Kehar Singh and Ors. Vs. State (Delhi Administration)

Judges: B.C. Ray, G.L. Oza and K. Jagannatha Shetty, JJ.

Facts:

In June 1984, Mrs. Indira Gandhi (Prime Minister) has conducted an army operation named 'Operation Bluestar' in which the armed forces had entered the Golden Temple complex wiped off all the militants hidden in the temple. During the operation Akal Takht in the Golden Temple Complex got damaged, which offended the religious sentiments of Sikhs. The aggrieved Sikhs openly showed their resentment towards Mrs. Indira Gandhi and protested against her. On 31st October, 1984, Mrs. Indira Gandhi left her house at 9:10 A.M alongwith her staff. When Mrs. Indira Gandhi reached near TMC gate, the accused Beant Singh and Satwant Singh fired several rounds, due to which she got injured. She was rushed to AIIMS where she succumbed to her injuries. The accused/appellants, Kehar Singh, Balbir Singh and Satwant Singh were convicted under Section 302 read with Section 120B of Indian Penal Code, 1860 (IPC). The Satwant Singh was also charged under Section 27 of the Arms Act. All the three were sentenced to death under Section 302 read with Section 120B. The conviction and sentence of these appellants were confirmed by the High Court of Delhi. Hence, the present appeal.

The Trial in this case was held in Tihar Jail and the Additional Sessions Judge who tried the case was nominated by the High Court for trial which was objected by the Appellants.

Issues:

(i) Whether the notification issued by Delhi High Court under Section 9(6) of the Code of Criminal Procedure, 1973 deciding Tihar Jail as venue for trial valid?

(ii) Whether the trial being held in Tihar Jail is violative of Article 21 of the Constitution as ame cannot be considered as open and public trial?

(iii) Whether by preventing the accused from getting the papers of the Thakkar Commission, its report and statements of persons recorded, who are prosecution witnesses at the trial, the accused have been deprived of substantial material which could be used for their defence?

(iv) Whether the confession of accused Satwant Singh can be used as evidence against Accused?

Law:

Code of Criminal Procedure - Section 9(6) - The Court of Session shaft ordinarily hold its sitting at such place or places as the High Court may, by notification, specify but if, in any particular case, Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.

Constitution of India - Article 21 - No person shall be deprived of, his life or personal liberty except according to procedure established by law.

Evidence Act, 1872 - Section 10 - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the person believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.

Commission of Inquiry Act, 1952 - Section 6 - No statement made by any person in the course of giving evidence before the Commission shall subject him to, or be used against him in any civil or criminal proceedings except a prosecution for giving false evidence of such statement.

Contentions

Appellants

Under Article 21 of the Constitution, open and public trial is one of the constitutional guarantees of a fair and just trial and by holding the trial in the Tihar Jail this guarantee has been affected.

The accused have been deprived of a fair and open trial as contemplated under Section 327 of Cr.P.C. Under Section 327 Cr. P.C. it is only the trial Judge, the Sessions Judge who could for any special reasons hold the trial in camera or a part of the trial in camera but there is no authority conferred under that Section on the High Court to shift the trial in a place where it ultimately ceases to be an open trial.

The High Court does not have any power or authority to announce or to shift the trial of the criminal case at a place other than the normal seat or branch of the court of session. Section 9(6) of the CrPC does not specify the place for hearing of individual cases. This section does not confer any such authority on the High Court.

The terms of reference which were notified for the enquiry of the Thakkar Commission were more or less the same questions which fell for determination in this case and thus the appellants have been prejudiced as they could not avail of the material of Commission's report which they could use to build up their defence.

The High Court has misinterpreted the scope of Section 6 of the Commission of Inquiry Act. 1952.

The confession of Satwant Singh cannot be accused against accused.

Respondents

This Court in an appeal under Article 136 of the Constitution of India is not expected to interfere with the findings of facts arrived by the two courts below

If the High Court had the authority to issue notification fixing the place of sitting it was open to the High Court also to fix the place of sitting for a particular case.

Open and public trial is not a question of any constitutional right under Article 21 of Constitution. Article 21 only talks of procedure established by law and if today on the statute book there is Section 327, tomorrow Section 327 may be so amended that it may not be necessary for a criminal trial to be open and on this basis.

Analysis

Preliminary objection - Article 136 of the Constitution

(i) Where the High Court has reached conclusions based on partly inadmissible evidence and partly on circumstances which are not justified on the basis of evidence, or partly on facts which are not borne out from the evidence on record it cannot be contended that in an appeal under Article 136 this Court will not go into the facts of the case and come to its own conclusions. The case on hand is one of such cases and some of the findings of fact reached by the High Court could not be said to be such which are concurrent or conclusive. Thus, it is necessary to examine the evidence in this case.

Venue of Trial - Notification under Section 9(6) of Act

(i) Whatever be the terms of the notification, it is not disputed that it is a notification issued by the Delhi High Court under Section 9 Sub-clause (6) Cr.P.C. and thereunder the High Court could do nothing more or less than what it has the authority to do. Therefore, the said notification of the High Court could be taken to have notified that Tihar Jail is also one of the places of sitting of the Sessions Court in the Sessions division ordinarily. That means apart from the two places Tis Hazari and the New Delhi, the High Court by notification also notified Tihar Jail as one of the places where ordinarily a Sessions Court could hold its sittings. In this view of the matter, there is no error if the Sessions trial is held in Tihar Jail after such a notification has been issued by the High Court.

Open and Public Trial - Article 21 of Constitution and Section 327 of Cr.PC

(i) As per Section 327 of Cr.PC, any place where a criminal court holds its sitting for enquiry or trial shall be deemed to be an open court to which the public generally may have access, so far as the same can conveniently contain them. Thus, even if a trial is held in a private house or is held inside Jail or anywhere, it is deemed to be an open place and everyone who wants to go and attend the trial has a right to go and attend the trial except the only restriction contemplated is number of persons which could be contained in the premises where the Court sits.

(ii) It is not disputed that there is no material at all to suggest that anyone who wanted to attend the trial was prevented from so doing or one who wanted to go into the Court room was not allowed to do so. In absence of any such material on actual facts all legal arguments loses its significance.

(iii) No one could dispute that the procedure established by law as indicated in Article 21 of Constitution is as provided in Section 327 of Cr. PC in present case and unless on facts it is established that what is provided in Section 327 of Cr.PC was prevented or was not permitted, it could not be said that merely because trial was held at a particular place it could be said to be a trial which was not open to public.

Access to Thakar Commission Report and examination of witnesses

(i) On analysis of the provision of Section 6 of Commission of Inquiry Act, 1952, it will be found that there are restrictions on the use of a statement made by a witness before the Commission. First is "Shall subject him to ...any civil or criminal proceedings except a prosecution for giving false evidence by such statement." The second restriction, is spelt out from the words "or be used against him in any civil or criminal proceedings." Thus, on examination of these two restrictions it appears that a statement given in a Commission cannot be used to subject the witness to any civil or criminal proceedings nor it can be used against him in any civil or criminal proceedings.

(ii) A perusal of Sections 145, 155(3) and 157 of the Evidence Act clearly indicate that there are two purposes for which a previous statement of witnesses can be used. One is for cross examination and contradiction and the other is for corroboration. The first purpose is to discredit the witness by putting to him the earlier statement and contradicting him on that basis. So far as corroboration is concerned it could not be disputed that it is none of the purposes of the defence to corroborate the evidence on the basis of the previous statement. Section 145 of Evidence Act therefore is the main section under which relief was sought by the accused. The use for which the previous statement was asked for was to contradict him if necessary and if it was a contradiction then the earlier statement was necessary so that contradiction be put to the witness and that part of the statement can be proved.

(iii) Contradiction could be used either to impeach his credit or discredit him or to pull down or bring down the reliability of the witness. These purposes for which the previous statements are required could not be said to be purposes which were not against the witness. The two aspects of the restrictions which Section 6 of Act contemplates are the only two aspects which could be the result of the use of these statements. It is therefore clear that even a plain reading of Section 6 will prohibit the use of the previous statements at the trial either for the purposes of the cross examination to contradict the witness or to impeach his credit. Therefore, the relief of examination of witnesses rightly denied to the accused.

(iv) Further, the report of the Commission was also prayed for by Accused. The Counsel of accused, however, could not clearly suggest as to what use report of the Thakkar Commission could be to the accused in his defence. The report is a recommendation of the Commission for consideration of the Government. It is the opinion of the Commission based on the statements of witnesses and other material. It has no evidentiary value in the trial of the criminal case. The courts below were also justified in not summoning the reports.

Confession of Satwant Singh - Section 10 of Evidence Act

(i) There is no evidence at all to establish prima facie participation of accused Balbir Singh in conspiracy or any evidence to indicate that he had entered into any agreement to do an unlawful act or to commit an offence alongwith the other accused persons. Therefore, in absence of any evidence in respect of the first part of Section 10 which is necessary it could not be contended that the confession of Satwant Singh could be of any avail or could be used against Balbir Singh.

Conclusion:

(i) Satwant Singh: There is no evidence at all on the basis of which his conviction could be justified. He is therefore entitled to be acquitted.

(ii) Kehar Singh: There are many circumstantial evidences to establish that Kehar Singh was a co-conspirator to assassinate Mrs. Indira Gandhi.

(iii) Satwant Singh: Even if the confession of Appellant is not taken into consideration, still there is enough evidence which conclusively establish his part in the offence and in this view of the matter there appears to be no reason to interfere with the conclusions arrived at by the two courts below. In our opinion, therefore, the appeal of Satwant Singh deserves to be dismissed.

(iv) Appeals filed by accused Kehar Singh and Satwant Singh are dismissed. Conviction and sentence passed against them are maintained whereas Appeal filed by Balbir Singh is allowed. Conviction and sentence passed against him are set aside.

Important Precedents:

(i) Machhi Singh v. State of Punjab MANU/SC/0211/1983

(ii) Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar

(iii) Sahai Singh v. Empemr