http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 68  

PETITIONER: V. C. SHUKLA

       Vs.

RESPONDENT: STATE (DELHI ADMINISTRATION)

DATE OF JUDGMENT11/04/1980

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KAILASAM, P.S. KOSHAL, A.D.

CITATION:  1980 AIR 1382            1980 SCR  (3) 500  1980 SCC  (2) 665  CITATOR INFO :  RF         1981 SC 873  (52)  R          1982 SC 839  (25)  RF         1986 SC 791  (5)  R          1988 SC1531  (163)

ACT:      Criminal Conspiracy, ingredients of-Section 120B of the Indian Penal  Code,  evidence  required  to  prove  criminal conspiracy explained-Approver’s evidence, value of.      Words and  Phrases-"High Public  or political Offices"- Meaning of.      Special  Court’s   Act  1979,   ss.  5,   7,  9  &  11- Constitutional validity of.

HEADNOTE:      Sri Amrit  Nahata PW  1 was  a member of Parliament and had produced a film titled "Kissa Kursi Ka" under the banner of Dhwani Prakash. The film according to the prosecution was a grotesque  satire containing  a scathing  criticism of the functioning of  the  Central  Government  and  was  open  to serious objections  which were  taken even  by  the  Central Board of Film Censors. After the film was ready for release, PW 1, Amrit Nahata, applied for certification of the film on the 19th of April 1975 before the Board. The film was viewed on April 24, 1975 by an Examining Committee of the Board and while three members were of the opinion that certificate for exhibition, with  drastic cuts,  should  be  given,  another member and  Mr. N.  S. Thapa,  Chairman, disagreed  with the opinion of  their colleagues  and accordingly  referred  the matter to  the Revising  Committee. The  Revising  Committee after viewing  the film  agreed by  a majority  of 6  :1 for certification of the film, the dissent having been voiced by Mr. Thapa, the Chairman and accordingly under Rule 25(ii) of the Cinematograph  (Censorship) Rules, 1958, a reference was made  to   the  Central  Government  on  8-5-1975.  In  this connection, a  letter was  addressed to  PW  6,  Mr.  S.  M. Murshed, who  was at  the relevant  period Director  in  the Ministry of Information & Broadcasting, Incharge of film and T.V. Projects  and was  appointed, Joint Secretary on 1st of May 1975.  Before making his comments PW 6 saw the film some time in  the middle  of May,  1975. Meanwhile,  PW 1,  Amrit

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 68  

Nahata, was  directed to  deposit the  positive print of the film comprising  14 reels  of 35  mm with  the Film Division Auditorium, situate  at  1,  Mahadev  Road,  New  Delhi.  In pursuance of  these directions  PW 1  deposited the positive print and  an entry  thereof (Ext.  17A)  was  made  by  the Librarian-cum-Projectionist of  the Auditorium. PW 17, K. P. Sreedharam,  who  was  a  Technical  Officer  incharge  also inspected the reels and found them in order.      Although Murshed,  PW 6,  after seeing  the film agreed with the  opinion of the Chairman of the Board that the film may be  open to  objection on the ground that it was full of sarcasm and contained criticism of the political functioning of the  Governmental machinery  yet he was personally of the opinion that  certification for  exhibition  should  not  be refused. PW  6 accordingly  recorded a note and submitted it to Mr.  A.  J.  Kidwai,  the  then  Secretary,  Ministry  of Information and  Broadcasting. The  matter was then examined by Mr.  I. K.  Gujral, the  then Minister of Information and Broadcasting but 501 no final  decision was  taken. Meanwhile PW 1, Amrit Nahata, filed a  writ petition (Ex. PW 1/D) in the Supreme Court. On the 23rd  of the  June 1975,  a notice  was  issued  by  the Ministry of  Information and  Broadcasting to  PW  1,  Amrit Nahata, to  show cause  why certification to the film be not refused. The  notice was made returnable by 9-7-75. Thus the Ministry  of   Information  and  Broadcasting  had  taken  a tentative decision  to  refuse  certification  to  the  film because of its objectionable and offensive nature.      Emergency was  proclaimed on  the night of between 25th and 26th  of June,  1975 and soon thereafter A 1 took charge as the Union Minister of Information and Broadcasting and he was of  the opinion  that the film should be banned. On July 5, 1975,  in pursuance  of the decision taken by the Central Government, the  Coordination Committee  directed seizure of the film  and that  its negatives,  positives and  all other materials relating  to it  be taken  in the  custody of  the Central Government  vide Ex.  PW 6/D.  On July  10, 1975 A 1 directed that  the film  be banned  for screening  under the Defence of  India Rules, vide Ext. PW 6/E-4. Finally, on the 11th of  July 1975  PW 6  Murshed, passed  an order  that no certification was  to  be  given  to  the  film  for  public exhibition which  was followed  by a  letter dated  July 14, 1975, forfeiting the film to the Government. In pursuance of the decision taken by the Central Government PW 39, S. Ghosh Deputy Secretary,  incharge of  the films and T. V. Division wrote  a   letter  to  the  Chief  Secretary  Government  of Maharashtra for  seizure of  all the positives and negatives of the film as also other related materials. In pursuance of this order, the Bombay police seized the entire film on 1-8- 1975 and  deposited in the godown of the Board. As, however, a final  order had been passed by the Government banning the film. PW, 1, Amrit Nahata filed a petition for special leave in the Supreme Court on 6-9-1975. This petition was heard on 29-10-75 and the Court directed the Government to screen the film on  17-11-75 in  the Auditorium  for being shown to the Judges constituting  the Bench. In pursuance of the order of the Court, intimation was sent to the Ministry concerned and PW 62,  Mr. S.  M. H. Burney who was then Secretary Ministry of Information  and  Broadcasting  directed  that  immediate action be taken to implement the orders of the Supreme Court and that  arrangements should be made to book the Auditorium for 17-11-75.  By a  letter dated 5-11-75 (Ext. PW 2/A2) the Supreme Court  was also  informed regarding the steps taken. Sometime thereafter  PW 2,  L.  Dayal  took  over  as  Joint

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 68  

Secretary (Films  Division) in  place of  Mr.  Murshed.  The film, however,  was not  shown to  the Judges of the Supreme Court on the ground that the films were not traceable.      After the  general elections  of March  1977,  the  new Government directed  the Central  Bureau of Investigation to investigate into  the matter  of disappearance of the films. The C.B.I.  accordingly investigated  the matter  and  found that A  1, V.  C. Shukla  and A  2 Sanjay  Gandhi  conspired together  and  ultimately  burnt  them  in  Maruti  Complex. Therefore C.B.I.  filed charge sheets against V. C. Shukla A 1 and  Sanjay Gandhi  A 2  under several provisions of Penal Code. The  prosecution examined  several witnesses  to prove criminal conspiracy  of A  1 and A 2 more particularly under three stages,  namely, (i) the deposit of the positive print in the  Auditorium and  its alleged transfer to the personal custody  of  A  1;  (ii)  the  arrival  of  thirteen  trunks containing negatives  and other material related to the film at New  Delhi from  Bombay in pursuance of the orders of A 1 and their transfer to 1, Safdarjung Road, then to the Maruti Complex; and  (iii) the  actual orders  alleged to have been given 502 by A  2 for  burning the  film in  the  premises  of  Maruti Complex which  operation according  to the  prosecution  was carried  out  by  the  approver  PW  3,  Khedkar  and  other witnesses between the 10th and 24th of November 1975.      The Sessions  Judge, Delhi convicted V. C. Shukla (A-1) appellant in  Criminal Appeal  No. 494/79 under section 120B read with  Ss. 409,  435, 411, 414 and 201 Indian Penal Code and also  under section  409 Indian Penal Code in respect of the positive  print and  negative and  other material of the film "Kissa  Kursi Ka’  under section  411 read  with S. 109 I.P.C.; under  section 414 read with section 109 I.P.C.; and under  section   201  read   with  section  109  I.P.C.  The appellant, Sanjay Gandhi (A 1) in Criminal Appeal No. 493/79 was convicted  by the  Sessions Judge,  Delhi under  section 120B read  with Ss.  409, 435,  411, 414 and 201, Penal Code and further  convicted under Ss. 435, 411, 414 and 201 Penal Code in  regard to  the negative  and other materials of the film, as also under section 409 read with section 109 of the Penal Code.      Accused No. 1 was sentenced under s. 120B read with Ss. 409,  435,   411,  414   and  201   to  two  years  rigorous imprisonment; under  s. 409 regarding the negative and other materials to  two years  rigorous imprisonment and a fine of Rs.  20,000   and  in  default  further  6  months  rigorous imprisonment, under  s. 409  regarding the positive print of the film to two years rigorous imprisonment and a fine of Rs 5000 and  in case  of default  further rigorous imprisonment for three  months; under s. 411 read with s. 109 to rigorous imprisonment for  one year; under s. 414 read with s. 109 to rigorous imprisonment  for one  year; under s. 201 read with s. 109  to rigorous  imprisonment for one year; under s. 435 read with  s. 109  to rigorous imprisonment for one year and six months.  Accused No. 2 was sentenced under s. 120 B read with ss. 409, 435, 411, 414 and 201 to rigorous imprisonment for two years; under s. 435 to rigorous imprisonment for one year and  six months and a fine of Rs. 10,000 and in case of default further rigorous imprisonment for four months; under s. 411  to rigorous  imprisonment for one year; under s. 414 to rigorous  imprisonment for  one year;  under  s.  201  in regard to  the negative,  etc., to rigorous imprisonment for one year;  under s.  201 in  regard to  13 trunks,  etc., to rigorous imprisonment  for one  year and  under s.  409 read with s.  109 to  rigorous imprisonment  for two  years.  The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 68  

aforesaid sentences  of imprisonment  were  ordered  to  run concurrently in the case of both the accused.      On being  convicted by  the Sessions Judge, Delhi, both the accused  filed  appeals  before  the  Delhi  High  Court against their  convictions and  sentences, and were released on bail  pending the  hearing of the appeals. Meanwhile, the Special Courts  Act of 1979 came into force and by virtue of a declaration  made under  section 7  of the  said Act,  the appeals stood transferred to the Supreme Court.      The  appellants   raised  the   following   preliminary objections as  to the constitutional validity of Sections 5, 7, 9  and 11  of the  Act, apart  from the  plea that  their conviction and  sentence were  not based  on  any  evidence, legal or otherwise.      A. Even  having regard  to the principles laid down the Supreme Court  in the  Reference case, the Act fails to pass the tests laid down for a valid classifica- 503 tion under Art. 14. The decision given in the Reference case upheld the  Bill and  rejected the  challenge that  the Bill violated Art.  14 mainly  on the ground that the Bill sought to put  a certain  class of persons, namely, persons holding high public  or political offices who had committed offences only during  the period  of Emergency.  In other  words, the constitutionality of  the Bill was upheld on the ground that the legislation was confined to select offences committed by a particular  class of  persons during the Emergency period. The impugned  Act transgressed  the limits  imposed  by  the judgment in  the Reference  case by bringing within its fold offences committed prior and subsequent to the Emergency and thus was  in direct  conflict with the opinion of this Court rendered in  the Reference  case. In  other words this Court struck down  that part  of the  Bill which  related  to  the period between  February and  June 1975  on the  ground that persons having  committed offences  during that period could not be  clubbed with those who had committed offences during the period  of Emergency. Thus the Act, by clubbing together persons accused  of offences  committed during the Emergency with those  alleged to  be guilty  of crimes  pertaining  to periods before and after the Emergency (i.e. by dealing with offences committed  at any  point of  time whatsoever),  has violated the  guarantee under Art. 14 and the classification made by  the Act  is in  direct contravention of the opinion given by this Court in the Reference Case.      B.  Even  if  the  classification  was  valid,  as  the procedure prescribed  by the  Act  is  extremely  harsh  and prejudicial to  the accused,  Articles 14 and 21 are clearly violated.           (a)   Section  7  deprives  a  valuable  right  of                appeal;           (b)   Section 11(1)  takes away the valuable right                of revision against interlocutory orders;           (c)   Section  9(3)  of  the  Act  prescribes  the                procedure for  the  trial  of  Warrant  cases                before the  Magistrate in Sections 238 to 243                and 248 Crl. P.C., while treating the special                Court as Court of Sessions.      C. Assuming  the classification of persons holding high public or political offices to be justified, it suffers from a serious  infirmity in  that neither the terms "high public or political  office" has been defined nor have the offences been delivered  or defined  so as to make the prosecution of such offenders a practical reality.      D. Even  the nature  and character of the offences have not been  defined in  the Act which introduces an element of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 68  

vagueness in the classification.      E. Parliament  was not  competent to pass a special Act and create Special Courts for a particular set of offenders.      F. The  Act seeks  to change the situs of the Court and virtually abrogates  section 181  of the  Code  of  Criminal Procedure.      G. The  Act creates an invidious distinction in as much as persons  holding high  public or  political offices would have the  benefit of trial by such an experienced officer as a sitting  judge of  a High Court, while the appellants have been deprived  of that  right and  were tried  by a  Special Judge who was only a Sessions Judge. 504      H.  Section   5  of   the  Act   suffers  from  several constitutional and  legal infirmities, namely, (a) Section 5 (1) suffers  from the vice of excessive delegation of powers so as  to violate  Article 14  in as  much as the discretion conferred on  the Central  Government is absolute, naked and arbitrary and is clearly discriminatory as it is open to the Central Government  to  pick  and  choose  persons  to  make declarations in respect of them while excluding others.      (b) The issuance of a declaration under section 5(1) of the Act depends purely on the subjective satisfaction of the Central Government  and under  sub-section (2)  of section 5 such a  declaration cannot  be called  into question  by any court so  that there would be an element of inherent bias or malice in  an order  which the  Central Government may pass, for prosecuting persons who are political opponents and that the section is therefore invalid.      (c) As  the Central  Government in a democracy consists of the political party which has the majority in Parliament, declarations under  section 5(1) of the Act could be used as an engine  of oppression  against members of parties who are opposed to the ideologies of the ruling party.      (d)  the  provisions  about  declaration  contained  in Section 5(1)  are violative  of  the  principle  of  natural justice in  as much  as they  do not provide for any bearing being given to the accused before a declaration is made.      (e) in  an instant case, the declaration dated June 22, 1979 made under section 5(1) of the Act per se shows that it had not  resulted from  any real  application of the mind by the  Central   Government.  Once   the  prosecution  of  the appellants had  culminated in  a conviction  and  an  appeal therefrom there  was no  question of  the existence  of  any "prima facie  case" and  that the  use of such an expression could be  intelligible  only  if  the  accused  were  facing criminal  proceedings   which  had   not  culminated   in  a conviction; and      (f) the  declaration made under section 5 of the Act is non est  because it  has not  been laid before each House of Parliament as required by section 13 of the Act.      J. The  appellant not  having held  any high  public or political office  has been drawn into this case by virtue of a declaration  and has  therefore been  singled  out  for  a discriminatory treatment.      K. Section  5(1) of  the Act  has no application to the facts of  the present  case because  under  section  5(1)  a declaration has  to be  made on  the  basis  of  the  source indicated in  the section, namely, inquiries conducted under the Commissions  of  Inquiry  Act  or  investigations  which become otiose and would have relevance only if the appellant had not been convicted.      L. Conviction  being a  finding of guilt cannot be said to fall within the situation contemplated by section 5(1) of the Act.  Section 6  is an extension of the scheme contained

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 68  

in section  5, the  former does not overrule the entire code of Criminal  Procedure but in fact takes in only those cases which are pending at the trial stage when the declaration is made. Once  the case  ends in a conviction, section 5 spends itself out  and there  is no  room for  the  application  of section 5.      M. Section  7 would  not apply to this case because its language embraces  only those  appeals which  arise out of a prosecution which  itself is  pending at  the  time  when  a declaration is made. 505      N. By  providing in section 7 for an automatic transfer of appeals  from the  High Court  to the  Supreme Court, the Legislature has  exercised a  judicial power which is vested in the  Supreme Court alone under section 406 of the Code of Criminal Procedure  and that  the section  is invalid  as it conflicts with section 406 Crl. P.C.      Allowing the appeals, the Court ^      HELD: (Regarding Constitutional validity of the Act)      1. In  a diverse  society and a large democracy such as ours where the expanding needs of the nation change with the temper of  the times,  it is  extremely  difficult  for  any legislature to  make laws  applicable to  all persons alike. Some amount  of classification  is, therefore,  necessary to administer various  spheres of  the activities of the State. [522 D-E]      2.  It  is  well  settled  that  in  applying  Art.  14 mathematical precision  or nicety  or perfect equanimity are not required.  Similarity rather  than identity of treatment is enough. The courts should not make a doctrinaire approach in construing  Art. 14  so as  to destroy  or frustrate  any beneficial legislation.  What Art.  14 prohibits  is hostile discrimination and  not reasonable  classification  for  the purpose of  legislation. Furthermore,  the Legislature which is  in  the  best  position  to  understand  the  needs  and requirements of the people must be given sufficient latitude for making  selection or differentiation and so long as such a selection is not arbitrary and has a rational basis having regard to  the object  of the  Act, Art.  14  would  not  be attracted. That  is  why  this  Court  has  laid  down  that presumption is  always in favour of the constitutionality of an enactment  and the  onus lies upon the person who attacks the statute to show that there has been an infraction of the constitutional concept  of equality.  It has  also been held that   in    order   to    sustain   the    presumption   of constitutionality,  the  Court  is  entitled  to  take  into consideration matters  of common  knowledge, common  report, the history  of the  times and  all other facts which may be existing at  the time  of  the  legislation.  Similarly,  it cannot be  presumed that  the administration of a particular law would  be done  with an  "evil eye and an unequal hand". Finally, any  person invoking  Art. 14  of the  Constitution must show  that there  has  been  discrimination  against  a person who  is similarly  situate or  equally circumstanced. [522 E-H, 523 A]      State of  U.P. v.  Deoman Upadhyaya,  [1961] 1  SCR 14, followed.      3. The classical tests laid down for the application of Art. 14 are the following:           1.    The  classification must  be founded  on  an                intelligible differentia  which distinguishes                persons who are placed in a group from others                who are left out of the group.           2.    Such  differentiation must  have a  rational

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 68  

              relation to  the object sought to be achieved                by the Act.           3.       There   must  be   a  nexus  between  the                differentiation which  is the  basis  of  the                classification and  the object  of  the  Act.                [523 D-F]      4. It  cannot be gainsaid that this Court while dealing with the  Reference case  was not  at all concerned with the provisions of the Act which is of much 506 wider application  than the  Bill considered by the Court in the Reference.  It is  no doubt true that the Bill contained provisions for  punishing  only  those  offenders  who  were accused of  offences committed  during a  particular period, namely, the  period of  Emergency. It  is also true that the period of  Emergency was an extraordinary one in the history of our  country and  its features have been spelt out in the preamble of  the Bill  as also in the judgment given by this Court in  the aforesaid  case. But  that by  itself does not debar Parliament from passing a permanent Act to deal with a specified  class  of  persons  who  occupy  high  public  or political offices (which are offices of trust) and misuse or abuse them.  It cannot be doubted that for the establishment and continuance  of a  Parliamentary democracy and to secure efficiency and purity of administration it is necessary that when such  persons commit  serious abuse  of power  and  are guilty of  a breach of the trust reposed in them, they would form a special class of offenders. [525 F-H, 526 A]      5. That  Purity of  life is a desired goal at all times itself is  a sufficient justification for the classification made by  the Act which widens its scope to include offenders of a  particular type,  whether before,  during or after the Emergency. In  fact, such  persons would  undoubtedly form a special  class   of  offenders   which  would   justify  the legislative measure  singling them  out for  an  expeditious trial. To  hold otherwise  would  be  to  say  that  persons bearing  the  aforesaid  attributes  would  be  immune  from prosecution under any Special Act. Passing of such a Special Act is within the Legislative competence of Parliament.                                    [526 D-E, 527 G-H, 528 B]      6. The  Act does  not suffer from any infirmity and the circumstance that  it applies  to offences  committed at any time by  a particular  set  of  persons  possessing  special characteristics does  not render  it unconstitutional;  for, when it puts into a class a particular set of persons having special characteristics  which distinguish  them from others who are left out of that class and who are to be tried under the  ordinary   law,   the   classification   is   eminently reasonable. The  classification made  has a reasonable nexus with the  object sought to be achieved. Separate grouping of holders of high offices for purposes of expeditious criminal action to  be taken  by superior  courts is a reasonable and valid classification  because it  enhances confidence in the rule of  law, strengthens  the democratic system and ensures purity of public life and political conduct.                                    [528 E-G, 529 G-H, 530 A]      7. The opinion of the Supreme Court in Re. Special Act, in no  way amounted  to disapproval  or  condemnation  of  a permanent law  in  future  bringing  within  its  scope  all holders of high public or political office. [530 G-H]      The Bill was challenged before the Supreme Court on the touch stone  of Art.  14 on  several groups.  In  the  first place, it  was argued  that no rational basis for separately classifying Emergency  offenders existed.  The second ground of challenge  was that  assuming  that  there  was  a  valid

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 68  

classification, the  same was  bad because  it suffered from the vice  of under-inclusion  inasmuch as  holders  of  high public or  political offices  were  left  out.  This  Court, however, repelled  the argument  of rational  basis  on  the ground that  the Emergency  period, because  of its  special characteristics,  afforded   adequate  basis   for  separate classification of  Emergency offences.  The Court was not at all at that time concerned expressly with the question as to whether  classification   of  high   public   or   political dignitaries without  reference to  any period  during  which they were  alleged  to  have  committed  offences  would  be violative of Art. 14 of the Constitution. On 507 the other  hand, this  Court made clear observations that an Act providing  for such  a classification  would be not only valid but also highly welcome. It is true that the provision regarding a  particular period before the Emergency was then struck down but that was so because the Bill was confined to offences committed  only during  the period of Emergency and the inclusion of another period meant bad classification for the reason  that the  period last  mentioned  could  not  be distinguished from  either pre-or  post-Emergency periods on any reasonable  basis. This  view of  the Court could not be interpreted as  laying down  a law  of universal application that  no  Special  Act  on  a  permanent  basis  classifying offenders   possessing    particular   characteristics    or attributes and  providing  for  their  prosecution  under  a special procedure  would be invalid or violative of Art. 14. [530 A-G]      8. The expression "high public or political offices" is of well  known significance  and bears  a clear  connotation which admits  of no  vagueness or ambiguity. Persons holding high public  or political  offices mean  persons holding top positions wielding large powers. [531 C-D, F]      Political office  is an  office which  forms part  of a Political Department  of the  Government  or  the  Political Executive.  This,   therefore,  clearly   includes   Cabinet Ministers, Ministers,  Deputy  Ministers  and  Parliamentary Secretaries  who  are  running  the  Department  formulating policies and  are responsible  to the  Parliament. The  word ’high’ is  indication of  a top  position and  enabling  the holders thereof  to take  major policy  decisions. Thus, the term ’high  public or  political office’  used  in  the  Act contemplates only a special class of officers or politicians who may be categorised as follows:-           1.      Officials  wielding  extraordinary  powers                entitling them to take major policy decisions                and holding positions of trust and answerable                and accountable for their wrongs.           2.   Persons responsible for giving to the State a                clean, stable and honest administration;           3.    Persons  occupying a very elevated status in                whose hands  lies the  destiny of the nation.                [534 C-E]      The rationale  behind  the  classification  of  persons possessing the  aforesaid characteristics is that they wield wide powers  which, if  exercised improperly  by  reason  of corruption,  nepotism   or  breach  of  trust,  may  mar  or adversely mould  the future  of the  country and tarnish its image. It  cannot be  said, therefore,  with any  conviction that persons who possess special attributes could be equated with ordinary  criminals who  have neither the power nor the resources to  commit offences  of the  type described above. The term  ’persons holding high public or political offices’ is self-explanatory  and admits  of no  difficulty and  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 68  

mere absence  of definition  of  the  expression  would  not vitiate the classification made by the Act. Such persons are in a  position to  take major  decisions  regarding  social, economic, financial aspects of the life of the community and other far-reaching  decisions on  the  home  front  as  also regarding external  affairs and if their actions are tainted by  breach   of  trust,   corruption  or   other  extraneous consideration,  they  would  damage  the  interests  of  the country. It  is, therefore, not only proper but essential to bring such  offenders  to  book  at  the  earliest  possible opportunity. [534 F-H, 535 A] 508      9. Clause  4 of  the preamble to the Special Courts Act clearly indicates  the nature  of the offences that would be tried under the Act. [535 B]      The words  ’power being  a Trust’ clearly indicate that any act  which amounts  to a  breach of  the trust or of the powers conferred on the person concerned would be an offence triable under  the Act. Clause (4) is wide enough to include any offence committed by holders of high public or political offices which  amounts to  breach of trust or for which they are accountable  in law  and does  not leave  any  room  for doubt.  Section  5  which  confers  powers  on  the  Central Government to  make a  declaration  clearly  refers  to  the guidelines  laid   down  in  the  preamble  and  no  Central Government would  ever think  of prosecuting holders of high public or political offices for petty offences. [535 D-G]      10. Sections  7 and  11 of  the Special  Courts Act are within the legislative competence of the Parliament. That is to say  Parliament has  the competence  to provide  for  the creation of Special Courts and to confer jurisdiction on the Supreme Court  by providing  that an  appeal shall lie as of right from  any judgment  or order  of Special  Court to the Supreme Court both on fact and on law.                                                    [536 A-D]      In re. Special Courts Bill [1979] 2 SCR 476; applied.      11. The  Act neither  seeks to  change the situs of the Court nor  virtually abrogates  Section 181  of the  Code of Criminal Procedure. [536 E]      In re. Special Court Bill, [1979] 3 SCR; followed.      12. The  question of  the appellants being tried by the Special Judge  appointed under  the Special Courts Act could not arise  because the  said Special  Court did not exist at all even  when the trial of the appellant was concluded. The First Information  report against  the appellants was lodged on 13th  April 1977 and the chargesheet was submitted before the Special  Judge who convicted the appellants by his order dated February  27, 1979.  The Act, however, came into force on May  16, 1979,  that is  to say,  three months  after the conviction and  about two  months after  the appellants  had filed their  appeals before the High Court. The existence of such fortuitous  circumstances cannot  attract  Article  14. [536 G-H, 537 A-B]      Khandige Sham Bhatt and Ors. v. The Agricultural Income Tax Officer,  [1963] 3  SCR 809; Dantuluri Ram Raju and Ors. v. State  of Andhra  Pradesh and  Anr., [1972]  1  SCR  421; applied.      13. Section  5(1) does  not suffer  from  the  vice  of excessive delegation  of powers so as to violate Article 14. No unguided  or uncanalised  power has been conferred on the Central Government. A basic condition imposed on the Central Government is  that there  must be  a proper  application of mind regarding  the existence of prima facie evidence of the commission of an offence. Secondly, the discretion has to be exercised in accordance with the guidelines contained in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 68  

preamble. The various clauses of the preamble lay down clear guidelines and  provide sufficient  safe-guards against  any abuse of  power. Thirdly, clause (4) of the preamble clearly lays down  that the  power under  s. 5  is exercisable  only after the  Commission of  an offence by the holder of a high public or political office has been disclosed as a result of an inquiry conducted under the Commissions of Inquiry Act or of an  investigation conducted by the Government through its agencies. It is well settled that discretionary power is not the same thing as power to discriminate nor 509 can the  constitutional validity  of a  law be tested on the assumption that  where a discretionary power is conferred on a high  authority, the  same may  or would be exercised in a discriminatory manner. [538 E-H, 539 A]      The  power  conferred  on  the  Central  Government  is controlled by the guidelines contained in the preamble which by virtue  of the  provisions of  s. 5(1)  becomes a part of that section. As the power has been conferred on the Central Government which is to make a declaration in accordance with the conditions  laid down  in s.  5(1)  and,  therefore,  in conformity with  the guidelines  mentioned in  the preamble, the attack based on discrimination is unfounded. [541 B-C]      Dr. N.  B. Khare v. The State of Delhi, [1950] SCR 519, Kathi Raning  Rawat v.  The State  of Saurashtra, [1952] SCR 435; Matajog  Dubey v.  H. C. Bhari, [1955] 2 SCR 925 In Re. The Kerala  Education  Bill,  1957,  [1959]  SCR  995  Jyoti Parshad v.  The Administrator  for the  Union  Territory  of Delhi, [1968]  2 SCR  125; Moti  Ram Dekha  etc. v.  General Manager, N.E.F., Railways, Maligaon, Pandu etc. [1964] 5 SCR 683; V.  C. Shukla v. The State through C.B.I., [1980] 1 SCR 380; followed.      14. The  power of  the Central  Government to  issue  a declaration is  a statutory  power circumscribed  by certain conditions. Furthermore,  as the  power is  vested in a very high authority, it cannot be assumed that it is likely to be abused. On  the other  hand, where the power is conferred on such  a  high  authority  as  the  Central  Government,  the presumption will  be that  the power  will be exercised in a bona fide manner and according to law. [541 D-F]      Chinta Lingam and Ors. v. Government of India and Ors., [1971] 2  SCR 871; Budhan Chaudhary and Ors. v. The State of Bihar, [1955] 1 SCR 1045; referred to.      15. The  contention that  declarations under s. 5(1) of the Act  could be  used as  an engine  of oppression against members of  parties who are opposed to the ideologies of the ruling party  is one arising out of fear and mistrust which, if accepted  would invalidate  practically all  laws of  the land; for,  then even  a prosecution  under the ordinary law may be considered as politically motivated, which is absurd. Furthermore, prejudice,  malice or taint is not a matter for presumption in  the absence of evidence supporting it. It is well settled  that burden  lies on the parties alleging bias or malice  to prove  its existence, and if malice or bias is proved in  a particular  case, the  courts would strike down the act  vitiated by  it, in  exercise of  its powers  under Articles 226, 227 or 136. [542 A-D]      In Re.  Special Courts  Bill, [1979] 2 SCR 476 referred to.      16. At  the stage  when the declaration is sought to be made there  is no  list pending nor has any prosecution been launched against  the accused. Section 5 deals only with the decision taken  by the  Central Government  to prosecute and until that  decision is  notified, the  prosecution does not start, and  the question  of an  accused being heard at that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 68  

stage, therefore, does not arise at all.                                                    [542 F-G]      Cozons v. North Devon Hospital Management Committee and Anr., [1966] 2 Q.B. 330: quoted with approval.      17. Under section 5(1) of the Act the Government has to be  satisfied   on  two  counts  before  it  could  issue  a declaration. It must be satisfied in the first 510 instance  that   there  is   prima  facie  evidence  of  the commission of an offence. Secondly, it must form the opinion in accordance  with the guidelines contained in the preamble that such  offence ought to be dealt with under the Act. The condition of  the  existence  of  prima  facie  evidence  is fulfilled in  the case of the present declaration though the trial in  the first  Court had  ended in a conviction and an appeal therefrom,  the reason  being that  if conviction  is construed as  evidence of  the existence  of something  more than a  mere prima  facie case,  that would  not mean that a prima facie  case cease  to exist.  That a  prima facie case must be  found to  exist is only the minimum requirement for the satisfaction  of the  Central Government and it would be doubly made  out if  the evidence available is stronger than is needed  to make out only a prima facie case. A conviction of an  accused person  cannot mean  that there  is no  prima facie evidence  against him.  All that it spells out is that not only a prima facie case is made out against him but that the evidence  available is  even stronger  and is sufficient for a  conviction. However,  as the Government, while acting under the  section, is  to  satisfy  itself  only  with  the existence of  prima facie  evidence, the  assertion by it in the declaration  that such  evidence was  available  to  its satisfaction cannot,  by any stretch of imagination, be held to be  inapplicable to a case in which a conviction has been recorded. In  this  view  of  the  matter  the  use  of  the expression ’prima  facie’ evidence  in  the  declaration  is fully justified  even  though  the  trial  had  ended  in  a conviction which  was  under  appeal  on  the  date  of  the declaration. [544 A-G]      A perusal  of the declaration reveals that it gives the history of the case from beginning to end which demonstrates that the  Central Government  was fully aware of the various stages through  which the  trial of  the appellants  passed. Thus, the  formation of the opinion by the Government of the existence of  a prima  facie  case  cannot  be  held  to  be perfunctory or  illusory. It  has not  been shown  that  the declaration was  in any way irrational or mala fide or based on extraneous considerations. [546 F-G]      18. The  provisions of Section 13 of the Special Courts Act are  purely directory  and not  mandatory so that if the conditions mentioned in it are not fulfilled the declaration would not  be vitiated.  It is  to be noted that the section does not  say that  until a declaration is placed before the two Houses  of Parliament  it shall  not  be  deemed  to  be effective, nor does the section intend that any consequences would  result   from   its   non-compliance.   On   a   true interpretation of section 13 of the Act, it is clear that it is a  case of a simple laying of the declaration before each House of Parliament. [547 A-B, 548 B]      M/s Atlas  Cycle Industries  Ltd. and  Ors. v. State of Haryana, [1979] 2 SCC 196; applied.      19. The doctrine of the violation of basic structure of the Constitution  or its fundamental features applies not to the provisions  of a  law made  by a  State  legislature  or Parliament but  comes into operation where an amendment made in the  Constitution itself  is said  to  affect  its  basic

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 68  

features like  fundamental rights  enshrined under  Articles 14, 19,  31 or  the power  of amendment  of the Constitution under Art. 368 and so on. The doctrine has no application to the provisions  of a  Central or  State law  because if  the statute is violative of any provision of the Constitution it can be struck down on that ground and it is not necessary to enter  into   the  question   of  basic   structure  of  the Constitution at all.                                                    [548 C-E] 511      20. It  is true  that section  6 of  the Act  does  not contemplate  a   prosecution  which   is  relatable  to  the declaration under  section 5  but that  does not  debar  the application of section 5 to other stages of a criminal case, especially those  specifically dealt with under section 7 of the Act  which fully  covers  the  situation  in  hand.  The limited field in which section 6 operates does not therefore exhaust the  consequences flowing  from the  issuance  of  a declaration under section 5 of the Act. [549 A-B]      21. The  words "whether  pending or  disposed  of"  are significant and  qualify the immediately preceding clause "a prosecution in  respect of  such offences".  The legislature has thus  taken care  to expressly provide that an appeal or revision would  be covered  by section 7 and transferable to the Supreme  Court for  disposal if it is directed against a judgment or  order  made  in  prosecution  which  is  either pending or  has been disposed of, the only other requirement of the  section being  that such  appeal  or  revision  must itself be  pending at the date of the declaration. Therefore to interpret section 7 in such a way as its applicability is limited to  appeals or  revisions arising  from prosecutions pending at  the trial  stage at  the date  of  the  relevant declarations is  possible only if the words "or disposed of" are treated  as absent  from section-a  course which  is not open to  this Court  in view  of the  express language used. [549 E-G]      22. There  is  no  question  of  the  exercise  of  any judicial power  by the  legislature in enacting section 7 of the Act  which covers  a well  known legislative process. By enacting section  7, Parliament  has merely  provided a  new forum for  the appeals  which were pending in the High Court and  in   respect  of   which  a  valid  declaration,  fully consistent with the provisions of the Act, was made-a course which involved  no interference  with the judicial functions of the  court and was fully open to the legislature. [550 A, E-F]      Indira Nehru  Gandhi v.  Sri Raj  Narain, [1976]  2 SCR 347; distinguished.      23. Since  the classification  made by the Act complies with the  dual test  laid down  by  the  Supreme  Court  and therefore held  to be  a reasonable classifications, Article 14 would  not be  attracted even if the procedure is held to be harsher than that available under the ordinary law. Apart from that,  the procedure prescribed by the Act is not harsh or onerous  but is  more liberal  and  advantageous  to  the accused who  is assured  of an  expeditious and  fair  trial thereunder.                                             [550 G-H, 551 A]      24. An  appeal being  a creature of statute, an accused has no  inherent right  to appeal  to a particular tribunal. The legislature  may choose  any tribunal for the purpose of giving a  right of  appeal. Moreover,  an appeal to the High Court is  less advantageous  than an  appeal to  the Supreme Court for the following reason:           "The right  of appeal given to an accused from the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 68  

    order of  a Session  Judge or Special Judge to the High      Court is  not totally  unrestricted. Section 384 of the      Code of  Criminal Procedure empowers an Appellate Court      to dismiss  an appeal summarily if it is satisfied that      there is no sufficient ground for interference." While an appeal to the High Court under the Code of Criminal Procedure is  attended with  the  risk  of  being  summarily dismissed under  section 384,  an appeal under section 11(1) of the Act which runs thus: 512           "11. (1)  Notwithstanding anything  in the Code an      appeal shall lie as of right from any judgment sentence      or order,  not being  interlocutory order, of a Special      Court to the Supreme Court both on facts and on law." is not so.      An appeal  under s.  11(1) lies as of right and both on facts and  on law. Thus, the right conferred on a convict by s. 11(1)  is wider  and less  restricted than  the right  of appeal given by the Code of Criminal Procedure.           (2)   If the  appeal is  filed before  the Supreme                Court or  is transferred thereto, the accused                becomes entitled  to a hearing of his case by                the highest  court in  the  country  both  on                facts and  on law and thus gets a far greater                advantage than  a right to move the Court for                grant of  special leave  which may or may not                be granted,  it being  a matter of discretion                to be exercised by the Supreme Court.      Therefore the procedure regarding the appeals under the Act is  not harsher  than that  prescribed by  the  Code  of Criminal Procedure.                               [552 D-H, 553 E-H, 554 C]      Syed Quasim  Razvi v.  The State  of Hyderabad and Ors. [1953] SCR 589; applied.      25. Even  the  Code  of  Criminal  Procedure  does  not provide for  any revision  against an  interlocutory  order. Section 397(2) of the Criminal Procedure Code expressly bars revision against  interlocutory orders. Inasmuch as there is no right  of revision  either under  the  Code  of  Criminal Procedure or  under the  Act, it cannot be said that section 11(1) of  the Act creates a definite procedural disadvantage to the  accused. In fact under the Act, the Special Court is presided over  by no less a person who is a sitting judge of a High  Court and  the possibility of miscarriage of justice is reduced to the barest minimum. [555 C-D]      V. C. Shukla v. The State, through C.B.I., [1980] 1 SCR 380; Jagannath  Sonu Parker  v. State of Maharashtra, [1963] Suppl. 1 SCR 573; followed.      26. The  procedure for  trial of  warrant cases gives a full opportunity  to the accused to participate in the trial at all  its stages and to rebut the case for the prosecution in every possible manner and it has not been pointed out how the adoption  thereof for  trials under  the Act would be to the disadvantage of the accused. Therefore the provisions of sections 9(1) and (3) of the Act cannot be said to be harsh. [556 E-G]      State of  West Bengal  v. Anwal  Ali Sarkar, [1952] SCR 284 explained and distinguished.      27. None  of the  sections of  the Act are violative of Article 14  or Article  21 or  any other  provision  of  the Constitution. The  classification made  in the  Act is valid and reasonable  and has  a rational nexus with the object of the Act  and that  the  procedure  prescribed  is  fair  and advantageous to the accused. [561 E-F]      28. The  appellant in  Crl. Appeal  493/79 has not been

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 68  

singled out  for a discriminatory treatment. It is true that he has never been the holder of any high public or political office but the first clause of the preamble 513 clearly includes  within its  ambit not only persons holding high public  or political offices but also others. Section 8 thus incorporates  the well  known concept of joint trial of accused persons  in respect  of offences forming part of the same transaction. [551 C-E]      Further Held (on merits):      29. In  order to  prove a  criminal conspiracy which is punishable under  section 120B  of the  Indian  Penal  Code, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence.  This clearly  envisages that  there must  be  a meeting of the minds resulting in an ultimate decision taken by the  conspirators regarding  the ommission of an offence. [565 H, 566 A]      30. It is true that in most cases, it will be difficult to get  direct evidence  of an  agreement to  conspire but a conspiracy can  be inferred  even from  circumstances giving rise  to  a  conclusive  or  irresistible  inference  of  an agreement two  or more persons to commit an offence. [566 A- B]      In the  instant case,  there is  no acceptable evidence connecting either  of the  appellants with  the existence of any conspiracy. Even taking the main part of the prosecution case at their face value, no connection has been proved with the destruction  of the  film ’Kissa  Kursi Ka’  and the two appellants. The  evidence produced  by the prosecution falls short of  the standard of proof required in a criminal case. The  prosecution  failed  to  prove  either  there  was  any existence of  any conspiracy  between A 1 and A 2 to destroy the film  ’Kissa Kursi  Ka’ by  burning it  or to commit any other offence  in respect  of the film. There is evidence to show that  there was  any meeting of minds between A 1 and A 2. Even  on the first two parts of the prosecution case, the allegation of  the prosecution that the positive prints were removed at  the instance  or to the knowledge of A 1 or that the negatives  and other materials of the film were sent for by A 1 and kept in his personal custody has not been proved. The mere  fact that A 1 decided to show the film and refused certification for  public exhibition  and passed  orders for seizure of  the film  and its transfer to the custody of the Ministry of  Information does  not disclose any offence. The decision to  ban the  film was  not taken by A 1 secretly or clandestinely but  after a  full fledged  discussion in  the coordination Committee  meeting attended  by senior officers of various  ministries as  deposed by  Prasad PW 63. Further that part  of the  case which relates to the burning of film material rests solely on the uncorroborated testimony of the approver and is negatived insofar as the role therein of A 1 is concerned. [566 C-D, 583 F-H, 584 A-B]      (i) Till  9-7-75 i.e.  the date  by which the notice to show cause  why certification  of the  film ’Kissa Kursi Ka’ was made returnable, neither A 1 nor A 2 was anywhere in the picture. The  facts disclosed  by the  prosecution ex  facie show that  objection to  certification of  the film had been taken at  the very  initial stage and the ultimate order was passed during  the time  when A 1, Mr. Shukla had taken over as Minister,  which was  merely the  final scene  of a drama long in process; [564 C-E]      (ii) Even  at the  stage of  proposed exhibition of the film to  the Judges of the Supreme Court who constituted the Bench and  heard the  Special Leave  Petition i.e.  17-11-75

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 68  

there was absolutely no evidence to show that there 514 was any  meeting of  minds of  A 1  and A 2 nor is there any material to indicate that A 2 played any role in the burning of the  film. The  decision to ban the film was taken by the Ministry headed by A 1, on the merits of the case. No motive is attributable  to A  1 at  this  stage  because  even  the Chairman of the Board, PW 8 Mr. Thapa who was an independent witness was  of  the  view  that  the  film  should  not  be certificated for  public exhibition.  Similarly,  the  steps taken by  the officers  of the  Ministry in persuance of the film at  Bombay and  its transfer to Delhi was in the nature of routine  to see that the decision taken by the Government was implemented. As soon as the Ministry received the orders of the  Supreme Court  for screening the film on 17-11-1975, immediate steps  were taken to comply with the orders of the Court.  Admittedly   between  17th  November  1975  to  23rd November 1975, A 2 was either away to Hyderabad or Sikkim as proved by  DW 3.  This negatives  the story  of the approver connecting A  2 with  the burning of the film. [565 E-H, 581 C-D, 582 A]      A lot  of evidence has been produced by the prosecution to show:           (a)  that the positive print of the film found its                way into  the luggage  compartment of the car                in which  A 1  then travelled  to  the  Prime                Minister’s house where the print was unloaded                by someone in the absence of A 1; and           (b)     that  the  negatives  and  other  material                relating to the film were taken in a tempo or                two to  the Prime  Minister’s  residence  and                from there  to the  Maruti Complex where they                were stored before their destruction. [584 B-                D] But the connection of A 1 or A 2 therewith remains unproved. Had these  factors provided  circumstantial evidence  on the basis of  which alone  the charge  against either A 1 or A 2 could be  held established  it would have been necessary for the Court  to sift the evidence produced in support thereof. But that  is definitely not the case, for, if either or both of the  factors are proved, the inference of guilt of either A 1  or A  2 does not necessarily follow. For circumstantial evidence to  furnish evidence  of guilt it has to be such as it cannot  be explained  on any  other reasonable hypothesis except the  guilt of  the accused which is not the case here because appellants  A 1  and A 2 could not be said to be the only persons interested in the destruction of the film if it was as  obnoxious to  the then Prime Minister or as critical of the  functioning of  the then  Union  Government  as  the prosecution would  have the  Court believe. The film and all the material relating to it no doubt appear to have vanished into thin  air but  then neither  A 1  nor A  2 can  be held responsible therefor, in the absence of proof in that behalf proof which would exclude all reasonable doubt. [594 D-G]      (iii) A mere identification by a witness of a person in the Court  for the  first time  who was  not  known  to  the witness and  who had  only caught  a glimpse  of the person, long time  before  is  valueless,  in  the  absence  of  the operative witness  being tested  by a  previously held  Test Identification does  not exclude  possibility of mistakes in identification. [576 B-D]

JUDGMENT:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 68  

    CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal Nos. 492, 493 and 494 of 1979.      Appeals under section 7 of the Special Courts Act, 1979 on transfer  from the Delhi High Court at New Delhi from the Judgment and 515 Order dated  27-2-1979 of  the Sessions  Court at  Delhi  in Sessions Case No. 340/1978.      J. S.  Wasu, M.  L. Nanda  and M.  N.  Shroff  for  the Appellant in Crl. A. 492/79.      K. L.  Arora, K. G. Bhagat, Harish Gulati, Madan Bhatia and D. Goburdhan for the Appellant in Crl. A. 493/79.      P. R.  Mridul, Rajinder  Singh, O.  P.  Sharma,  R.  C. Bhatia and Vivek Tankha for the Appellant in Crl. A. 494/79.      K. L.  Arora,  K.  G.  Bhatat,  Harish  Gulati  and  D. Goburdhan for the Respondent No. 1 in Crl. A. 492/79.      Rajinder Singh  B. R.  Handa and  O. P.  Sharma for the Respondent No. 2 in Crl. A. 492/79.      Soli J.  Sorabjee, Sol.  Genl.  Ram  Jethmalani,  Grish Chandra,  S.  Markandeya  and  S.  B.  Jaisinghani  for  the Respondent in Crl. As. 493-494/79.      The following Judgments were delivered      FAZAL ALI,  J. These  two criminal appeals are directed against a  judgment dated 27th February 1979 of the Sessions Judge, Delhi  by which  the accused (hereinafter referred to as  the   appellants)  have  been  convicted  under  various sections of  the Penal Code and awarded sentences of various terms of  imprisonment not  exceeding two  years (which have been ordered to run concurrently) in addition to fines.      Both the appeals were originally filed before the Delhi High Court  and were  admitted by  it on the 21st March 1979 when the sentences of the appellants were suspended and they were released on bail. On the 17th May. 1979, the State also filed an  appeal to  the Delhi High Court for enhancement of the sentences.  The Special  Courts Act  (No. 22 of 1979 and hereinafter to  be referred  to as  the ’Act’) was passed by Parliament and  received the assent of the President on 16th May 1979. On the 27th June 1979, the Central Government made a declaration  under s.5  (1) of the Act as a consequence of which the appeals stood transferred to this Court.      The appellants  have raised  a  number  of  preliminary objections relating  to the  constitutional validity  of the Act  and  various  provisions  thereof  on  several  grounds including the  contravention of  Articles 14  and 21  of the Constitution of  India. Alternatively,  it was  argued  that some of  the provisions  of the  Act did not at all apply to the appellants and the transfer of the appeals from the High Court to 516 this Court  was not  legal. The  State has  appeared through Shri Soli  J. Sorabjee  who has countered all the objections raised by the appellants and has submitted that the Act is a valid piece  of legislation  and that there is no illegality in the  transfer of  the appeals from the High Court to this Court. In  view of  the nature of the preliminary objections raised by  the appellants  we decided  to  dispose  them  of before entering  into  the  merits  of  the  appeals.  After hearing the  parties at  great length,  by  an  order  dated December 5,  1979 we  overruled all  the said objections and proceeded to  hear the  appeals on merits. We now proceed to set out  the reasons  given for  the order  rejecting  those objections.      In  order  to  understand  the  arguments  advanced  by learned counsel  for the  parties it  will be  necessary  to state certain  undisputed facts.  The Act  was preceded by a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 68  

Bill (introduced  by a  Member of  the Lok  Sabha) which was adopted  by   the  Government   but  in   view  of   certain Constitutional objections  the President made a reference to this Court  for its  opinion regarding  the validity  of the Bill and  its provisions. The matter was heard by a Bench of seven Judges  and in its report dated December 1, 1978, this Court upheld  the  validity  of  the  Bill  generally  by  a majority of  six  to  one.  Certain  clauses  of  the  Bill, however, were  held to  be  violative  of  Art.  21  of  the Constitution. This  Court further  held that  Parliament had legislative competence  to  create  Special  Courts  and  to provide for  appeals against  judgments and  orders of  such Courts to  the Supreme  Court. This  Court also  upheld  the Classification provided  in clause  4(1) of  the Bill  which conferred  power   on  the  Central  Government  to  make  a declaration in  respect of  an offence  alleged to have been committed  during  the  operation  of  the  Proclamation  of Emergency dated  25th June  1975 by  a person  who held high public or  political office in India. To the extent that the clause brought within the purview of the Act persons who had committed offences  between February  27, 1975  and June 25, 1975 it  was, however,  held to  be invalid.  Similarly, the provisions of  clause 7  of the  Bill  laying  down  that  a retired Judge  of a High Court could be appointed as a Judge of the  Special Court  and that  this could  be done  by the Central Government  in consultation  with  but  without  the concurrence of  the Chief  Justice of  India were held to be bad. Furthermore,  the Court  observed that the absence of a provision for  the transfer of a case from one Special Court to  another   affected  the   fairness  of  the  trial  and, therefore, was  violative of  Art. 21  of the  Constitution. Barring these  infirmities, the  constitutional validity  of the Bill  was upheld by this Court. It may be mentioned here that during  the course of arguments learned counsel for the Union gave an express undertaking that the defects 517 pointed out  in the  Bill would be suitably removed so as to bring the  Bill in  accord with the opinion expressed by the Court. Consequently,  a fresh  Bill  was  prepared  and  was introduced in  the Lok Sabha on the 21st February 1979. This Bill incorporated  the suggestions  of this  Court,  deleted reference to  the period  prior to the 25th June 1975 in the preamble, made  a provision  for transfer of a case from one Special Judge  to another  by the Supreme Court and provided that a  Special Court  would consist of a sitting Judge of a High Court  nominated by  the Central  Government  with  the concurrence of the Chief Justice of India. After some debate the Bill  was passed by the Lok Sabha on the 9th March 1979. It was  then sent  to the  Rajya  Sabha  where  its  various provisions  were   fully  debated   and  certain   important suggestions were made by the Members of the Rajya Sabha as a result of  which the  Bill was  returned by  the Rajya Sabha with certain  amendments on  21st March 1979. Thereafter the Government accepted  the amendments  suggested by  the Rajya Sabha and  incorporated the  same in the Bill which was then passed and  ultimately received  the assent of the President on 16th May, 1979.      Some  of   the  substantial  changes  which  have  been incorporated in the Act may be summarised thus:      The Act  is now  a permanent Act and does not deal only with offences  committed during  the  period  of  Emergency. Secondly, in  the preamble  an additional  clause  has  been added to  indicate the  nature of  the offences committed by persons holding high public or political office. Thirdly, it has been  provided that  a Special  Court would consist of a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 68  

sitting Judge of a High Court nominated by the Chief Justice of the  High Court  concerned with  the concurrence  of  the Chief Justice  of India. Thus, the Government has absolutely no hand either in the appointment of or any control over the Special Judge.  This provision  appears to  ensure  complete independence of  the Special Judge who is to be appointed to decide cases  of highly placed public or political officers, so that  they may  have complete confidence in the Judge who tries their case.      Another special feature of the Act is that the preamble and its various clauses are not merely intended to spell out the object  of the  Act but contain important guidelines and essential safeguards and by virtue of s. 5(1) of the Act the clauses of the preamble become a part of the Act itself.      As the  Act has  thus assumed  a new  complexion, it is necessary to  analyse briefly its scheme before we deal with the contentions  raised by  learned counsel for the parties. The heading of the Act 518 shows that  its main  object is  to provide  for the  speedy trial of  a certain class of offences (emphasis ours). There are as many as nine clauses of the preamble which run thus:           "AN ACT           to provide for the speedy trial of a certain class      of offences.           (1) WHEREAS Commissions of Inquiry appointed under      the Commissions  of Inquiry  Act,  1952  have  rendered      reports  disclosing   the  existence   of  prima  facie      evidence of offences committed by persons who held high      public or  political offices  in the country and others      connected with  the commission  of such offences during      the operation  of the  proclamation of  Emergency dated      the 25th June, 1975, issued under clause (1) of article      352 of the Constitution;           (2) AND  WHEREAS investigations  conducted by  the      Government through  its agencies  have  also  disclosed      similar offences committed during the period aforesaid;           (3) AND  WHEREAS the  offences referred  to in the      recitals aforesaid  were committed during the operation      of the  said Proclamation  of Emergency, during which a      grave emergency was clamped on the whole country, civil      liberties were  curtailed to  a great extent, important      fundamental rights of the people were suspended, strict      censorship was  imposed on  the press,  judicial powers      were severely crippled and the parliamentary democratic      system was emasculated;           (4) AND  WHEREAS all  powers being  a  trust,  and      holders  of   high  public  or  political  offices  are      accountable for  the exercise  of their  powers in  all      cases where  Commissions of Inquiry appointed under the      Commissions of  Inquiry  Act,  1952  or  investigations      conducted by  Government through  its agencies disclose      offences committed by such holders;           (5) AND  WHEREAS it  is the  constitutional, legal      and moral  obligation of the State to prosecute persons      involved in the said offences;           (6) AND  WHEREAS the  ordinary criminal courts due      to  congestion   of  work   and  other  reasons  cannot      reasonably be expected to bring those prosecutions to a      speedy termination; 519           (7) AND WHEREAS it is imperative for the efficient      functioning  of   parliamentary   democracy   and   the      institutions created  by or  under the  Constitution of      India that  the commission  of offences  referred to in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 68  

    the recitals  aforesaid should be judicially determined      with the utmost dispatch;           (8) AND  WHEREAS it  is  necessary  for  the  said      purpose to establish additional courts presided over by      sitting Judges of High Courts;           (9) AND  WHEREAS it  is  expedient  to  make  some      procedural changes whereby avoidable delay in the final      determination of  the innocence or guilt of the persons      to be  tried is eliminated without interfering with the      right to a fair trial."           (Numbering of  the clauses  by  us  to  facilitate      discussion)      So  far  as  clause  (1)  is  concerned  it  refers  to Commissions  of  Inquiry  and  the  reports  given  by  them disclosing the existence of prima facie evidence of offences committed  by  persons  holding  high  public  or  political offices  in  the  country  and  others  connected  with  the commission of  such offences  during the  operation  of  the Proclamation of  Emergency dated  June 25, 1975. Clauses (2) and (3)  give the  history of  the special  features of  the Emergency and  the result  of the investigation conducted by the  Government  regarding  offences  committed  during  the Emergency.  Clause  (4)  makes  the  Act  a  permanent  one. According to  this clause,  persons holding  high public  or political offices  are actually  trustees in  regard to  the powers vested  in them  and offences  committed by  them  in breach of the trust or confidence reposed in them would also fall  within  the  ambit  of  the  Act,  if  either  by  the Commissions of  Inquiry or  investigations conducted  by the Government such  offences are disclosed. Clause (5) makes it clear  that  it  is  the  constitutional,  legal  and  moral obligation of the State to prosecute persons involved in the offences mentioned in the foregoing clauses. Clauses (6) and (7) deal  with the  main object of the Act which is to bring the prosecution of the offenders falling within the ambit of the Act  to a  speedy  termination  and  to  bring  about  a judicial determination  of the  offences said  to have  been committed by  them with  the  utmost  dispatch.  Clause  (3) provides for the establishment of additional courts presided over by  sitting Judges of High Courts. Clause (9) refers to certain procedural  changes brought  about by the Act in the provisions of the Code of Criminal Procedure and intended to avoid delay  in the  final determination of the innocence or guilt of the persons to be tried. To sum 520 up from the object of the various clauses of the preamble it is manifest  that particular  type of persons, namely, those who are holding high public or political offices by way of a trust have been put in a separate class along with those who have committed  offences during  the Emergency  and who also bear the  same characteristics  as those indicated in clause (4). Section  2 of the Act defines "Code", "declaration" and "Special Court"  and the  residuary clause  (d) thereof says that words and expressions not defined in the Act would have the same  meaning as  in the  Code  of  Criminal  Procedure. Section 3(1)  gives  power  to  the  Central  Government  to establish  an   adequate  number   of  Special   Courts   by notification in  the Official  Gazette. Section  3(1) enacts that a  Special Court  shall consist of a sitting Judge of a High Court  nominated by  the Chief Justice thereof with the concurrence  of  the  Chief  Justice  of  India.  Section  4 empowers the  Special Court  to take cognizance and try such cases as  are instituted  before it  or transferred to it in accordance with the manner provided by the Act. Section 5(1) is the  pivotal provision  which lays  down  the  conditions

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 68  

under which  the Central  Government is  empowered to make a declaration which  is the  starting point of the prosecution of the offenders falling within the ambit of the Act. It may be noticed  that s.5(1)  clearly states  that the guidelines contained in  the preamble are to be followed by the Central Government in  determining whether an offence is to be dealt with under the Act. Section 5(2) provides that a declaration made by  the Central  Government  shall  not  be  called  in question  in  any  court.  Section  6  provides  that  on  a declaration made  under  section  5(1)  in  respect  of  any offence, any prosecution in respect of such offence shall be instituted only in a special Court designated by the Central Government and  that where  a prosecution  is pending in any other court, the same shall stand transferred to the special Court. This  would be in derogation of anything contained in the code  of Criminal  Procedure. Section  7 deals  with the automatic transfer  to  the  Supreme  Court  of  appeals  or revisions pending  in any court of appeal or revision at the date of  the declaration.  Section 8 embodies the well-known provisions of  the Code  of Criminal Procedure relating to a joint trial  of a  number of accused persons who are charged with the  offence of  abetment or  conspiracy. Section  9(1) provides that  the Special  Court would follow the procedure prescribed by the Code for the trial of warrant cases before a Magistrate,  that  is  to  say  it  makes  applicable  the provisions of  ss. 238  to 243 and 248 of the Code to trials by a  Special Court.  Sub-section (3)  of s.9 lays down that the provisions  of the  Code  of  Criminal  Procedure  shall apply, in  so far as they are not inconsistent with those of the Act,  no proceedings  before a Special Court which shall be deemed to be a 521 Court of  Session and would have all the powers thereof, and that a  person conducting  a prosecution  before  a  special Court shall be deemed to be a public prosecutor. Sub-section (4) of s. 9 empowers a Special Court to pass upon any person convicted by  it any  sentence authorised  by  law  for  the punishment of the offence of which such person is convicted. Section 10(1)  contains a  provision for the transfer by the Supreme Court  of a  case from  one Special Court to another where such  an order is expedient in the ends of justice. In fact, in the opinion given by this Court on the Presidential Reference  this   aspect  of  the  matter  was  particularly highlighted. Sub-section  (2) of  s. 10,  however, lays down the norms  under which  an application for transfer could be made. Sub-section  (3) of s.10 empowers the Supreme Court to grant  compensation  to  any  person  who  has  opposed  the application for  the transfer  of a  case if the Court finds that such an application was frivolous or vexatious. Section 11(1) prescribes the forum of an appeal to the Supreme Court against a  judgment, order  or sentence  passed by a Special Court but  excludes interlocutory  order, from its ambit. It may be  noted that  interlocutory orders  have been excluded from the  purview of s. 11(1) so as to eliminate unnecessary delays in  the trial  of a case by a Special Court. Even the code of  Criminal Procedure  has barred any revision against an interlocutory  order by  virtue of  the provisions  of s. 397(2) of  the code of Criminal Procedure, 1973. Sub-section (2) of  s. 11  provides that no appeal or revision shall lie to any  court from  any judgment,  sentence or  order  of  a Special Court  except as  provided for  under section 11(1). Sub-section (3) provides the period of limitation for filing an appeal  before the  Supreme Court and the proviso thereto confers power  on the  Supreme Court to condone any delay if sufficient cause is shown, it may be noticed here that under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 68  

s. 11  an appeal  to the  Supreme Court from an order of the Special Judge lies as a matter of right. Section 12 empowers the Supreme  Court to  frame  rules  for  carrying  out  the purposes  of   the  Act.  Section  13  provides  that  every notification made  under sub-section  (1) of  s. 3 and every declaration made  under sub-section  (1) of  s. 5  shall  be laid, as  soon as may be after it is made, before each House of Parliament.      Thus, by  and large,  the Act  contains almost the same provisions as  were contained  in the Bill which was sent to this Court  for its  opinion by the President. Clause (1) of the Bill is now s.1 (1) of the Act. Clause (2) is now s.3 of the Act.  Clause (3)  of the  Bill is  now s.4  of the  Act. Clause (4)  of the  Bill is now section 5 of the Act. Clause (5) of  the Bill is now s.6 of the Act. Clause 6 of the Bill is now  s.7 of the Act. Clause (7) of the Bill is now s.3(2) of the Act, with an explanation added to it. Clause 8 of the Bill is now 522 s.8 of  the Act. Clause (9) of the Bill is now s.9(1) of the Act with  sub-sections (2)(3)  and (4)  added to  it. Clause (10) of  the Bill is now s.11(1) of the Act. Thus, in so far as the arguments advanced before this Court in the Reference case are concerned, they are concluded by the decision given thereon and we do not propose to go behind the opinion given by this Court in that case or the reasons thereof with which we are  in respectful  agreement. Learned  counsel  for  the appellants having  realised  the  force  of  this  position, confined their  arguments to certain points which either did not arise  at the  Reference stage or were not argued before the Court  and on  which no decision was given, and in fact, relied on some of the findings given and the propositions of law adumbrated by this Court in the Reference case.      The main  ground of attack regarding the constitutional validity of  the Act  is based  on Articles 14 and 21 of the Constitution. Before  dealing with  the arguments  we  might mention certain important principles laid down by this Court in the Reference case.      In a diverse society and a large democracy such as ours where the  expanding needs  of the  nation change  with  the temper of  the times,  it is  extremely  difficult  for  any legislature to  make laws  applicable to  all persons alike. Some amount  of classification  is, therefore,  necessary to administer various  spheres of  the activities of the State. It is  well settled  that in  applying Art.  14 mathematical precision or  nicety or perfect equanimity are not required. Similarity rather  than identify of treatment is enough. The courts should  not make a doctrinaire approach in construing Art. 14  so  as  to  destroy  or  frustrate  any  beneficial legislation.   What    Art.   14    prohibits   is   hostile discrimination and  not reasonable  classification  for  the purpose of  legislation. Furthermore,  the Legislature which is  in  the  best  position  to  understand  the  needs  and requirements of the people must be given sufficient latitude for making  selection or differentiation and so long as such a selection is not arbitrary and has a rational basis having regard to  the object  of the  Act, Art.  14  would  not  be attracted. That  is  why  this  Court  has  laid  down  that presumption is  always in favour of the constitutionality of an enactment  and the  onus lies upon the person who attacks the statute to show that there has been an infraction of the constitutional concept  of equality.  It has  also been held that   in    order   to    sustain   the    presumption   of constitutionality,  the  Court  is  entitled  to  take  into consideration matters  of common  knowledge, common  report,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 68  

the history  of the  times and  all other facts which may be existing at  the time  of  the  legislation.  Similarly,  it cannot be  presumed that  the administration of a particular law would be done with an 523 "evil eye and an unequal hand". Finally, any person invoking Art. 14  of the  Constitution must  show that there has been discrimination against  a person who is similarly situate or equally circumstanced.  In the  case of  State  of  U.P.  v. Deoman Upadhyaya, Subba Rao, J., observed as follows:-           "No discrimination  can  be  made  either  in  the      privileges conferred or in the liabilities imposed. But      these propositions  conceived in  the interests  of the      public, if logically stretched too far, may not achieve      the high  purpose behind  them. In a society of unequal      basic structure,  it is  well nigh  impossible to  make      laws suitable  in their  application to all the persons      alike.  So,   reasonable  classification  is  not  only      permitted but is necessary if society should progress."      With this  brief introduction,  we now  proceed to deal with the arguments of learned counsel for the appellants. In the first  place, Mr. Bhatia, appearing for appellant Sanjay Gandhi submitted  that even  having regard to the principles laid down by this Court in the Reference case, the Act fails to pass  the test laid down for a valid classification under Art. 14. Therefore, we might mention here that the classical tests laid  down for  the application  of Art.  14  are  the following:-           (1)  The classification  must  be  founded  on  an                intelligible differentia  which distinguishes                persons who are placed in a group from others                who are left out of the group.           (2)  Such differentiation  must  have  a  rational                relation to  the object sought to be achieved                by the Act.           (3)  There   must   be   a   nexus   between   the                differentiation which  is the  basis  of  the                classification and the object of the Act.      In applying  the aforesaid  tests, Mr. Bhatia contended that the  decision given  in the  Reference Case  upheld the Bill and  rejected the challenge that the Bill violated Art. 14 mainly  on the  ground that  the Bill  sought  to  put  a certain class  of  persons,  namely,  persons  holding  high public or  political offices who had committed offences only during the  period of  Emergency. In  other words, he argued that the  constitutionality of  the Bill  was upheld  on the ground that it was legislation confined to selected offences committed by  a  particular  class  of  persons  during  the Emergency period.  It was  contended that  the impugned  Act transgressed the  limits imposed  by  the  judgment  in  the Reference  case   by  bringing   within  its  fold  offences committed prior 524 and subsequent  to the  Emergency and  thus  was  in  direct conflict with  the opinion  of this  Court rendered  in  the Reference case.  In amplification  of this  argument it  was contended that  this Court struck down that part of the Bill which related  to the  period between February and June 1975 on the  ground that persons having committed offences during that  period  could  not  be  clubbed  with  those  who  had committed offences  during the period of Emergency. In other words, the  argument was  that the Act, by clubbing together persons accused  of offences  committed during the Emergency with those  alleged to  be guilty  of crimes  pertaining  to periods before  and after  the Emergency  (i.e., by  dealing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 68  

with offences  committed at  any point  of time whatsoever), has  violated   the  guarantee   under  Art.   14  and   the classification made  by the Act is n direct contravention of the opinion  given by  this Court  in the Reference case. In support of his contention Mr. Bhatia relied on the following observations of this Court in the Reference case:-           "The classification  which section 4(1) thus makes      is both  of  offences  and  offenders,  the  former  in      relation to  the period mentioned in the preamble, that      is to  say, from  February 27, 1975 until the expiry of      the proclamation  of emergency  dated June 25, 1975 and      in relation  to the  objective mentioned  in the  sixth      paragraph of the preamble that it is imperative for the      functioning  of   parliamentary   democracy   and   the      institutions created  by or  under the  Constitution of      India that  the commission  of such  offences should be      judicially determined with the utmost dispatch, and the      latter in  relation to their status, that is to say, in      relation to the high public or political office held by      them in  India. It is only if both of these factors co-      exist that  the prosecution  in respect of the offences      committed by the particular offenders can be instituted      in the Special Court..............           We are  not concerned  with the truth or otherwise      of the allegations, the narrow question before us being      whether, in  the first  instance, the classification is      based on some qualities or characteristics which are to      be found in all the persons grouped together and not in      others who  are left  out. The  answer to that question      can be  one and one only, namely, that offences alleged      to have  been committed during the emergency by persons      holding high public or political offices in India stand      in a  class apart.  The cover  of emergency,  so it  is      alleged, provided a unique opportunity to the holders 525      of  such  offices  to  subvert  the  rule  of  law  and      perpetrate political crimes on the society. Others left      out of  that  group  had  neither  the  means  nor  the      opportunity to  do so,  since they lacked the authority      which comes  from official  position. Thus, persons who      are singled  out by  the Bill  for trial before Special      Courts possess  common characteristics  and  those  who      fall outside that group do not possess them..........           The suppression  of people’s liberties facilitates      easy commission of crimes. Public criticism is a potent      deterrent to  misbehaviour and when that is suppressed,      there is  no fear  of detection. Secondly, crimes which      are alleged to have been committed during extraordinary      periods like  the period  of emergency  are oblique  in      their design  and selective  in their  object ....  But      those crimes  are not woven out of the warp and woof of      political motivations. Equal laws have to be applied to      all in  the same  situation and  legislature is free to      recognise the degree of harm or evil."                                              (Emphasis ours)      Special stress  was laid  on the  observations of  this Court that  the offences  alleged  to  have  been  committed during the  Emergency by  persons  holding  high  public  or political offices  were a  class apart because such offences were committed under the cover of Emergency which provided a unique opportunity  to the  holders of  the said  offices to subvert the  rule of  law. It  was urged that this cannot be said of the period either before or after the emergency when no such  cover or opportunity was available to the offenders concerned  to  misuse  or  abuse  their  powers  and  commit

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 68  

offences. We find this argument to be without any substance. To begin  with, it  cannot be gainsaid that this Court while dealing with  the Reference  case was  not at  all concerned with the  provisions of  the Act  which  is  of  much  wider application than  the Bill  considered by  the Court  in the Reference. It  is no  doubt true  that  the  Bill  contained provisions for  punishing  only  those  offenders  who  were accused of  offences committed  during a  particular  period namely the  period of  Emergency. It  is also  true that the period of  Emergency was an extraordinary one in the history of our  country and  its features have been spelt out in the preamble of  the Bill  as also in the judgment given by this Court in  the aforesaid  case. But  that by  itself does not debar Parliament from passing a permanent Act to deal with a specified  class  of  persons  who  occupy  high  public  or political offices (which are offices of trust) and misuse or abuse them.  It cannot be doubted that for the establishment and continuance  of a  Parliamentary democracy and to secure efficiency and purity of administration it is necessary that when such persons 526 commit serious  abuse of power and are guilty of a breach of the trust  reposed in  them, they would form a special class of offenders.  The simple  answer to  the  argument  of  Mr. Bhatia is  that this Court was not at all concerned with the broader aspect  of the matter as envisaged by the Act at the time when the Bill was being considered. That this is so, is clear from  the observations  made by Chandrachud, C.J., and Krishna Iyer, J. The former observed:-           "Parliamentary democracy will see its halycon days      in India  when law  will provide  for a speedy trial of      all offenders  who misuse  the public  offices held  by      them. Purity  in public  is a desired goal at all times      and in  all situations, emergency or no emergency. But,      we cannot  sit as  a super  legislature and strike down      the instant  classification on  the  ground  of  under-      inclusion on  the score  that  those  others  are  left      untouched,  so   long  as  there  is  no  violation  of      constitutional restraints."                                              (Emphasis ours) The observation that purity in public life is a desired goal at  all   times  is   a  sufficient  justification  for  the classification made  by the  Act which  widens its  scope to include offenders  of a  particular type  to be punished for offences committed  at any  time, whether  before, during or after the Emergency.      Similar observations  were made  by Krishna  Iyer J. in his concurring Judgment:-           The pathology  of our  public law,  with its class      slant, is  that an  unmincing ombudsman  or sentinel on      the qui  vive with power to act against those in power,      now  or  before,  and  offering  legal  access  to  the      informed citizen  to complain  with immunity  does  not      exist........... And  so, to  track down and give short      shrift to ..................           x          x                  x             x           Where the  proposed law excludes the pre-and post-      emergency crime-doers  in the higher brackets and picks      out only  ’emergency’  offenders,  its  benign  purpose      perhaps be  comes a  crypto cover-up  of like criminals      before and  after. An  ’ephemeral’ measure  to  meet  a      perennial menace is neither a logical step nor national      fulfillment. The classification, if I may anticipate my      conclusion, is  on the  brink of  constitutional break-      down at that point and becomes almost vulnerable to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 68  

    attack of Art. 14.                      x                     x              x 527           The crucial  test is  ’All power  is a trust’, its      holders are  ’accountable for  its exercise’, for ’from      the people  and for  the people,  all springs,  and all      must exist’.  By this  high and  only standard the Bill      must fail morally if it exempts non-Emergency criminals      about whom  prior Commission  Reports,  now  asleep  in      official  pigeon   holes,  bear   witness  and   future      Commission  Reports   (who  knows   ?)  may,  in  time,      testify...........           Nothing about  Emergency  period  is  adverted  to      there as  a distinguishing  mark. If  at all, the clear      clue is  that all  abuse of public authority by exalted      public men,  whatever the  time of Commission, shall be      punished without  the tedious  delay  which  ordinarily      defeats justice  in the  case  of  top  echelons  whose      crimes affect the credentials of democratic regimes.           Assuming civil  liberty was  a casualty during the      emergency, as  it was,  how did  it obstruct  trials of      super-political  criminals?   if  faith  in  democratic      institutions is the victim in case there is undue delay      in punishing  high public and political offenders, that      holds   good,    regardless   Emergency.............The      question, then,  is  whether  there  is  constitutional      rationale for  keeping  out  of  the  reach  of  speedy      justice  non-emergency  criminals  in  high  public  or      Political Offices.  Such a  Bill, were  it a  permanent      addition  to  the  corpus  juris  and  available  as  a      jurisdiction for  the public to compel government, if a      prima facie  case were made out even against a minister      in office,  to launch  a prosecution  before a  sitting      High Court  Judge, would  be a whole some corrective to      the spreading evil of corruption in power pyramids."                                              (Emphasis ours)      It would thus appear from the observations quoted above that the  majority judgment never meant to indicate that the passing of  an Act  covering all persons holding high public or political  offices without reference to any period during which they are alleged to have committee the offences sought to be  made the subject matter of their indictment, would be beyond the  legislative competence  of Parliament.  In fact, such persons  would undoubtedly  form  a  special  class  of offenders  which   would  justify  the  legislative  measure singling  them   out  for  an  expeditious  trial.  To  hold otherwise would be to say that persons bearing the aforesaid attributes  would  be  immune  from  prosecution  under  any Special Act. Reading the opinion rendered in the 528 Reference case  carefully we  are unable  to agree  with Mr. Bhatia that  this Court  held that  only Emergency offenders could be  punished under  a special  Act and  that  any  Act seeking to  punish offenders  of a special type unrelated to the Emergency  would be hit by Art. 14. It is true that some of the  observations made  by the  learned Chief Justice, if read out of context, may apparently lend some support to the arguments of  Mr. Bhatia  but taken as a whole (as they must be) they  clearly indicate  that the  passing of a permanent legislation classifying  the type  of offenders mentioned in the Act,  namely, persons  holding high  public or political offices would  be valid  and, in  fact, would  be  an  ideal achievement.      We may  mention here that the various observations made by Chandrachud,  C.J., and Krishna Iyer, J. in the Reference

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 68  

case were  highlighted during the debates which followed the introduction of  the bill  in the  Lok Sabha  and the  Rajya Sabha after  the opinion  of this  Court was given. The Bill was returned  to the  Lok  Sabha  on  March  21,  1979  with suggestions for  its amendment  so as  to  make  it  embrace offences without  reference to  a particular period, namely, the  period   of  Emergency.  The  Lok  Sabha  accepted  the suggestions and passed the Bill in the form of the Act which received the  assent of  the President on the 16th May 1979. Thus, the  Act incorporates  not  only  the  above-extracted observations made by Chandrachud, C.J., and Krishna Iyer, J. but also  the views  expressed by the Hon’ble Members of the two Houses of Parliament.      In view  of the  factors mentioned  above, we are fully satisfied that  the Act does not suffer from the infirmities pointed out  by Mr.  Bhatia and  the  circumstance  that  it applies to  offences committed  at any  time by a particular set of  persons possessing  special characteristics does not render it unconstitutional, for, when it puts into a class a particular set  of persons  having  special  characteristics which distinguish  them from others who are left out of that class and  who are  to be  tried under the ordinary law, the classification is  eminently  reasonable.  It  may  also  be stated here  that the  classification made  has a reasonable nexus with  the object  sought to be achieved, namely, quick despatch  and   speedy  trials.  In  this  connection,  some observations of Chandrachud, C.J., in the Reference case may be adverted to:           "If prosecutions  which  the  Bill  envisages  are      allowed  to   have  their  normal,  leisurely  span  of      anything between  5 to  10 years,  no fruitful  purpose      will be served by launching them. Speedy termination of      prosecutions under  the Bill  is the  heart and soul of      the Bill............ 529      Thus, both  the tests are fulfilled in the instant case      namely, that  (1) the  classification is  founded on an      intelligible  differentia   which  distinguishes  those      which are grouped together from others who are left out      and (2)  the said  differentia has  a rational relation      with the  object sought  to be  achieved by  the  Bill,      namely, speedy termination of prosecutions initiated in      pursuance of  the declaration made under clause 4(1) of      the Bill."      The same, we hold, is true of the Act.      It was  then submitted  by Mr.  Bhatia that even if the classification was valid, as the procedure prescribed by the Act is  extremely harsh  and  prejudicial  to  the  accused, Articles 14  and 21 are clearly violated. This aspect of the matter also  has been  expressly dealt  with by Chandrachud, C.J., in  the Reference  case where  he has pointed out that once the  classification is  held to  be valid  even if  the procedure  is  harsher  or  disadvantageous  that  will  not attract Art. 14. In this connection, he observed:-      If the  classification is  valid and  its basis bears a      reasonable relationship with the object of the Bill, no      grievance can  be entertained under article 14 that the      procedure prescribed  by the  Bill  for  the  trial  of      offences which fall within its terms is harsher or more      onerous as  compared with  the procedure  which governs      ordinary trials. Classification necessarily entails the      subjection of  those who  fall within it to a different      set of  rules and  procedure, which  may conceivably be      more disadvantageous than the procedure which generally      applies to ordinary trials....But once a classification

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 68  

    is  upheld   by  the  application  of  the  dual  test,      subjection   to harsher  treatment  or  disadvantageous      procedure loses  its relevance,  the reason  being that      for  the   purposes  of  article  14,  unequals  cannot      complain of unequal treatment."      We shall,  however, deal  with the  question whether or not the  procedure is  disadvantageous when  we examine  the argument of  the learned  counsel regarding sections 5, 6, 7 and 11 of the Act.      Thus, to  sum up,  the position  so far as this part of the argument is concerned is as follows:-           (1)   Separate grouping of holders of high offices                for purposes  of expeditious  criminal action                to  be   taken  by   superior  courts   is  a                reasonable and  valid classification  because                it enhances confidence on the rule of law, 530                strengthens  the   democratic  system     and                ensures purity  of public  life and political                conduct.           (2)   The Bill  was challenged  before the Supreme                Court on the touchstone of Art. 14 on several                grounds. In  the first  place, it  was argued                that  no   rational  basis   for   separately                classifying Emergency  offenders existed. The                second ground  of challenge was that assuming                that there  was a  valid classification,  the                same was  bad because  it suffered  from  the                vice of  under-inclusion inasmuch  as holders                of high public or political offices were left                out.  This   Court,  however,   repelled  the                argument of rational basis on the ground that                the Emergency  period, because of its special                characteristics, afforded  adequate basis for                separate    classification    of    Emergency                offences. The  Court was  not at  all at that                time concerned expressly with the question as                to whether  classification of  high public or                political dignitaries  without  reference  to                any period  during which they were alleged to                have committed offences would be violative of                Art. 14  of the  Constitution. On  the  other                hand, this Court made clear observations that                an Act  providing for  such a  classification                would be  not  only  valid  but  also  highly                welcome. It  is  true    that  the  provision                regarding  a  particular  period  before  the                Emergency was  then struck  down but that was                so because  the Bill was confined to offences                committed only during the period of Emergency                and the  inclusion of  that period  meant bad                classification for the reason that the period                last mentioned  could  not  be  distinguished                from other  pre-or post-Emergency  periods on                any reasonable  basis. This view of the Court                could not be interpreted as laying down a law                of universal  application that no Special Act                on a  permanent basis  classifying  offenders                possessing  particular   characteristics   or                attributes   and    providing    for    their                prosecution under  a special  procedure would                be invalid  or violative of Art. 14. Thus, we                do not  think that the opinion of the Supreme                Court in  any way  amounted to disapproval or                condemnation of  a permanent  law  in  future

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 68  

              bringing within its scope all holders of high                public or political office.      It was  then argued  by Mr.  Bhatia that  assuming  the classification of  persons holding  high public or political offices to be justified, it suff- 531 ers from  a serions infirmity in that neither the term ’high public or   political  office’ has been defined nor have the offences been  delineated or  defined  so  as  to  make  the prosecution of  such offenders  a practical reality. Dealing with this  argument, the  learned Solicitor  General pointed out that  it was  specifically raised  when  the  Court  was hearing the  Reference and written submissions were filed by the parties  but that,  unfortunately, the  opinion did  not give any finding on it and urged that even in absence of any finding, the  argument must be deemed to have been rejected. We find  sufficient force  in  what  the  learned  Solicitor General says  but as  we are  hearing the appeals of persons who have  been convicted  and sentenced  to various terms of imprisonment so that their liberty is involved, we feel that we should go into Mr. Bhatia’s argument.      As regards  the definition of ’high public or political offices’ the  expression is  of well-known  significance and bears a  clear connotation  which admits  of no vagueness or ambiguity. Even  during the debate in Parliament, it was not suggested that  the expression  suffered from any vagueness. Apart from  that even  in the  Reference case, Krishna Iyer, J., referred to holders of such offices thus:-           "heavy-weight criminaloids  who often  mislead the      people by  public moral  weight-lifting and  multipoint      manifestoes........           ......such super-offenders in top positions.....           .......No erudite pedantry can stand in the way of      pragmatic  grouping   of  high-placed   office  holders      separately, for  purposes of high-speed criminal action      invested with early conclusiveness and inquired into by      high-level courts."                                              (Emphasis ours)      It is  manifest from  the observations of Krishna Iyer, J. that  persons holding  high public  or political  offices mean persons holding top positions wielding large powers.      In American  Jurisprudence 2d  (Vol. 63, PP, 626, 627 & 637)  the   author  describes   persons  holding  public  or political offices thus:           "Public offices  are cheated  for the  purpose  of      effecting  the   end  for  which  government  has  been      instituted, which  is the  common good, and not for the      profit, honour,  or private  interest of  any one  man,      family, or  class of  men....The powers  and  functions      attached to  a position  manifest  its  character,  and      there is implied in every public office an authority to      exercise some portion of the sovereign power of the 14-      289 SCI/80 532      state  in   making,  executing,  or  administering  the      law.......Various positions,  on the  other hand,  have      been held  not to  be public  offices, as, for examine,      auditor   of    accounts    appointed    by    railroad      Commissioners...." Similarly, Ferris  in his  thesis  on  ’Extraordinary  Legal Remedies defines public or political offices thus:           "A public  office is the right, authority and duty      created and conferred by law, by which an individual is      vested with  some portion of the sovereign functions of      the Government  to be  exercised by him for the benefit

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 68  

    of  the   public,  for  the  term  and  by  the  tenure      prescribed by  law. It  implies  a    delegation  of  a      portion of  the sovereign  power. It is trust conferred      by public authority for a public purpose, embracing the      ideas   of    tenure,    duration,    emoluments    and      duties......The  determining   factor,  the   test,  is      whether the office involves a delegation of some of the      solemn  functions   of  Government,  either  executive,      legislative or  judicial, to be exercised by the holder      for the public benefit."      (72 Calcutta Weekly Notes, P.64, Vol.72)      Similarly, Wade  and Phillips  in ’Constitutional  Law’ defines political offices thus:-           The Cabinet  is the  body of  principal  Ministers      with whom  rests the real direction of policy. We speak      of the  Ministry or  the Administration of a particular      Prime Minister  with reference  to  the  full  body  of      political office holders who from time to time hold the      reins of  Government, i.e.,  the Ministers of the Crown      and their Parliamentary Secretaries."      O. Hood  Phillips in ’Constitutional and Administrative Law’ (4th  Edition, p.  312 &  314) defines the hierarchy of Government Departments thus:           "Ministers-At the  head of  each Department-except      the  "non-political"   Departments,   which   are   not      important for present purposes-is the Minister, whether      he  is   called  Minister  or  Secretary  of  State  or      President  of   the  Board.  He  is  a  member  of  the      Government and  changes with  the Ministry  of the day;      and he may also be a member of the Cabinet.           Parliamentary Secretaries-Under  the Minister will      be  one   or   more   Parliamentary   Secretaries,   or      Parliamentary 533      Under-Secretaries of State if the Minister himself is a      Secretary   of    State.   As   their   name   implies,      Parliamentary Secretaries  are members  of one or other      of the  Houses of Parliament, they are Junior Ministers      who change  with the Government of the day. They assist      their Chief  in the  Parliamentary or political side of      his work,  as well  as in  the  administration  of  his      Department......           The detailed  administration  of  the  work  of  a      Government Department  is carried  out  by  "permanent"      civil servants.  Although,  like  Ministers,  they  are      servants  of  the  Crown,  civil  servants  are  called      "permanent" since  their appointment  is  non-political      and in practice lasts during good behaviour, as opposed      to Ministers,  Parliamentary Secretaries, etc., who are      responsible to  Parliament and  change office  with the      Government." So also,  Ramsay Muir  in his book ’How Britain is Governed’ (3rd Ed. p. 81) states as follows:-           "In this  chapter we  have to  discuss the  second      element in the Government-that which changes with every      change in  the balance  of power between parties in the      country,  which   consists  not   of  experts,  but  of      politicians, and  which works  under the  limelight  of      publicity.....This changing  element is  known as  ’the      Ministry’." Asirvatham in  his book  ’Political Theory’  (9th Ed p. 352) defines Political Executive thus :-           "Turning  from   the  nominal   to  the  political      executive, we  find at least four distinct forms, viz.,      the English,  the American,  the Swiss, and the French.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 68  

    In  England,   the  Prime   Minister  and  the  Cabinet      constitute the  political executive. They can remain in      office only  so long  as they command the confidence of      Parliament. They  are members of one or the other house      of  the   legislature  and   play  a  leading  part  in      initiating legislation.  They are  also  administrative      heads  of   departments  and,  in  that  capacity,  are      responsible to  Parliament not only for policy but also      for the  details of  administration. They work together      as a  team and,  in their relation to Parliament, stand      or fall together." In words  and Phrases  (Permanent Edition, Vol. 32 [(Suppl.] P. 226]  the word ’Political’ has been defined thus :-           "The  word   "political"  is   defined  as  of  or      pertaining  to   policy,  politics,   or   conduct   of      government....or pertaining 534      to, or  incidental to,  exercise of functions vested in      those charged  with conduct of government, and relating      to management of affairs of State".           "The word  ’political’ is defined by Bouvier to be      pertaining  to   policy  or   the   administration   of      government. People v. Morgan, 90 III 558, 563.           The word  "political" means that which pertains to      government of a nation............."(P. 802)      A perusal  of the  observations  made  in  the  various textbooks referred  to above  clearly shows  that ’political office’ is  an  office  which  forms  part  of  a  Political Department of  the Government  or the  Political  Executive. This,  therefore,   clearly  includes   Cabinet   Ministers, Ministers, Deputy  Ministers and  Parliamentary  Secretaries who are  running the Department formulating policies and are responsible to the Parliament. The word ’high’ is indication of a  top position  and enabling  the holder thereof to take major policy  decisions. Thus,  the  term  ’high  public  or political office’  used  in  the  Act  contemplates  only  a special  class   of  officers  or  politicians  who  may  be categorised as follows:-           (1)     officials  wielding  extraordinary  powers                entitling them to take major policy decisions                and holding positions of trust and answerable                and accountable for their wrongs:           (2)  persons responsible for giving to the State a                clean, stable and honest administration;           (3)   persons occupying  a very elevated status in                whose hands lies the destiny of the nation.      The rationale  behind  the  classification  of  persons possessing the  aforesaid characteristics is that they wield wide powers  which, if  exercised improperly  by  reason  of corruption,  nepotism   or  breach  of  trust,  may  mar  or adversely mould  the future  of the  country and tarnish its image. It  cannot be  said, therefore,  with any  conviction that persons who possess special attributes could be equated with ordinary  criminals who  have neither the power nor the resources to commit offences of the type described above. We are, therefore  satisfied that  the terms  ’persons  holding high public  or political  offices’ is  self-explanatory and admits of  no difficulty and that mere absence of definition of the  expression would not vitiate the classification made by the  Act. Such  persons are  in a  position to take major decisions regarding  social, economic  financial aspects  of the life  of the  community and other far-reaching decisions on the home front as also 535 regarding external  affairs and if their actions are tainted

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 68  

by  breach   of  trust,   corruption  or   other  extraneous considerations, they  would  damage  the  interests  of  the country. It  is, therefore, not only proper but essential to bring such  offenders  to  book  at  the  earliest  possible opportunity.      It  was   then  contended  that  even  the  nature  and character of  the offences  have not been defined in the Act which  introduces   an   element   of   vagueness   in   the classification. We  are, however,  unable to agree with this contention  because  clause  (4)  of  the  preamble  clearly indicates the  nature of  the offences  that could  be tried under the  Act. Clause  (4) of  the preamble to the Act runs thus:           "AND WHEREAS all powers being a trust, and holders      of high public or political offices are accountable for      the  exercise  of  their  powers  in  all  cases  where      Commissions of  Inquiry appointed under the Commissions      of Inquiry  Act, 1952  or investigations  conducted  by      Government  through   its  agencies  disclose  offences      committed by such holders."      The words ’powers being, a trust’ clearly indicate that any act  which amounts  to a  breach of  the trust or of the powers conferred on the person concerned would be an offence triable under  the Act. Clause (4) is wide enough to include any offence committed by holders of high public or political offices which  amounts to  breach of trust or for which they are accountable  in law  and does  not leave  any  room  for doubt. Mr.  Bhatia, however,  submitted  that  even  if  the person concerned  commits a  petty offence like violation of municipal bye  laws or  traffic rules  he would  have to  be prosecuted under the Act which will be seriously prejudicial to him. In our opinion, this argument is purely illusory and based on  a misconception  of the  provisions  of  the  Act. Section 5  which confers powers on the Central Government to make a  declaration clearly  refers to  the guidelines  laid down in  the preamble  and no  Central Government would ever third of  prosecuting holders  of high  public or  political offices for  petty offences  and the  doubt expressed by the counsel for the appellant is, therefore, totally unfounded.      It was  contended on  behalf  of  the  appellants  that Parliament was  not competent  to pass  a  Special  Act  and create Special  Courts for  a particular  set of  offenders. This argument  need  not  detain  us  because  it  has  been effectively answered  in the  reference case  which has held clearly that Parliament was fully competent to pass the Bill creating Special Courts. 536      Regarding the  validity of sections 7 and 11 of the Act which  correspond   to  clauses   6  and  10  of  the  Bill, Chandrachud, C.J., observed as follows:-           "In view of our conclusion that Parliament has the      legislative competence  to enact clauses 6 and 10(1) of      the Bill, it is unnecessary to consider the argument of      the learn  ed Solicitor  General that,  everything else      failing,  Parliament   would  have  the  competence  to      legislate upon  the  jurisdiction  and  powers  of  the      Supreme Court  by virtue  of article  248(1) read  with      entry 97 of List I.....           To sum up, we are of the opinion that clauses 2, 6      and 10(1)  of  the  Bill  are  within  the  legislative      competence  of   the  Parliament.   That  is   to  say,      Parliament  has  the  competence  to  provide  for  the      creation of  Special Courts  as clause  2 of  the  Bill      provides, to  empower the  Supreme Court  to dispose of      pending appeals and revisions as provided for by clause

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 68  

    6 of the Bill and to confer jurisdiction on the Supreme      Court by providing, as is done by clause 10(1), that an      appeal shall lie as of right from any judgment or order      of a  Special Court  to the  Supreme Court both on fact      and on law."      It was  also contended  for the appellants that the Act seeks to  change  the  situs  of  the  Court  and  virtually abrogates s.  181 of  the Code  of Criminal  Procedure. This argument also  does not  merit any  consideration because it was raised  in the Reference case and rejected. Dealing with this aspect of the matter, Chandrachud, C.J observed :-           "As regards  situs of  trial, it is unfair to make      an  assumption   of  mala   fides  and   say  that   an      inconvenient  forum   will  be   chosen   deliberately.      Besides, the  provisions of  chapter XII  of  the  Code      containing  section   177  to   189,  which  deal  with      "Jurisdiction of  the criminal  courts in Inquiries and      Trials", are not excluded by the Bill. Those provisions      will govern the question as to the situs of trial."      Mr. Bhatia  further submitted  that the  Act creates an invidious  distinction  inasmuch  as  persons  holding  high public or  political offices would have the benefit of trial by such  an experienced officer as a sitting Judge of a High Court while  the appellants have been deprived of that right and were  tried by  a Special  Judge who was only a Sessions Judge. This  argument, in  our opinion, is completely devoid of substance.  The  first  information  report  against  the appel- 537 lants was lodged on 13th April 1977 and the charge-sheet was submitted  before   the  Special  Judge  who  convicted  the appellants by  the order  dated February  27, 1979. The Act, however, came  into force  on May  16, 1979, that is to say, three months after the conviction and about two months after the appellants  had filed  their  appeals  before  the  High Court.  In   these  circumstances,   the  question   of  the appellants being  tried by the Special Judge appointed under the Act  could not  arise because the said Special Court did not exist  at all  when the  trial  of  the  appellants  was concluded. The  existence of  such fortuitous  circumstances cannot attract  Art. 14.  This matter  was considered in two decisions of this Court. In the case of Khandige Sham Bhat & Ors v.  The Agricultural  Income Tax  Officer, Subba  Rao J, observed as follows:-           "If there  is equality  and uniformity within each      group, the law will not be condemned as discriminative,      though to some fortuitous circumstance arising out of a      peculiar situation  some included  in a  class  get  an      advantage over  others, so long as they are not singled      out for special treatment." The same  view was expressed thus in a later decision of his Court reported as Dantuluri Ram Raju  Ors v. State of Andhra Pradesh Anr.           "The  facts   that  on  account  of  topographical      situation some  landowners get  greater benefit  of the      drainage scheme because of their lands being more prone      to damage  by floods  is a  fortuitous circumstance and      the same  would not be a valid ground for striking down      the impugned  legislation. It  is well established that      if there  is equality and uniformity within each group,      the law  will not be condemned as discriminative though      due to  some fortuitous  circumstances arising out of a      peculiar situation,  some included  in a  class get  an      advantage over  others so  long as they are not singled      out for special treatment."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 68  

    In view  of these decisions, the argument of Mr. Bhatia must be overruled.      This, therefore,  concludes the submissions made by Mr. Bhatia generally regarding the constitutionality of the Act. 538      Mr. Mridual adopted the above-noted arguments, advanced by Mr.  Bhatia, but  put forward contentions with respect to other aspects  which we  shall deal with at a later stage of the judgment.      It was  next contended  by Mr.  Bhatia that s. 5 of the Act  suffers   from   several   constitutional   and   legal infirmities.      Sub-sections (t) and (2) thereof may be extracted here:      "Declaration by Central Government of cases to be dealt with under this Act:           5.(1) If the Central Government is of opinion that                there  is   prima  facie   evidence  of   the                commission of  a offence alleged to have been                committed by a person who held high public or                political  office   in  India   and  that  in                accordance with  the guidelines  contained in                the preamble hereto the said offence ought to                be dealt  with under  this Act,  the  Central                Government shall  make a  declaration to that                effect in  every case  in which  it is of the                aforesaid opinion.           (2)  Such  declaration  shall  not  be  called  in                question in any court."      In the  first place,  it was  contended  that  s.  5(1) suffers from  the vice  of excessive delegation of powers so as to violate Art. 14 in as much as the discretion conferred on the  Central Government  is absolute, naked and arbitrary and is  clearly discriminatory  as it is open to the Central Government to  pick and choose persons and make declarations in respect  of them  while excluding others. In our opinion, this contention is based on a serious misconception of the p provisions of  the  Act.  For  one  thing,  no  unguided  or uncanalised  power   has  been   conferred  on  the  Central Government.  A   basic  condition  imposed  on  the  Central Government is  that there  must be  a proper  application of mind regarding  the existence of prima facie evidence of the commission of an offence. Secondly, the discretion has to be exercised in accordance with the guidelines contained in the preamble. The  various clauses  of the  preamble which  have been set  out in  an earlier part of this judgment, lay down clear guidelines  and provide  sufficient safeguards against any abuse  of power.  Thirdly, clause  (4) of  the  preamble clearly lays  down that  the power under s. 5 is exercisable only after  the commission  of an offence by the holder of a high public  or political  office bas  been disclosed  as  a result of  an inquiry  conducted under  the  Commissions  of Inquiry  Act   or  of  an  investigation  conducted  by  the Government through  its agencies.  It is  well settled  that discretionary power is not the same thing 539 as power to discriminate nor can the constitutional validity of  a   law  be  tested  on  the  assumption  that  where  a discretionary power  is conferred  on a  high authority, the same may  or would  be exercised in a discriminatory manner. In the case of Dr. N. B. Khare v. The State of Delhi, Kania, C. J.,  dealing with  the same aspect of the matter observed as follows.           "Moreover, this  whole argument  is based  on  the      assumption that  the Provincial  Government when making      the order  ill not  perform its  duty and may abuse the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 68  

    provisions  of  the  section.  In  my  opinion,  it  is      improper to  start with  such an  assumption and decide      the legality  of an  Act on  that basis. Abuse of power      given by  a law  sometimes occurs;  but the validity of      the law  cannot  be  contested  be  cause  of  such  an      apprehension. In my opinion, therefore, this contention      of the petitioner cannot be accepted." In the case of Kathi Raning Rawat v. The State of Saurashtra this Court observed:           "The discretion  that  is  conferred  on  official      agencies in  such  circumstances  is  not  an  unguided      discretion, it  has to  be exercised in conformity with      the policy  to effectuate  which the direction is given      and it  is in  relation  to  that  objective  that  the      propriety  of  the  classification  would  have  to  be      tested." The same view was taken in a later decision of this Court in the case  of Matajog  Dobey v.  H. C.  Bhart where the court observed as follows:-           "It has  to be  borne in mind that a discretionary      power is  not necessarily  a discriminatory  power  and      that abuse  of power  is not to be easily assumed where      the discretion  is vested in the Government and not ill      a minor official." In the  case of  In Re The Kerala Education Bill, 1957, this Court said:           "But all  that we  need say  is  that  apart  from      laying down a policy for the guidance of the Government      in the matter of the exercise of powers conferred on it      under the  different provisions  of the  Bill including      cl. 36,  the Kerala Legislature; has, by cl. 15 and cl.      37 provided further safeguards. 540      In this  connection, we must bear in mind what has been      laid down  by this  Court in  more decisions  than one,      namely, that  discretionary power  is not necessarily a      discriminatory power  and the  abuse of  power  by  the      Government will not be lightly assumed." Similarly, in the case of Jyoti Pershad v. The Administrator for the  Union Territory of Delhi, Ayyangar J., speaking for the Court, observed :           "So long  therefore as  the Legislature indicates,      in  the   operative  provisions  of  the  statute  with      certainty, the policy and purpose of the enactment, the      mere fact that the legislation is skeletal, or the fact      that a  discretion is  left  to  those  entrusted  with      administering the  law, affords no basis either for the      contention that  there has been an excessive delegation      of legislative  power as  to amount to an abdication of      its  functions,   or  that  the  discretion  vested  is      uncanalised and  unguided  as  to  amount  to  a  carte      blanche to discriminate." In the  case of Moti Ram Deka etc. v. General Manager, N. E. F. Railway,  Maligaon, Pandu,  etc Shah J., speaking for the Court remarked-           "Power to  exercise discretion  is not necessarily      to be assumed to be a power to discriminate unlawfully,      and possibility  of abuse  of power will not invalidate      the  conferment  of  power.  Conferment  of  power  has      necessarily to  be coupled with the duty to exercise it      bona fide  and for  effectuating the purpose and policy      underlying the  rules which provide for the exercise of      the power.  If in  the scheme  of the  rules,  a  clear      policy relating  to  the  circumstances  in  which  the      power,  is   to  be   exercised  is   discernible,  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 68  

    conferment  of  power  must  be  regarded  as  made  in      furtherance of the scheme, and is not open to attack as      infringing the equality clause." In the case cf V. C. Shukla v. The State through C.B.I. this Court pointed  out that where a discretion is conferred on a high authority  such as  the Central  Government it  must be presumed that 541 the Government  would act  in accordance  with law  and in a bona fide manner, and said:           "In fact, this Court has held in a number of cases      that where  a power is vested in a very high authority,      the abuse of the power is reduced to the minimum."      In view  of these  decisions, it  must be held that the power conferred  on the  Central Government is controlled by the guidelines  contained in the preamble which by virtue of the provisions of s. 5(1) becomes a part of that section. As the power has been conferred on the Central Government which is to  make a  declaration in accordance with the conditions laid down in s. 5(1) and, therefore, in conformity will. the guidelines mentioned  in the  preamble, the  attack based on discrimination is unfounded and is hereby repelled.      Another allied argument advanced by Mr. Bhatia was that the issuance  of a  declaration under s. 5(1) depends purely on the subjective satisfaction of the Central Government and under sub-section  (2) of  s. 5 such a declaration cannot be called into  question by any court so that there would be an element of  inherent bias  or malice;  in an order which the Central Government may pass, for prosecuting persons who are political  opponents  and  that  the  section  is  therefore invalid. We  are unable  to agree  with  this  argument.  As already pointed  out, the power of the Central Government to issue a  declaration is  a statutory  power circumscribed by certain conditions.  Further more, as the power is vested in a very  high authority,  it cannot  be assumed  that  it  is likely to  be abused.  On the other hand, where the power is conferred  on   such  a   high  authority   as  the  Central Government, the  presumption will  be that the power will be exercised in a bona fide manner and according to law. In the case of  Chinta Lingam  & Ors v. Government of India & Ors., this Court observed:           "At any rate, it has been pointed out in more than      one decision  of this  Court that when the power has to      be exercised  by one  of the  highest officers the fact      that no  appeal has been provided for is a matter of no      moment.... It  was  said  that  though  the  power  was      discretionary but it was not necessarily discriminatory      and abuse  of power  could not be easily assumed. There      was moreover  a presumption that public officials would      discharge their  duties honestly and in accordance with      rules of law." 542 To the  same effect  is the decision of this Court in Budhan Choudhry &  Ors. v.  The State  of  Bihar.  It  was  however suggested that  as the  Central Government  in  a  democracy consists of  the political  Party which  has the majority in Parliament, declarations  under s.  5(1) lt the Act could be used as  an engine  of oppression against members of parties who are  opposed to the ideologies of the ruling party. This is really  an  argument  of  fear  and  mistrust  which,  if accepted, would invalidate practically all laws of the land; for, then  even a  prosecution under the ordinary law may be considered  as   politically  motivated,  which  is  absurd. Furthermore, prejudice,  malice or taint is not a matter for presumption in  the absence of evidence supporting it. It is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 68  

well settled  that burden  lies on the parties alleging bias or malice  to prove  its existence, and if malice or bias is proved in  a particular  case, the  courts would strike down the act  vitiated by  it, in  exercise of  its powers  under Arts. 226,  227 or  136. This aspect of the matter was dealt with in the reference case thus:-           "Though the  opinion which  the Central Government      has to form under clause 4(1) is subjective, we have no      doubt that  despite the provisions of sub-clause (2) it      will be  open to  judicial review  at least  within the      limits indicated  by this  Court in Khudaran Das Deo v.      The State  of West  Bengal &  Ors. (1975,  2, SCR  832,      845). It  was observed  in that  case  by  one  of  us,      Bhagwati J.,  while speaking  for the  Court. that in a      Government of  laws "there;  is nothing like unfettered      discretion remove  from  judicial  reversibility".  The      opinion has  to be formed by the Government, to set the      least, rationally and in a bona fide manner."      Another limb  of the  argument of  Mr. Bhatia regarding the provisions  about declaration  contained in s. 5 (1) was that they are violative of the principles of natural justice inasmuch as  they do not provide for any hearing being given to the  accused before a declaration is made. This argument, in our opinion, is also without substance. It is to be borne in mind  that at the stage when the declaration is sought to be made  there is  no list  pending nor  has any prosecution been launched against the accused. Section 5 deals only with the decision  taken by  the Central  Government to prosecute and until that decision is notified the prosecution does not start, and  the question  of an  accused being heard at that stage, therefore,  does  not  arise  at  all.  A  couple  of instances in  point may  be cited  here with  advantage.  In cases where  law  requires  sanction  to  be  given  by  the appointing authority  before a  prosecution can  be launched against a Government servant, it has 543 never been  suggested that  the accused must be heard before sanction, is  accorded. The question of sanction arises at a point of  time when there is no danger to the liberty of the subject and  the accused at that stage is not in the picture at all.  It is  only after  sanction  is  accorded  that  an accused is  brought to  trial  or  proceedings  are  started against him  when he  is to  be heard  and can challenge the validity of the sanction Similarly, when a first information report is  filed before  a police  officer, the law does not require that  the  officer  must  hear  the  accused  before recording it  or submitting  a charge-sheet  to  the  Court. Another instance  is to  be found where a complaint is filed before a  Magistrate who chooses to hold an inquiry under s. 202 of the Code of Criminal Procedure before issuing process or summons to the accused. lt has been held in several cases that at  that stage  the accused  has got no locus to appear and file  his objections  to the  inquiry. The  right of the accused to  be heard comes into existence only when an order summoning the  accused is  passed by the Magistrate under s. 204 of the Code of Criminal Procedure. In the case of Cozens v. North  Devon Hospital  Management Committee  & Anr,  Lord Salmon pithily observed:           "No one  suggests that  it is  unfair to  launch a      criminal  prosecution   without   first   hearing   the      accused."      The argument  of Mr.  Bhatia which is under examination is thus also found to be wholly untenable      It was  then contended  that in  the instant  case  the declaration dated  June 22,  1979 made  under s. 5(1) of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 68  

Act per  se shows  that it  had not  resulted from  any real application  of   mind  by   the  Central   Government.  The declaration is based, it is pointed out, on the existence of prima facie  evidence of  the commission of certain offences by Mr.  Shukla and  Mr. Sanjay  Gandhi and proceeds to state that the said offences ought to be dealt with under the Act. It  was   vehemently  argued  that  at  the  time  when  the declaration  was   made  the  appellants  had  already  been convicted and  had filed  appeals in the High Court and that therefore for  the Central  Government to  say that ’a prima facie case’  was made  out was  to close  its  eyes  to  the realities of the situation. The argument, in other words, is that once  the prosecution  of the appellants had culminated in a  conviction and  an  appeal  therefrom,  there  was  no question of  the existence  of any  ’prima facie  case’, and that the  use of  such an  expression could  be intelligible only if  the accused  were facing criminal proceedings which had not  culminated in a conviction. The assertion about the existence of  a prima facie case clearly shows, according to learned counsel, that the Central 544 Government did  not apply  its mind  at all  to the  factors relevant to  the issuance of the declaration or that, at any rate, the  application of  its mind was perfunctory. We find ourselves, unable  to accept of this argument which fails to consider certain  fundamental aspects of the scope and ambit of s.  5(1) of  the Act and is based on a misconstruction of the nature of the declaration which is to be made. Under the section the  Government has  to be  satisfied on  two counts before it could issue a declaration. It must be satisfied in the first instance that there is prima facie evidence of the commission of an offence. Secondly, it must form the opinion in accordance  with the guidelines contained in the preamble that such  offence ought to be dealt with under the Act. The argument under  examination relates to the first limb of the satisfaction of  the Central  Government. So,  the  question arises whether the condition of the existence of prima facie evidence is  not  fulfilled  in  the  case  of  the  present declaration merely  because the trial in the first court had ended in a conviction and an appeal therefrom. The answer to the question  has to  be an  emphatic ’no’, the reason being that if conviction is construed as evidence of the existence of something  more than  a mere prima facie case, that would not mean  that a  prima facie  case ceases  to exist. That a prima facie  case must be found to exist is only the minimum requirement for  the satisfaction  of the Central Government and it would be doubly made out if the evidence available is stronger than is needed to make out only a prima facie case. A conviction  of an accused person cannot mean that there is no prima  facie evidence against him. All that it spells out is that  not only a prima facie case is made out against him but that  the evidence  available is  even stronger  and  is sufficient for  a conviction.  However, as  the  Government, while acting  under the  section, is  to satisfy itself only with the existence of prima facie evidence, the assertion by it in  the declaration  that such  evidence was available to its satisfaction  cannot, by  any stretch of imagination, be held to  be inapplicable to a case in which a conviction has been recorded. In this view of the matter we find the use of the expression  ’prima face’  evidence in the declaration to be fully  justified even  though the  trial had  ended in  a conviction which  was  under  appeal  on  the  date  of  the declaration.  In   this  context,   the  contents   of   the declaration also deserve scrutiny. It reads:           "WHEREAS  the   Central  Bureau  of  Investigation

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 68  

    recorded under  section 154  of the  Code  of  Criminal      Procedure (2  of 1974)  on the  13th April 1977 a first      information report and registered a case being RC-2/77-      CIU (1)  for suspected  offences  of  a  conspiracy  to      commit theft  and actual theft of the film materials of      the film ’Kissa Kursi Kaa’ pro- 545      duced by  one Shri Amrit Nahata from the custody of the      Ministry of Information and Broadcasting:           AND  WHEREAS   investigations  conducted   by  the      Central  Bureau  of  Investigation  disclosed  offences      committed during  the period  while the proclamation of      emergency dated  the 25th  June  1975,  issued  by  the      President  under  clause  (i  of  Article  352  of  the      Constitution was in force:           AND WHEREAS  after completion of investigation the      Central Bureau of Investigation filed a charge-sheet on      the  14th   July  1977   in  the  court  of  the  Chief      Metropolitan Magistrate, Delhi:           AND  WHEREAS  the  facts  mentioned  in  the  said      charge- sheet  disclosed offences having been committed      by Shri  Vidya Charan  Shukla, who  was the Minister of      Information and  Broadcasting, Government of India, and      Shri Sanjay  Gandhi, son  of late  Shri  Feroz  Gandhi,      under section  120-B of the Indian Penal Code, 1860 (45      of 1860)  read with sections 409, 435, 411, 414 and 201      of the  I.P.C. as  well as  substantive offences  under      section 409,  411, 414,  435 and  201 of  the I.P.C. as      also the  said offences  read with  section 109  of the      I.P.C.:           AND WHEREAS  a case  (RC/2/77-CIA-I) was  filed in      the court  of the Chief Metropolitan Magistrate, Delhi,      with  respect  to  the  said  offences  and  the  Chief      Metropolitan Magistrate committed the case to the Court      of Session for trial on 22-2-78:           AND WHEREAS the District and Sessions Judge having      convicted  the  accused  by  his  order  dated  17-2-79      sentenced Shri  Vidya Charan  Shukla  and  Shri  Sanjay      Gandhi with imprisonment and also imposed fines on them      as specified in the said order dated 27-2-79:           AND WHEREAS  Shri Vidya  Charan  Shukla  and  Shri      Sanjay  Gandhi  filed  appeals  Nos.  71/79  and  72/79      respectively  under  Section  374(2)  of  the  Code  of      Criminal Procedure,  1973 (2 of 1974) in the High Court      of Delhi  on 20-3-79  against the  aforesaid conviction      and that  the said  appeals were admitted by Delhi High      Court on 21-3-79:           AND WHEREAS  the State has also filed an appeal in      the Delhi High Court on 18-5-79 under section 377, Code      I of Criminal Procedure (No. 2 of 1974) for enhancement      of the  sentence with  respect to the aforesaid accused      persons: 546           AND WHEREAS  the above-mentioned  appeals are  now      pending in the High Court of Delhi:           AND WHEREAS the Central Government after fully and      carefully examining  the material  placed before  it in      regard to  the aforesaid  offences is  of opinion  that      there is  prima facie evidence of the commission of the      said offences  by Shri Vidya Charan Shukla, who was the      Minister of Information and Broadcasting, Government of      India, at  the relevant period and as such a person who      held high  public and  political  office,  Shri  Sanjay      Gandhi and  others and  that  in  accordance  with  the      guidelines contained  in the  preamble to  the  Special

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 68  

    Courts Act  7 1979 (22 of 1979) the said offences ought      to be dealt with under that Act.           NOW,  THEREFORE,   in  exercise   of  the   powers      conferred by  sub-section  (1)  of  Section  S  of  the      Special Courts  Act 7  1979 (22  of 1979),  the Central      Government hereby  declares that  there is  prima facie      evidence of  the commission  of the  aforesaid offences      alleged to  have been  committed by  ’Shri Vidya Charan      Shukla,  who   was  the  Minister  of  Information  and      Broadcasting, Government  of India, during the relevant      period, and  as such  held a  high public and political      office in  India during  the relevant  period, and Shri      Sanjay Gandhi,  son of late Shri Feroz Gandhi, and that      in accordance  with the  guidelines  contained  in  the      Preamble to  that Act,  the said  offences ought  to be      dealt with under that Act "      A perusal  of the declaration reveals that it gives the history of the case from beginning to end which demonstrates that the  Central Government  was fully aware of the various stages through  which the  trial of  the appellants, passed. Thus, the  formation of the opinion by the Government of the existence of  a prima  facie  case  cannot  be  held  to  be perfunctory or  illusory. It  has not  been shown  that  the declaration was  in any way irrational or male fide or based on extraneous  considerations. The  argument advanced by Mr. Bhatia, therefore, must be overruled.      The last plank of attack on s. 5 of the Act is that the declaration is  non est  because it has not been laid before each House  of Parliament  as required  by s. 13 of the Act. This argument  merits some  consideration. Section  13  runs thus:           "13. Every notification made under sub-section (I)      of section  3 and  every declaration  made  under  sub-      section (1) 547      of section  5 shall be laid, as soon as may be after it      is made, before each House of Parliament." As we  read the  section, we are clearly of the opinion that its provisions  are purely  directory and  not mandatory  so that if the conditions mentioned in it are not fulfilled the declaration would  not be  vitiated. It  is to be noted that the section  does not say that until a declaration is placed before the  two Houses  of Parliament it shall not be deemed to be  effective, nor  does  the  section  intend  that  any consequence would  result from its non-compliance. Moreover, the matter  is no  longer res  integra and  is concluded  by several decisions  of this  Court, the  most recent  of them being M/s.  Atlas Cycle  Industries Ltd. & ors. v. The State of Haryana where this Court observed:           "Thus two considerations for regarding a provision      as directory  are: (l) absence of any provision for the      contingency  of   a  particular   provision  not  being      complied with  or followed,  and  (2)  serious  general      inconvenience and  prejudice that  would result  to the      general public  if the  act of  the  Government  or  an      instrumentality is  declared invalid for non compliance      with the particular provision            ***           ***             ***           In the instant case, it would be noticed that sub-      section (6)  of Section  3 of  the Act  merely provides      that every  order made  under Section  3 by the Central      Government or  by  any  officer  or  authority  of  the      Central Government shall be laid, before both Houses of      Parliament, as  soon as  may be,  after it  is made. It      does not  provide that  it  shall  be  subject  to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 68  

    negative or  the affirmative resolution by either House      of Parliament.  It also  does not provide that it shall      be open  to the Parliament to approve or disapprove the      order made under Section 3 of the Act. It does not even      say that  it shall be subject to any modification which      either House  of Parliament  may in its wisdom think it      necessary to  provide. It  does not  even  specify  the      period for  which the  order is  to be laid before both      Houses of  Parliament nor  does it  provide any penalty      for  non-observance  of  or  non-compliance  with,  the      direction as  to the  laying of  the order  before both      Houses of Parliament. It would also be noticed that the      requirement as  to the  laying of the order before both      the Houses  of Parliament  is not a condition precedent      but subsequent  to the  making of  the order.  In other      words, there is no prohi- 548      bition to the making of the orders without the approval      of both  Houses of  Parliament. In these circumstances,      we are  clearly of the view that the requirement as to,      laying contained in sub-section (6) of Section 3 of the      Act falls  within the  first  category,  i.e.,  "simple      laying" and is directory, not mandatory."      We fully  agree with  this view and hold that on a true interpretation of  section 13  of the Act, it is a case of a simple laying  of  the  declaration  before  each  House  of Parliament and  the declaration  cannot be struck down on he grounds suggested by the counsel.      It was  then submitted that as the declaration is based on the  result of  an investigation held by a Central agency even  though   the’  offences  were  alleged  to  have  been committed in  a State,  it affects  the s basic structure of the Constitution  and is, therefore, void. This argument, in our opinion,  is also  misconceived.  The  doctrine  of  the violation of  basic structure  of the  Constitution  or  its fundamental features  applies not to the provisions of a law made by  a State  legislature or  Parliament but  comes into operation where an amendment made in the Constitution itself is said to affect its basic features like fundamental rights enshrined under  Articles  14,  19,  31,  or  the  power  of amendment of  the Constitution under Art. 368 and so on. The doctrine has  no application  to the provisions of a Central or State  law because  _ if  the statute is violative of any provision of  the Constitution it can be struck down on that ground and it is not necessary to enter into the question of basic structure of the Constitution at all.      Mr.  Mridul,  appearing  for  Mr.  Shukla,  apart  from adopting the  arguments of  Mr. Bhatia,  as discussed above, raised  two  additional  points.  In  the  first  place,  he submitted that  s. 5(1) of the Act has no application to the facts  of   the  present   case  because  under  s.  5(1)  a declaration has  to be  made on  the basis  of  the  sources indicated in  the section, namely, inquiries conducted under the Commissions  of  Inquiry  Act  or  investigations  which become otiose  and would  have relevance  only if his client had not  been convicted.  This  argument,  in  our  opinion, appears to  be the  same as  was put  forward by  Mr. Bhatia which we have already rejected.      It was  next argued  that conviction being a finding of guilt  can   not  be  said  to  fall  within  the  situation contemplated  by   section  5(1)  of  the  Act.  Mr.  Mridul contended that  as section  6 is  an extension of the scheme contained in  section 5  the former  does not  overrule  the entire Code  of Criminal Procedure but in fact takes in only those cases which are pending at the trial stage

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 68  

549 when the  declaration is  made. Once  the  case  ends  in  a conviction, section 6 spends itself out and there is no room for the  application of  section  5,  according  to  learned counsel. It  is true  that  section  6  does  contemplate  a prosecution which  is relatable  to  the  declaration  under section 5 but that does not debar the application of section 5 to  other states  or a  criminal  case,  especially  those specifically dealt with under section 7 of the Act which, as we shall presently show, fully covers the situation in hand. The limited  field in  which section  6  operates  doss  not therefore exhaust the consequences flowing from the issuance of a declaration under section 5      Mr. Mridul  however contended  that section 7 would not apply to  this case because its language embraces only those appeals which  arise out  of a  prosecution which  itself is pending at  the  time  when  a  declaration  ’is  made.  The argument is  devoid of  force as,  to accept it, would be to ignore an important part of section 7 which runs thus .           "7. If  at the  date of the declaration in respect      of any  offence any  appeal  or  revision  against  any      judgment or  order in  a prosecution in respect of such      offence, whether  pending  or  disposed  of  is  itself      pending in  any court  of appeal  or revision, the same      shall stand  transferred for  disposal to  the  Supreme      Court."      The  words   "whether  pending   or  disposed  of"  are significant and  qualify the immediately preceding clause "a prosecution in respect of such offence". The legislature has thus taken  care to  expressly provide  that  an  appeal  or revision would  be covered  by section 7 and transferable to the Supreme  Court for  disposal if it is directed against a Judgment or  order made  in a  prosecution which  is  either pending has  been disposed of, the only other requirement of the section  being that  such appeal or revision must itself be pending  at the  date of  the  declaration  To  interpret section 7 in such a way that its applicability is limited to appeals or  revisions arising  from prosecutions  pending at the trial  stage at the date of the relevant declarations is possible only  if the  words "or disposed of" are treated as absent from  the section  a course which is not open to this Court in  view of the express language used. The argument is therefore repealed.      Finally, it was argued that by providing in s. 7 for an automatic transfer  of appeals  from the  High Court  to the Supreme Court the legislature has exercised a judicial power which is  vested in  the Supreme Court alone under s. 406 of the Code  of Criminal  Procedure and  that  the  section  is invalid as it conflicts with the said s. 406. 550 We are,  however, unable  to agree with this argument. There is no  question of the exercise of any judicial power by the legislature in  enacting s.  7  which  covers  a  well-known legislative process.  The decision  of this  Court  in  Smt. Indira Nehru  Gandhi v.  Shri Raj  Narain relied upon by Mr. Mridul deals  with quite a different situation and is wholly inapplicable to the present case. There what the legislature did was  to disposed  of two  appeals on  merits through  an amendment to  deprive the court of the opportunity to decide the appeals  which are  pending before it. The amendment was struck down by this Court in a judgment during the course of which Mathew, J. Observed:           "At the  time when  the Amendment  was passed, the      appeal filed  by the  appellant and the cross appeal of      the respondent  were pending  before the Supreme Court.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 68  

    Clause (4)  was legislation ad hominem directed against      the course  of the  hearing of the appeals on merits as      the appeal  and the cross appeal were to be disposed of      in accordance  with that clause and not by applying the      law to  the facts as ascertained by the court. This was      a  direct  interference  with  the  decision  of  these      appeals by  the Supreme  Court on  their  merits  by  a      legislative judgment."      Thus, in  that case  the legislation was ad hominem and was directed  against the  course  of  the  hearing  of  the appeals  on  merits.  In  the  instant  case,  however,  the Parliament has  done nothing  of the sort. By enacting s. 7, it has  merely provided  a new  forum for they appeals which were pending  in the  High Court  and in  respect of which a valid declaration,  fully consistent  with the provisions of the Act,  was made-a  course which  involved no interference with the  P’ judicial  functions of  the court and was fully open to  the legislature. We are thus clearly of the opinion that the  decision relied  upon  by  Mr.  Mridul  is  of  no assistance to him and that his argument is without merit.      We now pass on to the next phase of the argument of Mr. Bhatia and  Mr. Mridul  which relates  to the  nature of the procedure  provided   for  by  the  Act.  According  to  the contention  of  learned  counsel  for  the  appellants,  the procedure prescribed by the Act is harsher and more rigorous than that provided for in the Code of Criminal Procedure and causes serious  prejudice to  the accused and is, therefore. violative of  Art. 14  of the Constitution. We might mention here that  in view  of our  finding that  the classification made by  the Act  complies with  the dual  test laid down by this Court and is a reasonable 551 classification, Art.  14 would  not be attracted even if the procedure is  held to  be harshar  than that available under the ordinary law. Apart from that, however, we find that the procedure prescribed  by the  Act is not harsh or onerous as contended but  is more liberal and’ advantage to the accused who is  assured of an expeditious and fair trial thereunder. Before, however,  dealing with this aspect of the matter, we might dispose of an argument advanced by Mr. Bhatia that his client not  having held  any high public or political office has been  drawn into  this case by virtue of the declaration and has,  therefore, been  singled out  for a discriminatory treatment. We are unable to accept this argument. It is true that Mr. Sanjay Gandhi has never been the holder of any high public or  political office  but the  first  clause  of  the preamble clearly  includes within its ambit not only persons holding high  public or political offices but also others as section 8 states .           "8. A Special Court shall have jurisdiction to try      any person concerned in the offence in respect of which      a declaration  has  been  made,  either  as  principal,      conspirator or  abettor  and  all  other  offences  and      accused persons  as can  be jointly  tried therewith at      one trial in accordance with the Code."      Section 8  thus incorporates  the well-known concept of joint trial  accused persons  in respect of offences forming part of  the same  transaction. In  these  circumstances  no discrimination, as complained of by the appellants, results.      Coming now  to the  procedure prescribed  by  the  Act, reliance  was   placed  by  learned  counsel  for  both  the appellants on a few cases decided by this Court to show that the procedure prescribed by the Act is harsh and unfavorable to the  accused. As suggested by Mr. Bhatia we have tried to judge the  harshness or  otherwise of the procedure from the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 68  

vision of  an accused  person but  find ourselves  unable to agree with the contention. We might mention here that in the Reference case, Chandrachud, C.J. pointed out the undernoted three infirmities appearing in the Bill which were violative of Art. 21 of the Constitution:           (1)  that there was no provision for transfer of a                case;           (2)  that a  retired Judge could be appointed as a      special Judge; and           (3)  that the  appointment of  a Special Judge was      controlled by the Government. 552      Shinghal, J.,  in his  dissenting note observed that if jurisdiction ill  the matter  of appointing  a Special Judge was given  to the  High Court  concerned leaving  its  Chief Justice to  designate one  of the  Judges of  his Court as a Special Judge,  the  procedure  may  become  very  fair  and unexceptionable. This  view, however,  was not shared by the majority of  Judges though  they did  agree that  if such  a course was  adopted that  would be undoubtedly laudable. But then it  is for the legislature to decide upon the procedure to be  followed in  the matter and it is significant for our purpose that  the aforesaid infirmities have been removed by the Act,  where under  not only  is  the  appointment  of  a Special Judge  made free  of control by the government as it now rests with the Chief Justice of the High Court concerned subject to  the only  condition  that  he  must  obtain  the concurrence of  the  Chief  Justice  of  India  therefor.  A provision for  transfer of  cases from  one Special Court to another Special  Court has  also been inserted in 10(1). The challenge on  the ground  of violation  of Art.  21  of  the Constitution fails.      We  shall   now  deal  with  the  contention  that  the procedure prescribed  by the  Act is  harsh.  In  the  first place, it was submitted that under s. 7 an appeal pending in the High  Court stands  transferred to the Supreme Court and that thus  the appellant  is deprived of a valuable right of having the  appeal heard and decided by the High Court which is vested  in him  the moment  he is convicted. Secondly, it was urged  that if  the appeal in the High Court was decided against the  appellant, he  would still have a right to move the Supreme Court Under Art. 136 of the Constitution against conviction but  that by  reason of  the appeal  having  been transferred to  the Supreme  Court, that right also has been taken away.  In our  opinion, there  is no substance in this grievance. To  begin with,  an appeal  being a  creature  of statute, an  accused has  no inherent  right to  appeal to a particular tribunal. The legislature may choose any tribunal for the  purpose of  giving a  right of appeal. Moreover, an appeal to the High Court is less advantageous than an appeal to the Supreme Court for the following reasons:           (1) The  right of  appeal given to an accused from      the order  of a  Session Judge  or Special Judge to the      High Court  is not totally unrestricted. Section 384 of      the Code  of Criminal  Procedure empowers  an Appellate      Court to dismiss an appeal summarily if it is satisfied      that there is no sufficient ground for interference.      The relevant portion of s. 384 runs thus:           "384. (1) If upon examining the petition of appeal      and copy  of the judgment received under section 382 or      section 553      383, the  Appellate Court  considers that  there is  no      sufficient ground  for interfering,  it may dismiss the      appeal summarily;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 68  

    Provided that-      (a)  no appeal  presented under  section 382  shall  be      dismissed unless the appellant or his pleader has had a      reason able  opportunity of  being heard  in support of      the same,      (b)  no appeal  presented under  section 383  shall  be      dismissed  except   after  giving   the   appellant   a      reasonable opportunity of being heard in support of the      same, unless  the Appellate  Court considers  that  the      appeal is  frivolous or  that  the  production  of  the      accused in  custody before the Court would involve such      inconvenience  as  would  be  disproportionate  in  the      circumstances of the case;      (c)  no appeal  presented under  section 383  shall  be      dismissed  summarily   until  the  period  allowed  for      preferring such appeal has expired.      (2)  Before dismissing  an appeal  under this  section, the Court may call for the record of the case "      Thus, an  appeal to  the High  Court under  the Code of Criminal Procedure  is  attended  with  the  risk  of  being summarily dismissed  under s.  384. On  the other  hand,  an appeal to  the Supreme  Court is governed by s. 11(1) of the Act which runs thus:-      "11. (1)  Notwithstanding  anything  in  the  Code,  an      appeal  shall  lie  as  of  right  from  any  judgment,      sentence or  order, not being interlocutory order, of a      Special Court to the Supreme Court both on facts and on      law."      An appeal  under s.  11(1) lies as of right and both on facts and  on law. Thus, the right conferred on a convict by s. 11(1)  is wider  and less  restricted than  the right  of appeal given by the Code of Criminal Procedure.      (2) If  the appeal is filed before the Supreme Court or      is transferred thereto, the accused becomes entitled to      a hearing  of his  case by  the highest  court  in  the      country both  on facts  and on  law and thus gets a far      greater advantage  than a  right to  move the Court for      grant of special leave which may or may not be granted,      it being  a matter of discretion to be exercised by the      Supreme Court. 554      A similar view was expressed in Syed Qasim Razvi v. The State of Hyderabad & Ors where this Court made the following observations:-           "But in  this present  case the original trial was      by the  Special Tribunal  which was  invested with  the      powers of  a sessions  court and  consequently only one      appeal would lie to the High Court. It is said that the      case could  have been  tried by the District Magistrate      and in  that case  the accused could have one appeal to      the Sessions  Judge and  a second one to the High Court      under the  Hyderabad law.  This contention  rests on  a      pure speculation and is hardly tenable."      In the above view of the matter, we are unable to agree with learned  counsel for  the appellants that the procedure regarding appeals  is harsher  than that  prescribed by  the Code of Criminal Procedure.      There is  yet another  aspect of  the matter  which was stressed  by   the  learned  Solicitor  general.  Under  the provisions of  s. 376  of the  Code of Criminal Procedure no appeal by  a convicted  person  would  lie  in  any  of  the following cases:-           (1)  where a  High Court passes only a sentence of                imprisonment for  a term  not  exceeding  six                months or  of fine not exceeding one thousand

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 68  

              rupees;           (2)  where a  Court of  session or  a Metropolitan                Magistrate  passes   only   a   sentence   of                imprisonment for  a term  not exceeding three                months or  of fine  not exceeding two hundred                rupees;           (3)  where a  Magistrate of the first class passes                only a  sentence of  fine not  exceeding  one                hundred rupees;           (4)  where,  in   a  case   tried   summarily,   a                Magistrate empowered to act under section 260                passes only  a sentence of fine not exceeding                two hundred rupees.      Thus if  the Sessions  Judge were to try an accused and sentence him  to fine or to imprisonment not exceeding three months, he  would have  no right  of appeal  at all.  On the other hand, if a Special Judge imposes the same sentence, an appeal lies  to the  Supreme Court as of right both on facts and  on   law.  Could   it  be  reasonably  argued  in  such circumstances that  the right  of appeal provided by the Act was harsher  or less  advantageous to  the accused ? For the reasons given  above, our  answer to this question is in the negative. 555      It was  then pointed  out  that  the  right  of  having matters decided  in A  revision by  the High  Court has been taken away  from the  accused by the procedure prescribed by the Act,  under s.  11(1) under  which no  appeal also  lies against an interlocutory order and it was contended that the section   therefore    entailed   a    definite   procedural disadvantage to  the accused. This argument also is based on a misconception  of the  provisions of  the Act and those of the Code of Criminal Procedure, section 397(2) of which runs thus:-           "397. (2) The powers of revision conferred by sub-      section (1)  shall not  be exercised in relation to any      interlocutory order  passed  in  any  appeal,  inquiry,      trial or other proceeding."      Thus, even  the Code  of Criminal  Procedure  does  not provide for  any revision against an interlocutory order. As to what  is the  connotation of  an interlocutory order is a matter with which we are not concerned in this case. What is material  is   that  so  far  as  interlocutory  orders  are concerned, there  is no  right of  revision either under the code of  Criminal Procedure or under the Act. In considering this aspect  of the  matter one  must also  bear in mind the fact that  under the  Act the Special Court is presided over by no  less a  person who is a sitting Judge of a High Court and the  possibility of miscarriage of justice is reduced to the bare  minimum. While  adverting to  this aspect  of  the case, this Court observed in the case of V. C. Shukla v. The State through C.B.I. (supra):           That the  Act makes  a distinct departure from the      trial of  ordinary offences  by criminal courts in that      the trial  of the  offences is entrusted to a very high      judicial dignitary  who is  a sitting Judge of the High      Court to be appointed by the Chief Justice concerned on      the recommendations of the Chief Justice of India. This      contains a  built-in safeguard  and a  safety valve for      ensuring the  independence of judiciary on the one hand      and a  complete fairness  of trial  on  the  other.  In      appointing  the   Special  Judge,  the  Government  has      absolutely no hand or control so that the Special Judge      is appointed  on the  recommendations  of  the  highest      judicial authority  in the  country,  viz.,  the  Chief

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 68  

    Justice of  India. This  would naturally  instil  great      confidence of  the people  in the  Special Judge who is      given a very elevated status."      We may  mention here that in the case of Jagannath Sonu Parkar v. State of Maharashtra, the right of appeal, from an order of a Special 556 Magistrate  directly   to  the  High  Court  (bypassing  the Sessions Judge)  was held  to be  more advantageous from the point of  view of the accused In this connection, this Court said:           "It is true that if the complaint was filed in the      Court of  Magistrate having  jurisdiction  over  Deogad      alone, as  it could  lawfully be filed, an appeal would      against an  order of  conviction, lie  to the  Court of      Session, Ratnagiri  and an  application in the exercise      of revisional  jurisdiction to  the High Court from the      order of  the Court  of Session. But it is difficult to      hold that  this amounts  to any  discrimination.  Apart      from the  fact that  the trial  by a special Magistrate      and an  appeal directly  to the  High Court against the      order of  the Magistrate  may be  regarded normally  as      more  advantageous   to  the   accused   persons,   the      distinction between  Courts to which the appeal may lie      arises  out   of  the   constitution  of   the  Special      Magistrate and not any special procedure evolved by the      Notification."      What is  true of  an appeal  to the High Court from the order of  a Special  Magistrate equally applies to an appeal to the  Supreme Court  from the  order of  a  Special  Court constituted under  the Act. Thus, viewed from any angle, the procedure prescribed  by  the  Act  cannot  be  said  to  be prejudicial or  less advantageous  to the accused, much less harsher or  more rigorous  than the one provided in the Code of Criminal Procedure.      It was  then argued  that though  the Special Court has been give  the status of a Court of Session under s. 9(3) of the Act,  yet it  has to  follow, under  s. 9(1) thereof the procedure prescribed for the trial of warrant cases before a Magistrate in  sections 238  to 243  and 248  of the Code of Criminal Procedure. We cannot conceive how any grievance can be made  on this  score that  the provision  is  harsh.  The procedure  for   trial  of   warrant  cases   gives  a  full opportunity to  the accused  to participate  in the trial at all its  stages and to rebut the case for the prosecution in every possible  manner and  it has  not been pointed out how the adoption  thereof for  trials under  the Act would be to the disadvantage  of the accused. We find that the grievance put forward is unfounded.      Great reliance  was placed  by learned  counsel on  the judgment in  the State of West Bengal v. Anwar Ali Sarkar in support of  the proposition that the procedure prescribed by the Act was harsh and disadvantageous to the accused. Before referring to certain passages in 557 that judgment  (which  has  been  fully  considered  in  the Reference  case)  we  consider  it  necessary  to  give  the background and  the special  facts in the light of which the Judges of  this Court  made the  relevant observations.  The West Bengal  legislature  passed  the  West  Bengal  Special Courts Act  (hereinafter to  be referred  to  as  the  ’West Bengal Act’)  constituting Special Courts and empowering the State Government  to refer  cases or  offences or classes of cases or  classes of  offences to such Courts but did not at all indicate any guidelines as to the nature of the cases to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 68  

be so  referred which was thus a matter left entirely to the discretion of the Government. In other words, the Government was given  a blanket  power to  refer any case of whatsoever nature to the Special Courts. Sub-sections (1) and (2) OF s. 5 of the West Bengal Act are extracted below:-           "5(1) A  Special Court  shall try such offences or      classes of  offences or  cases or  classes of cases, as      the State Government may by general or special order in      writing, direct.           (2) No  direction shall  be made under sub-section      (1) for  the trial  of an  offence for which an accused      person was  being tried at the commencement of this Act      before  any   court,  but,   save  as  aforesaid,  such      direction may be made in respect of an offence, whether      such  offence   was  committed   before  or  after  the      commencement of this Act."      A perusal of these provisions would show that the State Government was  given an  uncontrolled power  to  refer  for trial offences or cases by a general or special order. Under s. 3,  the Government was empowered by a notification in the official Gazette  to constitute  Special  Courts  and  s.  4 provided for  the appointment  of Special  Judges to preside over such  Courts. Even  though no conditions regulating the exercise of  discretion by  the State  Government were laid, Sastri, C.J.,  upheld the  validity of the law on the ground that the State in the exercise of its governmental power was entitled to  make laws  operating differently  to  different groups of classes of persons. Elaborating the point, Sastri, C.J., observed:           "In the face of all these considerations, it seems      to me difficult to condemn section 5(1) as violative of      Article 14,  If  the  discretion  given  to  the  State      Government   should    be   exercised   improperly   or      arbitrarily,   the   administrative   action   may   be      challenged as  discriminatory, but it cannot affect the      constitutionality of  the law. Whether a law conferring      discretionary powers  on an administrative authority is      constitutionally valid  or not should not be determined      on the  assumption that  such authority  will act in an      arbitrary manner in exercising the discretion committed      to it .... On the contrary, 558      it is  to be  presumed that a public authority will act      honestly  and   reasonably  in   the  exercise  of  its      statutory powers,  and that the State Government in the      present case  will, before directing a case to be tried      by a  Special Court, consider whether there are special      features and  circumstances which might unduly protract      its trial  under the ordinary procedure and mark it off      for speedier trial under the Act.           ...                 ...                ...           Even  from   the  point   of  view  of  reasonable      classification, I can see no reason why the validity of      the Act  should not  be sustained.  As already  pointed      out, wide  latitude must be allowed to a legislature in      classifying persons  and things to be brought under the      operation of  a special  law, and  such  classification      need not  be based  on an exact or scientific exclusion      or inclusion.      It might  be noticed,  therefore, that  even though  no guidelines at  all were provided by the statute, yet Sastri, C.J., held  that the classification was a reasonable one and sustained  the  validity  of  the  law.  The  other  Judges, however, did  not agree  with the  view of Sastri, C.J., and struck down  the provisions  of section 5 of the West Bengal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 68  

Act. However,  the judgment  is wholly  inapplicable to  the present case  in which  the Act  not only  lays down  clear, explicit and  exhaustive guidelines but further requires the State Government  to  act  only  on  the  basis  of  certain specific conditions  and after  being satisfied  on a  fully application of  the mind  that a  prima facie  case was made out. We  have already  indicated that  by enacting s. 5, the Act makes  the various  clauses of the preamble as a part of that section.  Thus, any  possibility of  discrimination  or absolute or  arbitrary exercise of powers is excluded by the Act. The  case of Anwar Ali Sarkar (supra), therefore cannot furnish any criterion for judging the validity of any of the provisions of the Act. It is in the light of this background that we  have to  examine Anwar Ali Sarkar’s case. It may be mentioned that  one of the grounds which appealed to Sastri, C.J., was  that the  object of  the West  Bengal Act  was to provide for  speedier  trial  by  instituting  a  system  of Special  Courts   with  a  simplified  procedure  which  was sufficient, in  his opinion, to justify the validity of that Act. Fazal Ali, J., (as he then was) laid stress on the fact that although  a  procedure  ensuring  a  speedy  trial  was prescribed by  the West  Bengal Act yet that Act had not set out any  principle of  classification while  laying down the new procedure.  He held  that in the absence of a reasonable classification a procedure which catered to a speedier trial was itself not sufficient to justify the constitutionally of the West  Bengal Act.  In the  instant case, we have already pointed out 559 that a  reasonable classification  of a  particular  set  of persons or class of persons, viz., those holding high public and political  offices, has  already been made and that this classification is  consistent with the object of the statute which is  a rational  one, viz., expeditious trial. This was not true  of the  West Bengal Act, s. 5 of which was held to be violative  of Art.  14 by Mahajan, J., also on the ground that there  was no  basis  for  the  differential  treatment prescribed in the West Bengal Act. He observed:           "Section 5  of the  West Bengal Special Courts Act      is hit by article 14 of the Constitution inasmuch as it      mentions  no   basis  for  the  differential  treatment      prescribed in the Act for trial of criminals in certain      cases and for certain offences....           By the process of classification the State has the      power of  determining who should be regarded as a class      for purposes  of legislation  and in  relation to a law      enacted on a particular subject." These observations  can obviously have no application to the present case  because, as  already held by us, the Act makes not only a classification but a classification which fulfils the dual test laid down by this Court in several cases      Reliance was placed by the counsel for the appellant on the following observations of Mahajan, J.:           "The present  statute suggests no reasonable basis      or classification,  either in respect of offences or in      respect of  cases. It  has laid  down no  yardstick  or      measure for  the grouping either of persons or of cases      or of  offences by  which measure these groups could be      distinguished from those who are outside the purview of      the Special  Act. The Act has left this matter entirely      to  the   unregulated  discretion   of  the  provincial      government." These observations  also do  not apply  to the  facts of the present case  because  the  Act  in  the  present  case  has provided a  rational basis  for the  classification and laid

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 68  

down specific  yardsticks for  grouping of  special class of persons and  has provided a different procedure which is not harsh (the  position being different in the West Bengal Act) and which  is undoubtedly favourable and advantageous to the accused.      Reliance was  also placed  on  a  few  observations  of Mukherjea, J.,  where he  has pointed out that in making the classification the  legislature cannot certainly be expected to provide absolute symmetry and has held 560 that   while   recognising   the   degree   of   evil,   the classification  should   not  be  arbitrary,  artificial  or evasive. He has stated:           "It must  rest always  upon real  and  substantial      distinction bearing  a reasonable  and just relation to      the thing  in respect  to which  the classification  is      made."      There can  be no doubt that the present Act fulfils all the condition  laid down  by Mukherjea,  J., who  found that certain provisions  of the  West Bengal  Act  curtailed  the rights of  the accused  in  a  substantial  manner,  thereby resulting in  discrimination. Here  we have  already pointed out that  no rights  of the  accused have been curtailed and that on  the other  hand, the  procedure prescribed  is more advantageous and  fair to  him than that available under the ordinary law  of the  land, namely,  the  Code  of  Criminal Procedure.      Finally, Mukherjea,  J., pointed  out that the language of s.  5(1) of  the West  Bengal Act  vested an unrestricted discretion in  the State  Government in  cases or classes of cases to  be tried  by the  Special Court in accordance with the procedure  laid down  by that Act. This infirmity is not present in  the provisions  of the  present Act which treats equally all persons who form part of the classification made by the  Act, the same procedure being applicable to all. The ordinary law  governs only those persons who are left out of the classification  and do  not fulfil the conditions of the persons constituting  the class,  namely,  holders  of  high public and  political offices.  Thus,  the  observations  of Mukherjea, J.,  are of  no help  to the  appellants which is also true  of passages appearing in the judgment of Das, J., (as he  then was)  and cited  before us. In the first place, Das, J.,  deals with  the conditions  necessary for  a valid classification, which  have already  been spelt  out by  us. There the  learned Judge  held that  if the State Government classified offences  arbitrarily, without  any reasonable or rational basis having relation to the object of the Act, its action will  amount to  an abuse  of  its  powers.  We  have already pointed  out  that  there  is  no  question  of  the classification  made   by  the   Act  being   arbitrary   or unreasonable because  the basis  for the  classification  is undoubtedly a  reasonable one  and has a rational nexus with the object  of the  Act, namely,  expeditious trial. We have pointed out  that it will be in the public interest that the offenders sought  to be  tried under  In the  Act are either convicted or  acquitted within  the shortest  possible time. Bose, J.,  conceded that  though the procedure prescribed by the West  Bengal Act  may promote  the ends  of justice  and would be 561 welcome, yet  he took  serious exception to the differential treatment resulting therefrom. He observed:           "What  I   have  to   determine  is   whether  the      differentiation made offends what I may call the social      conscience of  a sovereign  democratic republic.. It is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 68  

    the differentiation  which matters; the singling out of      cases or groups of cases or even of offences or classes      of offences,  of a  kind fraught with the most serious’      consequences to the individuals concerned, for special,      and what some would regard as peculiar, treatment."      All these  observations have however, to be read in the light of  the peculiar  provisions of  the West  Bengal  Act which contained  no guidelines, no conditions, no safeguards but conferred  uncontrolled  and  arbitrary  powers  on  the Government to  make the  classification as  it liked.  This, however, is  not the case here. We are, therefore, unable to agree with  learned counsel  that the  observations  of  the Judges constituting  the Bench  in Anwar  Ali Sarkar’s  case (supra) can  be called  into aid for the purpose of striking down the Act in the present case.      Thus, after  a consideration  of the  provisions of the Act,  the   guidelines  contained   in  the   preamble,  the procedural part  of the  Act and  the classification made we are clearly  of the opinion that none of the sections of the Act are  violative of  Art. 14  or  Art.  21  or  any  other provision  of   the   Constitution.   We   hold   that   the classification is  valid and  reasonable and  has a rational nexus with  the object  of the  Act and  that the  procedure prescribed  is   fair  and   advantageous  to  the  accused. Accordingly, we  declare that the Act and its provisions are constitutionally valid  and over-rule preliminary objections taken on behalf of the appellants.      FAZAL ALI,  J. The appellant, V. C. Shukla (hereinafter referred to as ’A-1’) in criminal appeal No. 494 of 1979 has been convicted  by the  Sessions Judge,  Delhi under  s. 120 read with  ss. 409, 435, 411, 414 and 201, Indian Penal Code and also  under s.  409, Indian Penal Code in respect of the positive print  and negative  and other material of the film ’Kissa Kursi  Kaa; under  s. 411  read with  s. 109,  Indian Penal Code;  under s.  414 read  with s.  109, Indian  Penal Code: under  s. 435 read with s. 109 I.P.C. and under s. 201 read with  s.  109,  I.P.C.  The  appellant,  Sanjay  Gandhi (hereinafter referred  to as  ’A-2’) in  Criminal appeal No. 493 of  1979 has been convicted by the Sessions Judge, Delhi under s.  120 B  read with  ss 409, 435, 411, 414 and 201 of the Indian Penal Code and 562 has been  further convicted  under ss.  435,  411  and  201, I.P.C. in  regard to  the negative and other material of the film ’Kissa Kursi Kaa’ as also under s. 409 read with s. 109 of the  Indian Penal Code. Accused No. 1 was sentenced under s. 120 read with ss. 409, 435, 411, 414 and 201 to two years rigorous imprisonment;  under s. 409; regarding the negative and other materials to two years rigorous imprisonment and a fine of  Rs.  20,000/-  and  in  default  further  6  months rigorous imprisonment;  under s.  409 regarding the positive print of  the film  to two  years rigorous  imprisonment and fine of  Rs. 5,000/- and in case of default further rigorous imprisonment for three months; under s. 411 read with s. 109 to rigorous  imprisonment for  one year;  under s.  414 read with s.  109 to rigorous imprisonment for one year; under s. 201 read  with s. 109 to rigorous imprisonment for one year; and under  s. 435  read with s. 109 to rigorous imprisonment for one  year and  six months.  Accused No.  2 was sentenced under s.  120  B read with ss. 409, 435, 411, 414 and 201 to rigorous  imprisonment  for  two  years;  under  s.  435  to rigorous imprisonment for one year and six months and a fine of Rs.  10,000/- and  in case  of default  further  rigorous imprisonment for  four months;  under  s.  411  to  rigorous imprisonment  for   one  year;  under  s.  414  to  rigorous

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 51 of 68  

imprisonment for  one year;  under s.  201 in  regard to the negative etc.,  to rigorous imprisonment for one year; under s.  201   in  regard   to  13   trunks,  etc.,  to  rigorous imprisonment for  one year and under s. 409 read with s. 109 to  rigorous  imprisonment  for  two  years.  The  aforesaid sentences or  imprisonment were  ordered to run concurrently in the case of both the accused.      The learned  Sessions Judge has given full and complete details of  the prosecution  case against the appellants and has divided  the allegations  against them in several parts. On being convicted by the Sessions Judge, Delhi, the accused filed appeals  before the  Delhi High  Court  against  their convictions  and   sentences,  indicated   above,  and  were released  on  bail  pending  the  hearing  of  the  appeals. Meanwhile, the  Special Courts  Act of  1979 came into force and by  virtue of  a declaration made under s. 7 of the said Act., the  appeals stood  transferred to this Court and were placed for  hearing before us. As the learned Sessions Judge has given  all the necessary details of the prosecution case against the  appellants, it  is not necessary for us to give all the  facts but  we propose  to give a bird’s eye view of the sub-stratum of the allegations on the basis of which the appellants have  been convicted,  dwelling  particularly  on those aspects  which merit  serious consideration.  We  have heard learned  counsel for  the parties at great length both on the  constitutional points  involved in  appeals and  the facts. By an order dated December 5, 1979, we 563 disposed of  the constitutional  points which  were  in  the nature of  preliminary objection  to the  maintainability of these appeals  and overruled  these objections.  The reasons for the  said order  have been  given by us which would form part of  this judgment.  Coming now  to the  facts, shorn of unnecessary details, the story begins with the production of a film  called Kissa  Kursi Kaa  by Shri Amrit Nahata, PW 1, under the  banner of  Dhwani Prakash.  PW 1  was a member of Parliament and  had produced  the film in the year 1975. The film, according  to the  prosecution, was a grotesque satire containing a  scathing criticism  of the  functioning of the Central Government  and was open to serious objections which were taken  even  by  the  Central  Board  of  film  Censors (hereinafter to  be referred  to as  the ’Board’). After the film was  ready for release, PW 1, Amrit Nahata, applied for certification of  the film  on the 19th of April 1975 before the Board.  The film  was viewed  on April  24, 1975  be  an Examining Committee  of the  Board and  while three  Members were of  the opinion  that certificate  for exhibition, with drastic cuts  should be  given, another Member and Mr. N. S. Thapa, the  Chairman disagreed  with the  opinion  of  their colleagues  and  accordingly  referred  the  matter  to  the Revising Committee. The Revising Committee after viewing the film agreed  by a  majority of 6: 1 for certification of the film, the  dissent having  been voiced  by  Mr.  Thapa,  the Chairman  and   accordingly  under   rule  25(ii)   of   the Cinematograph (Censorship) Rules, 1958, a reference was made to the  Central Government  on 8-5-75. In this connection, a letter was  addressed to  PW 6, Mr. S.M. Murshed, who was at the relevant  period Director in the Ministry of Information & Broadcasting,  Incharge of  film and T.V. Projects and was appointed  Joint   Secretary   on,   1st   May   1975.   The correspondence in  this regard  is to  be found  in the file Ext. PW/6A.  Before making  his comments  PW 6  saw the film time in  the middle  of May  1975. Meanwhile,  PW  1,  Amrit Nahata. was  directed to  deposit the  positive print of the film comprising  14 reels  of 35  mm with the Films Division

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 52 of 68  

Auditorium,  situate   at  1,   Mahadev  Road,   New   Delhi (hereinafter to  be referred  to as  the  ’Auditorium’).  In pursuance of these directions, PW 1 deposited . the positive print and  an entry  thereof Was  made by the Librarian-cum- Projectionist of the Auditorium which is Ext. PW 17/A. PW 17 K.P. Sreedharan,  who was  a Technical Officer Incharge also inspected the reels and found them in order.      Although Murshed,  PW 6,  after seeing  the film agreed with the  opinion of the Chairman of the Board that film may be open  to objection  on the  ground that  it was  full  of sarcasm and contained criticism of the political functioning of the government machinery 564 yet he  was personally of the opinion that certification for exhibition should  not be  refused. The  witness accordingly recorded a  note and  submitted it  to Mr. A. J. Kidwai, the then Secretary,  Ministry of  information and  Broadcasting. The matter  was then  examined by Mr. I.K. Gujaral, the then Minister of Information & Broadcasting but no final decision was taken.  Meanwhile, PW  1,  Amrit  Nahata  filed  a  writ petition in  this Court which is Ext. PW 1/D. On the 23rd of June  1975,   a  notice   was  issued  by  the  Ministry  of Information &  Broadcasting to  PW 1,  Amrit Nahata, to show cause why  certification to  the film  be not  refused.  The notice was  made returnable by 9-7-75. Thus, it appears that the Ministry  of Information  &  Broadcasting  had  taken  a tentative decision  to  refuse  certification  to  the  film because of  its objectionable and offensive nature. We might state here  that so far, neither A-1 nor A-2 was anywhere in the picture.  In fact,  the position  is that the film faced rough weather  even at the initial stage of consideration by the Board  as a  result of  which the matter was referred to the Central  Government where  the question  of  refusal  of certification was  seriously  considered  and  ultimately  a notice was  issued under  the directions of the Ministry. We have particularly  highlighted this  aspect  of  the  matter because the learned Sessions Judge was largely swayed by the consideration that A-1 took a very prominent part in banning the film  and  in  getting  the  positive  print  and  other material in  his personal  custody in  order to  destroy the same with  the aid  of A-2.  On the  other hand,  the  facts disclosed by  the prosecution  ex facie show that objections to certification  of the  film had  been taken  at the  very initial stage  and the  ultimate order was passed during the time when  A-1, Mr. Shukla had taken over as Minister, which was merely the final scene of a drama long in process.      Continuing the  thread from where we left it, Emergency was proclaimed  911 the  night between 25th and 26th of June 1975 and  soon thereafter  A-1  took  charge  as  the  Union Minister of  Information &  Broadcasting and  he was  of the opinion that  the film should be banned. On July 5, 1975, in pursuance of  the decision  taken by the Central Government, the Coordination  Committee directed seizure of the film and that  its  negatives,  positives  and  all  other  materials relating to  it be  taken in  the  custody  of  the  Central Government vide  Ext. PW 6/D. On July 10, 1975, A-1 directed that the  film be banned from screening under the Defence of India Rules,  vide Ext.  PW 6/E-4.  Finally, on  the 11th of July  1975,   PW  6,   Murshed,  passed  an  order  that  no certification was  to  be  given  to  the  film  for  public exhibition which  was followed  by a  letter dated  July 11, 1975, forfeiting the film to the Government. In pursuance of the decision taken by the Central 565 Government, PW  39, S.  Ghose, Deputy Secretary, Incharge of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 53 of 68  

the Films  Division, wrote  a letter to the Chief Secretary, Government of  Maharashtra for  seizure of all the positives and negatives  of the  film as also other related materials. In pursuance  of this  order, the  Bombay police  seized the entire film on 1-8-1975 and deposited the same in the godown of the  Board. As, however, a final order had been passed by the Government banning the film, PW 1, Amrit Nahata, filed a petition for special leave in the Supreme Court on 6-9-1975. This petition  was heard on 29-10-75 and this Court directed the Government  to screen  the film  on  17-11-1975  in  the Auditorium for  being shown  to the  Judges constituting the Bench. In  pursuance of  the order of this Court, intimation was sent  to the  Ministry concerned  and PW  62, Mr. S.M.H. Burney, who  was then  Secretary, Ministry  of Information & Broadcasting, directed  that immediate  action be  taken  to implement  the   orders  of  the  Supreme  Court,  and  that arrangements should  be made  to book the Auditorium for 17- 11-1975. By  a letter  dated 5-11-1975,  Ext. PW  2/A-2, the Supreme Court  was also  informed regarding  the steps taken which, according  to the prosecution were the prelude to the conspiracy  between   the  two  appellants  leading  to  the seizure, disposal and destruction of the film.      Sometime thereafter, PW 2, L. Dayal, took over as Joint Secretary (Films Division) in place of Mr. Murshed.      We  might   emphasise  at  this  stage  that  there  is absolutely no evidence to show that there was any meeting of minds between  A-1 and  A-2 nor  is there  any  material  to indicate that  A-2 played  any role  in the  banning of  the film. The  decision to  ban the  film appears  to have  been taken by  the Ministry  headed by  A-1, on the merits of the case. No motive is attributable to A-1 at this stage because even the  Chairman of the Board, PW 8, Mr. Thapa, who was an independent witness,  was of  the view  that the film should not be  certificated for  public exhibition.  Similarly, the steps taken  by the officers of the Ministry in pursuance of the banning  of the film, namely, the seizure of the film at Bombay and  its transfer to Delhi appear to be in the nature of routine  to see that the decision taken by the Government was implemented. As no stay had been obtained by PW 1, Amrit Nahata, from the Supreme Court, the Government was not bound to stay  its hands.  On the  other  hand,  as  soon  as  the Ministry received the orders of this Court for screening the film on  17-11-1975, immediate  steps were  taken to  comply with the orders of this Court.      Before we proceed further, we might indicate that it is well settled  that in  order to  prove a criminal conspiracy which is punishable under 566 s. 120  B of  the Indian Penal Code, there must be direct or circumstantial evidence  to show that there was an agreement between two  or more  persons to  commit  an  offence.  This clearly envisages  that there  must be  a meeting  of  minds resulting in  an ultimate decision taken by the conspirators regarding the  commission of  an offence. It is true that in most case  it will be difficult to get direct evidence of an agreement to  conspire but a conspiracy can be inferred even from  circumstances   giving  rise   to  a   conclusive   or irresistible inference  of an  agreement between two or more persons to  commit an offence. After having gone through the entire evidence,  with the  able assistance  of Mr. Rajinder Singh, learned  counsel for  A-1 and  of learned counsel for the State,  we are  unable to  find any  acceptable evidence connecting either  of the  appellants with  the existence of any conspiracy.  We are  further of  the opinion  that  even taking the  main parts of the prosecution case at their face

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 54 of 68  

value, no connection has been proved with the destruction of the film  and the  two appellants.  The prosecution  has, of course, produced some witnesses to show the existence of the alleged  conspiracy  or  some  sort  of  connection  of  the appellants with  the  destruction,  of  the  film  but  that evidence, as  we shall  show, falls short of the standard of proof required  in a  criminal case.  We  realise  that  the prosecution   was    seriously   handicapped   because   the investigation started  only after the Janata Government came into power in March 1977, that is to say, about a year and a half  after   the  offences   in  question   were  allegedly committed, by when naturally much of the evidence would have been lost  and even some of the important witnesses examined by the prosecution had turned hostile and refused to support its case. Despite these difficulties, the prosecution has to discharge its onus of providing the case against the accused beyond reasonable doubt. We, therefore, propose to deal only with that  part of the evidence led by the prosecution which has been  relied upon  to prove some sort of a connection of the appellants with the alleged destruction of the film      In  this  connection,  we  propose  to  deal  with  the evidence in three separate parts-           (1)  the deposit  of the  positive  print  in  the                Auditorium and  its alleged  transfer to  the                personal custody of A-1 ;           (2)   the arrival  of thirteen  trunks  containing                negative and  other material  related to  the                film at New Delhi from Bombay in pursuance of                the orders  of A-1  and their  transfer to 1,                Safdarjung Road,  then to the Maruti Complex;                and 567           (3)  the actual  orders alleged to have been given                by A-2  for burning  the film in the premises                of  the   Maruti  Complex   which  operation,                according to  the prosecution was carried out                by the  approver, PW  3, Kherkar,  and  other                witnesses  between   the  10th  and  24th  of                November 1975.      Although there  are other elements on which prosecution has adduced evidence which is by no means very convincing or consistent but  even if  we  assume  those  elements  to  be proved, if the three aspects indicated above, are not proved the prosecution is bound to fail.      We now proceed to deal with the first part of the case.      (1) The deposit of the prints at the Auditorium and its alleged transfer to the personal custody of A-1.      In the  Auditorium, PW 17, Sreedharan screened the film in order  to show the same to PW 6, Murshed, on the 22nd May 1975 and  again on  the next  day at  the  instance  of  the Ministry of  Information &  Broadcasting. Some private shows were also  screened at  the instance  of PW 1, Amrit Nahata, though this was not permissible under the Rules. It was also the prosecution  case that  PW 39,  Ghose and  PW 61,  C. K. Sharma met  PW 17,  Sreedharan and  PW 18, Bhawani Singh and examined the  prints which were then kept in the green room. Ghose then  rang up  Sreedharan and  told him  that  he  was coming to  the Auditorium  to take  delivery of  the prints. Accordingly, PW  39, Ghose  is said  to have  arrived at the Auditorium and the fourteen reels contained in cans were put on the  back seat  of his  car. PW  39, Ghose  then went  to Shastri Bhavan  and put  the cans  in the dicky of the staff car of  A-1 in  the presence of the driver, Babu Ram, PW 33. Thereafter, when  A-1 came,  Babu Ram  took the  car  to  1, Safdarjung Road where the cans were unloaded and kept in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 55 of 68  

office of  R. K. Dhavan, Additional Private Secretary to the then Prime  Minister. In  support of  this part of the case, the prosecution  examined PW  18, Bhawani Singh, PW 33, Babu Ram; PW  61, C.K. Sharma; PW 57, V.S. Tripathi, PW 60, R. L. Bandish and  PW 39,  Ghose. So  far as PWs 39, 57, 60 and 61 are concerned,  they did  not support  the prosecution  case regarding the  transfer of  the prints to the custody of A-1 as alleged  by the  prosecution. So  the only  witnesses  to prove the  factum of  transfer  were  PWs  17  and  33.  The prosecution also  examined some  other witnesses PW 1, Amrit Nahata, PW  2, L.  Dayal and  PW 62, Burney to show that the transfer 568 of the  positives of  the film  to the  custody of  A-1  was carried out  at the oral instruction of A-1. PW 62, however, did not support the prosecution and thus, on this point, the only witnesses worth considering are PWs 1 and 2.      We would  first refer  to the  evidence of  PW 1, Amrit Nahata. He  stated that  he  was  directed  to  deposit  the positive print  of the Films to Films Division Auditorium at Mahadev Road and consequently he complied with the direction on 17-5-1975, and obtained a receipt. The witness goes on to state that  one of  the factors  which weighed  with him  in withdrawing the  writ petition  he had  filed in the Supreme Court  was   that  he  was  persuaded  and  pressurised  and threatened  by  A-1  to  withdraw  the  writ  petition.  He, however, admitted  in his cross-examination that the process of persuasion and pressurisation and threats was carried out not on  one but  on several  occasions. He  then went to the extent of saying that the Minister (A-1) used to talk to him in  this   connection  in  Parliament,  in  his  office  and sometimes even  at Shastri  Bhavan. He  further stated  that even in  the Central  Hall of Parliament he did not hesitate from threatening  him. The  witness admitted  that he  never filed any  written  application  before  the  Supreme  Court alleging the  threats given to him by A-1. He further admits that after  the Janata  Government took  over in  March 1977 while he had written to Mr. L. K. Advani, who succeeded A-1. regarding  the   film,  he  made  no  mention  of  any  such conversation between  him and  A-1 about  the threats,  etc. Finally, he  admitted that  no one was present in the office when he  talked to, Mr. Shukla. In view of these statements, we find  it difficult  to believe  the witness.  The  entire version given  by him  is  inherently  improbable,  firstly, because of  his failure to draw the attention of the Supreme Court to  the threats,  etc. Secondly,  it is  impossible to believe that  after the  Janata Government came to power and he wrote a letter to Mr. Advani regarding the film, he would not mention  that he  had been  pressurised or threatened by A-1 when he was undoubtedly very much interested in his film being exhibited and bore a serious grouse and animus against A-1 because  he had  refused certification for exhibition of his film. In these circumstances, we are unable to place any reliance of  the testimony  of this  witness so  far as  the allegation of  threats, pressurisation, etc., made by A-1 is concerned. Thus,  if his evidence is rejected on this point, then excepting  the testimony  of PWs  2 and 63, there is no evidence to  show that  A-1 had  any connection or link with the transfer of the positive print of the film.      This brings  us to  the consideration  of an  important witness PW  2, L.  Dayal, on  whom great  reliance has  been placed by the learned 569 Sessions Judge.  So far as PW 2 is concerned, he states that sometime in  the first  week of November, A-1 called him and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 56 of 68  

said that  he had  decided to  keep all material relating to the  film   in  his   personal  custody  and  that  detailed arrangements for  the delivery of the material would be made by his  personal staff  and the  work would  be  done  by  a respectable officer.  The witness further states that PW 57, V. S.  Tripathi, was  also present  at the  time  when  this conversation between  the witness  and A-1  took  place.  He further states  that he  had apprised  PW  62,  Burney,  the Secretary, of the talk he had with A-1. Both PW 57 and PW 62 have not  supported the  witness on  these points  and  have denied the  same. The  witness had  also stated  that he had called PW  39, Ghose and apprised him of the instructions of the Minister  for carefully  and confidentially  putting all material in  the personal  custody of  the Minister.  Ghose, however, in  his evidence  does not  support  the  story  of instructions by  the Minister  and denies  having been  told anything of  the kind  by the  witness. Of  course, all  The three witnesses,  namely, Tripathi.  Burney and  Ghose,  had been declared  hostile. The witness further goes on to state that he  had called  PW 4,  Khandpur, who  happened to be in Delhi and had told him that all the film material pertaining to the  film ’Kissa  Kursi Kaa’  Lying at  Bombay had  to be carefully and confidentially collected and sent to Delhi. PW 4,  however,   clearly  admits  in  his  evidence  that  the instruction which  he had  received was to send the material to the  Ministry of  Information & Broadcasting. As we shall show,  PW   2  appears   to  be  deeply  interested  in  the prosecution. In  these circumstances,  even Mr.  Jethmalani, appearing for  the State, frankly conceded that he would not ask the  Court  to  rely  on  this  witness  unless  he  was corroborated by  some other  independent evidence.  In fact, far from there being any independent evidence to corroborate the version  of the  witness in  regard to  the  instruction given by  A-1, the  persons to  whom the  witness  mentioned these facts,  viz., Tripathi,  Burney and  Ghose,  have  not supported him. Thus, so far as the role played by A-1 on the first part  of the  case  is  concerned,  this  is  all  the evidence produced by the prosecution and is this evidence is rejected, Then  it is  not proved  at whose  instruction the film  cans  were  transferred  from  the  Auditorium  to  1, Safdarjung Road  nor has  it been  established that this was done with the knowledge of A-1.      Coming back  now to the evidence of the transfer of the positive print from the Auditorium into the car of Ghose and therefrom to  the staff  car of  A-1 at  Shastri Bhavan  and finally to  1, Safdarjung  Road, the  evidence  led  by  the prosecution consists  of PWs  17 and 33. The other witnesses examined on this point have not supported 570 the prosecution case. From the evidence of PW 17, it appears that PWs  Ghose, C.  K. Sharma and Bhawani Singh met him and examined the  prints and  then the  prints were  kept in the green room. Later, the same day Ghose rang up the witness to inform him  that he was coming to take the positive print of the film  which should  be  kept  ready.  Thereafter,  Ghose arrived and  the prints were brought from the green room and placed in  the back  seat of  car of Ghose. Ghose thereafter drove the  car but gave no receipt for taking the film. Half an hour  later,  according  to  the  witness,  there  was  a telephone call from Tripathi to enquire if the film had been delivered to  Ghose. The  witness informed him that this had been done.  I was  also stated  by the witness that a letter (Ext. PW  17/E and  E-1) was  got written by Ghose before he took the  film in  his car.  . It  may be  noticed here that prior to  the filing  of the FIR an inquiry had been held by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 57 of 68  

PW 40, Narayanan, into the manner how the prints of the film were missing  and in that inquiry PW 17, Sreedharan, did not say at  all that  Ghose had  taken away  the film.  In  this connection, the witness deposed as follows:-           "Q. You  did not tell Shri Narayanan that S. Ghose      had come  to you  in his  car and you had delivered the      film to him in his car and he had taken it away?           Ans. No.  I did  not tell him like this (Voltd:-It      was so  as S.  Ghose had asked me to say differently to      Shri Narayanan and I stated as advised by S. Ghose.)           Q. You  know that enquiry had been ordered by Shri      L. K. Advani, Minister for Information & Broadcasting ?           Ans. Yes.           Q. And yet you deliberately told a lie before Shri      Narayanan?           Ans. Yes, because of S. Ghose."      Thus, the  witness admitted  that he spoke a lie before Narayanan merely  because of  Ghose. Further,  even  in  his statement before  the police, the witness did not state that Ghose had  come to  him for taking away the film on the same day, i.e.,  the day  on which  Ghose had  telephoned that he would be  coming to take the film. So far as PW 39, Ghose is concerned, he  has totally denied having told the witness to keep the positive prints ready or that he ever took delivery of the  prints from the witness and put the same in his car. Thus, even  the prosecution case relating to the transfer of the positive  prints through  PW 39, Ghose, to 1, Safdarjung Road becomes doubtful. 571 Even so,  assuming that  Ghose  did  take  delivery  of  the positive prints  that does  not conclude  the matter because the prosecution  has further  to prove  that the prints were taken away from the Auditorium at the instruction of A-1 and then kept in the staff car of A-1 and taken to 1, Safdarjung Road with  the knowledge of A-1. On this print, the evidence of PW  17 is  absolutely silent and he says nothing about it nor was he competent to say the same. The only other witness PW 33, Babu Ram, states that sometimes in the winter of 1975 PW 61,  C.K. Sharma,  called him and told him that there was some luggage (saaman) of Minister Saheb which was to be kept in his  car and  asked him to bring the Minister’s car close to where  Ghose’s car was parked. The witness found 10 to 12 round boxes which were transferred to the dicky of the staff car. Thereafter,  according to the witness, PW 60, Bandlish, had a  talk with  Ghose and after the Minister had come, the car was  driven  to  1,  Safdarjung  Road.  On  reaching  1, Safdarjung Road,  the Minister  went out  of the  car and  a person came  and took,  away  the  saaman.  Thereafter,  the witness drove  A-1 to  other places. In his statement before the police,  the witness  did not  state that  PW 61,  C. K. Sharma had  told him  that  the  saaman  of  Minister  Saheb (emphasis being  on Minister Saheb) was to be transferred to the dicky  of the  staff car. Both Bandlish and C. K. Sharma have not  supported the  version of  this witness  and  have denied everything.  Even taking  the version of this witness at its  face value,  there is  nothing to show that when A-1 boarded the  staff car  at Shastri Bhavan he was told either by the  driver or  by anybody  that the  film cans  had been placed in  the dicky  and were  to be taken to 1, Safdarjung Road or that they had been brought from the Auditorium. Even when the  car reached  1, Safdarjung  Road. Babu  Ram  never informed the  Minister about  the boxes  having been kept in the dicky  nor is  there any evidence to show that the boxes were unloaded from the dicky of the Minister’s car either in his presence  or to  his knowledge.  Thus, all that has been

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 58 of 68  

proved is that the cans were transferred from the Auditorium to 1,  Safdarjung, Road. Taking the evidence of PW 17 and PW 33 as  also PW  18, Bhawani  Singh at  its  face  value,  no connection between  A-1 and  the transfer  of the  film has, been established.  Thus, the prosecution has failed to prove that the  positive prints  of the film were transferred from the Auditorium  to the  personal custody  of A-1 or that the said transfer was done in accordance with his instruction or to his knowledge.           (2) The  transfer of  negatives and other material      related to  the film  from Bombay  to Delhi  and to  1,      Safdarjung Road and from there to Maruti Complex at the      order of A-1 572      So  far  as  this  part  of  the  prosecution  case  Is concerned, the  evidence is wholly insufficient to attribute any knowledge  or ulterior  motive tn  A-1 in  directing the negatives to be sent from Bombay to Delhi. Some evidence has no doubt been adduced be the prosecution to show some amount of criminality  on the  part of A-1 but that evidence, as we shall show, is not very reliable.      To begin  with, according  to PW  6, Murshed,  A-1 said that there  was some  sort of an informal discussion between A-1, Mr. A. J. Kidwai, the then Secretary in the Ministry of Information & Broadcasting and the witness when A-1 directed that the  film be  banned and seized, but that no action was taken by the witness until the file reached him. The witness added that  on  July  7,  1975  there  was  another  meeting attended by Sarin and other officers which was presided over by A-1  and in  this meeting a final decision was taken that the film  should be taken over and mention was made that the Defence of  India Rules  should be pressed into service. The witness further  stated that  ultimately in the Coordination Committee meeting  which was  held on July 10, 1975, and was also presided over by A-1, the earlier decision taken by the Government was reiterated. The witness then goes on to state that he  passed the  order Ext.  PW 6/A-9  on July  11, 1975 which directed  that the  certificate for  public exhibition was refused  and the  said order  was communicated  to PW 1, Amrit Nahata.  This was  followed by  another order  Ext. PW 6/A-10 which  forfeited the film Kissa Kursi Kaa. Both these orders were approved by the Minister which had to be done in consequence of  the decision  taken by the Government. After the film  had been  banned and forfeited, the seizure of the film material  at Bombay  became a necessary consequence and accordingly a  letter dated  July 14,  1975 was issued under the signatures  of PW  39, Ghose  to  The  Chief  Secretary. Government of  Maharashtra for  seizure of the film material relating to  the film  and requiring him to deposit the same with the Board.      The  next  question  that  arises  is  as  to  why  the negatives and other material of the film were directed to be sent to  Delhi. It  is obvious that once the film was banned and forfeited  and action  under the  Defence of India Rules had to  be taken,  it  was  in  the.  nature  of  a  routine operation that  the negatives and other material of the film should  be   placed  in  the  custody  of  the  Ministry  of Information &  Broadcasting. This  appears to  US to  be the main reason  why A-l 11 directed that these materials may be sent from  Bombay to  Delhi. In  order  to  incriminate  the Minister the  prosecution urges that this was done by A-l to get the. negatives, etc., in his personal custody so that 573 he would  be in  a position  to destroy  the same.  On this, there does  not appear to be any clear evidence and even the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 59 of 68  

Sessions  Judge   has  based   his   findings   largely   on speculation.      To begin with, L. Dayal, PW 2, who was then attached to A-1 as  Joint Secretary (Films) states that on 6-11-1975 A-1 told him  in the  presence of  Tripathi, PW 57, that A-1 had decided to keep all material relating to the film in his (A- 1’s) personal  custody, that  detailed arrangements  for the delivery of  the material  would be  made by  A-1’s personal staff and  that the  work had  to be  done by  a responsible officer. The  witness adds  that he conveyed the decision to the Secretary  and to S. Ghose, PW 39, and then called PW 4, Khandpur,  Chief   Producer,  Films   Division,  Bombay  who happened to  be in Delhi and asked him that all the material pertaining to the film ’Kissa Kursi Kaa’ lying at Bombay had to be  carefully and  confidentially collected  and sent  to Delhi. At  the time  when this  talk took  place  Ghose  and Tripathi were  present, according  to PW 2, who then rang up Vyas  (Chairman   of  the   Board)  and   gave  him  similar instructions in the presence of Ghose and Tripathi. However, neither Tripathi  nor Ghose  supports PW 2 on the point that he had  asked Khandpur  to collect the. material of the film ’carefully and  confidentially which  particular words  were attributed to  A-1 to  show his  criminal  intent.  In  this connection, Ghose,  PW 39,  who was  declared hostile to the prosecution, stated:           "As I was coming out of the room of Shri Burney, I      dropped in  Shri Dayal’s  room which  was in  the  same      corridor with a view to inform him that had gone to the      Auditorium and  checked the film and had found the film      intact. I also told him that I had informed Shri Burney      accordingly. I  found Shri  K. L. Khandpur also sitting      in the  room of Shri Dayal. Shri Dayal asked me to take      my seat. After a few moments I found Shri V.S. Tripathi      walking into  the room  of Shri Dayal. He also took his      seat. When  I entered  the room  Shri Dayal was already      conversing with  Shri Khandpur.  Looking at us, namely,      myself and V. S. Tripathi and Shri Khandpur, Shri Dayal      generally enquired  where. filmic material was lying at      Bombay. Shri Dayal also gave direction to Shri Khandpur      for collecting  the filmic  material at  Bombay with  a      view to  transporting it from Bombay to Delhi. I do not      recall Shri  Dayal taking  the name  of the Minister or      the Secretary  at the time of the discussion. I also do      not recall  whether he  mentioned word  secretly during      this discussion. My feeling was that the entire 574      responsibility for the collection and transportation of      the filmic  material from Bombay to Delhi was left with      Shri K. L. Khandpur."      The stand  of Tripathi,  PW 57, who was also allowed to be cross examined by the prosecution was as follows:-           "Shri  Dayal   gave  instructions   to  Shri  K.L.      Khandpur in  my presence  and that  of Shri S. Ghose to      shift the  negative material  of film  Kissa Kursi  Kaa      from Bombay  to Delhi. At the request of Shri Khandpur,      Shri Dayal  also spoke  to late  Shri V.  D. Vyas about      this matter and told him on telephone that the negative      material was  to be  shifted from  Bombay to  Delhi and      that the  transportation arrangement would be explained      by Shri Khandpur to hi on his return to Bombay. Roughly      this is  all that  I re  member and in addition that it      was early in the afternoon."      The witness  was  specifically  asked  whether  in  his presence A-1  gave instructions  to L.  Dayal, PW 2, that he (A-1) wanted  the positives and negatives of the film in his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 60 of 68  

own custody  immediately and  confidentially. He  denied the correctness of  the assertion  and was  con fronted with the following portion  (’E’ to ’E’) of his statement made on the 25th April  1977, to  K. N.  Gupta, Deputy Superintendent of Police, C.I.A., New Delhi:           "Later, some  time in  the afternoon, the Minister      called me  inside his  room. Shri Dayal was also inside      and I noted that discussion was going on about the film      ’Kissa Kursi  Kaa .  The then  Minister of  I & B, gave      instructions to  Shri L. Dayal, Jt. Secy. (Information)      in my presence that he wanted the positives & negatives      etc. of  the film,  "Kissa Kursi Kaa" to be handed over      to him,  in his  custody immediately  & confidentially.      The  Minister  also  said  that  the  arrangements  for      transportation will  be made  by  him  and  Shri  Dayal      should get in touch with the personal staff for this."      The  witness   also  denied   the  correctness  of  the assertion that  in his  presence later on Shri Dayal, PW 2,1 had told Shri Khandpur, PW 4 that the film should be brought from Bombay to Delhi "very carefully without telling anybody about it".  He was  confronted with  portion ’F to F’ of his said statement to the police where the assertion appears.      Even Khandpur,  PW  4,  who  has  fully  supported  the prosecution  has  not  said  anything  in  his  evidence  to indicate that PW2 had said that 575 the  materials  should  be  ’carefully  and  confidentially" collected and  sent to  Delhi. On  the other hand, PW 4 says thus:-           "I was  called by L. Dayal, the Joint Secretary in      his office.  I  was  asked  to  make  arrangements  for      collecting all  material pertaining to film Kissa Kursi      Kaa available at Bombay and to send the same to Delhi.           I have  seen file  CFD/51 shown to me, Ex. PW 4/E.      It  is   named  "Confidential  Material  Received  from      C.B.F’.C. and  sent to  Ministry of  1 &  B in November      1975". This  file pertains  to Films  Division  Bombay.      This file pertains to the film materials of Kissa Kursi      Kaa. Another  file pertaining  to this  film is the one      which contains Exts. PW 4/A to PW 4/C." The file  Ext. PW  4/E was  labelled as  ’Confidential’  and shows that  the film  material was  sent to  the ministry of information &  Broadcasting in  November 1975. But there was nothing to  indicate in the files or in the evidence of PW 4 that the  materials and  negatives, etc., were to be sent to the personal custody of the Minister. As the film was banned and forfeited,  there  was  nothing  incongruous  about  the transfer of  the materials  to Delhi  being  treated  as  an official and confidential matter and even if PW2 had told PW 4 that the film material should be dispatched "carefully and confidentially" that  would not  show any criminal intent on the part of A-l.      In order  to show  that A-1  took  a  somewhat  unusual interest in the dispatch of the negatives and other material of the  film from  Bombay to Delhi it is further the case of the prosecution  that Tripathi  who was Special Assistant to A-1 was sent expressly to receive the materials at New Delhi Railway station  and make  arrangements for  their transport But Tripathi  categorically stated that he never went to the Railway Station  for  the  purpose  of  receiving  the  film material, etc.  On the  other hand, PW2 states that on 9-11- 1975 PW4,  Khandpur informed  him on  telephone from  Bombay that the  film material  was being sent from Bombay to Delhi by Western  Express and  would be reaching Delhi on the next day and  that two  officers, one  of them  being Kane, PW 5,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 61 of 68  

were accompanying the material. PW 2 adds that he then, rang up Ghose  and asked  him to  get in  touch with Tripathi for making the necessary arrangements for transport and delivery of the  material. The  witness goes  on to state that on the 10th November  1975, PW  39. Ghose. came to him and reported that the  film material  had arrived and had been brought in tempos arranged  by A-l.  Ghose, however,  has not supported this witness on this aspect of the matter. Reliance was. 576 therefore, placed on the evidence of PW 5, Kane to show that when he reached Delhi along with the film material, Tripathi was there  to receive  the same.  It is  not  disputed  that Tripathi was  not known  to PW  S, Kane, before the 10th and that by  the time  the witness  saw him  at  the  New  Delhi Railway Station  he had  seen him  only once  in Bombay. The witness doles  state that his pointed attention was drawn to Tripathi because  he had  asked him to settle the payment of charges to  the coolies  and that but for this his attention would not  have been  drawn to Tripathi. He, however, admits that  he   his  statement   before  the  Central  Bureau  of Investigation, he did not mention the fact that Tripathi had asked him  to settle the matter of the payment of charges to the coolies. Thus, the existence of the only circumstance on the  basis  of  which  the  witness  could  have  identified Tripathi becomes  doubtful and  in view  of the  categorical statement of  Tripathi that  he  never  went  to  New  Delhi Railway Station on the 10th of November to receive the film, it is difficult to accept the evidence of PW 5 that Tripathi was the  person present at the station. The possibility that the witness  committed some mistake in identifying cannot be ruled out.  Moreover, the  identification of Tripathi by the witness for the first Lime in the court without being tested by  a   prior  test  identification  parade  was  valueless. Besides, the  witness admits  that in the note Ext. PW 4/E-2 he did  not mention  Tripathi or any other person along with Ghose to have been present at the New Delhi Railway Station. Thus, even on the question of the arrival of the material of the film at New Delhi no direct connection with A-1 has been established by the prosecution. In time, it is not proved by the prosecution  that Tripathi  was present  at the  Railway Station to receive the film and hence it cannot be said that A-l took  an unusual  interest in  seeing that  the film  is properly brought  from Bombay  to Delhi  and placed  in  his custody.      Coming back  to the  evidence  of  PW2,  there  is  yet another circumstance  which he  proves and which merits some consideration. According  to the  witness,  in  the  special leave petition  filed by PW 1, 12th March 1976 was fixed for screening  the   film.  The   witness  adds   that  he  took instruction from  A-1 as  to what  should be  done when  A-l asked him  to inform  the Supreme Court through an affidavit that efforts  had been  made to trace the prints of the film at Bombay as also at Delhi but that there were no chances of their becoming  available. The witness says that he was also directed to mention in the affidavit that such misplacements had often  occurred in  the past, and that he passed on this information to  the Secretary, Mr. Burney who suggested that the orders  of  the  Minister  should  be  carried  out.  In consonance with  the instruction,  Ghose filed  an affidavit before the  Supreme Court  on the  22nd March  1976 but  the Hon’ble Chief Justice emphasised the 577 importance of  making the  film available for viewing by the Judges. The witness recorded a note Ext. PW 2/A-17 to, bring the matter  to  the  notice  of  the  Minister.  Ultimately,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 62 of 68  

however, as  PW  1,  Amrit  Nahata,  withdrew  the  petition nothing further  happened.  It  appears  that  while  .  the petition  was   pending  in   the  Supreme  Court,  contempt proceedings ,,  were taken  against  some  of  the  officers including PW  2 who  also filed four affidavits, one of them on the  28th November  1977 and  the other three on the 28th February 1978. These affidavits are Ext. PW 2/B-1 to B-4. In these affidavits  he wanted  to prove  that as  the film had been mixed  up with  lot other  films received in connection with Fifth  International Film Festival, the material of the film Kissa  Kursi Kaa  was misplaced,  and that  is a  stand which comes  into direct  conflict with the testimony of the witness in court in which the entire blame is shifted to A-l but which  again runs  counter to are assertion made earlier by the  witness in  his own  hand. That assertion appears in the form  of an  amendment to  a draft  of a letter (Ext. PW 2/DE) to  be sent  to Mr.  V. P. Raman. Additional Solicitor General and reads: in spite of efforts the film has not been found’. The  witness admits  clearly that this statement was false to his knowledge. A witness who could go to the extent of making  intentionally false  statement cannot  be  relied upon for the purpose of convicting the appellant. On his own showing, he  was fully  collaborating with A-1 in a criminal design and was therefore, no better than an accomplice whose testimony cannot  be accepted  in any material particular in the absence.  Of corroboration  from reliable  sources. Even Mr.  Jethmalani,   the  erstwhile  senior  counsel  for  the prosecution conceded the correctness of this proposition. On an appreciation  of the  evidence of PW 2 and other factors, discussed  above,   his  evidence   has-not  only  not  been corroborated but definitely contradicted by other witnesses, circumstances and documents.      PW 63, K. N. Prasad was the Additional Secretary hl the Ministry of  Information &  Broadcasting. He  stated that in March 1977,  A. K. Verma, the then Joint Secretary wanted to know whether  the  Government  had  any  inherent  power  to destroy property  which had  been seized  or forfeited,  and also disclosed  that the enquiry was made in connection with the film  ’Kissa Kursi Kaa’. The witness further stated that after two  or three  days Verma and PW 39, Ghose came to his room and  asked the  same question. The witness further goes on to  state that  he was  informed by  his P.A. that he was required to  attend  a  meeting  at  the  residence  of  the Minister (A-l),  that when  he  enters  the  office  at  the residence of  A-l, he  found PW  62 Mr. Burney, Secretary to the Ministry  of information  &: Broadcasting, sitting there and that  ML’. Burney  (PW 62)  asked the  witness what  the legal 578 position was  about the  right of  the Government to destroy forfeited property.  At that time, according to the witness, Tripathi, Mr.  Burney and  A-l were  present.  He,  however, admits that A-] did not ask any particular question.      From the  testimony of  PW 63  the prosecution seeks to draw an  inference that  it was A-1 at whose instance Verma, Ghose and Burney had asked for the advice! of the former (PW 63). Now  A. K. Verma has not been examined as a witness and his statement  (seeking, the  advice  of  PW  (63)  is  not, therefore, admissible  in evidence?  while  both  Ghose  and Burney have  denied that  any such  conservation as has been deposed to  by PW  63 took  place between the latter and the witnesses in  the presence  af  A-1.  In  fact,  a  specific suggestion was put to Burney (PW 62) in the following terms:           "Q. When  Shri Nahata  asked for the return of the      film material,  did it  happen that  you discussed  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 63 of 68  

    matter regarding  availability and  return of  the film      material with Shri Shukla at his official residence and      during that discussion Shri K. N. Prasad and Shri A. K.      Verma had  also come  there and  Shri V.  S.  Tripathi,      Special Asstt. to the Minister was also present ?"      His answer was an emphatic no.      Besides, the  story given  out by  the witness does not appear to be very plausible, for it does not stand to reason that A-1  would depute  no less  than three officers (Verma, Ghose and  Burney), one after the other, to obtain advice of PW 63 when A-1 could have had no difficulty in obtaining the advice himself.  And then  how  was  PW  63  selected  as  a Specialist in  the concerned  branch of law over the head of superior officers,  even if  it was  considered hazardous to enlist  the  services  of  a  competent  lawyer  ?  We  are, therefore   unable to place reliance on the evidence of this witness  on   this  point.   From  a   discussion   of   the circumstances  mentioned   above,  we   conclude  that   the prosecution has  failed to  prove that  the  film  materials brought from  Bombay to  Delhi were  placed in  the personal custody of  A-1 or  that A-1  had them transferred to No. l, Safdarjung Road or to the Maruti Complex.       Another link in the chain of prosecution evidence (the existence of  which seems  to  have  been  accepted  by  the learned Sessions Judge) was that two tempos belonging to the Maruti (Company  were sent  to the New Delhi Railway Station where the  thirteen trunks  which  arrived  by  the  Western Express were  loaded therein and were taken to l, Safdarjung Road before  being transported  to Maruti Complex where they were unloaded?  kept and  later on.  destroyed. It  was also alleged by 579 the prosecution.  that a  raid of the Maruti Complex carried out in  1977 A led to the recovery of the lid of a trunk, an empty can  which earlier contained part of the film material and a  gunny bag  to the inside of which were found sticking scraps of  paper. The  investigators also claimed that a few miles away  from the  Maruti Complex  some round  cans  were recovered from a nallah. The learned counsel for the defence submitted that  the allegations about the trunks being taken to Maruti  Complex and  the recoveries being made were false and addressed to the court lengthy arguments in this behalf. It is,  however, not  necessary for  us  to  go  into  these details at  this stage  because assuming  for the purpose or argument that the trunks were brought to the Maruti Complex, and that  the film  material was destroyed unless A-l or A-2 were shown to be connected with the transport or destruction of the material, the charge against the appellants cannot be held to be proved.      (3) The  burning of  the film  ‘Kissa  Kursi  Kaa’  in, November 1975,  at Maruti Complex at the orders/instructions of A-2      In support  of this  part  of  the  prosecution  story, reliance was  placed mainly  on the testimony of Khedkar (PW 3) who is the approver. The effort of the prosecution was to establish  that  on  instructions  given  by  A-2  the  film material  was   burnt  inside  the  Maruti  Complex  on  two consecutive nights  and that the fact was reported to A-2 an each of  the two  following mornings.  The approver  was the Security officer  in the Maruti Limited at the relevant time and the  assertions made by him in this behalf may be split, up as follows:      (a)   In the  middle of November 1975, A-2 sent for the           approver and  told him  that some boxes containing           films were  lying in  the stores,  that the  films

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 64 of 68  

         were to  be destroyed  when the  workers were away           and that  the approver  would get  the keys of the           locks on the boxes on the next day.      (b)   On the  next day  one of  the security guards who           used to  accompany A-2 handed over a sealed packet           of paper  wrapped in cloth to the approver. On the           same day the approver directed his assistant named           Kanwar Singh Yadav, PW 32 to meet the approver (in           the  Maruti  Complex)  at  9.00  p.m.  along  with           watchman .  Om Prakash, PW 31. Kanwar Singh Yadav,           PW 32  met the approver at 9.30 p.m.  They reached           the factory  gate where  watchman om Prakash PW 31           was waiting  for them. The approver signed the key           register and  obtained  the  key  of  the  General           Store. The party of three opened the store and 580           found lying  therein the thirteen boxes containing           the film  material. The boxes were opened with the           keys which  were taken  out of  the sealed  packet           mentioned earlier.  Each box  was found to contain           10 or 12 cans having film spools inside them. Each           can bore  a label  with the  legend  ’Kissa  Kursi           Kaa’. The  first lot of the films was removed to a           nearby pit  and was  burnt  there,  the  operation           lasting from  10.30 p.m.  to 2.30 p.m. watchman Om           Parkash PW  31 however  left the  place  at  about           11.00 p.m. because he felt giddy.      (c)  Next morning the approver reported to A-2 that the           work had been carried out in part only and that it           would be  completed on  the night following, which           was done from 10.00 p.m. to, 2.00 a.m.      (d)   Next morning  the approver again made a report to           A-2 telling him that the job had been completed.      Learned counsel  for the  defence  contended  that  the stand taken  by the  approver could  not be accepted at its, face value  and had to be rejected lock stock and barrel. On a thorough  consideration of  the evidence  we find that the contention well-based as we shall presently show.      The  film  material,  according  to  the  case  of  the prosecution, is  said to  have reached Maruti Complex on the 10th of  November  1975.  After  the  23rd  November,  1975, Khedkar PW 3, on his showing, went away on leave. The period during which  the film  is said to have been burnt thus lies between the 10th, and the 23rd of November 1975. Further- more Khedkar,  PW 3 has firmly asserted that on the first of the two  nights on which the burning operations were carried out, watchman  Om Prakash,  PW 31 was on duty from 2.00 p.m. to 10.00  p.m. He was examined at length in relation to duty rosters P-22  and PW  32/2 which were admittedly prepared by him. Duty  roster exhibit  P-22 covers  the entire  month of November  1975,  and  according  to  the  entries  appearing therein watchman  Om Prakash, PW 31 was to be on duty during the whole of that month in the third shift only, i.e., daily from 10.00  p.m. to 6.00 a.m. The approver however explained that the roster could be changed from time to time according to the  exigencies of  the situation. He averred that on the 15th of November 1975, which was a Saturday and therefore an off-day for watchman Om Prakash, PW 31, the latter took over duty from  2.00 p.m.  to 10.00  p.m.  as  a  substitute  for watchman Tarachand.  A similar  arrangement was  made on the 18th of November 1975, when watchman Om Prakash, 581 PW 31  changed places  with watchman  Ramdular and went over from A  the 3rd  to the 2nd shift (2.00 p.m. to 10.00 p.m.). As it  is, the  15th and the 18th of November 1975, were the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 65 of 68  

only two  days in the month on which watchman Om Prakash, PW 31 was  on  duty  during  the  second  shift  as  a  special arrangement. For  the rest  of the  days during the month he was admittedly  never on  duty in  that  shift.  The  period during which the film was destroyed is thus further narrowed B down  so that  the first  operation. Of burning could have taken place  on the night of the 15th of November or on that of the 18th of November 1975, and on no other date.      Here we  may refer  to another  aspect of  the  matter. Evidence has  been produced  to show  that A-2 left Delhi by air at 7.50 a.m. On the 17th of November 1975 for Hyderabad, and arrived  back at  Delhi at  8.30 p.m.  the same  day. He again took  off at  6.40 a.m.  On the 19th of November 1975, for Sikkim and returned to Delhi not earlier than 11.10 a.m. On the 23rd of November 1975. On both occasions he travelled as a member of the party of the then Prime Minister, his own mother, namely,  Shrimati Indira Gandhi. The evidence of Dr. K. P.  Mathur, DW  3, is  categorical in  this behalf and is supported by  the passenger  manifests (Ext.  DW-3/A and DW- 5/A) prepared  in relation to the journeys which contain the name of A-2, and other documents which need not be mentioned here. We  regard his testimony as conclusive as was done not only by  the learned  Sessions Judge but also by the Special Public Prosecutor  who made  a statement  at the  trial that testimony be  accepted by  the prosecution  in toto. In this view of  the matter  the prosecution  has to  prove  that  a period of  four days  in between  the 14th  and the  18th of November 1975, was such as A-2 was available in Delhi during day time on the first, third and fourth of such days.      Now, as  pointed out  already, the  burning could  have taken place  only on  the 15th or the 18th of November 1975, if the  approver and the duty rosters prepared by him are to be believed.  The 18th  of November 1975, has to be excluded for the  reason that on the two days following A-2 had to be shown to  have been in Delhi (for receiving the report about the destruction  of the material from the approver) which he definitely was  not. The 15th of November 1975, as the first night of  the burning operation also does not click with the prosecution case because, although the report about it could have been  made to  A-2 on  the next morning (inspite of the fact that it was a Sunday and therefore a closed day for the factory),  A-2   was  not  in  Delhi  or  anywhere  near  it throughout the  17th so that the story of the report made to him by  the approver  about the  second part  of the burning operations loses 582 weight. No  other dates being in point, the story propounded by the  approver is  negatived by reference to unimpeachable documentary and  circumstantial evidence, although it may be further noted  that neither  Kanwar Singh  Yadav, PW  32 nor watchman Om  Prakash, PW  31 supports the approver’s version and  each   one  of   them  was   declared  hostile  to  the prosecution.      The  recoveries   said  to   have  been   made   during investigation have  also not impressed us. As stated earlier the incriminating  articles said  to have  been seized are a lid of  a trunk,  an empty can, a gunny bag- all from inside the Maruti Complex-and a few cans from inside a nala lying a few miles  away. These recoveries are sought to be connected with the  destruction of  the  film  on  the  basis  of  the following averments  forming part  of the  testimony of  the approver:           "It was  after the  elections held  in March 1977,      that Sanjay  Gandhi who was then Director met me in the      factory hall.  Kanwar Singh Yadav was also there. Vijay

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 66 of 68  

    Sharma, Bus  Body Manager,  was  called  there.  Sanjay      Gandhi asked  us to collect all the damaged trunks with      the contractors  and to deposit them in Bus Body Store.      We could  collect 12  out of  13 trunks mentioned above      along with  four or  five other  big trunks. These were      deposited in  Bus Body  Store. Later  on I  found  them      shifted  to   Press  shop   store.  A  couple  of  days      thereafter, Kanwar  Singh Yadav,  Sanjay Gandhi  and  I      went inside  the General  Store. We  walked down to Bus      Body Store.  There Sanjay  Gandhi asked  Panna Lal, Bus      Body Supervisor  and  in  charge  Bus  Body  Store,  to      collect all  the damaged  locks  available  with  them.      Panna Lal passed on the order to Om Prakash who was Bus      Body Clerk Incharge Stores. About 25 damaged locks were      collected. These is included Harrison, Tiger and Godrej      Locks. Godrej  locks were  4 or 5 . Sanjay Gandhi asked      me to get all those collected locks melted in a foundry      and I  got them  melted.... Ram  Lakhan was Incharge of      the foundry  and I  handed over  the collected locks to      him.. Thereafter,  scrapping of  the trunks  and  their      removal was  performed by  my Asstt. Kanwar Singh Yadav      and he  told me  about that. Kanwar Singh Yadav told me      that Sanjay  Gandhi had  asked him  to scrap the trunks      and cans  and to  dispose them  off. He told me that he      cut the trunks into pieces and threw them into the iron      scraps which  were sold  to different  contractors.  As      regards the  cans, he  told me  that he had damaged the      cans and  thrown them  at different places on Rajasthan      Highway and Rajasthan Bye- 583      pass....He told  me that  the trunks  had been cut into      pieces and cans had been damaged in the Press Shop."      This  story  is  inherently  improbable.  The  thirteen trunks which  admittedly had  no marks  of identification on them and  were of  the ordinary type available in any market are said to have been shredded and the locks-which again are available in  plenty everywhere-are  alleged  to  have  been melted in  the foundry but, strangely enough, the cans which had on  them labels  carrying the  legend ’Kissa  Kursi Kaa’ were subjected  to a  much milder  treatment and were merely pressed and  then thrown  away  at  various  places  on  the Rajasthan Highway and Rajasthan Bypass to which Kanwar Singh Yadav, PW  32 had  to make  journeys off  and on.  It is not disputed that  if the cans were to be shredded or melted the operation would not have presented any difficulty whatsoever in view  of the  facilities available at the Maruti factory. And, if  that  be  so,  surely  any  person  who  wanted  to obliterate evidence  of the  commission of a serious offence would see  to it  that the  material  of  the  cans  was  so transformed as  to be impossible of identification. There is no reason  why all  of them should not have been melted into lumps, or  in any  case shredded  beyond recognition. And we also do  not see  how just one can would be left intact when so much  care was  bestowed on  operations obliteration.  In fact, it  may have  been much  easier for  the  cans  to  be shredded or  melted than  for them  to be  first pressed and then transported to far off places and thrown away there. In this view  of the matter we need not pursue this part of the case any further.      Thus, on  a complete  and careful  examination  of  the circumstances and the evidence, mentioned above, even taking the sub-stratum  of the  prosecution case at its face value, the prosecution has not been able to prove either that there was any  existence of  any conspiracy between A-1 and A-2 to destroy the  film ’Kissa  Kursi Kaa’  by burning  it  or  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 67 of 68  

commit any other offence in respect of the film. There is no evidence to show that there was any meeting of minds between A-l and  A-2. We  have also found that even on the first two parts  of  the  prosecution  case,  the  allegation  of  the prosecution that  the positive  prints were  removed at  the instance or  to the  knowledge of  A-l or that the negatives and other  materials of  the film  were sent  for by A-1 and kept in  his personal  custody has not been proved. The mere fact  that   A-1  decided   to  ban  the  film  and  refused certification for  public exhibition  and passed  orders for seizure of  the film  and its transfer to the custody of the Ministry of Information & Broadcasting does not disclose any offence. We  have already shown that the decision to ban the film was  not taken  by A-1  secretely or  clandestinely but after a full-fledged 584 discussion in  the Coordination  Committee meeting and it is proved that  such meetings  are usually  attended by  senior officers of  various Ministries,  as deposed  to  by  K.  N. Prasad, PW  63. Further, that part of the case which relates to  the  burning  of  film  material  rests  solely  on  the uncorroborated testimony of the approver and is negatived in so far as the role therein of A-l is concerned.      We may  mention here  that a  lot of  evidence has been produced by the prosecution to show:-      (a)   that the positive print of the film found its way           into the  luggage compartment  of the car in which           A-1 then  travelled to  the Prime Minister’s house           where the  print was  unloaded by  someone in  the           absence of A-1; and      (b)   that the negatives and other material relating to           the film were taken in a tempo or two to the Prime           Minister’s residence  and from there to the Maruti           Complex  where   they  were  stored  before  their           destruction.      We have  considered it  purposeless to  go  into  these factors for  the reasons  that the  connection of A-1 or A-2 therewith remains  unproved as  discussed above.  Had  these factors provided  circumstantial evidence  oh the  basis  of which alone  the charge  against either  A-1 or A-2 could be held established  it would have been necessary for the court to sift  the evidence  produced in support thereof. But that is definitely  not the  case, for,  if either or both of the factors are  proved, the inference of guilt of either A-l or A-2 does not necessarily follow. For circumstantial evidence to furnish evidence of guilt it has to be  such as it cannot be explained  on any  other reasonable hypothesis except the guilt of  the accused  which is  not the  case here  because appellants A-l  and A-2  could not  be said  to be  the only persons interested  in the destruction of the film if it was as obnoxious  to the  then Prime  Minister or as critical of the  functioning   of  the  then  Union  Government  as  the prosecution would  have us  believe. The  film and  all  the material relating  to it  no doubt  appear to  have vanished into thin  air but  then neither  A-1 nor  A-2 can  be  held responsible therefor,  in  the  absence  of  proof  in  that behalf-proof which would exclude all reasonable doubt.      The prosecution  having thus  failed to  prove the case against the  appellants,  their  appeals  are  allowed,  the convictions recorded  against and  the sentences  imposed on the appellants  are set  aside and they are acquitted of all the charges framed against them. Both the appel- 585 lants who  are on  bail shall  now be  discharged from their bail-bonds. In  view of  the acquittal  of appellant  No  1,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 68 of 68  

Shukla in  Criminal appeal No. 494 of 1979 and appellant No. 2, Sanjay  Gandhi  in  Criminal  appeal  No.  493  of  1979, Criminal appeal  No. 492  of 1979,  filed by  the  State  is dismissed. In view of the fact that we have made no comments on the  conduct of  the investigation or on Mr. N. K. Singh, no order need be passed on the application filed by him. S.R.                         Cvl. App. 493 & 494/7g allowed.                                   Cvl. App. 492/79 dismissed 586