Today the local news channels of Kerala have flashed the breaking news that the State Cabinet has appointed a retired District Judge as a Commission of Inquiry to go into the lapses in the investigation and prosecution of the Walayar case in which two juvenile girls who were allegedly ravished and subjected to sexual abuse repeatedly, committed suicide. The Sessions Court, after trial acquitted the accused persons who were charge sheeted by the Police.
2. There is no dispute that challenging the acquittal the State Government as well as the mother of the deceased girls have filed separate appeals before the Hon'ble High Court of Kerala and the same are pending. Since the Appellate Court in this case is the High Court, there cannot be any quarrel against the proposition that over and above the powers under Section 386 Cr.P.C., the High Court is entitled to suo motu exercise its powers also under Section 482 Cr.P.C. and Articles 226 and 227 of the Constitution of India. Nobody will dispute that the High Court, as a Constitutional Court, can not only order further investigation but also de novo investigation (re-investigation) and even investigation by another agency.
3. While matters stood thus, what was the expediency which prompted the Government to indulge in the wasteful exercise of appointing a Commission of Inquiry to make a Report about the investigation and prosecutional lapses at a time when the whole issue is sub judice before the High Court.
4. The final product of a Commission of Inquiry is its Report which is submitted to the Government.
5. The following judicial pronouncements are beyond any controversy?
1. A Commission of Inquiry is a fact finding body meant only to instruct the mind of the Government and it does not produce any document of a judicial nature. (vide Balakrishan Pillai v. State of Kerala 1988 (2) KLT 1039 (FB); Mohammed Haneefa v. State of Kerala 1988 (2) KLT 919; para 32 of Baliram v. Justice B. Lentin AIR 1988 SC 2267).
2. A Commission of Inquiry is a mere fact finding body. It has no adjudicatory functions and is not, therefore, required to adjudicate upon the rights of the parties. The Government is not bound to accept its recommendations or act upon its findings. (vide para 32 of Baliram v. Justice B. Lentin AIR 1988 SC 2267).
3. The Government are not bound to accept the recommendation of a Commission of Inquiry. Instances are not wanting when the Governments have completely rejected the Reports of such Inquiry Commissions, if those recommendations do not satisfy their views or ideologies. (vide para 12 of Niyamavedi v. C.B.I. 1999 (1) KLT 560 = 1999 KHC 138).
4. A Commission does not decide any dispute. There are no parties before the Commission. There is no lis. The Commission is not a Court except for a limited purpose. (vide para 237 of Kehar Singh v. State (Delhi Admn.) (1988) 3 SCC 609 = AIR 1988 SC 1883; Page 1045 of Balakrishan Pillai v. State of Kerala 1988 (2) KLT 1039 (FB); Mohammed Haneefa v. State of Kerala 1988 (2) KLT 919).
5. In a case where a Commission was headed by a sitting Supreme Court Judge, it was held that the Commission is not a Court or an extended arm of Court for the purpose of the Contempt of Courts Act. (vide Subramanian Swamy v. Arun Shourie AIR 2014 SC 3020).
6. The least that is required of a Court of Justice is the capacity to deliver a "definitive Judgment". Merely because the procedure adopted by a Commission of Inquiry is of a legal character and it has power to administer oath, it will not impart to the Commission the status of a Court. Paras 36 to 38 of Baliram v. Justice B. Lentin AIR 1988 SC 2267.
7. In view of this prohibition contained in Section 6 of the Commissions of Inquiry Act, 1952, statements made by a witness before the Commission cannot be used against or put to such witness in any civil or criminal proceedings except to prosecute him for giving false evidence. Consequently, copies of such statements cannot be supplied to the accused. The Report of the Commission cannot, therefore, be summoned by the Court since it has no evidentiary value in the trial of the case. (vide paras 39 and 40 of Kehar Singh v. State (Delhi Admn.) (1988) 3 SCC 609 = AIR 1988 SC 1883).
8. Statements made before a Commission of Inquiry cannot be used as evidence before any civil or criminal Court. It should logically follow that even the conclusions of the Commission based on such statements also cannot be used as evidence in any Court. (vide State Bank of India through General Manager v. National Housing Bank and Others AIR 2013 SC 3478 – 3 Judges).
a. Evidence before a Commission of Inquiry is inadmissible in any other civil or criminal proceedings whether the person who gives evidence is a party thereto or is only a witness therein. (vide State v. Satwant Singh 1987 Cri.L.J. 1157 (Delhi) – 3 Judges).
9. The civil or criminal Courts are not bound by the Report of findings of the Commission of Inquiry as they have to arrive at their own decision on the evidence placed before them in accordance with law. (vide paras 33 and 34 of T.T. Antony v. State of Kerala AIR 2001 SC 2637).
10. The contents of the Report of a fact finding committee cannot be admitted in evidence by a Special Court without independent proof of the facts. (vide Venkatakrishnan R. v. Central Bureau of Investigation (2009) 11 SCC 737 = AIR 2010 SC 1812).
6. When the above are the legal attributes of a Commission of Inquiry, it is not known as to who advised the Government to appoint a Commission of Inquiry for reporting the investigation and prosecution lapses in a case which is sub judice before the High Court of Kerala by way of separate criminal appeals filed by the Government of Kerala and the mother of the unfortunate girls.