Judgment

SEN, J. :- This appeal by special leave directed against the judgment and order of a Division Bench of the Bombay High Court dated August 11, 1987 raises a question of far-reaching importance. The question is whether a Commission of Inquiry constituted under S. 3 of the Commissions of Inquiry Act, 1952 (hereinafter referred to as the Act) is a "Court" for purposes of S. 195(1)(b) of the Code of Criminal Procedure, 1973.

2. We had the benefit of hearing Dr. Y. S. Chitale, learned counsel appearing on behalf of the appellant Dr. Baliram Waman Hiray, who at one time was the Health Minister of Maharashtra and Shri A. S. Bobde, learned counsel appearing on behalf of the State Government, as-to the purport and effect of the inclusive clause of sub-s. (3) of S. 195 of the Code which provides that in cl. (b) of subs. (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

3. In Lalji Haridas v. State of Maharashtra, (1964) 6 SCR 700, a Constitution Bench of this Court by a majority of 3 : 2 held that the proceedings before an Income-tax Officer under S. 37(4) of the Indian Income-tax Act, 1922 were judicial proceedings under S. 193 of the Indian Penal Code and such proceedings must be treated as proceedings in any Court for the purposes of S. 195(1)(b) of the Code. We thought that the controversy had been set at rest by the decision of the Constitution Bench in Lalji Haridas case. Dr. Chitale, learned counsel however contends that there is a change in the law because of the introduction of sub-s. (3) of S. 195 of the Code and points out that Parliament has brought about the change to implement the 41st Report of the Law Commission and relies on paras 15.90, 15.93, 15.94 and 15.99. In the course of his submissions, he has brought to our notice the words in parenthesis added by the Finance Act, 1985 introducing the following change in S. 136 of the Income-tax Act, 1961 w.e.f. April 1, 1974 from which the Code of Criminal Procedure, 1973 came into force. S. 28 of the Finance Act amended S. 136 of the Income-tax Act, and it was provided that the words "and every income-tax authority shall be deemed to be a Civil Court for the purposes of S. 195 but not for the purposes of Chapter XXVI of the Code of Criminal Procedure, 1973", shall be inserted and shall be deemed to have been inserted at the end w.e.f. 1st day of April, 1974. Dr. Chitales contention is that unless there was a similar change brought about in the Commissions of Inquiry Act, the Commission cannot be deemed to be a Court for the purposes of S. 195(1)(b) of the Code. We find great difficulty in dealing with the question involved in this appeal because many diverse problems will have to be considered.

4. In order to appreciate the point involved, it is necessary to state a few facts. The State Government of Maharashtra by a notification dated February 21, 1986, issued under S. 3 read with S. 5(1) of the Commissions of Inquiry Act, 1952 appointed Shri Justice B. Lentin, Judge of the High Court of Bombay as a one-man Commission of Inquiry to probe into the deaths of 14 patients in the government-run Jamsetjee Jee Bhoi Hospital, Bombay betwen January 22, 1986 and February 7, 1986 after they were administered contaminated glycerol. The aforesaid notification of the State Government was to the effect :

"Medical Education and Drugs Department

Mantralaya, Bombay 400 032, dated 21st February, 1986.

Commissions of Inquiry Act, 1952.

No. JJH.2088/712/MED-4 - Whereas certain deaths of patients alleged to be due to drug reaction, occurred in Neuro Surgery, Neurology, Opthalmology and Nephrology Departments of J. J. Hospital, Bombay, during January-February 1986 :

And whereas the Government of Maharashtra is of the opinion that it is necessary to appoint a Commission of Inquiry under the Commissions of Inquiry Act, 1952 (60 of 195