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1980 Supreme(Cal) 110
HIGH COURT OF CALCUTTA
SABYASACHI MUKHERJI, J.
Sushil Chandra Chowdhury - Appellant
Versus
Chakraborty Commission Of Inquiry – Respondent
Decided On : March 27, 1980
A.P.Chatterji, B.P.Banerji, Bholanath Sen, Raghunath Roy, T.Paul,
The power of the State Government to constitute a Commission of Inquiry under Section 3 of the Commissions of Inquiry Act, 1952 is dependent upon the fulfillment of the condition, that is to say, upon the opinion of the State Government that there was necessity of constituting a Commission to investigate into any definite matter of public importance. The formation of the opinion by the State Government must be based on relevant and germane materials. The Court has the power to scrutinize the exercise of the power by the State Government to form an opinion under Section 3 of the Commissions of Inquiry Act, 1952 to the limited extent of examining whether the opinion was formed on relevant and germane materials.
Headnote:
COMMISSIONS OF INQUIRY ACT, 1952 - SECTIONS 2, 3, 8B - CONSTITUTION OF COMMISSION OF INQUIRY - JUDICIAL REVIEW - SCOPE AND EXTENT - OPINION OF APPROPRIATE GOVERNMENT - RELEVANCE AND GERMANENESS OF MATERIALS - NOTIFICATION - VAGUENESS - NOTICES UNDER SECTION 8B - ISSUANCE - PROPRIETY.
Fact of the Case:
Petitioners, police officers employed in Calcutta Police, challenged the notification dated 12th August, 1977 constituting the Chakrabarty Commission of Inquiry to inquire into allegations of killings of numerous persons in the State for political motives during the period from 20th March, 1970 to 31st May, 1975 and killings of, and physical tortures and atrocities committed on numerous persons in the State during the aforesaid period by public servants and/or persons belonging to or enjoying patronage of the Ruling Party in power in the State and or Centre or the Government in power State and or Central. Petitioners also challenged notices issued under Section 8b of the Commissions of Inquiry Act, 1952 dated 25th February, 11980 and the summons requiring the attendance of the petitioners pursuant to the summons.
Finding of the Court:
1. The Court held that the impugned notification dated 12th August, 1977 constituting the Commission of Inquiry was invalid as there were no materials disclosed upon which the State Government could have formed the opinion for constitution of the Commission of Inquiry under the Commissions of Inquiry Act, 1952. 2. The Court directed the Commission of Inquiry to transmit the materials, so far gathered in respect of the present petitioners, to the State Government and the State Government to reconsider the matter in the light of the directions given and take appropriate action in accordance with the law, against the persons concerned, if they are so advised. 3. The Court also held that if these materials or other relevant materials before the State Government reveal that there were killings of, and physical tortures or atrocities committed on persons by public servants during any particular period, the State Government can reconsider the matter whether it would be proper to form an opinion for Constituting a Commission of Inquiry afresh and act accordingly.
Issues: 1. Whether the impugned notification dated 12th August, 1977 constituting the Commission of Inquiry was valid. 2. Whether the notices issued under Section 8b of the Commissions of Inquiry Act, 1952 dated 25th February, 11980 and the summons requiring the attendance of the petitioners pursuant to the summons were valid.
Ratio Decidendi: 1. The power of the State Government to constitute a Commission of Inquiry under Section 3 of the Commissions of Inquiry Act, 1952 is dependent upon the fulfillment of the condition, that is to say, upon the opinion of the State Government that there was necessity of constituting a Commission to investigate into any definite matter of public importance. 2. The formation of the opinion by the State Government must be based on relevant and germane materials. 3. The Court has the power to scrutinize the exercise of the power by the State Government to form an opinion under Section 3 of the Commissions of Inquiry Act, 1952 to the limited extent of examining whether the opinion was formed on relevant and germane materials. 4. The terms of reference of the Commission of Inquiry should be definite and certain and not vague and indefinite.
Final Decision: 1. The impugned notification dated 12th August, 1977 constituting the Commission of Inquiry was quashed and set aside. 2. The proceedings before the Commission of Inquiry pursuant to this notification were set aside. 3. The Commission of Inquiry was directed to transmit the materials, so far gathered in respect of the present petitioners, to the State Government and the State Government to reconsider the matter in the light of the directions given and take appropriate action in accordance with the law, against the persons concerned, if they are so advised.
(1.) THE petitioners challenge in this application under Article 226 of the Constitution the notification dated 12th August, 1977 being the notification No. 10117-J whereby the Chakrabarty Commission of Inquiry had been appointed. The petitioners also challenge notices issued under Section 8b of the Commissions of Inquiry Act, 1952 all dated 25th February, 11980 and the summons requiring the attendance of the petitioners pursuant to the summons. The petitioners are six in number. They are police officers employed in the Calcutta Police. They were at the relevant time posted at Shyampukur Police Station where the alleged incident, about which I shall refer presently, took place the petitioner no. 1 is now the inspector of Police, Amherst Street Police Station. The petitioner no. 2 is the Sub-Inspector, Fraud Section of the Detective Department. The petitioner no. 3 is the Reserve Officer Brigade Ancillary, Calcutta. The petitioner No. 4 is the Sergeant of the Calcutta Police Traffic Department. The petitioner no. 5 is (the Reserve Officer, Hackney Carriage department of the Calcutta Police Headquarters, Lal Bazar and the petitioner no. 6i is a Constable. The respondents to this application are (1) The Secretary, Chakraborty commission of Inquiry, (2) Sri Haratosh Chakraborty, Chairman of the Chakrabarty Commission of Inquiry and (3) The State of West Bengal. As I have mentioned before, the petitioners challenge the notification dated 12th August, 1977 constituting the Commission of Inquiry. As most of the arguments refer to the constitution of the said Commission and the powers of the said Commission, it would be appropriate to refer to the relevant portions of the said notification. The said notification reads as follows : "no. 10117-J.-12th August, 1977 Whereas there is a widespread demand from different sections of public for an inquiry into allegations of killings of numerous persons in this State for political motives during the period from the 20th March, 1970 to the 31st May, 1975 and killings of, and physical tortures and atrocities committed on, numerous persons in this State during the aforesaid period by public servants and/or persons belonging to or enjoying patronage of the Ruling Party in power in the State and or Centre or the Government in power state and or Central and whereas the Governor is of opinion that it is necessary to appoint a Commission of Inquiry for the purpose of making inquiry into definite matters of public importance, that is killings of numerous persons in this State for political motives during the period from the 20th March, 1970 to the 31st May, 1975 and killings of, and physical tortures and atrocities committed on numerous persons in this State during the aforesaid period by public servants and or persons belonging, to or enjoying patronage of the Ruling Party in power in the State and or Centre or the Government in power State and/or Central and whereas no Commission of Inquiry has been appointed by the Central Government to inquire into the said matters now, therefore, in exercise of the power conferred by section 3 of the Commissions of Inquiry Act, 1952 (60 of 1952), the Governor is pleased hereby to appoints Commission of Inquiry consisting of Shri Haratosh Chakraborty, WBHJS.
(2.) THE terms of reference of the Commission of Inquiry shall be as follows : (a) to enquire into the facts and circumstances relating to specific instances (i) of killings of persons in this State for political motives during the period from the 20th March, 1970 to the rest May, 1975 and killings of, and physical tortures and atrocities committed on, persons in this State during the aforesaid period by public Servants and/or persons belonging to or enjoying patronage of the Ruling Party in power in the State and/or Centre or the Government in power, State and or Central (ii) Whether such killings, other atrocities and physical tortures had been committed with the encouragement of or had been aided or
