Holding

A Commission of Inquiry is not a Court for the purposes of s.195(1)(b) CrPC; it is a fact‑finding body whose limited legal fiction does not confer full court status.

Summary

The State of Maharashtra appointed Justice B. Lentin as a one‑man Commission of Inquiry to investigate the death of 14 patients at J.J. Hospital. The Commission found the appellant, Dr. Baliram Waman Hiray, gave contradictory evidence and issued a show‑cause notice for perjury under s.193 IPC read with s.340 CrPC, directing a complaint to be filed. Dr. Hiray challenged the Commission’s order in the Bombay High Court, which dismissed his petition. On appeal, the Supreme Court examined whether a Commission of Inquiry under the Commissions of Inquiry Act, 1952 qualifies as a "Court" for the purposes of s.195(1)(b) CrPC. The Court held that, despite the legal fictions in s.5(4) and s.5(5) of the Act, a Commission is a fact‑finding body, not a court, and its powers are limited to offences under s.193 and s.228 IPC. Consequently, the High Court’s order was set aside and the criminal proceedings against Dr. Hiray were quashed.

Issues considered

Whether a Commission of Inquiry constituted under the Commissions of Inquiry Act, 1952 is a "Court" within the meaning of s.195(1)(b) of the Criminal Procedure Code, 1973.
Whether sub‑section (3) of s.195, which expands the definition of "Court", alters the earlier law laid down in Lalji Haridas' case.
Whether the legal fictions in s.5(4) and s.5(5) of the Commissions of Inquiry Act deem the Commission a court for all purposes or only for offences under s.193 and s.228 IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 195(1)(b), s. 195(3), s. 340, s. 346, s. 482
Commissions of Inquiry Act, 1952s. 3, s. 4, s. 5(4), s. 5(5), s. 6, s. 8
Finance Act, 1985s. 28
Income Tax Act, 1922s. 37(4)
Income Tax Act, 1961s. 136
Indian Penal Code, 1860s. 191, s. 193, s. 228
Payment of Wages Act, 1936s. 18
Workmen's Compensation Act, 1923s. 23

Subjects

Commission of InquiryCourt definitionCriminal Procedure CodePerjuryLegal fictionStatutory interpretations.195(1)(b) CrPCs.195(3) CrPCFact‑finding bodyTribunal

Judgment

A DR. BALIRAM WAMAN HIRAY
v.
JUSTICE B. LENTIN AND OTHERS

SEPTEMBER 12, 1988

B [A.P. SEN AND L.M. SHARMA, JJ.]

Commission of Inquiry Act, 1952: Section 3-Commission of
Inquiry-Constituted under Act-Whether 'Court' for purposes of Sec-
tion 195(1)(b) Cr. P.C. 1973.

Criminal Procedure Code, 1973-Section 195(1)(b)-Commis-
G sion of Inquiry' constituted under Commission of Inquiry Act, 1952-
Whether a 'Court'.

Words and Phrases: 'Court'-Meaningof.

D On February 21, 1986 the State Government of Maharashtra
appointed Shri Justice B. Lentin as a one-man Commission of Inquiry
to probe into the death of 14 patients in the government run J.J.B.
Hospital between 22.1.1986 and 7.2.1986 after they were administered
contaminated glycerol, and to fix responsibility. The inquiry revealed
the existence of a corrupt and venal nexus between the drug firms, the
E delinquent Food & Drugs Administration and hospital staff on the one
hand, and the appellant, some other persons and certain Government
officials on the other. The Commission's report was an indictment of
the State's public health system.

The Commission having found the evidence given by the appellant
F self-contradictory, issued a show-cause notice to him as to why he
should not be prosecuted for the offence of giving false evidence on oath
under s. 193 of the Indian Penal Code, 1860 read withs. 340 of the Code
of Criminal Procedure, 1973. After considering the appellant's objec-
tions, the Commission directed filing of a complaint under ss. 193 and
228 of l.P.C. The appellant filed a petition in the High Court assailing
G the legality and propriety of the order of the Commission directing
filing of the complaint, and the same was dismissed by the High Court.

Before this Court, it was contended on behalf of the appellant that
(1) the Commission could not be deemed to be a Con rt for the purposes
of s. 195(l)(b) of the Code of Criminal Procedure unless declared by the
fi Commission of Inquiries Act itself, as stipulated in sub-s. (3) of s. 195,
942
B.W. HIRAY v. JUSTICE B. LANTIN 943

which provides that in cl. (b) of sub-s. (1), the term 'Court' means a
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; (2) the Commission of
Inquiry appointed by the State Government was merely a fact-finding
body appointed by the Government for the 'information of its mind',
and the mere fact that the procedure adopted was of a legal character B
and it had the power to administer an oath would not impart to it the
status of the Court and therefore was not a 'Court' for the purposes of
s. 195(l)(b) of the Code; (3) the question was not whether the appellant
could be prosecuted for perjury for giving false evidence which was an
offence punishable under section 195(l)(b), but whether the Commis-
sion was a 'Court''for the purposes ofs. 195(l)(b); (4) that sub-s. (3) of
s. 195 of the Code had brought a change in the law to put an end to the C
controversy, and this was.nothing but 'legislative declaration of the law'
contrary t1J the law declared by this Court in Lalji Haridas' case, and a
number of statutes contain such a provision in accordance with the
existing legislative practice.
D
The Advocate-General appearing on behalf of the. State contended
that (1) the inclusive part of the definition of 'Court' ins. 195(3) of the
Code was ex abundanti cautela and was merely declaratory of the· law,
and (2) the first part of sub-s. (4) of s. S of the Act satisfied the require-
ments of the inclusive part of the definition of 'Court' as contained in
sub-s. (3) ofs. 195 ofthe Code. E

Allowing the appeal, it was,

HELD: (1) It could not be doubted that sub-s. (3) of S. 195 of the
Code had been enacted by Parliament to implement the recommenda-
tions of the 4 lst Report of the Law Commission to remedy the uncertain p
state of law due to conflict of opinion between different High Courts as to.
the meaning of the word 'Court' in s. 19S(l)(b) and to that extent the
introduction of the inclusive clause in the definition of 'Court' in sub-s.
(3) ofs. 195 bad brought about a change in the law ..l966Dl

(2) Law must be definite, and certain. If any of th"e features of the G
law could usefully be regarded as normative, it was such basic postu-
lates as to the requirement of consistency in judicial decision-making. It
was this requirement of consistency that gave to the law much of its
rigour. At the same time, there was need for flexibility. [968F-G)

(3) A Commission of Inquiry was fictionally a Civil Court for the H
944 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

A li1nited ·purpose of proceeding under s. 482 of ~he old t<ide ors. 345 of
the present Code. A fortiori the legal fiction contained in sub-'S. (5) oh.
5 of the Act which related to the proceedings before the Commission
was necessarily confined to offences that were punishable nuder ss. 193
and 228 of the Indian Penal Code and did not extend beyond that. [970F·G J

iB (4) A Commission of Inquiry was not a Court properly so called.
A Commission is obviously appointed by the appropriate Government
'for the infor1nation of its mind' in order for it to decide as to the course
of action to be followed. It was therefore a fact-finding body and was
not required to adjudicate upon the rights of the parties and has no
-adjudicatory function. The GoYernment was not bound to accept its
(; recommendation or act upon its findings. The mere fact that the proce-
dure adopted by it was of a legal character and it had the power to
administer an oath would not impart to it the ,status of a Court. [972D-E]

(5) Parliament in its wisdom whenever thought it fit had inserted
a special provision for deeming a tribunal to be a Court for the purposes
]} Of s. l95(l)(b)' but bad left the other enactments like the Commission of
lnquiry Act untouched although sub-s. (3) of s. 195 had been on the
Statute Book for the last over 14 years. [965D-EJ

(6) The judgment will not however prevent the State Government
from launching a prosecution against the appellant for commission of
E the alleged offences under ss. 193 and 228 I.P.C. if otherwise permissi-
ble in law. [977E-F]

Lalji Haridas v. The State of Maharashtra, [1964] 6 SCR 700;
M. V. najwade v. Dr. S.M. Hasan, ILR (1954) Nagpur I; Brajnanan-
dan Sinha v. Jyoti Narain, [1955] 2 SCR 955; Puhupram & Ors. v. State
F of Madhya Pradesh, [1968] MPLJ 629; Balakrishnan v. Income-Tax
Officer, Emakulam, [1976] KLT 561; Jagannath Prasad v. State of
Uttar Pradesh, [1963] 2 SCR 650; Virinder Kumar Satyawadi v. The
State of Punjab, [1955] 2 SCR 1013; Ba/want Singh & Anr. v. L. C.
Bharupal, I. T.O., New Delhi, [1968] 70 ITR 89; Chandrapal Singh v.
Maharaj Singh, [1982] 1 SCC 466; Bengal Immunity Co. Ltd. v. The
(j State of Bihar, [1955] 2 SCR 608; R.M.D. Chamarbaugwalla v. Union
of India, [1957] SCR 930; Commissioner of Income-tax, Madhya
Pradesh & Bhopal v. Sodra Devi, [1958] SCR I; St. Aubyn v. Attorney
General, LR (1952) AC 15; Shell Co. of Australia v. Federal Commis-
sioner of Taxation, LR (1931) AC 275; Smt. Ujjam Bai v. State of Uttar
'Pradesh, [1961] I SCR 778; M.M. Khan v. Emperor, ILR (l931) il2
H !Lah. 391 and In re. Maharaja Madhava Singh, LR (1905) 31IA239.
B.W. HIRAY v. JUSTICE B. LANTlN [SEN, J.J 945

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal A
No. 114ofl988. ·

From the Judgment and Order dated 11.8.1987 of the Bombay
High Court in Criminal Writ Petition No. 733 of 1987.

Dr. Y.S. Chitale, Shambhu Prasad Singh, Mrs. Jayshree Wad, B
.Mrs. Aruna Mathur, Manoj Wad and Vi jay Tulpule for the Appellant.

A.S. Bobde, Advocate General for the State of Maharashtra,
.
A.M. Khanwilkar and A.S. Bhasme for the Respondents .

The Judgment of the Court was delivered by , c
SEN, J. This appeal by special leave directed against the judg-
ment 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 Comissions of Inquiry Act, 1952 (hereinafter referred to as the D
'Act') is a "Court" for purposes of s. 195( l)(b) of the Code of Criminal
Procedure, 1973.

We had the benefit of hearing Dr. Y.S. Chitale, learned couns~I
appearing on behalf of the appellant Dr. Baliram Waman Hiray, who
at one time was the Health Minister of Maharashtra, and Shri A.S. E
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 sub-s. (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. · F

In Lalji Haridas v. The State of Maharashtra & Anr., ·(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 Incoine-tax Act, 1922 were judicial proceedings under s.
193 of the Indian Penal Code and such proceedings must be treated as G
proceedings in any Court fqr 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 4 lst H
I
i
l
946 SUPREME COURT REPORTS (1988] Supp. 2 S.C.R.

A 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 intro-
ducing 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
B 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. Chitale's contention is that unless there was a similar change
C .. brought about in the Commissions of Inqullies 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.

In order to appreciate the point involved, it is necessary to state a
D 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 between January 22, 1986 and
E February 7, 1986 after they were administered contaminated glycerol.
The aforesaid notification of the State Government was to the effect:

. "MEDICAL EDUCATION.AND DRUGS
DEPAR1MENT

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

. COMMISSIONSOFINQUIRY ACT, 1952.

No. JJH. 20ssnl2/MED-4-Whereas certain deaths of
' .
patients alleged to be due to drug reaction, occurred in
G Neuro Surgery, Neurology, Opthalmology and Nephrology
Departments of J.J. Hospital; Bombay, during January-
F~bruary 1986:
/
·· And whereas the Government of Maharashtra is of
the opinion that it is necessary to appoint a Commission of
H · Inquiry under the Commissions of Inquiry Act, 1952 (60 of
B.W. HIRAY v. JUSTICE B. LANTIN [SEN, J.] 947

1952) for the purpose of making an inquiry into the causes
A
and the circumstances leading to the aforesaid incidents of
death at J.J. Hospital, Bombay, being definite matters of
publidmportance and for making a report thereon to the
State Government:

Now, therefore, in exercise of the powers conferred B
by section 3 and sub-section ( 1) of section 5 of the said Act
and of all other powers enabling it in this behalf, the
Government of Maharashtra hereby appoints a Commis-
sion of Inquiry consisting of Shri Justice B. Lentin, Judge
of the High Court of Judicature at Bombay, to inquire into
and report on the causes and circumstances leading to the
occurrence of the said deaths in Neuro Surgery, Neuro- G
logy, Opthalmology and Nephrology Departments of J .J.
Hospital, Bombay, during January-February 1986; and
particularly-

*** *** *** xxx xxx xxx
D

The Government of Maharashtra hereby directs that hav-
ing regard to the nature of inquiry to be made by the Com-
mission and other sub-section (4) and sub-section (5) of
section 5 of the said Act shall apply to the said
Commission. · E

The· Commission shall submit its report to State
Government within a period of 3 months from the date of
publication of this Notification in the Official Gazette.

By order and in the name of the Governor of F
Maharashtra.

J.P.BUDHAVANT
Deputy Secretary to Government"

By the terms of reference, the Commission was required inter G
alia to enquire into and report on the causes and circumstances leading
to the occurrence of the unfortunate deaths and to fix the responsibi-
lity of the persons and officers responsible for the purchase and supply
of sub-standard drugs on the basis of the mounting evidence gathered
by Lentin Commission. There emerged a corrupt and venal nexus
between the drug firms engaged in manufacturing and supply of sub- H
948 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

standard and adulterated drugs and the delinquent Food & Drugs
~ Administration and Hospital staff on the one hand and the appellant
and Bhai Sawant, two former Health Ministers and certain Govern-
ment officials on the other. In the course of its investigation, it
discovered that there were as many as 582 grossly defaulting drug
companies whose products, including the crucial life-saving drugs,
13 were sub-standard. The Commission's report was an indictment of the
State's public health system and constant ministerial interference. It
was particularly severe on the machinations of Bhai Sawant, the then
Health Minister who, the Commission observed, had a hairbreadth
escape from being served with a notice to show cause why he should
not be prosecuted for perjury under ss. 193 and 228 of the Indian Penal
Code, 1860. The Court issued show cause notices on four persons
c including the appellant Dr. Baliram Waman Hiray for giving false
evidence in an attempt to cover up the charges of rampant corruption
brought against them.

The State Government placed the report of the Lentin Commis-
D sion before .the State Legislature on March 30, 1988 and accepted its
recommendations. One of the recommendations was that a separate
enquiry be held by a retired High Court Judge into the charges of
corruption against the appellant Dr. Baliram Waman Hiray and Bhai
Sawant, the two former Health Ministers and in particular of the mis-
feasance and malfeasance on the part of one Dr. S.M. Dolas who was
!E the Food & Drugs Controller of the State who had an unprecedented
long time for as many as 15 years and other delinquent officers of the
concerned departments holding them responsible for the deaths. The
report indicted both the Health Ministers in no uncertain terms. But
we are not concerned with the follow up action that the Government
has :taken in bringing the guilt to book. The controversy before us is
lF limited to the question whether the Commission was a "Court" for the
purposes of s. 195(1)(b) of the Code of Criminal Procedure, 1973.

On June 23, 1987 the Commission by its order directed its Secre-
tary to issue a show cause notice to the appellant as to why he should
not be prosecuted for the offence of giving false evidence on oath
G under s. 193 of the Indian Penal Code, 1860 read with s. 340 of the
Code of Criminal Procedure, 1973, the relevant portion whereof
reads:

"AND WHEREAS you are summoned by the Commission
under Section 4 of the Commissions of Inquiry Act, 1952,
;H to give evidence before it and you did give evidence before
B.W. HIRAY v. JUSTICE B. LANTIN [SEN, J.] 949

it on 22nd April 1987, 23rd April 1987, 24th April 1987,
27th April 1987, 28th April 1987, 29th April 1987, 4th May A
1987, 5th May 1987, 8th June 1987 and 9th Jime 1987;

****** ****** *****"'

AND WHEREAS the Commission is prima facie of
the opinion that it is expedient in the interests of justice
that an inquiry should be mad,e into the offence under Sec-
tion 193 of the Indian Penal Code referred to in clause (b)
of sub-section (1) of Section 195 of the Criminal Procedure
Code which appears to have been committed by you in or
in relation to the proceedings before this Commission;
c
***** ******
NOW THEREFORE TAKE NOTICE that the
Hon'ble Mr. Justice B. Lentin, Commission of Inquiry, has
fixed this Notice for hearing on Friday, the 26th June 1987 . D
at 2.45 p.m., in Court Rooin No. 37, First Floor, Main
High ·court Building, Bombay 400 032, when you are
required to appear either in person or by an Advocate to
show cause, if any, why proceedings should not be initiated
against you as hitbettofore stated for the offence of giving
false evidence before the Commission." E

It was stated in the notice that the appellant gave self-contradictory
answers specified in columns 'A' and 'B' in Schedule I, one of which
had necessarily to be false. The relevant excerpts of ss. 191 and 193 of
the Indian Penal Code, s. 340 of the Code of Criminal Procedure and
ss. 4(a), 5(5) and 6 of the Commissions of Inquiry Act were set out in f'
Schedule IL In response to the notice, the appellant appeared through
counsel and showed cause. Amongst other grounds, the appellant con-
tended, firstly, that in law the appellant's evidence would not techni-
cally constitute perjury and even if it were so, this was not a fit case
where in the interests of justice it was expedient that an inquiry should
be made against the appellant into the alleged offence under s. 193 of (;
the Indian Penal Code, referred to in cl. (b) of sub-s. (1) of s. 195 of
the Code of Criminal Procedure which appeared to have been commit·
ted in ot in relation to the proceedings before it. Secondly, the Com-
mission of Inquiry was not a Court for the purposes of s. 195(1)(b) and
s. 340 of the Code. It was stated that while perjtity before the Commis·
sion was no doubt punisable, it was not for the Commission to give a H
950 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

finding in terms of s. 340, or to file a complaint, but for 'the Govern-
A ment or a public spirited person' to do so. The Commission by its
well-considered order dated July 7,. 1987 repelled each of these conten-
tions and held that the case was a fit one where in the interests of
justice it was expedient to prosecute the appellant. Any other course
would, in its words, 'bring the sanctity of oath and administration of
B justice into ridicule and contempt'. The Commission observed that the
appellant was not illiterate or semi-literate person who could plead
confusion of mind in the witness-box, as indeed he does not. By-pro-
fession he was a medical practitioner but he played a prominent part in
public life; for several years he held various portfolios as Cabinet
Minister in the Government of Maharashtra, including Health.
According to the Commission, he was by far the most intelligent and
c shrewdest witness who had given evidence before it. Unlike the other
witnesses he never recanted, in an attempt to deliberately distort the
truth. It went on to observe that normally, witnesses are not allowed to
be represented by counsel. However in a departure from normal
practice, the Commission allowed this latitude to the appellant, so that
D justice should not only be done but should be seen to be done to him
and he had a counsel of his choice. Accordingly, the Commission
directed its Secretary to take necessary steps for expeditious filing of
the complaint in the proper forum and directed that the appellant
should, in the meanwhile, furnish a personal bond in the sum of Rs.500
for his appearance before the Metropolitan Magistrate.
E
The Secretary to the Commission accordingly filed a complaint
on July 17, 1987 against the appellant under ss. 193 and 228 of the
Indian Penal Code being Criminal Case No. 112l((w) of 1987 in the
Court of the Additional Chief Metropolitan Magistrate at Esplanade,
Bombay. On the same day, the appellant filed a petition in the High
F Court under Art. 226 of the Constitution assailing the legality and
propriety of the impugned order passed by the Commission and the
consequent direction to its Secretary to lodge a complaint against the
appellant for giving of false evidence. On July 20, 1987 the learned
Metropolitan Magistrate issued process under s. 193 of the Indian
Penal Code against the appellant and further issued a bailable warrant
G in the sum of Rs.500 with one surety in the like amount. A Division
Bench of the High Court by its judgment dated August 11, 1987 repel-
led the contentions advanced by the appellant and accordingly dismis-
sed the writ petition.

We may first reproduce the statutory provisions bearing on the
H controversy. The relevant provision of s. 191 of the Indian Pena(
Code, insofar as material, reads:
B.W. HIRAY v. JUSTICE B. LANTIN [SEN, J.] 951

"191. Giving false evidence-Whoever being legally bound A
by an oath or by an express provision of law. to state the
truth, or being bound by law to make a declaration upon
any subject, makes any statement which is false, and which
he either knows or believes to be false or does not believe
to be true, is said to give false evidence,"
B
Section 195( l)(b) of the Code of Criminal Procedure provides:

"195(1) No Court shall take cognizance-

(b )(i) of any offence ...... ·., or in relation to, any pro-
ceeding in any Court, or C

*** **

except on the complaint in writing of that Court, or of some
other Court to which that Court is subordinate."
D
Sub-s. (3) of s. 195 of the Code provides that in cl. (b) of sub-s. ( 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.

We may then set out the relevant provisions of the Commissions E
of Inquiry Act, 1952. The relevant provision contained in sub-s. (1) of'
s. 3 provides a~ follows:

"3. Appointment of Co,,,mission-(1) The appropriate
Government may, if it is of opinion that it is necessary so to
do, and shall, if a resolution in this behalf is passed by the F
House of the People or, as the case may be, the Legislative
Assembly of the State, by notification in the Official
Gazette, appoint a Commission of Inquiry for the purpose
of making an inquiry into any definite matter of public
importance and performing such functions and within such
time as may be specified in the notification, and the Com- G
mission so appointed shall make the Inquiry and perform
the functions accordingly."

Section 4 vests in the Commission the powers of a Civil Court while
trying a suit under the Code of Civil Procedure and reads as follows:
H
•

952 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

· "4. Powers of Commission- The Commission shall have
A
the powers of a civil court, while trying a suit under the
Code of Civil Procedure, 1908 in respect of the following
matters, namely:

(a) summoning and enforcing the attendance of any person
B from any part of India and examining him on oath;

(b) requiring the discovery and production of any docu-
ment;

(c) receiving evidence on affidavits;
c (d) requisitioning any'public record or copy thereof fro~
any court or office;

(e) issuing commissions for the examination of witnesses
or documents;
D
(f) any other matter which may be prescribed."

Section 5 empowers the appropriate Government, by a notification in
the Official Gazette, to confer on the Commisson additional powers as
provided in all or any of the sub-ss. (2), (3), (4) and (5) of that section.
E
Sub-ss. (4) and (5) of s. 5 of the Act, which are relevant for our
purposes, provide as follows:

"( 4). The Commission shall be deemed to be a civil court
and when any offence as is described in seciion 175, section
F 178, section 179, section 180 or section 228 of the Indian
Penal Code (45 of 1860) is committed in the view of pre-
sence of the Commission, the Commision may, after
recording the facts constituting the offence and statement
of the accused as provided for in the Code of Criminal
Procedure, 1898 (5 of 1898), forward the case to a magis-
G trate having jurisdiction to try the same and the magistrate
to whom any such case is forwarded shall proceed to hear
the complaint against the accused as if the case had been
forwarded to him under section 482 of the Code of the
Criminal Procedure, 1898."

H "(5) Any proceeding before the Commission shall be
B.W. HIRAY v. JUSTICE B. LANTIN (SEN, J.] 953

deemed to be a judicial proceeding within the meaning of
A
sections 193 and 228 of the Indian Penal Code (45 of
1860)."

Section 6 provides: .

''6c .Statements made by persons to the Commission-No
statement made by ·a person in the course of giving
evidence before the Commission shall subject'him to, or be
us.ed against him in, any civil or criminal proceeding except
. a prosecution for giving false evidence by such statement:

Provided that the statement-
c
(a) is made in reply to a question which he is
required by the Commission to answer, or

(b) is relevant to the subject matterof the inquiry."
D
By s. 8 the Commission is empowered to regulate its .own procedure
including the time and place of its sittings etc.

fo support of the appeal Dr. Y.S. Chitale, learned counsel for
the appellant submits that the Commission of Inquiry appointed by the
State Government under sub-s. (1) of s. 3 of the Act read withs. 5 is E
merely a fact finding body appointed by the Government for the 'infor-
mation of its mind', and the mere fact that the procedure adopted is of
a legal character and that it has the power to administer an oath will
not impart to it the status of the Court and therefore is not a 'Court'
for the purposes of s. 195(1)(b) of the Code. He submJts that it is well
settled that a Commission of Inquiry has not the attributes of a Court F
inasmuch there is no !is before it and it has no powers of adjudication
of rights. He further points out that the language of s. 6 of the Act is
plain enough to show that no statement by a person before a Commis-
son of Inquiry 'can subject him to, or be used against him' in any civil
or criminal proceedings, except in a prosecution for giving false
evidence before the Commission. The question before the Court, the G
learned counsel contends, is not whether the appellant can be
prosecuted for perjury for giving false evidence which is an offence
punishable under s. 195{l)(b) or for the offence of intentional insult of
the Commission punishable under s. 228 of the Indian Penal Code, but
whether the Commission was a 'Court' for the purposes of s.
125( l){b ). A ·commission by reason of s. 4 has the same powers of a H
954 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R. (

A Civil Court while trying a suit under the Code of Civil Procedure, 1908
but such investiture of power is for a limited purpose i.e. in respect of
the matters specified therein, namely, summoning of witnesses,·
requiring the discovery and production of the relevant documents,
receiving evidence on affidavits, requisitioning any public record or
copy thereof from any court or office, issuing commissions for exami-
B nation of witnesses or documents etc. etc. Still in the very nature of
things, it has not the trappings of a Court. The learned counsel relies
upon the decision of the Nagpur High Court in M. V. Rajwade v. Dr.
S.M. Hassan & Ors., ILR (1954) Nagpur 1 where the question arose
whether the Commission of Inquiry was a 'court' within the meaning of
the Contempt of Courts Act, 1952 and which was referred to by this
c Court in Brajnandan Sinha v. Jyoti Narain, [1955] 2 SCR 955 while
holding that the public under the Public Servants (Inquiries) Act, 1850
is not a 'Court' within the meaning of the Contempt of Courts Act. He
also relied upon the later decision of a Division Bench of the Madhya
Pradesh High Court in Puhupram & Ors. v. State of Madhya Pradesh
& Ors., [1968] MPLJ 629 and to a judgment of a learned Single Judge
D of the Kerala High Court in Balakrishnan v. Income Tax Officer,
Ernakulam & Anr., [1976] KLT 561.

Dr. Chitale submits that sub-s. (3) of s. 195 of the present Code
has brought about a change in the law. He traced the legislative history
behind the enactment of sub-s. (3) of s. 195 and pointed out that in
E Jagannath Prasad v. State of Uttar Pradesh, [1963] 2 SCR 850 this
Court held that a Sales Tax Officer acting under the Uttar Pradesh
Sales Tax Act, 1948 was merely an instrumentality of the State for
purposes of assessment and collection of tax and even if he was
required to perform certain quasi-judicial functions, he was not a
'Court' for the purposes of s. 195(1)(b) of the Code. Nor could he be
F treated to be a Revenue Court within the meaning of s. 195(2) of the
Code. He. then referred to the decision in Lalji Haridas v. State of
Maharashtra & Anr. (supra) where a Constitution Bench by a majority
of 3:2 took a view to the contrary and held that proceedings before an
Income Tax Officer under s. 37 of the Indian Income Tax Act, 1922
while exercising his powers under sub-ss. (1), (2) and (3) thereof were
G judicial proceedings for the purposes of ss. 193, 196 and 228 of the
Indian Penal Code and therefore must be treated as proceedings in any
Court for the purposes of s. 195( l)(b) of the Code although the Act did
not expressly said so. The learned counsel points out that the defini-
tion of 'Court' ins. 195(2) as originally enacted, used the word 'means'
instead of the word 'includes', which later was substituted by the Cri-
H minal Procedure Code (Amendment) Act, 1973. This gave rise to a
~-.'-----
B.W. HIRAY v. JUSTICE B. LANTIN [SEN, J.] 955
~'
~-<ontroversy whether tribunals or officers acting in judicial capacity or A
exercising quasi-judicial functions should be regarded as Courts for the
purposes of s. 195(l)(b). The substitution of the word 'includes' for the
word 'means' in the definition, if anything, added to the difficulties of
this complex issue. It necessarily gave rise to the question what else
besides Civil, Revenue and Criminal Courts was covered by the
generic term 'Court.·'. B

The learned counsel drew our attention to the decision of this
Court in Shri Virindar Kumar Satyawadiv. The State of Punjab, [1955}
2 SCR 1013, a three-Judges Bench speaking through Venkatarama
Ayyar, J. observed at p. 1018:

"It is a familiar feature of modern legislation to set up
c
bodies and tribunals, and entrust to them work of a judicial
'. character, but they are not Courts in the accepted sense of
that term, though they may possess, as observed by Lord
Sankey L.C. in Shell Company of Australia v. Federal
Commissioner of Taxation, [1931} AC 275, some of the D
trappings of a Court."

It was then observed:

"It may be stated broadly that what distinguishes a Court
from a quasi-judicial tribunal is that it is charged with a E
duty to decide disputes in a judicial manner and declare the
rights of parties in a definitive judgment. To decide in a
judiciaf manner involves that the parties are entitled as a
matter of right to be heard in support of their claim and to
adduce evidence in proof of it. And it also imports an obli-
gation on the part of the authority to decide the matter on a F
consideration of .the evidence adduced and in accordance
with law. When a question therefore arises as to whether an
authority created by an Act is a Court as distinguished from
a quasi-judicial tribunal, what has to be decided is whether
having regard to the provisions of the Act is possesses all
the attributes of a Court." G
Jn. ;upport of his submissions, Dr. Chitale relied upon the 4lst
Report of the Law Commission, paragraphs 15.93 to 15.101 and in
particular refem/d to the following passage in para 15. 99 where it was
observed that 'in any concrete case this question is bound to create
problem of interpretation' and accordingly suggested a change in law H
forthepurposesofs. 195(1)(b):
\
: \
956 SUPREME COURT REPORTS (1988] Supp. 2 S.C.R.
. '
"We consider that for the ;mrpose of clauses (b) and (c),
A
"court" should mean a civil court or a revenue court or a
. criminal court properly so called, but where a tribunal
. created by an Act has all or practically all the attributes of a
:' · , court, it might be regarded as a court only if it is declared
by that Act to be a court for the purposes of this section.".
B
The learned counsel contends that Parliament accordingly enacted
sub-s. (3) of s. 195 to put an end to the controversy. In view of the
change in law brought about by s. 195(3), it is urged that a tribunal
constituted by or under a Central, Provincial or State Act can be
deemed to be a 'Court' only if it is declared to be so by that Act for the
purposes of s. 195. According to the learned counsel, it is now a
c familiar feature of recents Act to insert a specific provision deeming a.
tribunal to be a Court and wherever such a provision is not there, the
Court cannot deem a tribunal to be a Court. According to him, it is no
more a question of interpretation but one of express enactment. He
accordingly contends that the majority decision in Lalji Haridas' case
D no longer holds the field. There appears to be considerable force in the
argument.

Pursuing the same line of thought i.e. there is a change of law
brought about by sub-s. (3) of s.. 195 of the Code, the learned counsel
contends that Parliament had to step in and expressly amend s. 136 of
E the Income-tax Act; 1961 to put the matter beyond controversy. Sec.
136 of Income-tax Act, 1961 as originally enacted provided by legal
fiction that "any proceeding under this Act. before an income-tax
authority shall be deemed to be a judicial proceedingwithin the mean-
ing of ss. 193 and 228 and for the purposes of s. 196 of the Indian Penal
· · . ,Code, 1860". Interpreting s. 136 before its amendment, the Court has,
F as· already stated, in Lalji Haridas' case held that the proceedings
before the Income-tax Officer being deemed to be judicial proceedings
under s. 193, Indian Penal Code, must be treated as proceedings in any
Court for the purpose of s. 195(1)(b), Criminal Procedure Code. It .
also added that under the provisions of/the Indian Income-tax Act of
1922, it could not be held that the Income-tax Officer is a Revenue
G Court, contrary to the rule laid down in Jagannath Prasad's case. In
the course of his arguments, the learned counsel has brought to our
"notice the words in parenthesis added by s. 28 of the Finance Bill;
1985. The Finance Bill bys. 28 brought about a change inthe law and
added the words:

H "28. Amendment of section 136-In section 136 of the
_,
'

B,W, HIRAY v, JUSTICE R LANTIN [SEN, J,] '957

Income-tax Act, t,he words and figures "and every income-
A
tax authority shall be deemed to be a Civil Court for the
purposes of section 195 and Chapter XXVI of the Code of
Criminal Procedure, 1973 (2 of 1974)", shall be inserted
and shall be deemed to have been inserted at the end with
effect from the 1st day of April, 1974,''

The reason for the change is given in the Notes on Clauses in the
Finance Bill, 1985 and it reads:

"Clause 28 seeks to amend section 136 'of the Income-tax
Act relating to proceedings before income-tax authorities
to be judicial proceedings.
c
This amendment seeks to secure retrospectively that
an income-tax authority shall be deemed to be a Civil Court
for the purposes of s, 195 and Chapter XXVI of the Code
of Criminal Procedure, 1973, from the date of its com-
mencement, that is, 1st April, 1974." D

This is also evident from paragraph 119 of the Memorandum explain-
ing provisions ill Finance Bill, 1985 and it reads:

"119. Under the existing provisions, proceedings before
income-tax authorities are deemed to be judicial proceed- E
ings within the meaning of sections 193 and 228 and for the
purposes of section 196 of the Indian Penal Code. It is
proposed to provide that an income-tax authority shall be
deemed to be a Civil Court for the purposes of section 195
and Chapter XXVI of the Code of Criminal Procedure,
1973. This amendment is intended to secure that prosecu- F
tion proceedings for offences under the relevant provisions
of the Indian Penal Code may be launched on the com-
plaint of the concerned income-tax authority. The pro-
posed amendment will take effect from 1st April, 1974,
that is, 'the date from which the Code of Criminal Proce-
dure, 1973, came into force,'' G

According to Dr, Chitille this was nothing but "legislative decla-

-
~ation of the law.", contrary to the law declared by this Court in Lalji
Haridas' case, which is permissible under Art, 141 of the Constitution,
While the learned counsel accepts that under Art. 141 the law declared
by the Supreme Court is binding on all Courts in India, in other words, H
958 ' COURT REPORTS
SUPREME [1988] Supp. 2 S.C.R.

the law declared by the Supreme Court is made the law of the land,
A·
there is nothing to prevent the legislature to bring about a change in
the law. Finally, the learned counsel also drew attention to the existing
legislative practice where certain enactments constituting a Tri!>·.• ,... ,
contain a provision that the Tribunal shall be deemed to be a Cm·· ,_;
the purposes of s. 195(2) of the Code. The learned counsel referred us
B to s. 40 of the _Indian Railways Act, 1890, s. 23 of the Workmen's
Compensation Act, 1923 ands. 18 of the Payment of Wages Act, 1936.
These provisions which are almost similar provide that the Tribunal
under the In<lian Railways Act, the Commissioner under the Work-
men's Compensation Act and the authority appointed under the Pay-
ment of Wages Act shall be deemed to be a Civil Court for the
purposes of s. 195 and Chapter XXXV of the Code of Criminal Proce-_
c dure, 1898. Likewise, s. 18 of the Payment of Wages Act provides that
the authority appointed under the Act shall be so deemed to be a
Court for the purposes of s. 195 of the Code. We shall consider all
these aspects in their proper context.

D In his reply Shri Arvind Bbbde, learned Advocate-General
appearing on behalf of the State Government argued with great clarity
and precision and repelled the contentions advanced on behalf of the
appellant. According to the learned Advocate-General, there was no
need to amend the Act merely because of the enactment of sub-s. (3)
of s. 195 of the Code and the majority view in Lalji Haridas' case is
E binding on us and is still good law. His submissions were on these
lines. While under s. 4 of the Act a Commission of Inquiry has the
power of a Civil Court while trying a suit under the Code of Civil
Procedure, 1908 in respect of the matters enumerated therein, the
legislature has not rested at that. Parliament has made express provi-
sion, by the use of a legal fiction in sub-s. (4) of s. 5 of the Act, that a
F . Commission of Inquiry shall be deemed to be a Civil Court and has
further, by the use of another legal fiction in sub-s. (5) thereof,
enjoined that any proceedings before a Commission oflnquiry shall be
deemed to be judicial proceedings. On a combined reading of sub-ss.
(4fand (5) of s. 5, the learned Advocate-General contends that the
conclusion is irresistible that a Commiss(on of Inquiry is a_ Court for
G the purposes of s. 195(l)(b) as laid down in Lalji Haridas'- case. In
other words, the submission is that whiles. 4 invests a Commission of
Inquiry with the power of a Civil Court following the familiar pattern
--of statutes constituting special tribunals, the legislature has gone
further and put the matter beyond doubt by enacting sub-ss. (4) and
(5) of s. 5. The contentions advanced on benalf of the appellant were,
H it is said, the submissions made before the Court in Lalji Haridas' case,
't

B.W. HIRAY v. JUSTICE B. LANTIN [SEN, J.] 959

and the Court has dealt with the question as to whether there was a
A
distinction between a case where a statute constituting a tribunal pro-
vides that the tribunal shall be deemed to be a Court for the purposes
,.
1 of s. 195(1)(b) and a case where a statute does not expressly say so.
The majority on a construction of the various provisions of the Act,
expressed the considered view that the absence of such a provision
makes no difference. It was further not open for us to say that the B
decision in Lalji Haridas' case was no longer binding on us merely by
the enactment of sub-s. (3) of s. 195 of the Code.

The learned Advocate·General then read out the provisions of s.
195( l)(b) of the Code of Criminal Procedure, 1898 and of the present
Code, as well as the interpretation clause in sub-s. (3) of s. 195 of the
present Code and the analogous provisions in sub-s. (2) of s. 195 of the c
old Code, to impress upon us that there was no textual difference in
the language of s. !95(l)(b). As regards the interpretation clause, it
was pointed out that the first part of s. 195(2) of the old Code used the
'' word 'means' which was later substituted by the word 'includes'. The
first part of s. 195(2) was therefore an inclusive one but the second was D
.
...
an exclusionary clause so as to exclude the Registrar or the Sub-
Registrar under the Indian Registration Act from the purview of the
expression 'Court', as defined by the first part of s. 195(2). In contrast,
j the definition of the term 'Court' in sub-s. (3) of s. 195 of the present
Code is exhaustive. However, it is urged that all thats. 195(3) of the
present Code does is io provide that in cl .(b) the term 'Court' as E
defined in s. 195(3) 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. The definition of 'Court' in the first part of s. 195(3) of the
Code is therefore restrictive while the second is inclusive. It is c_on-
tended that the definition of a word may either be restrictive of its F
Ordinary meaning or, it may be extensive of the same. Sometimes,
definition of a term contains the words 'means and includes' which
may inevitably raise a doubt as to interpr~tation. According to the
learned Advocate-General, the inclusive part of the definition of
'Court' in s. 195(3) of the Code was ex abundanti cautela and was
merely declaratory of the law. It is submitted that the first part of G
sub-s. (4) of s. 5 of the Act fulfils the requirements of the inclusive part
of the definition of 'Court' ins. 195(3) of the Code. Therefore, the Act
was in line with stib-s. (3) of s 195 of the Code, there was no occasion
for Parliament to effect an amendment of the Act, particularly having
regard to the majority decision in Lalji Haridas' case.
H
960 SUPREME COURT REPORTS [1988] Supp. 2 S.C . R.

The learned Advocate-General with much learning and resource
A
submits that there are different types of legislative practices. One such
instance is that of sub-s. (4) of s. 37 of the Indian Income Tax Act,
1922, inserted in the Act in 1956, which provides that any pruceeding
before an Income Tax Officer shall be deemed to be a judicial
proceeding, like in sub-s. (5) of s. 5 of the Commissions of Inquiry Act
B here. Our attention was drawn to the following observations of
Gajendragadkar, CJ speaking for the majority in La/ji Haridas' case as
to the purport and effect of s. 37 of the Indian Income Tax Act, at
pp. 709-710:

"the expression "judicial proceeding" is not defined in the
Indian Penal Code, but we have the definition :of the said
c expression under s. 4(m) of the Cr. Procedure Code. Sec-
tion 4(m) provides that "judicial proceeding" includes any
proceeding in the course of which evidence is or may be
leg:illy taken on oath. The expression "Court" is not
defined either by the Cr. P.C. orthe l.P.C., though 'Court
D of Justice' is defined bys. 20 of the latter Code as denoting
a Judge who is empowered by law to act judicially alone, or
a body of Judges .which is empowered by law to act judi-
cially as a body, when such Judge or body of Judges is
acting judicially. Section 3 of the Evidence Act defines a
"Court" as including all Judges and Magistrates and all
E persons except the Arbitrators legally authorised to take·
evidence. Primafacie, there is some force in the contention
that it would not be reasonable to predicate about every
judicial proceeding that it is a proceeding before a Court,
and so, it is open to the appellant to urge that though the
proceeding before an Income-tax officer may be a judicial
F proceeding under s. 193, I.P.C., it would not follow that
the said judicial proceeding is a proceeding in a Court as
required bys. 195(1)(b), Cr. P.C."

And to the operative part of the judgment delivered by the learned
ChiefJustice at pp. 710-711:
G
"It is true, the Additional ~olicitor-General has mainly
relied upon the relevant pr6visions of several statutes in
support of his construction and in so far as it appears that
certain provisions in some of the said statutes in terms
extend the application of s. 195, Cr. P.C. to the proceed-
H ings to which they relate, the argument does receive sup- . '
'
B.W. HIRAY v. JUSTICE B. LANTIN [SEN, J.] 961

port, but we hesitate to hold that the omission to refer to
A
s. 195(1)(b), Cr. P.C. ins. 37(4).of the Act necessarily
means that the intention of the legislature in enacting
s. 37(4) was merely and solely to provide· for a higher sen-
tence in regard to the offence under s. 193, I.P.C. if it was
committed in proceedings before the Income-tax Officer. It
is plain that if the argument of the Additional Solicitor- B
General is accepted, the result would be that a complaint
like the present can be made by any P!'rson and if the
.' offence alleged is proved, the accused ~ould be liable to
' receive higher penalty awardable under the first .paragraph
of s. 193, I.P.C. without the safeguard correspondingly
provided bys. 195(l)(b), Cr. P.C. Could it have been the
intention of the legislature in making the offence commit-
c
~·
" ted during the course of a proceeding before an Income-tax
Officer more serious without affording a corresponding
l safeguard in respect of the 'complaints which can be made
)
I in that behalf? We are inclined to hold that the answer to
this question must be in the negative," D

'
J The learned Chief Justice then concluded:

"After careful consideration, we have come to the -
conclusion that the view taken by the Bombay High Court
should be upheld though for different reasons. Section E
37(4) of the Act makes the proceedings before the Income-
tax Officer judicial proceedings under s. 193 I.P .C. and
these judicial proceedings must be treated as proceedings

J in any Court for the purpose of s. 195(l)(b), Cr. P.C. That,
we think, would really carry out the intention of the legisla-
ture in enacting s. 37(4)oftheAct." F

Incidentally, the learned Advocate-General also drew our attention to
the following observations at p. 706 where the majority was dealing
with s. 195(2) of the old Code saying that it was not necessary to deal
with the effect of that provision because, they did not propose to base
I their decision on the ground· that the Income-tax Officer was a G
\
Revenue Court under that suo-section, and added:

"The only point of interest to which we may incidentally
refer is that this sub-section gives an inclusive, though not
exhaustive, definition and takes within its purview not only
Civil and Criminal Courts, but also Revenue Courts, while H
I
\
I
962 SUPREME COURT REPORTS [19~8] Supp. 2 S.C.R.
' ' ' . .I
A excluding a Registrar or Sub-Registrar under the Indian
Registration Act." ·

Another decision to which the learned Advocate'.General relied
upon is that of this Court in Ba/want singh & Anr. v. L\.c. Bharupal,
Income-Tax Officer, New Delhi & Anr., l1968] 70 IlR 89 where a
B three-Judges Bench speaking through Shelat, J. reiterated the majo-
rity view in Lalji Haridas' case and held that:.the proceedings before
an Income-tax Officer for the registration of a firm under s. 26A of the
Indian Income-tax Act; 1922 were judicial proceedings in a Court for
the purposes of s. 195{l)(b) of the Code. Another legislative practice
to which our attention was drawn by the· learned Advocate-General
C 'was the one employed in s. 34 of the U.P. U.rban Buildings {R~gula
tion of Letting; Rent & Eviction) Act, 1972. Sub-s. (1) of s. 34 of1that
Act provides that the District Magistrak;the Prescribed AuthoritX or
any appellate authority shall, for the purposes of holding any inquiry
or ho:aring any appeal ·under the Act, have the same powers as ~re
vested in the. Civil Court under the Code of Civil Procedure, 1908,
D when trying a suit in respect of the matters enumerated therein, just
like s. 4 of the Commissions of Inquiry Act. Then comes sub-s. (2)
which may be extracted below:

"{2) The District Magistrate, the Prescr(bed Authority or
appellate or revising authority, while holding an inquiry or
E hearing· an appeal or revision under this Act, shall be
deemed to be a Civil Court within the meaning of sections
345 and 346 of the Code of Civil Procedure, 1908 and any
proceeding before him or it to be a judicial proceeding
within the meaning of sections 193 to 228 of the Indian
·Penal Code (Act No. XLVof 1860)."
F
In. Chandrapa/ Singh & Ors. v. Maharaj Singh & Anr., [1982] 1 SCC
._466, a 3-Judges Bench speaking through Desai, J. held that in .view of
the specific provision made in sub-s.(2) of s. 34 of the UP Rent Act, a
· District Magistrate must be deemed to be a Civil Court within the
meaning of s. 193 of the Indian Penal Code, as well as for the purposes
G of ss. 195{l)(b) and 482 of the Code of Criminal Procedure. We were
._____ . · referred to the following passage in that judgment:

"Now, sub-section (2) of Section 34 extracted herein before
would show that the expression 'District Magistrate' which
would include any officer authorised by him to exercise,
perform and discharge his powers, functions and duties,
B.W. HIRAY v. JUSTICE B. LANTIN [SEN, J.] 963

shall be deemed to be a civil court within the meaning of
A
Sections 480 and 482 of the Code of Criminal Procedure,
1898. Sections 345 and 346 of the Code of Criminal Proce-
dure 1973, are corresponding to Sections 480 and 482 of the
Cr.P .C., 1898. As a corollary it would follow that the Rent
Control Officer shall be deemed to be a civil court within
the meaning of Sections 345 and 346 of the Cr. P.C., 1973 B
and in view of sub-section (2) of Section 34 of the Rent Act,
shall be a civil court for the purpose of section 193, IPC.
Section 195(3), Cr.P.C. provides that the expression
'Court: in Section 195(1)(b)(i) will include a tribunal con-
stituted. by or under a Central, Provincial or State Act if
declared by that Act to be a court for the purposes of the
section. Section 195(1)(b)(i) provides a pre-condition for c
taking cognizance of an offence under Section 193, IPC,
viz. a complaint in writing of the court. In view of the
-specific provision made in sub-section (2) pf Section 34 of
the Rent Act that for the purposes of Sections 345 and 346,
Cr.P.C., Rent Control Officer, assuming it to be a tribunal D
as held by the High Court and not a court, would be
deemed to be a civil court and, therefore, for purposes of
Sections 193 and 228, IPC a fortiori any proceeding before
it would be a judicial proceeding within the meaning of
Section 193, IPC. If, therefore, according to the complain-
ant false evidence was given in a judicial proceeding before E
a civil court and the persons giving such false evidence have
committed an offence under Section 193, IPC in or in rela-
tion to a proceeding before a court, no court can take
cognizance of such offence except on a complaint in Writ-
ing of that court."
F
Placing reliance on these observations, the learned Advocate-General
contends that according to the ratio in Chandrapal Singh's case, a
Commission of Inquiry is a Court for the purposes of s. 195{l)(b).
According to him, the first part of sub-s. (4) of s. 5 of the Act satisfies
the requirements of the inclusive part of the definition of 'Court' as
contained in sub-s. (3) of s. 195 of the Code. G

Another legislative practice, according to the learned Advocate-
General, was the one adopted bys. 28 of the Finance Act, 1985 where
the law enacted contains a legal fiction that any proceeding under the
Inc.ome-tax Act before an income-tax authority shall be deemed to be
a judic~al proceeding within the meaning of ss. 193 and 228 and for the H
964 SUPREME COURT REPORTS [1988) Supp. 2 S.C.R.

purposes of s. 196 of the Indian Penal Code viz. every income-tax
A
authority shall be deemed to be a Civil Court for the purposes of s. 19S
but not for the purposes of Chapter XXVI of the Code. According to
him the amendment brought about ins. 136 of the Income-tax Act was
nothing but 'legislative exposition of the law', as declared in Lalji
Haridas' case. To substantiate his submission that the legislature
B adopted different methods to achieve the same end, he drew our atten-
tion to s. 23 of the Workmen's Compensation Act, 1923 and s. 18 of
the Payment of Wages Act, 1936 where, likes. 136 of the Income-tax
Act, 1961 as now amended by s. 28 of the Finance Act, 1985 the
analogous provision which, he says is a combination of two provisions
like sub-ss. (4) and (5) of s. 5 of the Commissions of Inquiry Act, into
one, enacts that the Commissioner appointed under the Workmen's
c Compensation Act shall be deemed to be a Civil Court for all purposes
of s. 195 of the Code, and bys. 18 of the Payment of Wages Act, that
the authority appointed under the Act ·shall be deemed to be a Court
for the purposes of s. 195 of the Code. The phraseology may differ but,
the learned Advocate-General contends, the method is the same. He
D also referred to sub-s. (4) of s. 108 of the Customs Act, 1952 which
provision is in pari materia with sub-s. (5) of s. 5 of the Commissions of
Inquiry Act, and enacts that every proceeding before a Customs
Officer shall be deemed to be a judicial proceeding within the meaning
of ss. 193 and 228 of the Indian Penal Code. It would be seen that the
underlying theme of all these submissions of the learned Advocate-
E General is by placing emphasis on sub-s. (4) of s. 5 of the Commissions
of Inquiry Act which provides that a Commission of Inquiry shall be
deemed to be a Court. He contends that the legal fiction must be given
its full effect and therefore the Commission must be treated to be a
Civil Court for 'all purposes'. And in the alternative, he submits that
the word 'deemed' is also sometimes used by the legislature in order to
F remove any doubt in the matter. We shall consider all these aspects in
their proper context.

After the 'conclusion of the hearing Dr. Chitale, learned counsel
for the appellant, has furnished a list of 11 enactments where Parlia-
ment while enacting a law has made an express provision that the
G Tribunal shall be deemed to be a Court for the purposes of s. 195 and
Chapter XXVI of the Code of Criminal Procedure, 1973. For instance,
sub-s. (6) of s. 20 of the Aluminium Corporation of India Limited
(Acquisition and Transfer of Aluminium Undertaking) Act, 1984 pro-
vides that any investigation before the Commission shall be deemed to
be a judicial proceeding within the meaning of ss. 193 and 228 of the
H Indian Penal Code and the Commissioner shall be deemed to.be.a-(:ivil
B.W. H!RAY v. JUSTICE B. LANTIN [SEN, J.] 965

.Court for the purposes of s. 195 arid Chapter XXVI of the Code of A
Criminal procedure, 1973. Similar provisions are contained ins. 18(6)
of the Amritsar Oil Works (Acquisition etc.) Act, 1982, s. 22(6) of the
Bengal C. & P. Works Ltd. Act, 1980, s. 21(6) of the Bengal Immunity
Co. Ltd. (Acquisition & T.O.U.); Act, 1984, s. 19(6) of the Bird &
Company Ltd. (Acquisition etc.) Act, 1980, s. 12(3)(d) of the Cine
Workers etc. (Regulation of Employment) Act, 1981, S. 37(2) of the B
Emigration Act, 1983, s. 13(5) of the Consumer Protection Act, 1986,
ss. 14 of the Sick Industrial Companies (Special Provisions) Act, 1985,
s. 19 of the Illegal Migrants (Determination by Tribunals) Act, 1983
and s. 95 of the Coast Guard Act, 1978, deeming the Commissioner or
the Tribunal appointed under the respective Acts for investigation of
claims to be a Civil Court for the purposes of s. 195 and Chapter XXVI
of the Code of Criminal Procedure, 1973. Of these eleven enactments,
c
5 relate to acquisition of certain industrial undertakings and there is
provision made for investigation of claims for the purposes of payment
of compensation. The sixth relates to regulation of the conditions of
employment of a class of workmen. The remaining five enactments
provide for creation of a .tribunal for investigation of claims or D
entrusted with certain adjudicatory functions. It would therefore
appear that Parliament in its wisdom wherever thought it fit has
inserted a special provision for deeming a tribunal to be a Court for the
purposes of s. 195(1)(b) but has left the other enactments like the
Commissions of Inquiry Act untouched although sub-s. (3) of s. 195
has been on the Statute Book for the last over 14 years. This lends E
support to the submission of Dr. Chitale that it is no more a question
of interpretation but one of express enactment.

The crucial question that falls to be determined in this appeal. is
whether sub-s. (3) of s. 195 has brought about a change in the law and
therefore the majority decision in Lalji Haridas' case no longer holds F
the field as submitted by Dr. Chitale, appearing on behalf of the appel-
lant, or was merely declaratory of the law as declared by the Court in
Lalji Haridas' case, as argued by the learned Advocate General, and
therefore, the decision in Lalji Haridas' case is still good law. It cannot
be doubted that sub-s. (3) of s. 195 of the Code has been enacted by
Parliament to implement the recommendations of the 4 lst Report of G
the Law Commission which brought about the unsatisfactory sfaie of
law due to conflict of opinion between different High Courts as to the
meaning of the word 'Court' in s. 195(1)(b) read in the context of
s. 195(2) .of the earlier Code. The interpretative exercise undertaken
by the Courts over the years as to the precise meaning of the term
'Court' as defined ins. 195(1)(b) of the old Code prior to the introduc- H
966 SUPREME COURT REPORTS I 1988] Supp. 2 S.C.R. .-
lion of sub-s.(3) of s. 195 of the present Code, reveals an endless
A
oscillation between two views-each verging on a fringe of obscurity
and vagueness. As echoed by Lord Macmillan in his Law & Other
Things at p. 48:

"In almost every case, except the very plainest, it would be
B possible to decide the issue either way with reasonable
legal justification and that in such cases, ethical considera-
tions operate and ought to operate."

In that uncertain state of law, the Law Commission observed .in
paragraph 15. 99 of its Report that it felt that in any concrete case this
question is bound to create problem of interpretation and accordingly
c suggested a change in law for the purposes of s. 195 of the Code. It felt
that the term 'Court' for the purposes of clauses (b) and (c) should
mean a Civil, Revenue or a Criminal Court, properly so called, but
where a tribunal created by an Act has all or practically all the attri-
butes of a Court, it might be regarded as a Court only if declared by
D the Act to be a Court for the purposes of s. 195. Indibutably, the
introduction of the inclusive clause in the definition of 'Court' in sub-
s. (3) of s. 195 has brought about a change in the law. No rule is more
firmly established than the principles enunciated in Heydon's case,
which have been continually cited with approval not only by the
English Courts but also by the Privy Council as well as this Court. The
E principles laid down in Heydon's case have been enunciated in Craies
on Statute Law, 6th edn. at p. 96 as follows:

"That for the sure and true interpretation of all statutes in
general (be they penal or beneficial, restrictive or enlarging
of the common law), four things are to be discerned and
F considered: (1) what was the common law before the
making of the Act (2) What was the mischief and defect for
which the common law did not provide (3) What remedy
the Parliament hath resolved and appointed to cure the
disease of the commonwealth (4) The true reason of the
remedy. And then the office of all the judges is always to
G make such construction as shall suppress the mischief and
advance the remedy, and to suppress subtle inventions and
evasions for the continuance of the mischief and pro
privato commodo, and to add force and life to the cure and
remedy according to the true intent of the makers of the
Act pro bona publico."
B
B.W. HIRAY v. JUSTICE B. LANTIN [SEN, J.] 967

These rules are still in full force and effect, with the addition that A
regard must now be had not only to the existing law but also to prior
legislation and to the judicial interpretation thereof. The Court
applied the rule in Heydon's case in The Bengal Immunity Company
Limited v. The State of Bihar & Ors., [1955] 2 SCR 603 in the construc-
tion of Art. 286 of the Constitution. After referring to the state of law
prevailing in the then Provinces prior io the Constitution as also to the B
chaos and confusion that was brought about in inter-State trade and
commerce by indiscriminate exercising of taxing powers by the diffe-
rent provincial legislatures founded on the theory of territorial nexus,
S.R. Das, Actg. 0. speaking for himself and Vivian Bose and Jafer
Imam, JJ. proceeded to say:

"It was to cure this mischief of multiple taxation and to
c
preserve the free flow of inter-State trade or commerce in
the Union of India regarded as one economic unit without
any provincial barrier that the constitution-makers adopted
Art. 286 of the Constitution."
D
An illustration of the application of the rule is also furnished in the
construction of s. 2(d) of the Prize Competitions Act, 1955. In R.M.D.
Chamarbaugwalla v. The Union of India, [1957] SCR 930 Venkata-
rama Ayyar, J. speaking for the Court after referring to the previous
state of the law, to the mischief that continued under that law and
to the resolutions passed by different State Legislatures under E
Art. 252(1) of the Constitution authorising Parliament to pass the Act,
stated:

"Having regard to the history of the legislation, the
declared object thereof and the wording of the statute, we
are of opinion that the competitions which are sought to be F
controlled and regulated by the Act are only those compe-
titions in which success does not depend on any substantial ·
degree of skill."

A further example is furnished in the construction of s. 16(3) of
the Indian Income-tax Act, 1922 which provides: "In computing the G
total income of any individual for the purpose of assessment, there
shall be included (a).so much of the income of a wife or minor child of
such individual as ·arises directly or indirectly." The question before

•. the Court was whether the word 'individual' occurring in s. 16(3)
meant only a male or also included a female. After finding that the said
word in the setting was ambiguous, Bhagwaii, J. speaking for himself Ii
968 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R. ...
and J .L. Kapur, JJ. in The Commissioner of Income-tax, Madhya
A Pradesh & Bhopal v. Sodra Devi, [1958] SCR 1 observed:

"In order to resolve this ambiguity therefore we must of
necessity have resort to the state of the law before the
enactment of the provisions, the mischief and the defect for
[3 which the law did not provide; the remedy which the legis-
lature resolved and appointed to cure the defect; and the
true reason of the remedy;

After taking into account these factors the learned Judge went on to
say:

c "It is clear that the evil which was sought to be remedied
was the one resulting from the widespread practice of
husbands entering into nominal partnerships with their
wives and fathers admitting their minor children to the
benefits of the partnerships of which they were members.
D This evil was sought to be remedied by the enactment of
s. 16(3) in the Act."

There is no need to burden the judgment with numerous citations.
Following the rule in Heydon's case it appears to us that to construe
sub-s. (3) of s. 195 of the Code it is not only legitimate but highly
E convenient to refer both to the former Code and the state of uncer-
tainty brought about due to conflict of views between different High
Courts, and to the present Code which seeks to provide the remedy. It
was to cure this mischief that Parliament brought in sub-s. (3) of s. 195
of the Code and put an end to the controversy.

F Law must be definite, and certain. If any of the features of the
law can usefully be regarded as normative, it is such basic postulates as
the requirement of consistency in judicial decision-making. It is this
requirement of consistency that gives to the law much of its rigour. At
the same time, there is need for flexibility. Professor H.L.A. Hart
regarded as one of the leading thinkers of our time observes in his
G influential book 'The Concept of Law', depicting the difficult task of a
Judge to strike a balance between certainty and flexibility:

"Where there is obscurity in the language of a statute, it
results in confusion and disorder. No doubt the courts so
frame their judgments as to ·give the impression that their
H decisions are the necessary consequence of predetermined
B.W. HIRAY v. JUSTICE B. LANTIN !SEN, J.l 969

rules. In very simple cases it may be so; but in the vast A
majority of cases that trouble the courts, neither statute
nor precedents in which the rules are legitimately cont-
ained allow of only one result. In most important cases
there is always a choice. The judge has to choose between
alternative meanings to be given to the words of a statute
B
or between rival interpretations of what a precedent
amounts to. It is only the tradition that judges 'find' and do
not 'make' law that conceals this, and presents their deci-
sions as if they were deductions smoothly made from clear
pre-existing rules without intrusion of the judge's choice."

Faced with the difficulty, the learned Advocate General with his c
usual astuteness says that although he cannot fall back on the inclusive
part of the definition of 'Court' in sub-s. (3) of s. 195 of the Code, laid
particular emphasis on the main part of the definition and contended
that the mere absence ot an express provision in the Commissions of
Inquiry .Act deeming the Commission to be a Court for the purposes of
D
s. 195 of the Code, it would not necessarily imply that the Commission
is not a Court for the purposes of s. 195 particularly when sub-s. (4) of
s. 5 in express terms provides that the Commission shall be deemed to
be a Civil Court and sub-s. (5) expressly provides that any proceeding.
before the Commission shah be deemed to be judicial proceeding
within the meaning of ss. 193 and 228 of the Indian Penal Code. The
learned Advocate General contends that the use of the words 'deemed E
to be' indicates that the proceedings before a Commision of Inquiry
are not judicial proceedings, but by legal fiction they have to be
regarded as judicial proceedings for the purposes of ss. 193 and 228 of
the Indian Penal Code. It is contended that the word 'deemed' is
however sometimes used by the legislature in order to remove any
doubt in the matter. He drew our attention to the following obser' F
vations of Lord Radcliffe in St. Aubyn v. Attorney General, LR
1952 AC 15:

" ...... The word 'deemed' is used a great deal in modem
legislation: Sometimes it is used to impose for the purpose
G
of a statute an artificial construction of a word or phrase
that would not otherwise prevail. Sometimes it is used to
put beyond doubt a particular construction that might
otherwise be uncertain. Sometimes it is used to give a com-
prehensive description that includes what is obvious, what
is uncertain and what is, in the ordinary sense, impossible.''
H
970 SUPREME COURT REPORTS I 1988] Supp. 2 S.C.R.

A The main thrust of the argument of the learned Advocate General that
a Commission of Inquiry should be regarded as a Court for the
purposes of s. 195(1)(b) stems from a wrongful hypothesis that sub-
s. (4) of s. 5 of the Act is in two parts. He contends for the purpose of
his submission that sub-s. (4) of s. 5 of the Act consists of two separate
provisions, the first of which deals with the status of a Commisson of
B Inquiry as a Civil Court and the second deals with the power of the
Commission to forward a case under s. 482 of the earlier Code
(corresponding to s. 346 of the present Code) when any offence as is
described ins. 175, s. 179, s. 180 ors. 228 of the Indian Penal Code is
coinmitted in view of or presence of the Commission, to a Magistrate
·having jurisdiction to try the same. The submission is that sub-s. (4) is
~ in two parts dealing with separate subject-matters and merely because
~ they are joined by the word 'and', the first part cannot be projected
into the second. We are afraid, we are unable to agree with this line of
reasoning. It would not be correct to contend that the legal fiction
contained in the first part of sub-s. (4) is complete in itself and there-
fore a Commission of Inquiry must, by reason of the legal fiction
D contained therein, be deemed to be a Civil Court 'for all purposes'.
The argument fails to take note of the fact that the words 'for all
purposes' are not there in the first part of sub-s. (4) and the Court
cannot in the guise of interpreting the provision, supply any casus
omissus. The first part of sub-s. (4) merely provides by the legal fiction
that a Commission of Inquiry shall be deemed to be a Civil Court and
E it stops there. We are quite clear that the first part cannot be read in
isolation but must take its colour from the context in which it appears.
It would not be correct to contend that the fiction created by the first
by the words 'shall be deemed to be a Civil Court' is full and complete
in itself. The purpose and object of the legal fiction created by the first
part of sub-s. (4) is reflected in the second. A Commission of Inquiry is
F therefore fictionally a Civil Court for the limited purpose of proceed-
ing under s. 482 of the old Code or under s. 346 of the present Code. A
fortiori, the legal fiction contained in sub-s. (5) of s. 5 which relates to
the proceedings before the Commission is necessary confined to off-
ences that are punishable under ss. 193 and 228 of the Indian Penal
Code and does not extend beyond that.
G
In Lalji Haridas' case the majority of this Court held that the
proceedmgs 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 proceed-
ings in any Court for the purposes of s. 195(1)(b) of the Code. It must
H be reP1embered that the decision in Lalji Haridas' case was rendered
B.W. HIRAY v. JUSTICE B. LANTIN [SEN, J.] 971

prior to the enactment of sub-s. (3) of s. 195 of the present Code. The A
Court was therefore concerned with the defintion of the term 'Court'
under s. 195(2) of the earlier Code which was an inclusive one. There
being no express provision akin to s. 40 of the Indian Railways Act,
s, 23 of the Workmen's Compensation Act ors. 18 of the Payment of
Wages Act, the matter was one of construction. The question there-
fore whether an Income-tax Officer was a Court for the purposes of B
s. 195(1)(b) was more a question of interpretation than one of
express enactment after the amendment of s. 126 of the Income-tax
Act, 1961 by s. 28 of the Finance Act, 1985. The decision of the
majority in Lalji Haridas' case is now more of academic interest. The
decision in Ba/want Singh's case does not carry the matter any further.
c
It would be convenient at this stage to deal with the decision of
this Court in Chandrapal Singh's case. Under the scheme of the U.P.
Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972,
various functions are entrusted to different authorities. The District
Magistrate as defined ins. 3(c), is vested with the power of making an
order of allotment under s. 16(1)(a). In making such an order of allot- D
ment under cl. (a) or on order of release of accommodation under
cl. (b) of s. 16(1), the District Magistrate clearly exercises a quasi-
judicial function and therefore has a duty to hear. The landlord has a
right ·to have the order passed oy the District Magistrate under
s. 16(1)(b) for release of ihe building or part thereof for any of the
purposes set out in s. 16(2). The District Magistrate may release the E
building or any part thereof or any land appurtenant thereto under
s. 16( l)(b) where any of the aforesaid conditions are proved to exist to
his satisfaction. The expression 'District Magistrate' as defined in
s. 3(c) is an inclusive one and it includes an officer authorised by the
District Magistrate to· exercise, perform and discharge all or any of his
powers, functions and duties. Such an officer is normally designated as F
tne Rent Control & Eviction Officer. Under s. 20 of the Act the
powers of eviction are exercisable by the regular Civil Courts. In cases
not falling under s. 20 but under s. 21, the powers are exercisable by
the Prescribed Authority. A landlord may apply for release of the
accommodation on .the ground of bona fide requirement under
s. 21(1)(a) before the Prescribed Authority. The expression 'Pres- G
cribed Authority' as defined ins. 3(e) means a Civil Judicial Officer or
Judicial Magistrate authorised by the District Magistrate to exercise,
perfo1111 and discharge all or any of the powers, functions and duties of
;-· the Prescribed Authority under the Act. The hierarchy of Courts is
clearly established because s. 18 of the Act contemplates an appeal
from an order of the District Magistrate to the District Judge. H
972 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

Although therefore Desai, J. in delivering the judgment of the Court
A has not referred to the definition of District Magistrate in s. 3( c) and
that of the Prescribed Authority under s. 3(e) or the provision for an
appeal under s. 18 of the Act. but has referred the authority as the
Rent Control Officer which expression is not used in the Act. Presum-
ably, when the learned Judge when he described the Rent Control
B Officer at p. 471 of the Report as a Civil Court, meant that the
authorities designated under the Act were 'Civil Courts'. In any event,
considering the nature of functions to be perforrned under the U .P.
Rent Act, the authorities designated would be Civil Courts. In con-
trast, a Commissions of Inquiry constituted under the Commission of
Inquiry Act is neither a Civil Court nor a Criminal Court or a Court
properly so called in the strict sense of the terrn.
c
In view of the change in law, we fail to appreciate the contention
of the learned Advocate-General, without meaning any disrespect,
that the principles laid down by the majority in Lalji HarUias' case that
on a combined reading of sub-ss. (4) and (5) of s. 5 of the Commissions
D of Inquiry Act read in the context of sub-s. (4), an Income-tax Officer
must still be regarded to be a Court for the purposes of s. 195(1)(b),
despite the enactment of sub-s. (3) of s. 195. A Commission of Inquiry
is not a Court properly so called. A Commission is obviously appoin-
ted by the appropriate Government 'for the inforrnation of its mind' in
order for it w decide as to tlie course of action to be followed. It is
E therefore a fact-finding body and is not required to adjudicate upon
the rights of the parties and has no adjudicatory functions. The
Government is not bound to accept its recommendations or act upon
its findings. The mere fact that the procedure adopted by it is of a legal
character and it has the power to administer an oath will not impart to
it the status of a Court.
F
In Virindar Kumar Satyawadi v. State of Punjab, supra, a three-
J udges Bench speaking through Venkatarama Ayyar, J. relying upon
the celebrated decision of the House of Lords in Shell Co. of Australia
v. Federal Commissioner of Taxation, LR ( 1931) AC 275 explained the
legal connotation of the terrn 'Court' in these words:
G
"What distinguishes a Court from a quasi-judicial tribunal
is that it is charged with a duty to decide disputes in a
judicial manner and declare the rights of parties in a defini-
tive judgment. To decide in a judicial manner involves that
the parties are entitled as a matter of right to be heard in
H support of their claim and to adduce evidence in proof of it.
B.W. HIRAY v. JUSTICE B. LANTIN [SEN, J.] 973

And it also imports an obligation 011 the part of the autho- A
rity to decide the matter on a consideration of the evidence
adduced and in accordance with law. When a question
therefore arises as to whether an authority created by an
Act is a Court as distinguished from a quasi-judicial tri-
bunal, what has to be decided is whether having regard to
the provisions of the Act it possesses all the attributes of a B
Court."

It is a familiar feature of modern legislation to set up bodies and
tribunals, and eatrust tliem with work of a judicial, quasi-judicial or
administrative character, but they are not Courts in the accepted sense
of that term, though they may possess, as observed by Lord Sankey,
L.C. in Shall Co. of Australia's case, some of the trappings of a Court. C
Venkatarama Ayyar, J. in Virindar Kumar Satyawadi has referred to
several decisions of the Courts in England and Australia as to what are
the essential characteristics of a Court as distinguished from tribunals
exercising quasi-judicial functions.
D
About a decade later in Jagannath Prasad v. State of Uttar
Pradesh, supra, case, this Court following its earlier decision in S1nt.
Ujjam Bai v. State of Uttar Pradesh, [1961] 1 SCR 778 held that no
doubt a Sales Tax Officer appointed under the U.P. Sales Tax Act,
1948 is an instrumentality of the State employed for the purposes of
assessment and collection of taxes and merely because he has, in the E
discharge of his duties, to perform certain quasi-judicial functions i.e.
has certain powers which are similar to the powers exercised by
Courts, still is not a Court as understood in s. 195 of the Code. The
Court relied upon the decision of "the House of Lords in Shell Co. of
Australia for the view that a Sales Tax Office was not a Court in the
strict sense of that term. It referred with approval to the following F
observations of Lord Sankey, L.C. where he enumerated some nega-
tive propositionsto contra-distinguish a tribunal from a Court:

"In that connection it may be useful to enumerate some
i. negative propositions on this subject: 1. A tribunal is not
necessarily a Court in this strict. sense because it gives a G
final decision 2. Nor because it hears witnesses on oath 3.
Nor because· two or more contending parties appear before
it between whom it has to decide. 4. Nor because it gives
decisiohs ·which affect the rights of subjects. 5. Nor because
there is an appeal to a Court. 6. Nor because it is a body to
which a matter is referreu by another body. See Rex. v. H
974 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

Electricity Commissioners, [1924] 1K.B.171."
A
There had been prior to the enactment of sub-s. (3) of s. 195 of the
present Code, a sharp conflict of opinion between the High Courts as
to what are the Courts and what are not for the purposes of s. 195(1)(b)
of the old Code. The question whether a Commission of Inquiry con-
B stituted under the Commissons of Inquiry Act was a Court within the
meaning of the Contempt of Courts Act, 1952 and whether the pro-
ceedings before the Commission of Inquiry were judicial proceedings
directly arose before a Division Bench of the Nagpur High Court in
M. V. Rajwade v. Dr. S.M. Hassan, supra. Bhutt, J. speaking for him-
self and B.P. Sinha, CJ held that a Commission of Inquiry constituted
C under the Commissions of Inquiry Act, 1952 was not a Court within
the meaning of the Contempt of Courts Act. The learned Judge rightly
observed that the legal fiction created by the first part of sub-s. (4) is
for the limited purpose sepcified in the second and that the purpose for
which the fiction is created is therefore to be gathered from what
follows after the words which create the fiction. In dealing with the
D fiction, Bhutt, J. observed:

"Applying this test in the instant case, it would appear that
the purpose for which the fiction is created in sub-section
( 4) of Section 5 of the Commissions oflnquiry Act, 1952, is
to be inferred from the words that follow the expression
E "the Commission shall be deemed to be a Civil Court". It
would not be correct to contend that the above expression
is full and complete in itself and what follows it only
denotes the limitation on the full-fledged status and powers
of a civil Court that the Commission would otherwise have
possessed. If that was the intention of the Legislature, the
F sentence would have been completed after the words "civil
court" and what follows it would have been the subject of a
separate sub-section or sentence. ft is, therefore, clear that
under the Commissions of Inquiry Act, 1952, the Commis-
sion is fictionally a civil court only for the purpose of the
contempts punishable under ss. 175, 178, 179, 180 and 228
G of the Indian Penal Code, 1860, subject to the condition
that it has not the right itself to punish the contemners, .a
right which other Courts possess under Section 480 of the
code of Criminal Procedure 1898. Similarly it follows that the
fiction relating to the proceedings before the Commission is
confined to offences that are punishable under Sections 193
H and 228 of the Indian Penal Code, 1860, referred to in sub-
section (5) of the Act, and does not extend beyond this limit."
B.W. HIRAY v. JUSTICE B. LANTIN [SEN, J.) 975

'The learned fodge then dealt with a Commission of Inquiry consti- A
luted under the Commissions of Inquiry Act and held that the
Commission has not the attributes of a Court. In repelling the conten-
tion that the function of the Commission being of a advisory nature
which was·akin to the Judicial Committee to the Privy Council which
only advised His Majesty and did not deliver any judgment them-
selves, as well as distinguishing the decision of the Lahore High Court B
in M.M. Khan v. Emperor, ILR (1931) 12 Lah. 391 holding that
the Special Commissioners appointed under the Public Servants
(Inquiries) Act, 1850 constituted a Court within the meaning of s. 195,
the learned Judge observed:

"An enquiry under the Commissions of Inquiry Act, 1952,
on the other hand, is of wholly different character. There is c.
no accuser, no accused and no specific charges for trial; nor
is the Government under the law, required to pronounce,
one way or the other, on the findings of the Commission."

The learned Judge relied upon the following observations of the Judi- D
cial Committee of the Privy Council In re. Maharaja Madhava Singh,
LR ( 1905) 31 IA 239 where the Judicial Committee in dealing with the
Commissioners appointed by the Viceroy and the Governor General-
in-Council for the purpose of enquiring into the truth of a certain
imputation against the Maharajah, observed:
E
"It.is sufficient to say that the Commission in question was
one appointed by the Viceroy himself for the information
of his own mind, in order that he should not act in his
political and sovereign character otherwise than in accord-
ance with the dictates of justice and equity, and was not in
any sense a Court, or, if a Court, was not a Court from F
which an appeal lies to His Majesty in Council."

The learned Judge rightly observed that the ratio decidendi in that case
was that the Commissioner were not a Court and held that the obser-
vations made by the Judicial Committee apply mutatis mutandis to a
Commission of Inquiry constituted under the Comrr.issions of Inquiry G
Act, and observed:

''The Commission in question was obviously appointed by
the State Government "for the information of its own
mind", in order that it should not act, in exercise of its
executive power, "otherwise than in accordance with the H
970 SUPREME COURT REPORTS (1988] Supp. 2 S.C.R.

A dictates of justice and equity" in ordering a departmental ,
enquiry against its officers. It was, therefore, a fact finding
body meant only to instruct the mind of the Government
without producing any document of a judicial nature. The
two cases are parallel, and the decision must be, as in- 'Jn
re Maharaja Madhava Singh, (D)', that the Commission
B was not a Court.

The term 'Court' has not been defined in the
Contempt of Courts Act, 1952. Its definition in the Indian
Evidence Act, 1872, is not exhaustive and is intended only
for purposes of the Act. The Contempt of Courts Act,
1952, however, does contemplate a 'Court of Justice' which
c as defined in S. 20, Penal Code, 1860 denotes 'a Judge who
is empowered by law to act judicially'. The word 'Judge' is
defined in Section 19 as denoting every person-

"Who is empowered by law to give in any legal pro-
D ceeding, civil or criminal, a definitive judgment, or a
judgment which, if not appealed against, would be
definitive, or a judgment which, if confirmed by some
other authority' would be definitive ..... ".

The minimum test of a 'Court of Justice', in the above
E definition, is,. therefore, the legal power to give a judgment
which, if confirmed by some other authority, would be
definitive. Such is the case with the Commission appointed
under the Public Servants (Inquiries) Act, 1850, whose
recommendations constitute a definitive judgment when
confirmed by the Government. This, however, is not the
F case with a Commission appointed under the Commissions
of Inquiry Act, 1952, whose findings are not contemplated
by law as liable at any stage to confirmation by any autho-
rity so as to assume the character of a final decision."

We are in agreement with these observations.
G
P.V. Dixit, CJ. speaking for himself and G.P. Singh, J. in
Puhupram & Ors. v. State of Madhya Pradesh & Ors.,. (1968] MPU
629 stated' the law thus:

"It. is not necessary to stress that the inquiry, which: the
Commission is going to hold, is not an inquiry by a civil or
B.W. HIRAY v. JUSTICE B. LANTJN [SEN, J.l 977

criminal Court and the proceedings thereof are not judicial
proceedings of a Court of law. [See: Chiman Singh v. State, A
AIR (1951) MB 44; M. V. Rajwade v. Dr. S.M. Hassan,
AIR (1954) Nag. 71 and Ram Krishna Dalmia v. Justice
Tendolkar, AIR. (1958) SC 538.] The decision just cited
point out what is "Court" and what are judicial proceed-
ings of a Court of law. Judged by the tests laid down in B
those decisions, there can be no doubt that the inquiry,

J which the Commission is going to held, is not a judicial
proceeding of a Court of law. The Commission has not
been asked to give a decision as to the respective rights and
liabilities of any person or to punish any wrong. In an
inquiry of this nature, there is no issue between parties for
the Commission to decide and no defendant or an accused c
person to be tried. There is no '!is'."

We are satisfied that the decision of the Nagpur High Court in
M. V. Rajwade's case and that of the Madhya Pradesh High Court in
Puhupram lay down the correct law. The least that is required of a D
Court is the capacity to delivery a 'definitive judgment', and merely
because the procedure adopted by it is of a legal character and it has
power to administer an oath will not impart to it the status of a Court.
That being so, it must be held that a Commission of Inquiry appointed
by the appropriate Government under s. 3(1) of the Commissions of
Inquiry Act is not a Court for the purposes of s. 195 of the Code. E

In conclusion, we wish to clarify th.at this judgment of ours will
not prevent the State Government from launching a prosecution
against the appellant for commission of the alleged offences under ss.
193 and 228 of the Indian Penal Code, 1860, if otherwise permissible in
~w. F

In the result, the appeal succeeds and is allowed. The judgment
and order passed by the High Court are set aside and the proceedings
pending in the Court of the Additional Chief Metropolitan Magistrate
at Esplanade,' Bombay in Criminal Case No. 1121(W) of 1987 against
the appellant for having committed alleged offences punishable under G
ss. 193 and 228 of the Indian Penal Code, 1860 on a complaint filed by
the Secretary to the Commission., are quashed.

R.S.S. Appeal allowed ..