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PETITIONER: STATE OF JAMMU AND KASHMIR

       Vs.

RESPONDENT: BAKSHI GHULAM MOHAMMAD

DATE OF JUDGMENT: 06/05/1966

BENCH: SARKAR, A.K. (CJ) BENCH: SARKAR, A.K. (CJ) MUDHOLKAR, J.R. BACHAWAT, R.S. SHELAT, J.M. DAYAL, RAGHUBAR

CITATION:  1967 AIR  122            1966 SCR  (4)   1  CITATOR INFO :  E          1970 SC2086  (24)  R          1978 SC  68  (134,227,231,269,271)  R          1982 SC 710  (101)  D          1989 SC 714  (18)

ACT: Constitution  of Jammu and Kashmir, s. 37-Jammu and  Kashmir Commission of Inquiry Act 1962, ss. 3, 4(c) and 10-Acts of a Minister while in office, whether can be subject of  inquiry under Inquiry Acts. 37 of Constitution whether a bar to such inquiry  Matters of public importance’ and ’definite’ in  s. 3, meaning of-Affidavits filed before Commission of Inquiry- Right to cross examine deponents, extent of.

HEADNOTE: The  first  respondent  became a member of  the  Council  of Ministers of the State of Jammu and Kashmir in 1947 and  was the Prime Minister of the State from 1953 ’to January  1963, when  he resigned.  Thereafter a Notification was issued  by the  State  Government under s. 3 of the Jammu  and  Kashmir Commission  of Inquiry Act 1962 setting up a  Commission  to inquire  into the wealth, acquired by the  first  respondent and  certain  specified  members of his  family  during  his period of office; the Commission was also to inquire whether in acquiring this wealth there was any abuse of his official position by the first respondent or the said relatives.  The Commissioner  so  appointed held  certain  sittings  between February 1965 and August 1965 in which the first  respondent took  part.   In  September 1965 he filed  a  writ  petition before  the  High Court of Jammu and Kashmir  and  the  High Court,   allowing   the  said  petition,   set   aside   the Notification   instituting  the  inquiry  and  quashed   the proceedings  of the Commission.  The State appealed  to  the Court. HELD:-(i)  Section  37  of the  Constitution  of  Jammu  and Kashmir talks of the collective responsibility of  Ministers to  the  Legislative Assembly.  That, only  means  that  the Council  of Ministers will have to stand or. fall  together, every member being responsible for the action of any  other.

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The section does not mean that a Minister is responsible for his acts only to the Legislature and no action can be  taken against  him  except for criminal or tortuous acts,  in  the ordinary  course  of  law,  unless  the  Legislature  by   a resolution  demanded  it.   No British  convention  to  this effect,  if any, can be said to have been adopted by s.  37. Furthermore, the responsibility to the Legislature is of the Council  of Ministers, and not of those who have,  like  the first respondent ceased to be Ministers. [405C-E]. (ii)Section  3 of the Commission of Inquiry  Act  expressly gives  power to Government as well as to both the Houses  of Legislature to initiate action instituting an inquiry.  When enacting it the Legislature obviously did not consider  that there  was  any  convention  or  anything  in  s.  37  which prevented a Commission of Inquiry being set up under the Act at  the  instance  of the  Government  or-  the  Legislative Council. [405F-G], (iii)The  acts  of a Minister while in  office  do  not cease to be matters of public importance after he ceases  to hold  office;  their character cannot change.   When  it  is alleged that a Minister has acquired vast wealth for himself and  his friends by abuse of his official’  position,  there can be no question that the matter is of public 402 importance.   It does not cease to be of  public  importance merely   because  what  is  proposed  is  to  inquire   into allegations  and not into the steps to be taken  to  prevent lapses  in the future.  Nor can absence of public  agitation show  that the facts to be inquired into are not of,  public importance. [407E-G; 408-G] Ram  Krishan Dalmia v. Shri Justice S. R. Tendolkar,  [1959] S.C.R. 279, referred to. (iv) It is incorrect to say that) allegations mentioned  are not definiteor   that  an  inquiry  into  them   is   not contemplated by the Inquiry Act. [409 E-F] (v)  It cannot be inferred from the provisions of- s. 10  of the  Act that a Commission of Inquiry can inquire  into  the conduct of a person only incidentally, when the main inquiry is  in  respect  of  something  else.   What  can  be   done indirectly  should obviously have been considered capabe  of being done directly. [411B] (vi)On the facts of the case the inquiry could not be  said to be mala fide. [412F] (vii)The.  doctrine of Cabinet responsibility does  not mean that if an inquiry was made against one of the  members of  the Cabinet that would be discrimination under Art.  14. The  respondent  was  in  -a  class,  by  himself  and   the classification was justified. [414A-B] (viii)The  rule of natural justice only requires that  a hearing  should  be  given.   When  the  Commission  refused permission to the first respondent to cross-examine all  the witnesses  who had filed affidavits against him no  rule  of natural justice was violated. [415G] Meenglas Tea Estate V. Their Workmen, [1964]2 S.C.R. 165 and Nagendra  Nath  Bora  v. Commissioner of  Hills  Division  & Appeals, ,Assam [1958] S.C.R. 1240. (ix)Section  10 of the Act gives a right  to  cross-examine only  these persons who give viva voce evidence  before  the Commissioner. [416F] (x)Section  4(c) of the Act does not confer a right  on  a party  appearing before the Commission to require a  witness giving  evidence by affidavit to be produced for  his  cross examination.  The Commission would, of course, permit cross- examination in a case where it thinks that necessary. [417E]

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JUDGMENT: CIVIL  APPELLATE  JURISDICTION:- Civil Appeal  No.  1102  of 1966. Appeal  from the judgment and order dated December 27,  1965 of the Jammu and Kashmir High Court in W. P. No. 67 of 1965. C.K.   Daphtary, Attorney-General, S. V.  Gupte,  Solicitor- General, Jaswant Singh, Advocate-General for the State of J. & K. H.   R.  Khanna;  S. Javali, Ravinder Narain,  for  the appellants. B.   Sen, I. N. Shroff, M. K. Banerjee, B. N. Kirpal, R.  K. Kaul, R.  N.  Kaul,  P.  L. Handu, Lalit Bhasin  and  T.  R. Bhasin, for respondent No. 1. The Judgment of the Court was delivered by Sarkar  C.J.  This is an appeal by the State  of  Jammu  and Kashmir,  G. M. Sadiq, Chief Minister of that State  and  D. P.Dhar  its  Home Minister.   The appeal  is   contested  by respondent 403 No.  1, Bakshi Ghulam Mohammad.  The other  respondent,  N., Rajagopala Ayyangar, a retired Judge of this Court, has  not appeared in this Court or in the court below.  These are the parties to the proceedings before us. After  the  accession of the State of Jammu and  Kashmir  to India  in  1947, a responsible Government was set  up  there under  the  Prime Ministership of Shiekh  Mohammad  Abdulla. Bakshi Ghulam Muhammad was the Deputy Prime Minister in that Government and G. M. Sadiq was also in the Cabinet.  In 1953 Sheikh Mohammad Abdulla was dismissed from office and a  new Government  was  formed with Bakshi Ghulam Mohammad  as  the Prime Minister and G. M. Sadiq and D. P. Dhar were  included in the Cabinet.  On January 26, 1957, a new Constitution was framed  for  Jammu & Kashmir.  In the first  elections  held under   the  Constitution,  a  party  called  the   National Conference  got  the  majority  of  votes.   Bakshi   Ghulam Mohammad  and Sadiq were members of this party.  A  Ministry was  then  formed with Bakshi Ghulam Mohammad as  the  Prime Minister.   It  appears  that G. M.  Sadiq  left  the  party sometime after 1957 and rejoined it along with D. P. Dhar in December  1960  and they were taken into the  Cabinet.   The next  General  Elections  were held  in  1962.   Again,  the National   Conference  Party  came  into  power.    In   the Government  that was formed, Bakshi Ghulam  Mohammad  became the Prime Minister and G. M. Sadiq and D. P. Dhar were taken in the Ministry.  In September 1963, Bakshi Ghulam  Mohammad resigned  from the Ministry under what is called the  Kamraj Plan and Shamsudd in became the Prime Minister in his place. It  will  be  noticed that Bakshi Ghulam  Mohammad  was  the Deputy Prime Minister of the State from 1947 to 1953 and its Prime Minister from 1953 to 1963.  So he held these offices, one  after  the other, for a total period of  about  sixteen years. In  February 1964, Shamsuddin left office and a new  Govern- ment was formed with G. M. Sadiq as the Prime Minister.   It is  said that shortly thereafter, political rivalry  between him  and Bakshi Ghulam Mohammad started.  In August 1964,  a notice was issued fixing a session of the Legislature of the State  in  the  following September.   According  to  Bakshi Ghulam Mohammad, thereafter, some of the legislators  wanted to  bring  in  vote of  no-confidence  against  G.  M.Sadiqs Ministry and by September 21, 1964 the no-confidence  motion had obtained the support of the majority of. members of  the Assembly.   On  September  22, 1964, at  5  o’clock  in  the morning,  Bakshi Ghulam Mohammad and some of his  supporters

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were  arrested  under the Defence of India Rules.   At  8.30 a.m.  on the same day the notice of the motion of  no-confi- dence with the signatures of some members was handed over to the  Secretary  of the Legislative Assembly.   G.  M.  Sadiq challenges the genuineness of the, signatures on the  notice of the motion and also denies that it had the support of,  a majority:-  of  the  Assembly-, At 9  a.m.  the  Legislative Assembly which was to meet on that day,. 404 was  prorogued  by the Speaker under the directions  of  the Sadar-i-Riyasat,  the  constitutional  head  of  the  State. Sometime  in November 1964, a petition for a writ of  habeas corpus  for  the  release  of  Bakshi  Ghulam  Mohammad  was presented  to  the  High Court of  Jammu  and  Kashmir.   On December  15, 1964, before the petition could be  heard  and decided, Bakshi Ghulam Mohammad was released from arrest  by the  State Government.  On January 30, 1965, a  Notification was  issued by the State Government appointing a  Commission of Inquiry constituted by N. Rajagopala Ayyangar to  enquire into  (1) the nature and extent of the assets and  pecuniary resources  of Bakshi Ghulam Mohammad and the members of  his family  and other relatives mentioned in the first  Schedule to the Order, in October 1947 and in October 1963; and  (ii) whether  during this period, Bakshi Ghulam Mohammad and  the others mentioned in the Schedule had obtained any assets and pecuniary resources or advantages by Bakshi Ghulam  Mohammad abusing  the  official  positions  held by  him  or  by  the aforesaid people set out in the first Schedule by exploiting that  position with his knowledge, consent  and  connivance. The  Notification provided that in making the inquiry  under head (ii) the Commission would examine only the  allegations set  out  in the second Schedule to it.  It  is  this  Noti- fication that has given rise to the present proceedings. The  Commission held certain sittings between February  1965 and  August 1965 in which Bakshi Ghulam Mohammad took  part. On September 1, 1965, Bakshi Ghulam Mohammad moved the  High Court  of  Jammu and Kashmir under ss. 103 and  104  of  the Constitution of Jammu and Kashmir, which correspond to Arts. 226 and 227 of the Indian Constitution, for a writ  striking down  the Notification and quashing the proceedings  of  the Commission taken till then and for certain other reliefs  to which it is not necessary to refer.  The petition was  heard by  a Bench of three learned Judges of the High Court.   The High Court allowed the petition, set aside the  Notification and quashed the proceedings of the Commission.  This  appeal is  against  the judgment of the High Court.   In  the  High Court,  eight  grounds had been advanced in support  of  the petition,  three  of which were rejected but the  rest  were accepted,  some unanimously and some by the majority of  the learned  Judges.  They have however not all been pressed  in this Court. The  Notification had been issued under the Jammu &  Kashmir Commission of Inquiry Act, 1962.  The first point taken  was that  the Notification was not justified by the Act  because under  the  Jammu  & Kashmir Constitution,  a  Minister  was responsible  for  his acts only to the  Legislature  and  no action  could be taken against him except for  criminal  and tortuous  acts  in the ordinary courts of  law,  unless  the Legislature  by a resolution demanded it.  The substance  of this contention is that an inquiry cannot be directed  under the  Act  into  the  actions of a  Minister  except  at  the instance  of  the Legislature, it cannot be directed  by  an order of the Government.  This contention is based on S.  37 of the Jammu 405

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&  Kashmir  Constitution.   That  section  states  that  the Council  of Ministers shall be collectively  responsible  to the Legislative Assembly.  It is contended that this implies that in no other way is a Minister responsible for  anything that  he does when in office.  It is also said that  is  the convention  in Britain and it has been adopted in the  State of Jammu & Kashmir. We confess to a certain amount of difficulty in appreciating this argument.  The point about the British convention  need not  detain  us.   It  has not  been  shown  that  any  such convention, even if it exists in England, as to which we say nothing,  has been adopted in the State of Jammu &  Kashmir. The  Jammu & Kashmir Constitution is a written document  and we can only be guided by its provisions.  It is said that s. 37 indicates that the British convention was adopted by  the State of Jammu & Kashmir.  We are unable to agree with  this view.   Section  37 talks of  collective  responsibility  of Ministers to the Legislative Assembly.  That only means that the  Council  of Ministers will have to stand  or  fall  to- other, every member being responsible for the action of  any Other.   The  emphasis is on  collective  responsibility  as distinguished from individual responsibility.  The only  way that   a   legislature   can   effectively   enforce    this responsibility  of  the  Council of Ministers to  it  is  by voting  it out of office.  Furthermore, this  responsibility is of the Council of Ministers.  Bakshi Ghulam Mohammad  did not,  at  the  date  of the  Notification,  belong  to  that Council.  He did not on that date owe any responsibility  to the Legislature under s. 37. That section has no application to  this  case Again s. 3 of the Inquiry  Act  states,  "The Government  may and shall if a resolution in this behalf  is passed by the Jammu & Kashmir State Legislative Assembly  or the  Jammu  & Kashmir Legislative  Council  by  notification appoint  a  Commission of Inquiry".  It  ,would,  therefore, appear that the Act gave power to the Government to set up a Commission and also to both the Houses of the Legislature to require a Commission to be set up.  It is important to  note that even the Legislative Council has a right to get a  Com- mission appointed though s. 37 of the Constitution does  not say  anything about the responsibility of the  Ministers  to that  Council.  The Act was passed by the State  Legislature consisting  of  both  the Houses.  It would  show  that  the Legislature  did not consider that there was any  convention or anything in s. 37 which prevented a Commission of Inquiry being  set  up  under  the Act  at  the  instance    of  the Government  or the Legislative Council.  The High Court  had rejected  this  contention  and  we think  that  it  did  so rightly. The next point urged in support of the petition was that the Act  permitted  a  Commission to be set  up  for  making  an inquiry into a definite matter of public importance and  the matters  which   the Commission had been set tip to  inquire into  were not such.  This contention found favour with  all the  learned  Judges of the High Court.   We  are,  however, unable to accept it.  It is true that 406 a  Commission can be set up only to inquire into a  definite matter of public importance.  But we think that the  matters into  which  the Commission was asked to inquire  were  such matters.   The first inquiry was as to the assets  possessed by Bakshi Ghulam Mohammad and the other persons mentioned in the  Notification, in October 1947 and in October  1963  and the second was whether during this period being the  sixteen years when he held office as Prime Minister and Deputy Prime Minister,  he and the other persons named had  obtained  any

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assets  or  pecuniary  advantage by abuse  of  his  official position  or by that position being exploited by the  others with  his  consent, knowledge or  connivance,  this  inquiry being  confined only to the instances set out in the  second Schedule  to  the Notification.  That Schedule  contains  38 instances,  the  first of which, in substance,  repeats  the second  head of inquiry earlier mentioned.  The other  items refer  to individual instances of people being made to  part with  property under pressure brought upon them by abuse  of official position and of public money being misappropriated. At  the end of this Schedule, there is a note’ stating  that the  gravamen of the charge was that Bakshi Ghulam  Mohammad abused  his official position and the other  persons  named, exploited  that  position  with his  consent,  knowledge  or connivance in committing the acts whereby they acquired vast wealth.   The  inquiry  was,  therefore,  into  the   assets possessed  by Bakshi Ghulam Mohammad and the persons  named, respectively in October 1947 and in October 1963 and to find out  whether they had during this period acquired wealth  by the  several acts mentioned in the second Schedule by  abuse or   exploitation  of  Bakshi  Ghulam  Mohammad’s   official position. The  first question is, whether these are matters of  public importance.   Two of the learned Judges held that they  were not  and the third took the contrary view.  This was put  on two grounds.  First, it was said that these matters were not of  public importance because they had to be so at the  date of  the Notification and they, were not so on that  date  as Bakshi  Ghulam Mohammad did not then hold any office in  the Government.  It was next said that there was no evidence  of public agitation in respect of the conduct complained of and this showed that they were not matters of public importance. We  do not think that either of these grounds leads  to  the view  that  the matters were not of public  importance.   As regards  the  first,  it  is  difficult  to  imagine  how  a Commission  can  be  set up by a  Council  of  Ministers  to inquire into the acts of its head, the Prime Minister, while he is in office.  It certainly would be a most unusual thing to happen.  If the rest of the Council of Ministers resolves to  have any inquiry, the Prime Minister can be expected  to ask for their resignation.  In any case, he would himself go out.  If he takes the first course, then no Commission would be  set up for the Ministers wanting the inquiry Would  have gone.  If he went out himself, then the Commission would  be set  up  to  inquire into the acts of a person  who  was  no longer in office and 407 for  that  reason, if the learned Judges of the  High  Court were   right,  into  matters  which  were  not   of   public importance.   The result would be that the acts of  a  Prime Minister  could  never be inquired into under the  Act.   We find it extremely difficult to accept that view. These  learned Judges of the High Court expressed  the  view that the acts of Bakshi Ghulam Mohammad would have been acts of public importance if he was in office but they ceased  to be  so  as he was out of office when  the  Notification  was issued.   In  taking this view, they appear  to  have  based themselves  on  the observation made by this  Court  in  Ram Krishan Dalmia v. Shri Justice S. R. Tendolkar(1) that  "the conduct  of  an  individual  may  assume  such  a  dangerous proportion  and may so prejudicially affect or  threaten  to affect  the  public  well-being as to make  such  conduct  a definite matter of public importance, urgently calling for a full  inquiry".  The learned Judges felt that  since  Bakshi Ghulam Mohammad was out of office, he had become  innocuous;

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apparently, it was felt that he could no longer threaten the public  wellbeing  by  his  acts  and  so  was  outside  the observation in Dalmia’s case.  We are clear in our mind that this  is  a misreading of this  Court’s  observation.   This Court,  as  the learned Judges themselves noticed,  was  not laying  down an exhaustive definition of matters  of  public importance.   What  is to be inquired into in any  case  are necessarily  past acts and it is because they  have  already affected the public well-being or their effect might do  so, that  they  became  matters of  public  importance.   It  is irrelevant  whether the person who committed those  acts  is still in power to be able to repeat them.  The inquiry  need not necessarily be into his capacity to do again what he has already done and it may well be into what he has done.   The fact that Bakshi Ghulam Mohammad is no longer in office does not  affect  he  question  whether  his  acts  already  done constitute  matters  of public importance.  If  once  it  is admitted,  as it was done before us, that if he had been  in office   his  acts  would  have  been  matters   of   public importance,  that would be acknowledging that his acts  were of  this  character.   His resignation  from  office  cannot change  that  character.   A Minister, of  course,  holds  a public office.  His acts are necessarily public acts if they arise  out  of his office.  If they are grave  enough,  they would  be matters of public importance.  When it is  alleged that  a Minister has acquired vast wealth for  himself,  his relations  and  friends, as is done here, by  abuse  of  his official position, there can be no question that the  matter is of public importance. It  was  said  that the object of  inquiry  was  to  collect material for the prosecution of Bakshi Ghulam Mohammad  and, therefore,  the  matters  to be required into  were  not  of public  importance.   This  contention  is,  in  our   view, fallacious.   It  is of public importance  that  public  men failing in their duty should be called upon (1) [1959] S.C.R. 279. 5SCI 28 408 to  face  the  consequences.  It is certainly  a  matter  of importance  to  the public that lapses on the  part  of  the Ministers should be exposed.  The cleanliness of public life in which the public should be vitally interested, must be  a matter  of  public importance.  The people are  entitled  to know  whether  they  have  entrusted  their  affairs  to  an unworthy  man.   It is said that the  Notification  did  not mention  anything  about the steps to be  taken  to  prevent recurrence  of the lapses in future.  But that it could  not do.  Before the facts were found steps could not be  thought of,  for  the  steps had to suit  the  facts.   The  inquiry proposed in this case will, in the course of finding out the lapses alleged, find out the process as to how they occurred and it is only after the process is known that steps can  be devised to meet them. It was also contended that the inquiry was into  allegations of misconduct against Bakshi Ghulam Mohammad and an  inquiry into  allegations was not contemplated by the  Inquiry  Act. We are wholly unable to agree.  An inquiry usually is into a question.   That  question may arise  on  allegations  made. Dabnia’s  case(1) dealt with an inquiry ordered at least  in part into allegations made against people in charge of a big mercantile  enterprise.   Allegations may  very  well  raise questions of great public importance.  Suppose it is alleged that people in a city are suffering from ill-health and that is due- to the contaminated water supplied by the city admi- nistration.  It cannot be said that these allegations  about

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the existence of poor health and its causes are not  matters of grave public importance.  They would be so even if it was found  that the people’s health was not poor and  the  water was   not  contaminated.   It  cannot  also  be  said   that allegations can never be definite.  They can be as  definite as any existing concrete matter.  It must depend on what the allegation is. Then  as  to the question whether  the  allegations  against Bakshi Ghulam Mohammad were not matters of public importance because  there  was  no public  agitation  over  them.   The Notification itself and the affidavits filed in this case on behalf  of the appellants in fact state that there had  been allegations  made  by  the  public  against  Bakshi   Ghulam Mohammad  that he had amassed a large fortune by the  misuse of his office.  But it was said that there was no proof that the  allegations had actually been made.  Whether there  was proof  would  depend  on  whether  the  statements  in   the Notification  and the affidavits were accepted or  not.   We are,  however,  unable to agree that a matter cannot  be  of public importance unless there was public agitation over it. Public  may  not be aware of the gravity of  the  situation. They may not know the facts.  Some members of the public may be  aware of individual cases but the entire public may  not know all of them.  There may have been influences working to prevent public agitation.  Again, whe- (1)[1959] S.C.R. 279. 409 ther  a  matter  is of public importance or not  has  to  be decided essentially from its intrinsic nature.  If a  matter is intrinsically of public importance, it does not cease  to be so because the public did not agitate over it.  Take this case.   Suppose  the  Government sets  up  a  Commission  to inquire into the mineral wealth in our country.  The  public are  not likely to agitate over this matter for  they  would not  know about the mineral wealth at all.  Can it  be  said that  the  inquiry  does not relate to a  matter  of  public importance because they did not agitate over it?  The answer must  plainly be in the negative.  This would be so  whether there  were  in  fact  minerals  or  not.   Considering  the allegations contained in the Notification by themselves,  we think   for  the  reasons  earlier  mentioned,   that   they constitute matters of public importance even if there was no public  agitation over them.  It was said that G. M.  Sadiq, D.  P.  Dhar  and  various  other  people  had  praised  the administration  of  Bakshi Ghulam Mohammad.   That  they  no doubt did.  But these were speeches made in support of party politics.  They might again have been made without knowledge of full facts.  They cannot, in any event, turn a matter  of public importance into one not of that character. It was then pointed out that the Notification only mentioned that  the matters were of public importance but did not  say that  they were definite matters of public importance.   The Act,  as  we  have earlier pointed out,  requires  that  the matters  to  be inquired into shall be definite  matters  of public importance.  But this omission of the word "definite" in  the  Notification  does not, in our  opinion,  make  any difference.   A Court can decide whether the matters  to  be inquired  into  are definite matters of  public  importance. ’Definite’  in this connection means something which is  not vague.   One  of the learned Judges of the High  Court  held that  the matters set out in the second Schedule were  vague as some of the instances did not give any date or year.   He also said that the note at the end of the second  Schedule., to  which we have earlier referred, added to the  vagueness. We  are  unable to accede to this view.   What  the  learned

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Judge  had  in mind was apparently the  particulars  of  the acts.   In  most cases, the acts are identifiable  from  the particulars given in the second Schedule in respect of them. Further, it is obvious that they had to be identified at the hearing and could not be proved nor any notice taken of them unless  that  was  done.  It does not appear  to  have  been contended  before the Commission that there was  any  matter not  so  identifiable.  Neither do we think  that  the  note drawing attention to the gravamen of the charges at the  end of  the  second schedule indicates any  indefiniteness.   In most  of the allegations it had been expressly  stated  that the  act was done by the misuse of Bakshi Ghulam  Mohammad’s official  position and by his permitting others  to  exploit that-it  is this which made the matters, matters  of  public importance-and  it was for greater safety that the note  was appended so that no 5SCI-28(a) 410 doubt  was left as to the gravamen of the charge in each  of the allegations made. The next point against the validity of the Notification  was based on s. IO of the Act which is in these terms:-               "10.  (1) If at any stage of the  inquiry  the               Commission  considers it necessary to  inquire               into  the  conduct  of any  person  or  is  of               opinion  that the reputation of any person  is               likely  to  be prejudicially effected  by  the               inquiry,  the  Commission shall give  to  that               person  a,  reasonable  opportunity  of  being               heard in the inquiry and producing evidence in               his defence;               Provided  that  nothing  in  this  sub-section               shall  apply when the credit of a  witness  is               being impeached.               (2)The Government, every person referred to in               sub-section (1) and with the permission of the               Commission, any other person whose evidence is               recorded by the Commission:-               (a)   may  cross-examine any person  appearing               before  the  Commission other  than  a  person               produced by it or him as a witness,               (b)   may address the Commission.               (3) It was contended that it showed that an inquiry may be  made under   the   Act  into  the  conduct  of  a   person   only incidentally, that is to say, it can be made only when  that becomes  necessary  in  connection  with  an  inquiry   into something  else.   It  was, therefore,  contended  that  the present  inquiry  which  was directly into  the  conduct  of Bakshi Ghulam Mohammad was outside the scope of the Act.  It was also said that s. 10 gives a statutory form to the rules of natural justice and provides for the application of  such rules only in the case when a person’s conduct comes up  for inquiry  by the Commission incidentally.  It was  then  said that the Act could not have contemplated an inquiry directly into  the conduct of an individual since it did not  provide specifically that he should have the right to be heard,  the right to cross-examine and the right to lead evidence  which were  given by s. 10 to the person whose conduct came to  be inquired  into incidentally.  We are unable to  accept  this view  of  s.  10. Section 3 which permits  a  Commission  of Inquiry  to be appointed is wide enough to cover an  inquiry into the conduct of any individual.  It could not be a natu- ral  reading of the Act to cut down the scope of s. 3 by  an implication  drawn  from  s. 10.  We also  think  that  this

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argument is illfounded for we are unable to agree that s. 10 does  not apply to a person whose conduct comes up  directly for  inquiry before a Commission set up under s. 3. We  find nothing  in the words of s. 10 to justify that view.   If  a Commission is set up to inquire directly into the conduct of a person, the Commission must find 411 it necessary to inquire into that conduct and such a  person would  therefore,  be  one covered by s. 10.   It  would  be strange  indeed if the Act provided for rights of  a  person whose conduct incidentally came to be enquired into but  did not do so in the case of persons whose conduct has  directly to  be  inquired  into  under  the  order  setting  up   the Commission.   It  would  be  equally  strange  if  the   Act contemplated  the  conduct of a person being  inquired  into incidentally and not directly.  What can be done  indirectly should obviously have been considered capable of being  done directly.   We  find  no  justification  for  accepting  the reading  of the Act which learned counsel for Bakshi  Ghulam Mohammad suggests. The  next  attack on the Notification was that it  had  been issued  mala  fide.  One of the learned Judges of  the  High Court expressly rejected this contention and the others also seem  to have been of the same view for they did not  accept it.  We find no reason to accept it either.  In that view of the  matter,  we  consider it unnecessary  to  discuss  this aspect  of  the case in great detail.  We have set  out  the broad events of the case and it is on them that the case  of mala fide is based.  It is not in dispute that for some time past  there  was  political rivalry  between  Bakshi  Ghulam Mohammad  and G. M. Sadiq.  It was also said that there  was personal animosity because G. M. Sadiq wanted to advance the interest  of his relatives and followers by ousting  persons belonging  to  Bakshi  Ghulam Mohammad’s  group  in  various fields.   This  allegation of personal animosity  cannot  be said  to  have  been  established.   It  is  really  on  the political  rivalry and the events happening since  September 21,  1964 that the allegation of male fide is  founded.   It was  said  that the steps taken since the arrest  of  Bakshi Ghulam Mohammad down to the setting up of the Commission  of Inquiry were all taken with the intention of driving him out of  the  political life so that G. M. Sadiq  would  have  no rival as a political leader.  First, as to the arrest.   The case of Bakshi Ghulam Mohammad was that the arrest was  mala fide.  On the other side, it was said that since about  July 1964 various allegations of abuse of power by Bakshi  Ghulam Mohammad some of which formed the subject matter of inquiry, had  come  to  the notice of the  Government  and  thereupon investigations  were started by the  Criminal  Investigation Department  at the instance of the Government.  In order  to stop  the  investigation  Bakshi  Ghulam  Mohammad  and  his followers started dowdyism and other form of breaches of law and  order  endangering  public safety  and  maintenance  of public  order.   It was pointed out that  the  situation  in Kashmir  had  not been easy for some time past  due  to  the hostile  intentions of Pakistan and China and breach of  law and order added to the seriousness of the position.  It  was said that for these reasons Bakshi Ghulam Mohammad had to be arrested  and detained under the Defence of India Rules.  it was  said on behalf of Bakshi Ghulam Mohammad that prior  to the  arrest, a no confidence motion had been  sponsored  and had  actually gathered in volume and the arrest was made  to stultify 412 it.  What  support the no confidence motion had  we  do  not

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know.    It   would  appear  however   that   the   Criminal Investigation  Department had been making inquiries  against Bakshi  Ghulam  Mohammad’s acts for some time past  and  the situation   in   Kashmir   was   inflammable.    In    those circumstances,   it  cannot  be  said  that  Bakshi   Ghulam Mohammad’s  arrest was mala fide.  He was no doubt  released from arrest after a petition had been moved for his  release and before the petition was heard.  It was said that he  was released because the Government found that the petition  was bound to succeed.  We have no material before us on which we can  say that the petition was bound to succeed.  On  behalf of  G.  M.  Sadiq and D. P. Dhar it was  said  that  he  was released  because  of ill-health.  This does not  appear  to have been denied.  It was also said on behalf of G. M. Sadiq that  the investigation having been completed there  was  no cause  for Bakshi Ghulam Mohammad to instigate  breaches  of law and order and therefore it was not necessary to keep him in detention any longer.  On the evidence before us, we  are unable  to say that the case made by G. M. Sadiq  cannot  be accepted.  As to the prorogation of the Assembly, it is said by  the  appellants  that it was necessary  because  it  was apprehended that if the Assembly met, there might have  been trouble inside the House created by Bakshi Ghufam Mohammad’s followers who resented the arrest.  On the materials  before us,  we  are  unable  to  say  that  this  apprehension  was pretended.   It  was also said by the  appellants  that  the prorogation  had  been  decided upon before  the  arrest  of Bakshi  Ghulam  Mohammad but the order could not  be  passed because the Sadar-i-Riyasat was out of Srinagar from  before September 15, 1964 when both the arrest and prorogation  had been decided upon and did not return there till some time on September  21,  1964.   The fact  that  the  Sadar-i-Riyasat returned  on that date is not denied.  As we have said,  the arrest and the prorogation took place on the next day,  that is, September 22, 1964.  Bakshi Ghulam Mohammad was released on  December  15, 1964 and the Notification  challenged  was issued  on January 30, 1965.  On these facts, we are  unable to  hold  that  Bakshi  Ghulam Mohammad  has  been  able  to establish  that the inquiry had been set up mala fide  owing to political rivalry. It  has  been said on behalf of the  appellants  that  there could  be  no  political rivalry because,  as  appears  from Bakshi Ghulam Mohammad’s own affidavit, he had declared  his intention  to  retire from politics.  On  behalf  of  Bakshi Ghulam  Mohammad it was stated that G. M. Sadiq had  made  a statement  that he would be released after a  Commission  of Inquiry  was set up and this would show that  the  detention was mala fide and that would indicate that the  Notification had  also  been  issued mala fide.  That  statement  is  not before us.  On behalf of G. M. Sadiq it was said that such a statement had not been made and what had been said was  that he  would be released after the completion of  investigation by  the  Criminal Investigation  Department  as  thereafter, there 413 will  be no occasion for Bakshi Ghulam Mohammad  to  disturb the  public peace and safety.  It was also said that it  had been   mentioned   that   after  the   completion   of   the investigation,  the Commission of Inquiry would be  set  up. This  is  not denied.  It however does not make  the  arrest mala  fide.  It was further said by Bakshi  Ghulam  Mohammad that the statement showed that the Commission was set up  to prevent him from disturbing public safety and law and  order and that, therefore, it was outside the scope of the Inquiry Act.   This  was denied on behalf of G. M.  Sadiq.   In  the

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absence  of  the statement, it is impossible for us  to  say which is the correct version.  Another point taken was  that the affidavits filed on behalf of the appellants showed that the  Government were satisfied about the correctness of  the allegations  into  which the inquiry was directed.   It  was contended  that since the inquiry is for finding  facts,  if the Government were already satisfied about them, there  was no  need for further inquiry.  This contention has no  force at  all.   What  the  affidavit really  said  was  that  the Government  were prima facie satisfied.  They had to  be  so before they could honestly set up the Commission to make the inquiry.   It was said on behalf of G. M. Sadiq that  before setting  up the Commission the Government  had  investigated into the facts through the Criminal Investigation Department and if the Government’s intention was mala fide, they  could have  started criminal proceedings and ruined the  political life of Bakshi Ghulam Mohammad just as well thereby and kept him  busy  and  out of politics for a  long  time.   It  was pointed  out  that  this  might  have  resulted  in  serious consequences for Bakshi Ghulam Mohammad which the Commission of  Inquiry  would not.  It was also pointed  out  that  the Commissioner  appointed was a retired Judge of  the  Supreme Court of India.  All this, it was said, would indicate  that the  action had not been prompted by malice.  We cannot  say that these contentions of the appellants have no force. The  next ground of attack on the Notification was based  on Art.  14.  It was said that most of the matters  into  which the  Commission  had  been directed to  inquire  formed  the subject  matters of Cabinet decisions.  It was  pointed  out that  since  such  matters are confidential and  no  one  is allowed  to divulge in what way the members of  the  Cabinet voted  on them, it must be held that they were  all  equally responsible for the acts sanctioned.  That being so, it  was contended that by picking Bakshi Ghulam Mohammad out of  the entire Cabinet for the purpose of the Inquiry the Government had  discriminated  against him in a hostile  way.   It  was contended  that the Notification must be set aside  on  that ground.  We find this contention untenable.  The inquiry  is in respect of wealth acquired by Bakshi Ghulam Mohammad  and his  friends  and  relatives  by  misuse  of  his   official position.   It  would be strange if all the members  of  the Cabinet  voluntarily abused their office for  putting  money into the pockets of Bakshi Ghulam Mohammad and his  friends. Let us, however, assume that all the 414 members  of the Cabinet assisted Bakshi Ghulam  Mohammad  in doing  this.  It is however not said that other members  had acquired  wealth  by these acts.  He was,  therefore,  in  a class  by  himself.   This  classification  has  further   a rational  connection with the setting up of the  Commission, for  the object is to find out whether the wealth  had  been acquired by Bakshi Ghulam Mohammad by the abuse of  official position. It  remains  now  to deal with the  last  point.   This  was directed against the proceedings of the Commission.  It  was said  that  the proceedings had been conducted in  a  manner contrary  to the rules of natural justice and  to  statutory provisions.   Two specific complaints were made.  The  first was  that  the  Commission had  not  allowed  Bakshi  Ghulam Mohammad  to inspect all the documents before he was  called upon to answer the allegations made against him.  The second was that the Commission had refused him permission to cross- examine  persons  who had filed  affidavits  supporting  the allegations  made against him.  We have now to set  out  the procedure followed by the Commission.  It first called  upon

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the  Government  to  file  affidavits  in  support  of   the allegations  in the second schedule to the Notification  and to  produce  the documents which supported  them.   It  then asked  Bakshi  Ghulam  Mohammad to  file  his  affidavit  in answer.  Thereafter the Commission decided whether any prima facie case had been made for Bakshi Ghulam Mohammad to  meet and  in  that  process rejected  some  of  the  allegations. Bakshi  Ghulam  Mohammad was told that there  was  no  case, which  be  had  to  meet in respect of  them.   Out  of  the remaining  allegations,  a  group  was  selected  for  final consideration  and  it was decided that the  rest  would  be taken  up  gradually thereafter.  In  connection  with  that group of cases, counsel for Bakshi Ghulam Mohammad wanted to cross-examine  all  the  persons who  had  filed  affidavits supporting   the  Government’s  allegations  in  the   cases included  in that group.  The Commissioner ordered  that  he would not give permission to cross-examine all the deponents of affidavits but would decide each case separately.  It was after this that the petition for the writ was presented. The question of inspection is no longer a live question.  It is  true  that when Bakshi Ghulam Mohammad was  directed  to file his affidavits he had not been given inspection of’ all the documents and files which the Government proposed to use to support their case.  On behalf of Bakshi Ghulam  Mohammad it  was said that this was a denial of the rules of  natural justice.   It  is not necessary to  consider  this  question because  it  is admitted that since then inspection  of  the entire  lot of files and documents has been given.   At  the final  hearing of the allegations, therefore, Bakshi  Ghulam Mohammad would no longer be at any disadvantage. The  next  point is as to the  right  of  cross-examination. This claim was first based on the rules of natural  justice. It was said 415 that these rules require that Bakshi Ghulam Mohammad  should have  been given a right to cross-examine all those  persons who had sworn affidavits supporting the allegations  against him.  We are not aware of any such rule of natural  justice. No authority has been cited in support of it.  Our attention was  drawn to Meenglas Tea Estates v. Their Workmen(1),  but there all that was said was that when evidence is given viva voce  against a person be must have the opportunity to  hear it and to put the witnesses questions in  cross-examination. That  is not our case.  Furthermore, in Meenglas Tea  Estate case(1)  the Court was not dealing With a fact finding  body as  we are.  Rules of natural justice require that  a  party against whom an allegation is being inquired into should  be given a hearing.  Bakshi Ghulam Mohammad was certainly given that  It was said that the right to the hearing  included  a right to cross-examine.  We are unable to agree that is  so. The  right must depend upon the circumstances of  each  case and  must  also  depend  on  the  statute  under  which  the allegations are being inquired into.  This Court has held in Nagendra  Nath  Bora v. Commissioner of Hills  Division  and Appeals,  Assam(1) that "the rules of natural  justice  vary with  the varying constitution of statutory bodies  and  the rules  prescribed by the Act under which they function;  and the question whether or not any rules of natural justice had been   contravened,   should  be  decided  not   under   any preconceived  notions,  but in the light  of  the  statutory rules  and  provisions."  We have to remember  that  we  are dealing with a statute which permits a Commission of Inquiry to  be set up for fact-finding purposes.  The report of  the Commission has no force proportion vigorous.  This aspect of the  matter  is important in deciding the rules  of  natural

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justice  reasonably  applicable in the  proceedings  of  the Commission of Inquiry under the Act.  ’Then we find that  s. 10  to which we have earlier referred, gives a right  to  be heard  but  only a restricted right  of  cross-exaniination. The latter right is confined only to the witnesses called to depose  against the person demanding the right.  So the  Act did not contemplate a right of hearing to include a right to crossexamine.  It will be natural to think that the  statute did not intend that in other cases a party appearing  before the  Commission  should  have any further  right  of  cross- examination.   We,  therefore. think that no case  has  been made out by Bakshi Ghulam Mohammad that the rules of natural justice  require  that  lie should have a  right  to  cross- examine all the persons who had sworn affidavits  supporting the allegations made against him. We  will  now  deal with the claim to the  right  to  cross- examine  based on statutory provision.  That claim is  based on s. 4(c) of the Act.  The relevant part of the section  is as follows:--               "The  Commission  shall have the  power  of  a               Civil  Court.  while trying a suit  under  the               Code of Civil Proce-               (1) [1964] 2 S.C.R.  165.               (2) [1958] S.C.R. 1240.               416               dure  Svt. 1977, in respect of  the  following               matters, namely:-               (a)   summoning and ao enforce the  attendance               yof an person and examining him on oath;               (b)               (c)  receiving evidence on affidavits"’ It  is  not in dispute that the Code of Civil  Procedure  of Jammu  and Kashmir State referred to in this section  is  in the same terms as the Indian Code of Civil Procedure.  Order 19 r. I. of the Indian Code reads as follows:--               "Any  Court  may at any  time  for  sufficient               reason order that any particular fact or facts               may  be  proved  by  affidavit,  or  that  the               affidavit  of any witness may be read  at  the               hearing,  on  such  conditions  as  the  Court               thinks reasonable:-               Provided  that where it appears to  the  Court               that  either  party  bona  fide  desires   the               production of a witness for cross-examination,               and  that  such witness can  be  produced,  an               order  shall not be made authorising the  evi-               dence   of  such  witness  to  be   given   by               affidavit." The  contention  is  that  the  powers  of  the   Commission therefore  to  order a fact to be proved  by  affidavit  are subject to the proviso that power cannot be exercised when a party  desires  the production of the persons  swearing  the affidavits for cross-examining them. The  contention was accepted by the High Court.  We  take  a different  view  of the matter.  We first observe  that  the inquiry  before  the Commission is a  fact-finding  inquiry. Then we note that s. 10 which, in our opinion, applies to  a person whose conduct comes up for inquiry by the  Commission directly,  has a right to cross-examine only  those  persons who give viva   voce evidence before the Commission  against him.   If S. 4(c) conferred a right to  cross-examine  every one  who swore an affidavit as to the facts involved in  the inquiry,  then  S.  10(2)  would  become  superfluous.    An interpretation producing such a result cannot be right.   It also  seems to us that O. 19 r. I has to be read with O.  18

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r.  4  which states that the evidence of  the  witnesses  in attendance  shall be taken orally in open court.   It  would appear, therefore, that O. 19 r. I. is intended as a sort of exception to the provisions contained in O. 18 r. 4. The Act contains no provision similar to O. 18 r. 4. Therefore, when S.  4(c)  of  the  Act gave  the  Commission  the  power  of receiving  evidence  on  affidavits,  it  gave  that  as  an independent  power  and not by way of an  exception  to  the general rule of taking evidence viva voce in open court.  It would  be natural in such circumstances to think  that  what the Act gave was only the power 417 to  take evidence by affidavit and did not intend it  to  be subject  to the proviso contained in O. 19 r. I. If it  were not  so,  then  the result really would be  to  require  all evidence  before the Commission to be given orally  in  open court.   If that was intended, it would have been  expressly provided  for in the Act.  We should here refer to  Khandesh Spinning  etc.  Co. Ltd. v. Rashtriya Girni Kamgar  Sangh(1) where  this  Court dealing with a somewhat  similar  section like  s.  4(c)  observed that facts might be  proved  by  an affidavit subject to O. 19 r. (1).  The observations  appear to  have  been  obiter dicta.  In any  case  that  case  was dealing  with  a statute different from the one  before  us. The  observation there made cannot be of much assistance  in interpreting the Jammu and Kashmir Inquiry Act.  The  number of  witnesses  swearing  affidavits  on  the  side  of   the Government  may often be very large.  In fact, in this  case the  number of witnesses swearing affidavits on the side  of the  Government  is,  it  appears, in  the  region  of  four hundred.   The statute could not have intended that  all  of them  had  to  be examined in open court  and  subjected  to cross-examination,   for  then,  the  proceedings   of   the Commission would be interminable.  We feel no doubt that the Act contemplated a quick disposal of the business before the Commission, for, otherwise. the object behind it might  have been  defeated.  While on this topic, we would impress  upon the  Commission the desirability of speedy disposal  of  the inquiry.  For these reasons, in our view, s. 4(c) of the Act does  not  confer a right on a party  appearing  before  the Commission  to  require  a witness  giving  evidence  by  an affidavit  to  be produced for his  cross-examination.   The Commission  would, of course, permit cross-examination in  a case where it thinks that necessary.  The view that we  take should  not put any party in any difficulty.  He can  always file  affidavits of his own denying the allegations made  in affidavits  filed  on  behalf of the other  party.   If  the evidence  on  both sides is tendered by affidavits,  no  one should  be  at any special disadvantage.  We  have  also  to remember that s. 9 of the Act gives the Commission power  to regulate  its own procedure subject to any rules made  under the  Act.  We find that the rules provide that evidence  may be given by affidavits and the Commission may after  reading it,  if it finds it necessary to do so, record the  evidence of  the deponents of the affidavits and also of others;  see ff.  6, 7 and 8. Rule 10 reproduces the restricted right  of cross-examination given by s. 10.  Rule 11 says that in  all matters not provided by the rules, the Commission may decide its own procedure.  One of the matters covered by the  rules is cross-examination of witnesses. So the rules  contemplate cross-examination   as  a  matter  of  procedure   and   the Commission is free to decide what cross-examination it  will allow provided that in doing so it cannot go behind the  rules relating to cross-examination.  Section 9 of  the Act  has to be read in the light of these rules.  All  this.

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we think, supports (1)[1060] 2 S.C.R. 841. 418 the  interpretation  we have put on s. 4(c).  We  also  feel that  the  procedure before a body like the  Commission  has necessarily to be flexible.  We, therefore, reject the  last contention. In  our  view, for these reasons, the judgment of  the  High Court  cannot  be supported.  We accordingly set  it  aside. The appeal is allowed. Appeal allowed. 419