Stand. The document was recovered   from  the accused  upon  arrest and search made under sec. 51  of  the Code.  If  the  arrest  cannot  carry  conviction  then  the recovery automatically falls to the ground. Not merely that, even the allegation that the accused had absconded  vanishes to thin air.     The police at the earliest moment suspected Balbir Singh as  a person involved in the conspiracy to murder the  Prime Minister.  After  midnight, they arrived at  his  residence. They  knocked  on the door and made him to get up  from  his bed. They searched his house and found nothing incriminating against  him.  They took him to Yamuna  Velodrome  doubtless upon  arrest. The plain fact is that Balbir Singh  was  kept under  custody throughout the day. At 6 PM, he was  seen  at the  Yamuna Velodrome by Rameshwara Singh (PW 51). The  case of  the  prosecution  however,  is  that  Balbir  Singh  was released  thereafter  and  he was  absconding  till  he  was arrested  on December 3, 1984 at Najafgarh Bus Station.  The accused challenges this version. The Courts do not interfere in the discretion of the police in matters of arrest, search and release of persons suspected in criminal cases. But  the courts do insist that it should be done according to law. If the  prosecution  say  that the accused  was  released  from custody  and  the  accused denies it, it  will  be  for  the prosecution  to place material on record in support  of  the version.  Admittely,  there  is  no  record  indicating  the release   of  Balbir  Singh  from  Yamuna   Velodrome.   The explanation  given  is  that Yamuna Velodrome  being  not  a Police Station. registers were not maintained to account for the  incoming  and  outgoing  suspects.  It  is  hardly   an explanation where life and death questions are involved.     Again, the question of absconding by the accused remains unanswered. First, there is no material to lend credence  to this  serious  allegation. Nobody has been asked  to  search him.  No  police  party  has been  sent  to  track  him.  No procedure  contemplated  under law has been  taken.  Second, there  is no evidence from which place the accused came  and landed  at Najafgarh Bus Stand. Kochar (PW 73)  has  deposed

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that  he had secret information at 2PM on December  3,  1984 that the accused was likely to visit Najafgarh Bus Stand. He went  along  with Sant Ram (PW 35), Sub-Inspector  of  Crime Branch. There they saw the accused at the Bus Stand.  Before he  was arrested, Kochar personally interrogated him at  the electricity  office  near  the  Najafgarh  Bus  Stand.   The interrogation  went on for more than one hour.  Yet,  Kochar could  not locate the place from where the accused  came  to Najafgarh Bus Stand. Upon arrest, it is said that the police have recovered certain articles including Ex. PW 26/B  under the seizure memo (Ex. PW 35/A). But there is no  independent                                                   PG NO 179 witness  for  the  seizure memo. Third, no  question  as  to absconding  was put to the accused in the examination  under sec. 313 of the Code. What was put to him under question No. 52  was that he had remained absent from duty from  November 4, 1984 till December 3, 1984. That is not the same thing to ask  that the accused had absconded during that period.  For that question, the accused replied that he was under  police detention  from November 1, 1984 till December 3,  1984  and there was no question of his attending the duty during  that period. He was also stated that he was formally arrested  on December  3,  1984  and  till  then  he  was  under   Police detention.     Realising the weakness in this part of the case, learned Additional  Solicitor General relied upon the  averments  in the  application  moved  by the  police  for  remanding  the accused  to  police  custody. lt was stated  in  the  remand application  dated  December 4, l9d4 that Balbir  Singh  had absconded  and was not available: for interrogation. It  was also  stated  therein  that Balbir  Singh  was  arrested  at Najafgarh  Bus stand on December 3, 1984. Shri S.L.  Khanna, Additional  C.M.M., remanded the accused to  police  custody till  December  6.  The order of remand was  signed  by  the accused.  It  is  argued that the  accused  being  a  police officer  did not object to the allegations made against  him in  the  remand  application.  I  do  not  think  that  this contention requires serious consideration. The averments  in the remand application are only self-serving. The silence of the  accused  cannot  he construed his  admission  of  those allegations.     There  is  yet another feature to which  I  should  draw attention. The prosecution want to establish the recovery of Ex.  PW  26/B  from the  accused  by  other  contemporaneous document.  Reference in this context is made to the  Malkana Register  of the Tughlak Road Police Station. Entry  986  in the  Malkana Register, according to the  learned  Additional Solicitor  General,  contains verbatim copy of  the  seizure memo (Ex. PW 35/A) and it is indicative of the fact that Ex. PW  26/B was recovered from the accused upon his arrest  and search.  Here  again there is some difficulty. There  is  an endorsement  in  the Malkana Register stating that  the  DTC ticket  which the accused carried and the  paper  containing the  dates  in  English (Ex. PW 26/B)  were  not  deposited. Malkana Register, therefore, is of little assistance to  the prosecution.     In view of these infirmities, the arrest of the  accused at Najafgarh Bus Stand does not inspire confidence. This  by itself  is sufficient to discard the document Ex. PW.  26/B.                                                   PG NO 180 Let  me also examine the contents of the document which  has been  highlighted  by the High Court. The  document  can  be taken  to  be in the handwriting of Balbir  Singh  to  avoid reference  to unnecessary evidence. But that in my  opinion, does not advance the case of prosecution. The document is  a

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sheet of paper in which we find the following entries: "June 1984                    - Army operation                    - felt like killing                    - Put on duty outside No. 1 S.J. Road against at         - Dalip Singh No. 1 S.J. Road    - Proceeded on leave for 30 days July 1984          - Dalip & Varinder Singh visited my house,                    - Dalip took me to Gurbaksh’s house where                      Santa Singh also met.                    - Dalip  Singh  8r  Gurbaksh  visited  my                      house Mavalankar Hall                    - Went to Ghaziabad                    - I visited Gurbaksh Singh’s house-for                      Hemkunt                   - I visited Gurbaksh Singh’s house.-"                   - Back from leave August 1984       - Met Amarjit Singh & Beant Singh                   - Dalip  Singh Virender Singh etc. met  at                     Bangala Sahib                   - Mavalankar   Hall/Gurupurab  at   Bangla                     Sahib                    3rd Week                   - Harpal Singh/Virender                   - Beant Singh/Eagle meeting at                   - Beant Singh decision to start constructive                     work                                                   PG NO 181 September 1984       - Visited Gurbaksh Singh’s house-Dalip &                        a boy Narinder Singh/Virender                     - Leave for 4/5 days    26               - 1000 Visited Gurbaksh’s house & learned                       about the boy October 1984        - Narinder Singh                     - Leave for 4/5 days    22nd             - Beant Singh                    - Leave for 4 days-Dalip Singh & Mohinder                      Singh visited   28   30              - Satwant                   -   31              -                "     The  accused  is  not  a rustic person.  He  is  a  Sub- Inspector  of Police with  several years of service  to  his credit.  He must have investigated so  many crimes. He  must have  anticipated  the  danger  of  carrying   incriminating document when he was already suspected to be a party to  the deadly  conspiracy.  Unable to compromise  myself  with  any reason.  I  sought  the  assistance  of  learned  Additional Solicitor  General. He too could not give  any  explanation. Indeed, nobody could offer even a plausible explanation  for this unusual conduct attributed to the accused. To my  mind, to  say that the absconding accused-Sub Inspector was  found at   a  public  place  in  the  national  capital  with   an incriminating  document which may take him to gallows is  to insult the understanding, if not the intelligence, of police force of this country.     That  is  one aspect. The other aspect  relates  to  the assessment of inherent value of the document. A bare reading of  the  document, as rightly urged for the  accused,  shows that  this is a document composed at one time with the  same ink and same writing instrument. The corrections, the fixing of  months  and  dates with the nature  of  entries  therein                                                   PG NO 182 apparently  indicate  that the document was not kept   as  a

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contemporaneous  record of events relating to Balbir  Singh. The  fact that it was not in the possession of  the  accused when  his house was searched in the early hours of  November 1, 1984 also confirms this conclusion.     In the document, there is no reference to killing of the Prime Minister. In fact, except for a "felt like killing" in early  June  as  an immediate reaction  to  the  "Blue  Star Operation", even the manifestation of this feeling does  not exist  anywhere  in  subsequent out  of  the  document.  The document  refers  to bare meetings, visits  of  persons,  or visiting  somebody’s house. It is, however, not possible  to find out to whom the document was intended to be used.     In  the  document, Beant Singh is referred  to  at  four places.  At one place, there is a reference to  Beant  Singh with  eagle  (not  falcon).  The cross  mark  of  X  closely followed  by long arrow mark in the document  indicates  the indecision  of  the  author or  somebody  is  straining  his memory.  There  is  no reference to a  joint  ’Ardas’  or  a message for revenge associated with the appearance of eagle. The  entry does not suggest that the author had anything  to do with the eagle. It is something between Beant Singh alone and the eagle. It is significant that there is no  reference to  Beant Singh and his plans to murder the Prime  Minister. There  is no reference to bombs or grenades associated  with the  plans to eliminate the Prime Minister before  the  15th August, 1984. There is no reference to any commission of any offence. There is no reference about Beant Singh  conspiring with  Balbir Singh. There is no reference to Kehar Singh  at all.  If  Balbir Singh was a party to  the  conspiracy  with Beant  Singh, the date on which Beant Singh had  placed  the murder of Mrs. Gandhi, that is, 25 October, I984 as  written in  Ex.P.39 ought to have been noted in Ex. PW Z6/B.  We  do not  find  any reference to that date. There  is  a  cryptic reference to Satwant Singh against 30th October and it  must be  with  reference  to the  evidence  of  Constable  Satish Chander  Singh (PW 52) whose evidence no Court of law  could believe.  PW  52  was  a  Sentry  in  the  Prime  Minister’s security.  According  to him, Balbir Singh was  on  duty  on October  30, 1984 at a distance of about 5-7 steps from  his point  of  duty. He states that Satwant Singh came  to  meet Balbir  Singh  at 8 PM on that day. He further  states  that they talked something in Punjabi which he could not  follow, as he did not know Punjabi. The only one entry which makes a reference to killing is the second entry. It refers to "felt like killing". But one does not know who "felt like killing" and killing whom? It may be somebody’s reaction to the "Blue Star Operation". If the document is read as a whole, it does not reveal anything incriminating against Balbir Singh.                                                   PG NO 183     Before  considering  the other  matters  against  Balbir Singh, it will be useful to consider the concept of criminal conspiracy  under  secs.  120-A  and  120-B  of  IPC.  These provisions  have brought the Law of Conspiracy in  India  in line with the English law by making the overtact unessential when the conspiracy is to commit any punishable offence. The English  Law on this matter is well-settled.  The  following passage  from Russell on Crime (12 Ed. Vol. I, 202)  may  be usefully noted:     "The gist of the offence of conspiracy then lies, not in doing  the  act,  or effecting the  purpose  for  which  the conspiracy  is formed, nor in attempting to do them, nor  in inciting others to do them, but in the forming of the scheme or  agreement between the parties. Agreement  is  essential. Mere knowledge, or even discussion, of the plan is not,  per se, enough. "

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   Glanville  Williams  in the "Criminal Law"  (Second  Ed. 382) explains the proposition with an illustration :     "The  question  arose  in  an  Iowa  case,  but  it  was discussed   in   terms   of  conspiracy   rather   than   of accessoryship. D, who had a grievance against P, told E that if  he  would whip P someone would pay his fine.  E  replied that  he did not want anyone to pay his fine, that he had  a grievance of his own against P and that he would whip him at the  first  opportunity.  E whipped P.  D  was  acquired  of conspiracy  because there was no agreement for  "concert  of action". no agreement to "co-operate"."     Coleridge,  J.,  while summing up the case  to  Jury  in Regina v. Murphy, (173 Eng. Reports 508) pertinently states:     "I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and  so to carry it into execution. This is  not  necessary, because  in  many  cases of  the  most  clearly  established conspiracies  there are no means or proving any such  thing, and neither law nor common sense requires that it should  be                                                    PG NO 184 proved.  If you find that these two person pursued by  their acts  the  same  object,  often  by  the  same  means,   one performing one part of an act, so as to complete it, with  a view  to  the  attainment  of the  object  which  they  were pursuing, you will be at liberty to draw the conclusion that they  have  been  engaged in a  conspiracy  to  effect  that object.  The  question you have to ask yourselves  is,  "Had they  this  common design, and did they pursue it  by  these common means-the design being unlawful?"     It will be thus seen that the most important  ingredient of the offence of conspiracy is the agreement between two or more  persons to do an illegal act. The illegal act  may  or may  not  be done in pursuance  of agreement, but  the  very agreement  is  an offence and is  punishable.  Reference  to secs-120-A  and  120-B IPC would make  these  aspects  clear beyond  doubt.  Entering into an agreement by  two  or  more persons  to do an illegal act or legal act by illegal  means is the very quintessence of the offence of conspiracy.     Generally, a conspiracy is hatched in secrecy and it may be  difficult  to adduce direct evidence of  the  same.  The prosecution will of ten rely on evidence of acts of  various parties  to infer that they were done in reference to  their common intention. The prosecution will also more often  rely upon   circumstantial  evidence.  The  conspiracy   can   be undoubtedly    proved   by   such   evidence    direct    or circumstantial.  But the Court must enquire whether the  two persons are independently pursuing the same end or they have come  together  to the pursuit of the unlawful  object.  The former does not render them conspirators, but the latter is. It  is  however, essential that the  offence  of  conspiracy requires  some kind of physical manifestation of  agreement. The  express  agreement, however, need not  be  proved.  Nor actual  meeting  of  two persons is  necessary.  Nor  it  is necessary  to Prove the actual words of  communication.  The evidence as to transmission of thoughts sharing the unlawful design  may be sufficient. Gerald Orchard of  University  of Canterbury,  New Zealand (Criminal Law Review I974,  297  at 299 explains the limited nature of this proposition:     "Although  it is not in doubt that the offence  requires some physical manifestation of agreement, it is important to note  the limited nature of this proposition. The  law  does not  require that the act of agreement take  any  particular form and the fact of agreement may be communicated by  words

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or conduct. Thus, it has been said that it is unnecessary to                                                   PG NO 185 prove that the parties "actually came together and agreed in terms" to pursue the unlawful object; there need never  have been  in express verbal agreement, it being sufficient  that there was "a tacit understanding between conspirators as  to what should be done."     I  share  this  opinion,  but hasten  to  add  that  the relative   acts   of  conduct  of  the   parties   must   be conscientious and clear to mark their concurrence as to what should  be  done. The concurrence cannot be  inferred  by  a group of irrelevant facts artfully arranged so as to give an appearance   of  coherence.  The  innocuous,   innocent   or inadvertent  events  and  incidents  should  not  enter  the judicial verdict. We must thus be strictly on our guard.     It is suggested that in view of sec. 10 of the  Evidence Act,  the  relevancy of evidence in proof of  conspiracy  in India is wider in scope than that in English Law. Section 10 of the Evidence Act introduced the doctrine of agency and if the  conditions  laid down therein are satisfied,  the  acts done  by  one are admissible  against  the  co-conspirators. Section 10 reads:     "10.  Where there is reasonable ground to  believe  that two  or  more persons have conspired together to  commit  an offence  or  an  actionable wrong, anything  said,  done  or written  by  any one of such persons in reference  to  their common  intention,  after the time when such  intention  was first entertained by any one of them, is a relevant fact  as against each of the persons believed to be so conspiring, as well  for  the  purpose  of proving  the  existence  of  the conspiracy  as  for  the purpose of showing  that  any  such person was a party to it."     From  an analysis of the section, it will be  seen  that sec. 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or  more persons have conspired together to commit an offence.  There should  be, in other words. a prima facie evidence that  the person was a party to the conspiracy before his acts can  be used  against  his  co-conspirator. Once  such  prima  facie evidence  exists, anything said, done or written by  one  of the conspirators in reference to the common intention, after the  said  intention  was  first  entertained,  is  relevant against the others. It is relevant not only for the  purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it. It is true that the observaions  of  Subba  Rao,  J.,  in  Sardar  Sardul  Singh                                                   PG NO 186 Caveeshar  v.  State of Maharashtra, [1964] 2 SCR  378  lend support to the contention that the admissibility of evidence as between co-conspirators would be liberal than in  English Law. The learned Judge said (at 390) :     "The  evidentiary value of the said acts is  limited  by two  circumstances,  namely,  that  the  acts  shall  be  in reference  to  their common intention and in  respect  of  a period  after such intention was entertained by any  one  of them.   The  expression  "in  reference  to   their   common intention" is very comprehensive and it appears to have been designedly used to give it a wider scope than the words  "in furtherance  of"  in  the  English  Law;  with  the  result, anything  said, done or written by a  co-conspirator,  after the  conspiracy  was formed, will be  evidence  against  the other before he entered the field of conspiracy or after  he left it . . . . . . ."     But, with respect, the above observations that the words of  sec. 10 have been designedly used to give a wider  scope

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than  the concept of conspiracy in English Law, may  not  be accurate.  This  particular  aspect  of  the  law  has  been considered  by  the  Privy Council in Mirza  Akbar  v.  king Emperor, AIR 1940 PC 176 at 180, where Lord Wright said that there is no difference in principle in Indian Law in view of sec. 10 of the Evidence Act.     The  decision of the Privy Council in Mirza Akbar’s care has been reterred to with approval in Sardul Singh Caveeshar v.   The   State  of  Bombay,  [1958]  SCR  161   at   where Jagannadhadas, J., said:     "The  limits  of  the  admissibiliy   of  evidence    in conspiracy  case under s.10 of the Evidence Act   have  been authoritatively  laid  down by the Privy  Council  in  Mirza Akbar  v.  The KIng Emperor, (supra). In  that  case,  their Evidence  Act  must  be construed  in  accordance  with  the principle  that  the  thing done.  written  or  spoken,  was something  done  in  carrying out  the  conspiracy  and  was receivable  as a step in the proof of the  conspiracy.  They notice that evidence receivable under s. 10 of the  Evidence Act  of  "anything  said done or written,  by  one  of  such persons" (i.e., conspirators) must he "in reference to their common  intention."  But their Lordships held  that  in  the context (notwithstanding the amplitude of the above  phrase)                                                   PG NO 187 the words therein are not capable of being widely  construed having regard to the well-known principle above enunciated."     In  the  light of these principles, the  other  evidence against  Balbir Singh may now be considered. The High  Court has  summarised  that evidence (leaving out of  account  the confession  of  Satwant Singh and the  evidence  of  Amarjit Singh) as follows:     "Summing  up, then. the evidence against  Balbir  Singh, leaving out of account for the time being the confession  of Satwant  Singh  and  the  evidence  of  Amarjit  Singh,  the position is as follows : He was an officer on security  duty at  the  PM’s house. He knew Beant Singh and  Satwant  Singh well. He shared the indignation of Beant Singh against  Smt. Chandni  for  ’Operation  Blue Star’ and was in  a  mood  to avenge  the same. He went on leave from 25.6.84 to  26.7.84. On  his return he met Beant Singh and Amarjit Singh. He  was present  at the occasion of the appearance of the eagle  and their association on that date is horne out by Ex. PW  26/8. He is known to have talked to Satwant Singh on 30th October. 1984......"     I  do  not think that the High Court  was  justified  in attaching importance to any on of th aforesaid circumstances in  proof  of  the conspiracy. The High  Court  first  said, Balbir  Singh  was an officer on security duty at  the  PM’s house.  But  like him, there were several sikh  officers  on security duty at the PM’s house. It was next stated,  Balbir Singh knew Beant Singh and Satwant Singh well. Our attention has not been drawn to any evidence to show intimacy  between Balbir  Singh  and Beant Singh or between Balbir  Singh  and Satwant  Sing.  The High Court next said that  Balbir  Singh shared  the indignation of Beant Singh against  Smt.  Gandhi and was in a mood to average for the "Blue Star  Operation". There  is  no acceptable evidence in this regard.  From  the testimony of SI, Madan Lal Sharma (PW 13). all that we could gather is that after the "Blue Star Operation" Balbir  Singh was  in  agitated  mood  and  he  used  to  say  that   thee responsibility  of  damaging ’Akal Takhat’  lies  with  Smt. Gandhi  and it would be avenged of by them. This is  not  to say  that  Balbir Singh wanted to take revenge  against  the Prime  Minister along with Beant Singh. The High Court  said not  take  into consideration such resentment  expressed  by

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Kehar Singh (A-3) and indeed it would be proper not to  take notice of such general dissatisfaction. It is not an offence to  form  one’s own opinion on government action. It  is  on                                                    PG NO 188 record that some members of the sikh community felt agitated over  the  "Blue Star Operation". The  resentment  was  also expressed by some of the Sikh employees of the Delhi  Police posted  for PM’s security. In fact, the chargesheet  against all the accused is founded on those averments. Amarjit Singh (PW  44)  specifically refers to this in the course  of  his evidence. Resentment of the accused on "Blue Star Operation" should, therefore, be excluded from consideration. The  High Court  next depended upon the earned leave taken  by  Balbir Singh for the period from June 15 to July 76. 1984. The High Court  rightly  did not give significance  to  casual  leave applications of Balbir Singh (Ex. PW Z6/E-I to E-5). I  fail to see why taking of earned leave should assume  importance. There is no material that Balbir Singh took earned leave for any  sinister purpose or design. There is no  evidence  that during  the said period, he met Beant Singh or anybody  else connected with the conspiracy. It is, therefore, totally  an innocuous circumstance. The High Court next said that Balbir Singh, on his return from leave, met Beant Singh and Amarjit Singh.  No other specific meeting has come to  light  except the  meeting  referred to by Amarjit Singh (PW 44)  which  I will  presently consider. The High Court lastly relied  upon the  act of offering ’Ardas’ to falcon on its appearance  at the PM’s house in the first week of September, 1984. This is also  from the evidence of Amarjit Singh  (PW-44).  Assuming that  falcon did appear and sat on a tree ia the PM’s  house and  that Beant Singh and Balbir Singh did offer ’Ardas’  on the  occasion.  there is, as the High  Court  has  observed. "nothing  unusual  or  abnormal  about  the  incident".  The sanctity of the falcon as associated with the Tenth Guru  is not denied. They offered ’Ardas’ in the presence of so  many class IV employees in the PM’s house. The last act of Balbir Singh,  referred to by the High Court, was his meeting  with Satwant Singh on October 30, 1984. That has been referred to by  Satish Chander Singh (PW 52), whose evidence as  earlier seen  has  got  only to be referred to he  rejected.  In  my opinion,  all the facts and circumstances above recited  are either irrelevant or explainable. No guilty knowledge of the contemplated  assassination of the Prime Minister  could  be attributed to Balbir Singh on those facts and circumstances.     It  now  remains  to be seen  whether  the  evidence  of Amarjit  Singh  (PW  44)  is acceptable  or  whether  it  is inherently   infirm  and  insufficient.  There   are   grave criticisms against this witness. [ will only examine some of them.  The  relationship between him and  Balbir  Singh  was anything but cordial. It was indeed casual. They were not on visiting terms. Amarjit Singh was not even invited to attend the  marriage  of  Balbir  Singh.  That  was  the  type   of connection  that  existed between them. Yet,  Amarjit  Singh                                                   PG NO 189 deposes that Balbir Singh  and Beant Singh used to keep  him informed regularly about their plan of action to murder  the Minister.  He  wants the court to believe that he was  in  a position  to advise the conspirators against any such  move. It is too difficult to accept this self styled advisor. As a faithful  security officer, he was duty bound to  alert  his superiors  about any danger to the Prime Minister.  He  knew that responsibility as he admits in his evidence, but failed to  perform  his duty. To place reliance  on  his  testimony would be to put a premium on his irresponsibility.     The  police have recorded three statements from  Amarjit

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Singh on three different dates. The first statement (Ex.  PW 44/DA) was recorded on November 24, 1984. After 25 days, the second statement (Ex. PW 44/DB) was recorded on December 19, 1984.  Both  were  under  sec. 161 of  the  Code.  Again  on December  21, 1984, the third statement (Ex. PW 44/A)  under sec.  164  of  the Code came to be recorded.  In  the  first statement, there is no express involvement of Balbir  Singh. The second statement, according to the witness, was recorded at his own instance. He deposes before the Court:     "It  did  not  occur to me that  assassination  was  the handywork of Balbir Singh and Kehar Singh after i Had learnt about  the  firing  and death of Smt. Indira  Gandhi.  I  on recalling  earlier  talk  realised on  24.11.I983  that  the assassination  of  Mrs. Gandhi was  the  handywork  of  Shri Balbir Singh and Shri Kehar Singh. Then I went to Shri R.  P Sharma  who  recorded  my statement  on  24.11.1984.  It  is correct that I recall things bit th bit. It is correct  that there is a difference in my statement PW 44/DA and PW 44/DB. It is because many question were not put to me earlier  and, therefore, I did not mention them in my first statement."     He  thus  admits that there is  difference  between  the first  and second statements. But the High Court  said  that there is no improvement or after thought so as to  implicate Balbir  Singh. The approach of the High Court appears to  be incorrect. Amarjit Singh (PW 44) states before the Court;     "....  In  the first week of August 1984, I had  a  talk with Beant Singh. Then he told me that he would not let Mrs. Indira  Gandhi unfuri the flag on 15th August.  Shri  Balbir Singh  also  used  to tell me that if he  could  get  remote control  bomb and his children are sent outside India,  then he  also  could finish Mrs. Indira Gandhi. I used  to  think that he was angry and I used to tell him that he should  not think in these terms ........               xx       xx       xx       xx       xx     In the third week of October, 1984, Balbir Singh told me that  Beant Singh and his family have been to Golden  Temple along with Kehar Singh, her Phoopha. He further told that SI Beant  Singh and Constable Satwant Singh had taken Amrit  in Sector  V1,  R.K. Puram, New Delhi at the instance  of  Shri Kehar Singh."     In  the  first  statement (Ex. PW 44/DA),  there  is  no reference  to  Balbir Singh telling the witness that  if  he could  get  remote control bomb and his  children  are  Sent outside  India,  he could also finish  Mrs.  Indira  Gandhi. There he has stated:     "In  the end of September, 1984, SI Balbir Singh met  me once  in the Prime Minister’s house and told me  that  Beant Singh  wanted  to  kill the Prime Minister  before  15th  of August.  He  (Beant  Singh) had agreed  to  kill  her  Prime Minister)  with a grenade and remote control but  this  task was  to be put off because the same could not  bee  arranged Actual words being ‘IN DONO  CHEEZON KA INTEZAMNAHIN HO SAKA IS LIYE BATTAL GAYE’."     Again  in  the first statement (Ex. PW  44/DA)  what  he stated was:     "In the third week of October. 1984, Beant Singh, SI met me  and told me that he had procured one  constable,  actual words being ’October, 1984 KE TEESRE HAFTE MEIN BEANT  SINGH MUJHE MILA AUR USNE BATAYA KE USNE EK SIPAHI PATAYA HAI’ and that  now  both  of them would put an  end  to  Smt.  Indira Gandhi’s life very soon."     The  discrepancies  between the first  version  and  the evidence  in Court are not immaterial. They are  substantial and on material points. The witness is putting the words  of Beant  Singh  into  the mouth of Balbir  Singh  and  thereby

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creating circumstances against the latter.                                                    PG NO 191     Lastly,  the  reference  is made to  the  confession  of Satwant  Singh  (Ex.  PW ll/C) to  support  the  prosecution version.  But  it is as much a bad step as  others  in  this case.  The confession of a co-accused could be used only  to lend assurance to the conclusion on the acceptable  evidence against the accused. When by all the testimony in the  case, Balbir   Singh’s  involvement  in  the  conspiracy  is   not established, the confession of Satwant Singh cannot  advance the  prosecution case. Even otherwise, the reference in  the confession  as  to the conspiracy between Balbir  Singh  and Beant Singh was not within the personal knowledge of Satwant Singh. He refers to Beant Singh consulting Balbir Singh  and "advising,  to  kill PM. It is not clear who  told  him  and when?  Such a vague statement is of little use even to  lend assurance  to any acceptable case against Balbir Singh.     In my judgment, the evidence produced by the prosecution against  Balbir Singh is defective as well as deficient.  It is   safer,  there-fore,  to  err  in  acquitting  than   in convicting him. Kehar Singh (A-3):     Kehar Singh was an Assistant in the Directorate  General of Supply and Disposal, New Delhi. The case against him  is: That  he  was  a  religious tanatic.  He  had  intense  hate against. Mrs. Indira  Gandhi for causing damage  to the Akal Takhat by the "Blue Star Operation". He was in a position to influence  Beant  Singh.  since he was the  uncle  of  Beant Singh’s  wife called as ‘Poopha’. He converted  Beant  Singh and through him satwant Singh to religious bigotry. He  made them to undergo "Amrit Chakhan Ceremony" on October 14, 1984 and October 24, 1984 respectively at Gurudwara, R.K.  Puram, New  Delhi.  He  also took Beant  Singh  to  Golden  Temple. Amritsar on October  20, 1984.     The  prosecution, in support of the case that he  was  a party to the conspiracy to murder Mrs. Indira Gandhi, relied on the following:     (1)  Ujagar Sandhu incident; (2) Darshan Singh  incident (3) Amrit Chakhan ceremony; and (4) Amritsar trip.     Besides,  the  prosecution relied upon his  reaction  to "Blue  Star  Operation", attendance in  office,  post  crime conduct, and a  pamphlet in "Gurumukhi, captioned "Indira De Sikh".  The recovery of gold ring belonging to  Beant  Singh from the residence of this accused was also depended upon.                                                    PG NO 192     Both the courts have generally accepted the  prosecution version  and  held that the conspiracy to  assassinate  Mrs. Indira Gandhi was hatched out by all the three persons, that is, Kehar Singh, Beant Singh, and Satwant Singh.     I  will first try to eliminate the  irrelevant  evidence against   the  accused.  The  prosecution   examined   three witnesses to prove the reaction of the accused to "Blue Star Operation":  O.P.  Sharma (PW 3 ), Darshan Singh  Jaggi  (PW 32),  and  Krishan  Lal Uppal (PW 33).  The  witnesses  have testified   that  Kehar  Singh  was  very  uphappy  at   the consequences of "Blue Star Operation" and he considered that Smt. Gandhi was responsible for the same. In fairness to the accused, shall be kept out of account for the reasons  given by  me  while discussing the case of Balbir Singh.  I  shall also  exclude  from  consideration  the  pamphlet  captioned ,,lndira De Sikh" (Ex. P. 53) and the  connected evidence of Raj  Bir Singh (PW 54), Bal Kishan Tanwar, ACP (PW  63)  and Daya  Nand (PW 66). That pamphlet in "Gurumukhi"  no  doubt, contains vitriolic attack on Mrs. Indira Gandhi. But it  was recovered  from an open drawer of the office table to  Kehar

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Singh when he was not in office. It is a printed matter.  lt does  not  show that Kehar Singh was the author of  it.  Nor there  is any evidence to indicate that Kehar Singh has  had anything to do with it.     I  shalI  not take notice of  "Darshan  Singh  incident" either.  It  was alleged to have occured in  the  Gurudwara, Moti  Bagh. New Delhi, couple of days before Raksha  Bandhan day (August 18, 1984). It appears that there was a kirtan of Prof.  Darshan  Singh,  who spoke very  movingly  about  the consequences of "Blue Star Operation". Kehar Singh and Beant Singh were said to be present on the occasion. After hearing the speech of Prof. Darshan Singh, Beant Singh was found  to be sobbing. Thereupon, Kehar Singh told him that he   should not weep, but take revenge. This has been spoken to by Inder Bir Singh (PW 68). This incident has a story behind. In  the newspaper  ‘Tribune’ dated November 25, 1994, there  was  an article (Ex.D.62/ X) written by certain Prabhojot Singh. The article  goes by the headline ‘Profile of an  Assassin’.  It was written therein:     "There  was  a  sudden  transformation  in  the thinking of   Beant   Singh  after  the  Army  action.   He   started accompanying  his  uncle Kehar Singh, an  Assistant  in  the office  of  the Director General Supplies  and  Disposal  to Gurudwara   Moti  Bagh. In July, a noted  Ragi  from  Punjab performed   "virag katha" at the Gurudwara. Beant Singh  was moved  and  reportedly  starting  crying. It   was  at  this stage, Kehar Singh him not to cry, but to take revenge","                                                    PG NO 193     The   investing  agency  has  admittedly  secured   that Newspaper  well   time. It  was  preserved  i  their  office file.  K.  P.  Sharma (PW 70) has deposed to  this.  But  he examined  PW  68  only on July 3, 1985, that  is  after  the accused were committed to take their trial. It is said  that the news item in Tribune is very vague and despite the  best efforts,  none  except PW 68 could be secured till  july  3. This is unacceptable. The said article furnished  sufficient leads: like "Vrag Katha" noted Ragi Moti Bagh Gurudwara, the month of july Kehar Singh and Beant Singh together attending the  function, etc. The author of the article  is  Prabhojot Sig.  The  investigating officer could have  got  some  more particulars  if  Probhojot Singh had  been  approached.  But nobody approaced im. Nor anybody from the said Gurudwara has been examined. The function in which the noted Prof. Darshan Singh   ragi   participated   could  not   have    been   an insignificant  function. A large number of local people,  if not from far off places would have attended the function. No attempt  appears  to have been made in these  directions  to ascertain the truth of the version given in the "Tribune, PW 68  is  a  solitary witness to speak about  the  matter.  He claims  to know Kehar Singh but not Beant Singh. It  is  not safe to accept his version without corroboration.     Let me now descend to the relevant material against  the accused.  Ujagar  Sandhu’ incident is relevant  and  may  be taken   note  of.  The  incident  is  in  connection    with celebration of the birthday of a child in Sandhu’s house  to which  Kehar Singh alone was invited but  not  Beant  Singh. Kehar  Singh, however, persuaded Beant Singh and Mrs.  Bimla Khalsa  (PW  65) to accompany him. They  went  together  and participated  in the function. Bimla Khalsa swears to  this. It is common ground that there were inciting ad  provocating Bhajans i that function. The provocating Bhajans were in the context  of  destruction of Akal Takhat by  the  "Blue  Star Operation". But it is argued that there is no evidence  that Beant  Singh and his wife were deliberately taken  by  Kehar Singh  to expose them to provocative Bhajans. There may  not

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be any such evidence, but it ma not be non sequitur when  on takes   and  uninvited  guest   of  such  function  in   the circumstances of this case.     The incident on October 17, 19084 in the house of  Beant Singh, to which Bimla Khalsa testifies, is more positive. It plainly  indicates  that Kehar Singh and  Beant  Singh  were combined and conspiring together. She has deposed that Kehar Singh came to her house and was closeted with Beant Singh on                                                    PG NO 194 the roof for about 18/15 minutes. There was hush trust  talk between them which could not be over-heard by Bimla  Khalsa, as  she  was in the kitchen. That evoked  suspicion  in  her mind.  She  did consider if I may use her own  words  "their talk  as something secret". There, then, she  enquired  from Kehar  Singh  ,,as to what they  were  talking  thereupon’?" Kehar  Singh  replied that the talks were ’’with  regard  to making somebody to take Amrit". Bimla Khalsa remarked: "that taking Amrit was not such a thing as to talk secretly."  She was perfectly right in her remark. There cannot be a  secret talk  about  Amrit  taking  ceremony.  It  is  a   religious function.  Kehar Singh might have realised that it would  be difficult  to explain his conduct without exposing  himself. He came with cryptic reply: "There was nothing particular".     Bimla  khalsa further deposed that in the  same  evening Kehar  Singh took meals in her house alongwith  her  husband and Satwant Singh who later joined them.     Apparently, Beant Singh did not like his wife  enquiring about  the  exchange of secret information between  him  and Kehar  Singh.  On  October  30,  1984,  when  they  were  in Amritsar,  Beant  Singh  has  asked his  wife  why  she  had questioned  Kehar Singh as to what they were talking on  the roof on October 17, 1984.     It  may  be pertinently asked: Why did Kehar  Singh  and Beant  Singh suppress the conversation? Why did Kehar  Singh give such reply to Bimla Khalsa If the conversation  related to taking of Amrit by Beant Singh or his wife, there was  no necessity to have a secret talk. since Beant Singh and Bimla Khalsa had already taken Amrit by then. Kehar Singh knew  it and  in  fact  he  had accompanied  Bimla  Khalsa  for  that ceremony.  The  said  conversation as  the  High  Court  has observed  could  be only to further the prosecution  of  the conspiracy.   Satwant  Singh later joining  them  for  meals lends credence to this conclusion.     An endeavour is made to impeach Bimla Khalsa. first,  on the ground that she turned hostile, and second, that she was examined  belatedly.  1 must state that merely  because  she turned hostile. her evidence cannot be discarded. That is  a well accepted proposition. She had no, axe to grind  against any  person.  She  gains nothing  by  telling  falsehood  or incorrect things against Kehar Singh. She has revealed  what she was told and what she had witnessed on October 13,  1984 in her own house. There is, therefore, no reason to  discard that  part of her testimony. As to the second complaint,  it is  true  that  the police did   not  record  her  statement                                                    PG NO 195 immediately atter the incident. That is under-standable. She has  lost  her husband. She was in  immeasurable   grief.She ought  to  be  allowed time to  compose  herself.  Both  the objections raised against her testimony are, therefore,  not sound.     Beant  Singh  appears  to have planned  to  murder  Mrs. Gandhi on October 25, 1984. It has been indicated by his own writing  on the text   Bof the ‘Vak’ recovered on search  of his  house at 3 AM on November 1,1984. Balraj Nanda (PW  16) who  searched his house along with others recovered  a  book

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under  the title "Bhindrawala Sant" (Ex. P. 36). Inside  the book,  a  copy of ‘Hukamnama’ (Vak) dated October  13.  1984 written  in  saffron  ink was found (Ex.  P.  3c)).  On  the reverse  of Ex. P. 39, the following two dates are  written: "25. 10, 1984- 1 Yes. 26, 10, 1984-Yes 8 AM to 10AM."     This writing has been proved to be that of Beant  Singh. It has been established by the evidence of Bimla Khalsa  and the  testimony of other witnesses. Bimla Khalsa  has  stated that Ex. P. 39 is in the handwriting of Beant Singh on  both sides  there  of.  The  evidence  of  P.C.  Maiti  (PW  24), Additional  Director, Institute of Criminology and  Forensic Science,  New  Delhi  and S.K.  Sharma  (PW  35),  Assistant Director  (Documents)  in the same lnstitute  also  confirms that fact.     Against  this background, the visit to Amritsar  assumes importance. On October 20, 1984, Kehar Singh and Kehar Singh and  Beant  Singh along with their family  members  went  to Amritsar.  There they stayed in the house of one Mr.  M.  R. Singh  (PW  53).  Bimla  Khalsa  states  that  they  reached Amritsar  at 2-3 YM and went to Darbar Sahib   Gurudwara  in the  same evening. While ladies and children were  listening to, kirtan, Beant Singh and Kehar Singh went to see the Akal Takhat.  Bimla  Khalsa wanted to accompany them to  see  the Akal  Takhat, but she was told to see the same on  the  next morning.  What  Happened  on  the next  day  is  still  more curious.  In the early hours.  PW 53 was woken up  by  Kehar Singh  and told that he would attend "Asa ki War-Kirtan"  in Darbar  Sahib. So stating, he went along with  Beant  Singh. The  ladies  and  children were left behind.  They  went  to Darbar  Sahib, at 8 AM along with PW 53. They returned  home at  11  AM and had lunch with PW 53. Beant Singh  and  Kehar Singh  did  not join them for lunch. nor  they  returned  to that: house of PW 53. PW 53 took the ladies and children to, Railway  Station to catch the train for the return  journey. Beant  Singh and Kehar Singh appeared there and all of  them left  by the same train. What is significant to note  herein is  about  the relative character ofKehar  Singh  and  Beant Singh. Even at the most sacred place they  remained isolated from their wives and children. No wonder, birds of the  same feather fly together.                                                    PG NO 196     It is suggested that Kehar Singh being an elderly person and  a devout religious Sikh was keeping company with  Beant Singh to dissuade  the latter from taking any drastic action against  Mrs. Gandhi. J wish that Kehar Singh had done  that and given good advice to Beant Singh. He had the opportunity to   bring  Beant  Singh  back  to  the  royal   path,   but unfortunately,   he did nothing of that kind. lf he had  not approved  the  assassination of the  Prime  Minister,  Beant Singh   would  not  have  grafted  Satwant  Singh   to   the conspiracy.  Secondly, if.Kehar Singh was really  interested in redeeming Beant Singh, he would have taken the assistance of  Bimla  Khalsa.  He  did  not  do  that  even.  She   was deliberately not taken into confidence. She was in fact kept in  darkness even though she was inqnisitive to  know  their secret talk.     It  is true that there is no substantive  evidence  from the testimony of Bimla Khalsa that Beant Singh took Amrit on October  14,  1984  at the instance of  Kehar  Singh.  Bimla Khalsa has only stated "1 cannot say if on the 14th October, 1984,  Beant Singh had taken Amrit at the instance of  Kehar Singh in Sector V1 , Gurudwara, R.K. Puram, but on the  13th October  he  was  telling  me that  he  was  going  to  take Amrit.’’The  fact,  however, remains that Beant  Singh  took Amrit  on  October. 14, 1984. Kehar Singh  was  undisputedly

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present at the ceremony in which Bimla Khalsa took Amrit. It may  not be, therefore, unreasonable to state that  he  must have  been  present when Beant Singh also  took  Amrit.  The recovery made from his house supports this inference. It  is said  that while taking Amrit or thereafter, the  person  is not  expected to wear gold ornaments. Beant Singh  had  gold ‘kara’ (Ex. P. 27) and ring (Ex. P. 28). These two  articles were recovered by the investigating agency from the house of Kehar  Singh.  That is not disputed before us.  Beant  Singh must have entrusted the articles to Kehar Singh at the  time of  his  taking Amrit. It also shows  the  significant  part played by Kehar Singh in taking Amrit by Beant Singh.     It is true that taking Amrit by itself may not have  any sinister   significance.  lt  is a  religious  ceremony  and ‘Amrit’  is  taken only to ‘lead a life  of  spartan  purity giving  up  all  worldly pleasures and  evil  habits’.  But, unfortunately,  the  assassins  have  misused  that   sacred religious ceremony for ulterior purposes.     The  post crime conduct of Kehar Singh is conclusive  of his guilt.He was cognizant of all the details of the  coming tragedy and waiting to receive the news on that fateful day.                                                    PG NO 197 That would be clear from the testimony of Nand Lal Mehta (PW 59)  who  was  an office colleague of Kehar  Singh.  He  has deposed  that  Kehar Singh had met him in  the  third  floor corridor of the office at about 10.45 AM on October 31,1984. By  that  time,  the news of the  murderous  attack  on  the Nation’s Prime Minister came like a thunderbolt from a clear sky. The messenger had told that ‘somebody’ had shot at Mrs. Gandhi. PW 59 then enquired from Kehar Singh’ as to what had happened.  Kehar  Singh replied that  "whosover  would  take confrontation with the panth, he would meet the same fate. " So  stating,  he went away.  It may be noted  that  at  that time,  there  was no specific  information  to  the  outside world  whether  any  Sikh had shot  the  Prime  Minister  or anybody  else.  Unless Kehar Singh had prior  knowledge,  he could not have reacted with those words.     To  sum  up: His close and  continued  association  with Beant  Singh; his deliberate attempt to exclude  Mrs.  Bimla Khalsa from their company and conversation; his secret  talk with  Beant  Singh followed by taking  meals  together  with Satwant  Singh;  his keeping the gold ‘Kara’ and  ’ring’  of Beant Singh; and his post crime conduct taken together along with  other material on record are stronger as  evidence  of guilt   then  even  direct  testimony.  I  agree  with   the conclusion  of the  High Court that Kehar Singh was  one  of the  conspirators to murder Mrs. Gandhi, though not for  all the reasons stated. Satwant Singh (A - 1).-     He  was  a constable in the Delhi  Police  recruited  on January  11, 1982 After training, he was posted in the Fifth Batallion  of  the Delhi Armed Police (DAP).  After  further commando training. he was posted in the Second Batallion  of the  DAP. Thereafter, he was posted  in the ‘C’  company  of the  Batallion  at  the lines on Teen Murti  Lane  where  he reported for security duty at the Prime Minister’s house  on July 2, 1983.     There are three charges against Satwant Singh:     (i) Section 302 read with 120-B and 34 PC Murdering  the Prime Minister Mrs. Indira Gandhi; (ii) Section 307 IPC  for the  attempted murder of Rameshwar Dayal (PW 10 ): and  (ii) Section 37 of the Arms  Act.                                                    PG NO 198     In proof of these charges, the prosecution have examined three eye witnesses to the occurrence. Narain Singh (PW  9),

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Rameshwar  Dayal  (PW 10) and Nathu Ram  (PW  64).  Besides, Sukhvir  Singh (PW 3) Raj Singh (PW 15), Deshpal  Singh  (PW 43) and Ganga Singh (PW 49) also been examined.     On October 31, 1984, in the usual course. Satwant  Singh was  put on security at Best No. 4 in the Akbar  Road  House (not at the TMC Gate). This has been confirmed by the  daily diary maintained at Teen Murti (Ex. PW l4/C)-(Entry No. 85). Raj Singh (PW 15) has testified to this entry. Satwant Singh was  given  arm and ammunition. He was  issued  SAF  Carbine (Sten-gun) having Butt No. 80 along with 5 magazines and 100 live  rounds of 9 mm ammunition. In acknowledgment  thereof, he  has signed the register (Ex. PW 3/A). Sukhvir Singh  (PW 3) had deposed to this.  With the said arm and   ammunition, Satwant Singh left Teen Murti Lines at about 6.45 AM to take up  his duty at Beat No. 4. But he did not go to that  spot. The  case of the prosecution is that Satwant Singh  had  got exchanged  his place of duty to carry out the conspiracy  he had  with  Beant Singh to murder Mrs. Gandhi.  But,  on  the other hand, the accused states that he had been ‘decoyed" to the TMC Gate by certain persons ; that he was injured by the cross  firing; that the felI down and was not in a  position to  shoot the Prime Minister or anybody. The fact.  however, remains  that Satwant Singh got exchanged his place of  duty with  that  of Deshpal Singh ( PW 43). It appears  that  one Head Constable Kishan Lal No. 1109 allowed  the sentries  to exchange  their places since Singh was suffering from  loose motions and TMC Gate being nearer to a latrine. So,  Deshpal Singh took up position at Beat No. 4 while Satwant Singh TMC Gate.     Three eye witnesses to the occurrence: (i) Narain Singh; (ii)  Rameshwar Dayal; and (iii) Nathu Ram corroborate  with each other on all material particulars. They had accompanied the Prime Minister on the fateful day. They were able to see vividly,  describe   correctly and  indentify  properly  the persons  who gunned down Mrs. Gandhi. Both the Courts  below have  accepted  them as natural and  trustworthy  witnesses. Such  a  conclusion based on  appreciation  of  evidence  is binding on this Court in the appeals under Act. 136. I  may. however, briefly refer to their evidence.     Narain Singh (PW 9) is a Head Constable. He was on  duty from  7.30  AM on October 31, 1984. He has deposed  that  at 8.45 AM, he came to  know that the Prime Minister had to  go to  No.  1 Akbar Road,to meet certain foreign  foreign  T.V. representatives.  He took up an umbrella and remained  ready                                                    PG NO 199 to  follow the Prime Minister. According to him, 9.  10  AM, Smt.  Gandhi  emerged out of the house followed  by  Mr.R.K. Dhawan,  Private  Secretary and Nathu Ram (PW  64).  He  has stated  that he moved over to the right side of Mrs.  Gandhi holding  the umbrella to protect her against the  Sun.  They proceeded towards the TMC Gate. The TMC Gate was kept  open, where Beant Singh was on the left side and Satwant Singh  on the right side. When they were about 10 or 11 feet from  the TMC  Gate, Beant Singh took out his revolver from his  right dub  and fired at Mrs. Gandhi.  Immediately,  Satwant  Singh also  started firing at Mrs. Gandhi with  his  Sten-gun.Mrs. Gandhi  fell down. He threw away the umbrella, took out  his revolver  and dashed towards Beant Singh to secure  him.  He saw  Mr. Bhatt, the personal guard of Mrs. Gandhi  and  ITBP personel arriving there and securing Satwant Singh and Beant Singh. He noticed that Rameshwar Dayal (PW 10) was also  hit by  bullets.  He  has further stated that  the  Doctor  came running. Mrs. Sonia Gandhi too. They lifted Mrs. Gandhi  and placed  in the rear seat of the escort car that was  brought there. Mrs. Gandhi was taken to the AIIMS accompanied by the

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Doctor  and  Mrs.  Sonia Gandhi on the  back  seat  and  Mr. Bhatt.  Mr. Dhawan and Mr. Fotedar on the front seat of  the car. He also went to the hospital where Kochar (PW 73)  came and  took his statement. That statement formed the basis  of the F.I.R. in the case.     There can be little doubt as to the presence, of  Narain Singh at the spot. His evidence receives full  corroboration from the other two  eye witnesses. The umbrella (Ex. P.  19) which ho was holding has been recovered from the place under the seizure memo ( Ex. PW 5/H ).     Rameshwar  Dayal (PW 10) is an A.S.l. of Police. He  was on  security  duty at the PM’s residence. He was  also,  the water attendant in the pilot car of the Prime Minister. From his  evidence,  it  will be seen that he  had  gone  to  the pantry, in the PM’s house and got thermos flasks with water, napkins  and glass. He was informed that the Prime  Minister had  an  engagement  with  a T.V. Team  at  the  Akbar  Road premises.  He went there and saw the T.V. Team. He  met  the gardner  and  asked for a ‘guldasta’, but the  gardner  said that  he would prepare and get it. In the meantime,  he  saw the  Prime Minister coming out of the house  and  proceeding towards Akbar Road premises followed by Mr. R.K. Dhawan  and others.  He also joined the entourage. Rest of his  evidence is  identical  in terms with that of Narain  Singh  (PW  9). According to him, he ran to shield Mrs. Gandhi, but was  hit by  bullets. undisputedly, he had suffered bullet  injuries. He was admitted to the AIIMS for treatment. The Medico-legal                                                    PG NO 200 Certificate (MLC) issued by the AIIMS (Ex.  10/DA)  supports his version. No further corroboration is necessary to accept his evidence.     Nathu  Ram  (PW  64) is also an eye witness.  He  was  a dedicated  servant of Mrs. Gandhi. He was always  with  Mrs. Gandhi not only when she was in power but also when she  was out  of power. His duty was to clean and dust  the  library- cum-bed  room  of the Prime Minister and then  stand  by  in attendance.  He  has deposed that he was informed   by  Mrs. Gandhi  about  the  change ofprogramme  in  the  morning  of October 3 1 and was asked to  ring up to the makeup  persons to come. Accordingly, he  called the make-up persons at 7.35 AM.  After Mrs. Gandhi was ready and left the room at  about 9.05 AM, he followed her.. He has testified that Mrs. Gandhi was  accompanied  by  Mr. R.K.     Dhawan  and  followed  by Narain  Singh  and Rameshwar Dayal. His evidence as  to  the relative  acts of the two assassins is consistent  with  the version  of  PW 9 and PW 10. As a faithful servant:  he  has helped  to  lift  and  carry Mrs. Gandhi  to  the  car.  His presence  at  the  spot was most natural.  His  evidence  is simple and straight-forward.     Ganga   Singh  (PW  49)  has  spoken  to   events   that immediately   followed  the  assassination  of   the   Prime Minister.  He  is a lance-naik in the  ITBP  commando  force placed  on  duty at the PM’s residence. When  he  heard  the sound of fire arms from the TMC Gate, he ran to the spot  as duty  bound.  He  found  Mrs. Gandhi  on  the  ground  lying injured.  He saw two Sardars out of whom one was in  uniform whom  he  identified in the Court as Satwant Singh.  He  has deposed that his Inspector Tarsem Singh who also came  there made  the  Sardars  hands up. He and  other  ITBP  personnel secured  the  Sardars and took them to guard  room.  At  the spot,  he  took  possession of ruck-sack (Ex.  P.  21)  from Satwant  Singh. The ruck-sack contained four magazines of  9 mm carbine, two of which were full (one with 20 bullets  and the other with 30 bullets) and two empty.     The presence of Satwant Singh at TMC Gate is also not in

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dispute  and indeed it was admitted by him  while  answering question No. 5l(A) in the examination under sec. 313 of  the Code.   What is  important to notice from the  testimony  of Ganga Singh is that Satwant  Singh when apprehended  by  him was  not injured. He was taken safely    to the guard  room. He  did not receive any bullet injury in the  incident  with which  we  are concerned. He must have been  shot  evidently inside the guard room where he was taken for safe custody by the ITBP personnel. The defence put forward by Satwant Singh that he was decoyed to the TMC gate where he received bullet injury is therefore, patently false.                                                    PG NO 201     The  eye witnesses are not strangers to  the  assassins. They  were familiar faces in the security ring of the  Prime Minister.  Their presence with Mrs. Gandhi at the  spot  was not accidental, but consistent with their duties. There  was no scope for mistaken identity since everything happened  in the  broad  day  light. Therefore,  the  evidence  thus  far discussed  itself is sufficient to bring home the  guilt  to Satwant Singh on all the charges levelled against him.     If  necessary,  the records contain evidence as  to  the identification  of  arms  and ammunition  entrusted  to  the assassins. I have already referred to the evidence  relating to  the  sten-gun  (Ex. P. 4) and  ammunition  delivered  to Satwant  Singh.  The sten-gun along with 25 empties  of  the sten-gun was recovered from the place of incident under  the seizure memo (Ex. PW 5/H). The revolver (Ex. P. 1) delivered to  Beant  Singh  and 5 empties of the  revolver  were  also collected  at  the  spot.  Dr.  T.D.  Dogra  (PW  5)   while conducting  limited  post-mortem examination has  taken  two bullets from the body of Mrs. Gandhi; one from injury No.  1 and  the other from injury No. 2. These bullets  along  with the: arms recovered from the spot were sent for the  opinion of  D  G.R. Prasad (PW 12),  Principal  Scientific  Officer, Ballistic  Division, GFSL, New Delhi. P.W. 12 has  testified that the bullets recovered from the body of Mrs. Gandhi  are traceable  to the sten-gun and the revolver. Similar is  the evidence with regad to the other bullets recovered from  the place  of incident. The record also contains evidence  about the  total  tally  of  the bullets  fired  and  the  empties collected. lt is needless to discuss that evidence here.     It  is, however, argued for the accused that the  finger prints found on the sten-gun were not tested for  comparison and  the two bullets recovered from the body of Mrs.  Gandhi were not examined for the traces of blood or tissues. It  is further said that the post-mortem  examination conducted  by Dr. Dogra ought to have been full and complete to clinch the issues.  There is no substance in these contentions.  It  is not necessary to confirm the finger prints on the  sten-gun, as  that of the accused when it is proved that sten-gun  was delivered  to him. The examination of the bullets  recovered from  the  body of Mrs. Gandhi for the traces  of  blood  or tissues is also unnecessary, since one  of the bullets taken by the Doctor tallied with the sten-gun (Ex. P. 4). Equally, limited post-mortem examination conducted by Dr. Dogra would not  affect  the  merits  of the  case.  It  is  not  always necessary  to  have a complete post-mortem in-  every  case. Section  174 of the Code  confers discretion to  the  Police Officer not to send the body for post-mortem examination  if there is no doubt as to the cause of death. If the cause  of                                                    PG NO 202 death is absolutely certain and beyond the pale of doubt  or controversy, it is unnecessary to have the post-mortem  done by  Medical  Officer.  In  the instant  case  there  was  no controversy  about  the  cause of death of  Mrs.  Gandhi.  A

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complete  post-mortern  of  the of the  body  was  therefore uncalled for.     From  the aforesaid direct  testimony coupled  with  the other clinching circumstances available on record, there  is not  even  an  iota of doubt about the  crime  committed  by Satwant Singh. I agree with the High Court that he is gulity of  all  the  charges. In this view of  the  matter,  it  is unnecessary  to burden this case by reference to  confession of Satwant Singh. This takes me to the question of sentence. Section  354(3) of the Code, 1973 marks a significant  shift in  the legislative policy of awarding death  sentence.  Now the normal sentence for murder is imprisonment for life  and not sentence of death. The Court is required to give special reasons  for awarding death sentence.  Special reasons  mean specific  facts  and  circumstances  obtained  in  the  case justifying  the extreme penalty. This Court in Bachan  Singh v.  State of Punjab, [1980] 2 SCC 684 has indicated  certain guidelines  to  be applied to the facts of  each  individual case  where the question of imposing death sentence  arises. It  was  observed that in cases where there is no  proof  of extreme  culpability the extreme penalty need not be  given. It may be given only in rarest of rare Cases, where there is no  extenuating  circumstance. In Machhi Singh v.  Stare  of Punjab,  11983] 3 SCR 413, this Court again  indicated  some principles as to what constitute ,,the rarest of rare cases" which  warrant the imposition of death sentence.  The   High Court  has  carefully examined these  principles  and  given reasons why in this case, the death sentence alone should be awarded.     In  my  opinion, the  punishment measured  is  deserved. There  cannot be two opinions on this issue. The "Blue  Star Operation" was not directed to cause damage to Akal  Takhat. Nor it was intended to hurt the religious feelings of Sikhs. The  decision  was taken by the responsible  and  responsive Government  in  the national interest.  The  Prime  Minister (late) Mrs. Indira Gandhi was, however, made the target  for the  consequences of the decision. The security  guards  who were duty bound to protect the Prime Minister at the cost of their lives, themselves became the assasins. Incredible  but true.  All  values  and all ideals in life;  all  norms  and obligations are thrown to the winds. It s a betrayal of  the worst   order.   It   is  the  most   foul   and   senseless assassination.  The  preparations for and the  execution  of this  egregious crime do deserve the dread sentence  of  the law.                                                    PG NO 203     Having regard to the views which I have expressed, I too would dismiss the appeals of Kehar Singh and Satwant  Singh, but  allow the appeal of Balbir Singh by setting  aside  his conviction  and  sentence,  and acquitting him  of  all  the charges.     Before parting with the case, I would like to express my gratitude to counsel amicus curiae for their willingness  to assist,  on  behalf  of the  accused.  With  their  profound learning   and  experience,  they  have  argued   the   case remarkably  well.  I  must  also  place  it  on  record   my appreciation  about  the deep learning  and  assiduity  with which   Mr.  G.  Ramaswami,  Additional  Solicitor   General assisted  on behalf of the  State. He was extremely fair  to the Court as well as to accused.     A.P.J.