The Right of Cross Examination in the Course of Proceedings of the Commission of Inquiry in India

Rules of natural justice require that a party against whom an allega­tion is being inquired into should be given a hear in. It is not correct to say that the right to the hearing includes a right to cross-examine.

The right to cross-examine must depend upon the circumstances of each case and must also depend on the statute under which the al­legation is being enquired into.

A statue permits a Commission of Inquiry to be set up for fact-finding purposes. The report of the Com­mission has no force preppie vigore. This aspect of the matter is im­portant in deciding the rules of natural justice reasonable in the proceedings of the Commission of Inquiry under the Act.

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Therefore, the rules of natural justice do not require that the person should have a right to cross-examine all persons who have sworn affidavits sup­porting the allegations made against him. Section 10 of the J. and K. Commission of Inquiry Act, 1962 gives a right to be heard but only a restricted right of cross-examination.

The latter right is confined only to the witness called to depose against the person demanding the right. So the Act does not contemplate a right of hearing to include a right to cross-examine.

It will be natural to think that the statute did not intend that in other cases a party appearing before the Commis­sion should have any further right of cross-examination.

Section 4 (c) of the Act lays down that the Commission shall have the power of a civil court while trying a suit under the Code of Civil Procedure, in respect of receiving evidence on affidavits. Order 19, R. 1, C.P.C. runs as follows:-

Power to order any point to be proved by affidavit any Court may, at any time, for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:

Provided that where it appears to the Court that either party bona fide desire the production of a witness for cross- examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.

It should be remembered that the inquiry before the Commission is a fact-finding inquiry. Further, 0. 19, R. 1, has to be read with 0. 18, R. 4 which states that the evidence of the witnesses in attendance shall be taken orally in open court.

Therefore, 0. 19, R. 1 intended as a sort of exception to the provisions contained in 0. 18, R. 4. The Act contains no provisions similar to 0. 18, R. 4. Therefore, when section 4(c) of the Act gives the Commission the power of receiving evidence on affidavit, it gives this as an independent power and not by way of an exception to the general rule of taking evidence viva voce in open court.

It would be natural in such circumstances to think that what the Act gives, is only the power to take evidence by af­fidavit and does not intend it to be subject to the proviso contained in 0. 19, R. 1. C.P.C. The number of witnesses swearing affidavits on the side of the Government may be very large.

The Act could not have intended that all of them had to be examined in open court and subject to cross-examination, for them proceedings of the Commis­sion would be interminable. There is no doubt that the act con­templates a quick disposal of the business before the Commission, for, otherwise, the object behind it may be defeated.

So section 4 (c) does not confer a right on a party appearing before the Commission to require a witness giving evidence by an affidavit to be produced for his cross-examination. The Commission would, of course, permit cross-examination in a case where it thinks this necessary. It has also to be remembered that the procedure before a body like the Commis­sion has necessarily to be flexible.